U.S. ex rel. Williams v. Morris

• Decision Date: 17 April 1979
• Docket Number: 78-1323 and 78-1380,Nos. 78-1321,78-1322,s. 78-1321
• Citation: 594 F.2d 614
• Parties: UNITED STATES of America ex rel. Lawrence WILLIAMS, Oscar Southall, Bernard May and Emanuel Williams, Petitioners-Appellees, v. Ernest MORRIS, Warden, Stateville Correctional Center, Thaddeus E. Pinkney, Warden, Pontiac Correctional Center, and People of the State of Illinois, Respondents-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 614

594 F.2d 614

UNITED STATES of America ex rel. Lawrence WILLIAMS, Oscar

Southall, Bernard May and Emanuel Williams, Petitioners-Appellees, v. Ernest MORRIS, Warden, Stateville Correctional Center, Thaddeus E. Pinkney, Warden, Pontiac Correctional

Center, and People of the State of

Illinois, Respondents-Appellants.

Nos. 78-1321, 78-1322, 78-1323 and 78-1380.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 3, 1978.

Decided March 13, 1979.

As Amended March 28, 1979.

Rehearing and Rehearing En Banc Denied April 17, 1979.

Michael B. Weinstein, Asst. Atty. Gen., Chicago, Ill., for respondents-appellants.

Martha M. Jenkins, Chicago, Ill., for petitioners-appellees.

Before SPRECHER, BAUER and WOOD, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Four habeas corpus petitions arising out of pleas of guilty in accordance with plea agreements in state prosecutions have been consolidated on appeal. Judge Marshall granted the writs as to petitioners Lawrence Williams, Oscar Southall and Emanuel Williams. ¹ Judge Flaum granted the writ as to petitioner Bernard May.

In the case of each petitioner a plea agreement was judicially accepted in which there was no mention of a statutory parole period required to be added to a term of imprisonment imposed for a felony conviction. ² Likewise, in none of the cases did the state trial court at the time of the acceptance of the agreed plea specifically advise any petitioner of the mandatory parole addition to the sentence agreed to, or make any inquiry or determination of any petitioner's awareness of the requirement. Subsequently during the mandatory parole terms each petitioner violated parole which resulted in additional incarceration.

During the pendency of these proceedings changes of status occurred as to each petitioner. Three of the petitioners, May, Lawrence Williams, and Emanuel Williams, completed their entire sentences including the additional parole period. Petitioner Southall was discharged by state authorities in compliance with the order of the federal district court prior to the expiration of the additional parole period. At the request of this court the parties were asked to submit supplemental briefs on the issue of mootness. Petitioners and respondents are in agreement that none of the cases is moot. This court is of the same view. In the case of petitioner Southall, his unexpired mandatory parole term which extends beyond the date of this opinion might be reinstated. As to the other three petitioners no longer subject to the control of respondents, there remain collateral consequences which might have lingering effects since all were found guilty of violations of the mandatory parole. Those violations would remain upon their records with various possible adverse consequences. The situation is similar in principle to that considered in Carafas v. LaValle, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). Further, we recognize that the issue raised is capable of repetition, yet may continue to evade review. Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911). It is obvious that because of the short terms often remaining in the mandatory parole terms that the same issue may be expected to be raised as to other petitioners similarly situated with doubtful expectations of resolution.

First, in each instance the respondents seek to find in the individual records some implication that might be viewed as satisfying the constitutional requirement found to exist in these circumstances in United States ex rel. Baker v. Finkbeiner, 551 F.2d 180 (7th Cir. 1977), Cert. denied, 435 U.S. 932, 98 S.Ct. 1508, 55 L.Ed.2d 530. See also United States ex rel. Ferris v. Finkbeiner, 551 F.2d 185 (7th Cir. 1977). In view of our disposition of this case, we need not reach that issue, nor the issue of whether or not Baker should be given retroactive application.

The controlling issue in our view is the application of 28 U.S.C. § 2254(b) and (c) requiring exhaustion of state remedies or a showing that those remedies are ineffective. ³ Picard v. Connor, 404 U.S 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Baldwin v. Lewis, 442 F.2d 29, 34-35 (7th Cir. 1971). Both district courts held that either there was no available state remedy or that it would be a futile exercise. In our view, petitioners failed in proving compliance with the exhaustion requirement or its futility. 442 F.2d at 35. We, however, believe there is a state remedy and are not so pessimistic about the consideration of this problem by the state courts of Illinois.

