Opinion
No. 38609
Decided April 29, 1964.
Habeas corpus — Not available to determine questions reviewable on appeal — Right of accused to transcript of testimony.
IN HABEAS CORPUS.
This is an action in habeas corpus originating in this court.
In the fall of 1959, petitioner, William Tinsley, was indicted for and pleaded guilty to unarmed robbery. In April 1961, petitioner was paroled. While on parole, petitioner was indicted by the Grand Jury of Cuyahoga County for an armed robbery occurring about the first of May 1961. In November 1961, petitioner, while represented by counsel, was tried to and found guilty by a jury of armed robbery and sentenced thereon to the penitentiary. On December 1, 1961, petitioner was declared a parole violator on his 1959 conviction.
Mr. William Tinsley, in propria persona. Mr. William B. Saxbe, attorney general, and Mr. William C. Baird, for respondent.
Petitioner in this action in habeas corpus is attacking only his 1961 conviction. He is attacking it not on the basis of any error in the trial court's jurisdiction or denial of his constitutional right in the trial but on a denial of his right to appeal.
Petitioner has filed motions for leave to appeal with the Court of Appeals and the Supreme Court of Ohio, which motions have been denied. A petition for a writ of certiorari to the Supreme Court of the United States was denied.
Petitioner's sole contention is that he was denied due process by the refusal of the trial court to furnish him a copy of the transcript of testimony.
An improper denial of a transcript of testimony is a question which can be raised on appeal. State v. Frato, 168 Ohio St. 281. It is, therefore, not cognizable in an action in habeas corpus. Page v. Green, Supt., 174 Ohio St. 178; and Parker v. Maxwell, Warden, 174 Ohio St. 471.
Petitioner remanded to custody.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.