Toney v. Franzen

• Decision Date: 30 August 1982
• Docket Number: No. 80-2617,80-2617
• Parties: Alvin P. TONEY, Petitioner-Appellee, v. Gayle M. FRANZEN, et al., Respondents-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1016

687 F.2d 1016

Alvin P. TONEY, Petitioner-Appellee, v. Gayle M. FRANZEN, et al., Respondents-Appellants.

No. 80-2617.

United States Court of Appeals,

Seventh Circuit.

Argued Oct. 28, 1981.

Decided Aug. 30, 1982.

Randell S. Morgan, Strock & Kinate, Ltd., Pontiac, Ill., for petitioner-appellee.

Michael V. Accettura, Springfield, Ill., for respondents-appellants.

Before BAUER and WOOD, Circuit Judges, and CAMPBELL, Senior District Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

Petitioner filed for a writ of habeas corpus in federal court alleging that his period of incarceration has exceeded the term of his sentence. The district court agreed and granted the writ. On appeal respondents contend that petitioner failed to exhaust state remedies as required by 28 U.S.C. § 2254(b). We affirm.

I

On March 2, 1976, petitioner was arrested on armed robbery and other charges of which he later was convicted and sentenced by the Circuit Court of Cook County, Illinois to serve a prison term of seven years to seven years and one day. While in custody, he pleaded guilty to a previously pending charge of attempted murder. The Circuit Court of Cook County, per Judge Garippo, entered an order dated September 24, 1979 sentencing petitioner to ten years for that offense with 2 years and 252 days credit for various time served in the county jail since his initial arrest on that charge in 1973. ¹ Although unstated in the mittimus, the ten-year sentence was to run concurrently with petitioner's armed robbery sentence. See Ill.Rev.Stat. ch. 38, § 1005-8-4(a) (1978). In March 1980, petitioner's sentence on the armed robbery conviction expired.

Effective February 1, 1978, Illinois changed its system of awarding good conduct credit. The new law abolished the former system of combined statutory and compensatory good conduct credit, and in lieu thereof provided that "the prisoner shall receive one day of good conduct credit for each day of service in prison" and that "(e)ach day of good conduct credit shall reduce by one day the inmate's period of incarceration set by the court." Ill.Rev.Stat. ch. 38, § 1003-6-3(a)(2) (1979). In Johnson v. Franzen, 77 Ill.2d 513, 34 Ill.Dec. 153, 397 N.E.2d 825 (1979), the Illinois Supreme Court held that a prisoner serving an indeterminate sentence on February 1, 1978 was entitled under the new law to day-for-day credit for time served after that date. The court also stated that "the new system applies to both determinate and indeterminate sentences." Id. at 518, 34 Ill.Dec. 153, 397 N.E.2d 825.

In April 1980, petitioner sought a writ of habeas corpus in the Circuit Court of Livingston County, Illinois, alleging that his ten-year sentence had expired and seeking release from custody. Petitioner claimed that he was entitled to day-for-day good conduct credit in the amount of five years (one-half of his ten-year sentence) and credit for time previously served on his armed robbery conviction. Construing that petition as seeking a writ of mandamus, ² the court held that the Department of Corrections was "required by law to recompute each prison inmate's good time on a day-for-day formula after February 1, 1978," and issued a mandamus order to that effect. The court, however, did not determine petitioner's release date and whether petitioner had been awarded adequate credit for time previously served in the county jail and on the concurrent sentence. Respondents received that order but concluded that it did not apply "inasmuch as Johnson v. Franzen applies only to indeterminate sentences." Brief for Respondents at 7a.

On June 12, 1980, petitioner sought habeas corpus relief in federal district court. Respondents strenuously objected to the court's "jurisdiction," arguing that petitioner had failed to exhaust available remedies in the proceedings which he commenced in the Circuit Court of Livingston County. Respondents also argued that, based on their interpretation of a corrected mittimus issued by petitioner's sentencing court on July 15, 1980, ³ petitioner's mandatory supervised release date was not until March 2, 1981. ⁴ Rejecting both arguments, the district court found that petitioner was entitled to release on mandatory supervised parole and granted the writ. ⁵