In our desire to resolve these problems affecting state prisoners, we must not lose sight of some fundamental considerations. In Ex parte Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 740, 29 L.Ed. 868 (1886), the first case to introduce the exhaustion doctrine before it became a statutory requirement, we were advised that our discretion in the exercise of federal habeas corpus power "should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the States, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution." The court further made it the duty of all courts, federal and state, to follow principles and procedures to conciliate their independent tribunals in cooperation and harmony under the same Constitution. Id. at 252. 117 U.S. at 252, 6 S.Ct. 734. Age has not exhausted these underlying considerations of the exhaustion policy. The exhaustion requirement remains a "strong policy." Preiser v. Rodriguez, 411 U.S. 475, 490, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).

The Attorney General of Illinois directs our attention to the Illinois Post-Conviction Hearing Act, Ill.Rev.Stat., 1975, ch. 38, § 122-1, Et seq., as a state remedy available to all four petitioners. As none of the petitioners took direct appeals from their convictions, there is no issue of res judicata or waiver under the state rule. United States ex rel. Williams v. Brantley, 502 F.2d 1383, 1387 (7th Cir. 1974).

It is furthermore pointed out by the Attorney General that the Illinois Habeas Corpus Act, Ill.Rev.Stat., 1975, ch. 65, §§ 21(2) and 22(2) is available to all petitioners except May, as the other three have not attempted to avail themselves of that possible relief. ⁴ This state remedy is not unavailable merely because petitioners have already served the maximum sentence imposed. Eisen v. Zimmer, 254 Ill. 43, 98 N.E. 285 (1912); People ex rel. Harper v. Brantley, 34 Ill.App.3d 807, 341 N.E.2d 126, 127 (5th Dist.1975).

The Illinois Attorney General further argues that the courts in Illinois have not had an adequate opportunity to consider this court's 1977 decisions in Baker and Ferris and admonishes us that it "would seem somewhat presumptuous for this Court to conclude, as did the District Court, that based upon cases decided prior to Baker, Illinois courts would continue to dismiss claims raised after the Baker decision. In effect, this Court," the Attorney General argues, "would be put in the position of concluding that Illinois courts will doggedly insist that mandatory parole admonishments are not of a constitutional nature." We will consider the status of this issue under current Illinois law before presuming to be presumptuous as to the futility of seeking relief in the state courts. It would be "unseemly" as well. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971).

During the period 1973 to 1975, all petitioners entered their pleas of guilty. At that time, as it does now, Illinois Supreme Court Rule 402 provided that in accepting pleas of guilty the court was required to inform the defendant, among other things, of the maximum sentence prescribed by law and to determine that the plea was being voluntarily made. ⁵

Thereafter, on May 19, 1975, after the last of petitioners had entered his guilty plea the Supreme Court of Illinois decided People v. Wills, 61 Ill.2d 105, 330 N.E.2d 505 (1975), followed by a supplemental opinion on June 30, 1975. We must analyze those opinions to determine whether "the federal claim has been fairly presented to the state courts." Picard, supra at 275, 92 S.Ct. at 512. In Wills, the defendant claimed that at the time of his plea he was not admonished as to the mandatory parole provision. The appellate court found that the mandatory parole provision of the state statute was unconstitutional so that any failure to admonish defendant could not be error. In the Supreme Court of Illinois the defendant took the position that the act was constitutional but that his admonishment was insufficient. However, the Public Defender of Cook County, as amicus curiae, argued that the appellate court should be affirmed on the constitutional basis. The Supreme Court avoided the constitutional issue, and reversing People v. Krantz, 58 Ill.2d 187, 195, 317 N.E.2d 559 (1974), held that a defendant must be admonished about mandatory parole. Reversal was not required, the court found, because in that particular case other concurrent sentences imposed on defendant in which there was no failure to admonish were greater than the one in which the failure occurred. Upon the denial of petitions for rehearing the court elaborated on its prior opinion. On rehearing the defendant contended that as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1968), he did not enter his plea "knowingly and voluntarily." The court concluded that the failure to admonish was a factor to be considered in determining voluntariness, but found that the record indicated an intelligent and voluntary entry of the plea. The court went on to make the holding requiring admonishment to be prospective only, not retroactive, using the same criteria previously established...