Allen v. Wingo

PALMORE, Judge. Gilbert W. Allen appeals from a final order of the Lyon Circuit Court dismissing his petition for habeas corpus against the warden of the Kentucky State Penitentiary. He alleged in substance that he was being held illegally pursuant to a revocation of parole that was invalid because he had not been given a hearing as required by KRS 439.440 until 40 days after his return to prison, whereas the statute directs that the hearing be had within 30 days, and because he had not been afforded the assistance of counsel at the hearing. For the reasons set forth in Mahan v. Buchanan, 310 Ky. 832, 221 S.W.2d 945, 947 (1949) and its supporting authorities, mandamus is the only proper remedy for an abuse of authority by the parole board in connection with a re-arrest and revocation of parole. See also Wingo v. Lyons, Ky., 432 S.W.2d 821 (1968). The judgment is affirmed. All concur.