II

The exhaustion issue here has an unusual twist in that the state mandamus court did not adjudicate petitioner's entire claim and, to the extent it did rule, entered an order in favor of petitioner. Respondents' sole contention is that the exhaustion rule requires petitioner to return to the mandamus court and "complete" the proceedings. Respondents argue that petitioner must enforce the mandamus order by seeking a rule to show cause why respondents should not be held in contempt and, presumably, move the court to revise its judgment in order to obtain a complete adjudication of the issues. We assume that these procedures are available to petitioner. ⁶

A

In 28 U.S.C. § 2254(b), Congress codified the principle, well-settled since Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), that a state prisoner must exhaust available state remedies before a federal district court may grant his petition for habeas corpus relief. See Rose v. Lundy, --- U.S. ----, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The exhaustion doctrine is firmly rooted in considerations of federal-state comity:

The exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings. Under our federal system, the federal and state "courts (are) equally bound to guard and protect rights secured by the Constitution." Because "it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation," federal courts apply the doctrine of comity, which "teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter."

Rose v. Lundy, at ----, 102 S.Ct. at 1203 (citations omitted). Those concerns apply regardless of whether the petitioner seeks review of his conviction or internal prison administration. Preiser v. Rodriguez, 411 U.S. 475, 492, 93 S.Ct. 1827, 1837, 36 L.Ed.2d 439 (1973).

The exhaustion requirement of 28 U.S.C. § 2254(b), however, is not a blind abdication of federal power but "reflects a careful balance between important interests of federalism and the need to preserve the writ as a 'swift and imperative remedy in all cases of illegal restraint or confinement.' " Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 490, 93 S.Ct. 1123, 1127, 35 L.Ed.2d 443 (1973). Recognized exceptions aside, ⁷ federal concerns of comity are satisfied if the State was given a fair opportunity to address the federal constitutional issue. Exhaustion does not require a prisoner to file repetitious applications in the state courts, Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 408, 30 L.Ed.2d 418 (1971); Brown v. Allen, 344 U.S. 443, 449 n.3, 73 S.Ct. 397, 403 n.3, 97 L.Ed. 469 (1953); nor does the mere possibility of success in additional proceedings bar federal habeas corpus relief, Francisco v. Gathright, 419 U.S. 59, 95 S.Ct. 257, 42 L.Ed.2d 226 (1974); Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967). Similarly, in Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971), the Supreme Court held that "once a federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied." The Court reaffirmed the "fair opportunity" concept in Smith v. Digmon, 434 U.S. 332, 333, 98 S.Ct. 597, 598, 54 L.Ed.2d 582 (1978), by declaring that "(i)t is too obvious to merit extended discussion that whether the exhaustion requirement of 28 U.S.C. § 2254(b) has been satisfied cannot turn on whether a state appellate court chooses to ignore in its opinion a federal constitutional claim squarely raised in the petitioner's brief in the state court...." The Court did not require the petitioner to pursue available procedures to present the question to the state court a second time. The rule of exhaustion thus requires only that States be given "the initial 'opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." Wilwording, 404 U.S. at 250, 92 S.Ct. at 408. This includes an opportunity for review by the highest court in the state. See Brown, supra; Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982).

B

Petitioner pursued the proper state remedy and "fairly presented" his claims. A petition for a writ of mandamus in state court must be exhausted where that procedure was designed to protect the rights asserted. United States ex rel. MacBlain v. Burke, 200 F.2d 616, 618 (3d Cir. 1952); see also Brown v. Estelle, 530 F.2d 1280, 1283 (5th Cir. 1976). Under Illinois law, mandamus is clearly the appropriate procedure to compel the Department of Corrections to set petitioner's mandatory release date in accordance with law. People ex rel. Abner v. Kinney, 30 Ill.2d 201, 195 N.E.2d 651 (1964).

A federal habeas corpus petitioner has "fairly presented" a claim to a state court if he has clearly informed the state court of the factual basis of that claim and has argued to the state court that those facts constituted a violation of the petitioner's federal constitutional rights. See Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981); Moore v. Duckworth, 581 F.2d 639, 642-45 (7th Cir. 1978), aff'd, 443 U.S. 713, 99 S.Ct. 3088, 61 L.Ed.2d 865 (1979). It is sufficient that the "substantial equivalent" or "substance" of the federal habeas corpus claim has been presented. Picard, 404 U.S. at 278, 92 S.Ct. at 513. Concerns of federal-state comity, however, favor a cautious...