Bauer v. Illinois State Prisoner Review Bd.

• Decision Date: 16 June 1986
• Docket Number: No. 84-2876,84-2876
• Parties: , 99 Ill.Dec. 342 Arthur BAUER, Petitioner-Appellant, v. ILLINOIS STATE PRISONER REVIEW BOARD, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

Page 1077

495 N.E.2d 1077

145 Ill.App.3d 442, 99 Ill.Dec. 342

Arthur BAUER, Petitioner-Appellant, v. ILLINOIS STATE PRISONER REVIEW BOARD, Respondent-Appellee.

No. 84-2876.

Appellate Court of Illinois,

First District, First Division.

June 16, 1986.

James J. Doherty, Public Defender, Chicago (Donald L. Bertelle, of counsel), for petitioner-appellant.

Richard M. Daley, State's Atty., Chicago (Joan S. Cherry and Mary Ellen Dienes, of counsel), for respondent-appellee.

Justice O'CONNOR delivered the opinion of the court:

Plaintiff Arthur Bauer, an inmate in an Arizona prison, appeals from the trial court's dismissal of his petition for habeas corpus which claimed that a parole violator warrant issued by Illinois parole authorities and lodged as a detainer with Arizona prison officials should be quashed because Illinois failed to give him a prompt parole violation hearing. We affirm.

In 1957, plaintiff was convicted of murder in Illinois and sentenced to imprisonment for 99 years. He was paroled by Illinois authorities in 1969. In 1972, while still on parole he was convicted of armed robbery and sentenced to prison in Arizona. Illinois subsequently filed a parole violation warrant with Arizona prison authorities as a "detainer" but it was not executed and plaintiff was not taken into custody by Illinois authorities on the parole violation charges. In 1975, plaintiff requested that Illinois lift the detainer against him. Illinois authorities refused and plaintiff filed a habeas corpus petition in the circuit court of Cook County. Illinois lifted its detainer and plaintiff withdrew his petition. However, Illinois did not formally discharge him from his parole.

Plaintiff was reincarcerated in Arizona on a new charge in 1981. Illinois again lodged a parole violator warrant as a detainer against him on the grounds that the new conviction in Arizona violated his parole on his 1957 murder conviction in Illinois. Plaintiff again asked the Illinois parole authorities to lift the detainer or hold a preliminary parole revocation hearing, but they refused to take any action on the detainer until plaintiff's Arizona sentence had been completed.

Plaintiff then filed the instant habeas corpus petition seeking to quash the parole violation warrant because the Illinois authorities refused to grant a parole revocation hearing. He claimed that his due process rights were violated by the denial of a hearing and by the fact that the unexecuted detainer warrant has adversely affected his eligibility for early parole in Arizona and rehabilitative programs.

Plaintiff concedes that the proper vehicle to secure a parole violation hearing is a petition for writ of mandamus. Nevertheless, he requests that his habeas corpus petition be treated as one for writ of mandamus under the liberal pleading rules applicable to civil actions such as this. (People ex rel. Lick v. Field (1973), 14 Ill.App.3d 305, 302 N.E.2d 389 (abstract of decision).) While the court below could have treated his petition as one for writ of mandamus, it was not required to do so. (See People ex rel. Lewis v. Frye (1969), 42 Ill.2d 58, 60, 245 N.E.2d 483, cert. denied, 396 U.S. 912, 90 S.Ct. 227, 24 L.Ed.2d 187.) And even if plaintiff's petition had been treated as a petition for writ of mandamus, plaintiff was not entitled to the relief requested.

Plaintiff asserts that he was denied due process by the failure of Illinois parole authorities to promptly conduct a parole violation hearing. Based on Moody v. Daggett (1976), 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236, we find that plaintiff was not denied due process. The defendant Moody was on parole from a Federal prison when he was imprisoned for a second crime in a different Federal prison. The government issued but did not execute a parole violator warrant, which was lodged with prison officials as a detainer. Moody made much the same arguments as plaintiff, namely: (1) the lack of prompt parole violation hearing violated his due process rights; (2) the issuance of an unexecuted parole violator warrant infringed upon protected liberty interests by retarding his parole elegibility on the intervening convictions and by adversely affecting his prison classification status.

The Supreme Court in Moody effectively disposed of the first argument by holding that no due process right to a parole violation hearing arises by the mere issuance of a parole violator warrant that is lodged as a detainer. (429 U.S. 78, 87, 97 S.Ct. 274, 278.) Because the prisoner was lawfully in custody on the intervening convictions and not as a result of the parole violation charges, the warrant did not trigger a loss of liberty giving rise to a right to a prompt parole violation hearing until it was executed and the prisoner taken into custody under that warrant. (429 U.S. 78, 87, 97 S.Ct. 274, 278.) The fact that many years may pass between the issuance and the execution of the parole violator warrant did not justify a prompt hearing because the court determined that "[g]iven the predictive nature of the hearing it is appropriate that such hearing be held at the time at which prediction is both most relevant and most accurate--at the expiration of the parolee's sentence." 429 U.S. 78, 89, 97 S.Ct. 274, 280.

In the case at bar the parole violator warrant was merely issued and lodged as a detainer with Arizona prison authorities. It was not executed. Under Moody, therefore, plaintiff has no due process right to a prompt hearing until he is taken into custody under the warrant at the completion of his Arizona sentence.

In Moody the court also rejected the contention that the issuance of a parole violator warrant, without more, unconditionally diminishes his opportunity for parole on the intervening sentence. In Moody, however, the same governmental body considered whether to grant Moody's new petition for parole sentence and whether to revoke his prior parole due to the intervening conviction. (429 U.S. 78, 88, 97 S.Ct. 274, 279.) The Moody court refused to consider whether its decision would change if different and autonomous parole authorities were involved. 429 U.S. 78, 88, 97 S.Ct....