U.S. ex rel. Johnson v. McGinnis

• Decision Date: 06 June 1984
• Docket Number: No. 83-2940,83-2940
• Parties: UNITED STATES of America ex rel. Leon JOHNSON, Petitioner-Appellee, v. Kenneth McGINNIS, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1193

734 F.2d 1193

UNITED STATES of America ex rel. Leon JOHNSON, Petitioner-Appellee, v. Kenneth McGINNIS, Respondent-Appellant.

No. 83-2940.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 8, 1984.

Decided May 14, 1984.

As Amended June 6, 1984.

Stephen P. Carponelli, Carponelli, Krug, Adamski & Goodstein, Chicago, Ill., for petitioner-appellee.

Marcia L. Friedl, Office of Ill. Atty. Gen., Chicago, Ill., for respondent-appellant.

Before WOOD and POSNER, Circuit Judges, and REYNOLDS, Chief District Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

Petitioner filed for a writ of habeas corpus in federal district court alleging that the Illinois Prisoner Review Board violated his due process rights by failing to provide him with an adequate statement of its reasons for denying him parole. The district court agreed and granted the writ. United States ex rel. Johnson v. McGinnis, 571 F.Supp. 270 (N.D.Ill.1983). On appeal, respondent contends that petitioner has failed to exhaust state court remedies as required by 28 U.S.C. Sec. 2254(b) (1976) and that the district court erred in finding for petitioner on the merits. Because we agree with respondent that petitioner should have first sought relief on his due process claim in an Illinois mandamus action, we reverse.

I.

Petitioner was convicted in Illinois of two counts of murder and sentenced on May 7, 1971, to 40 to 100 years imprisonment. On November 25, 1982, the Illinois Prisoner Review Board ("the Board") denied petitioner's fourth application for parole. Petitioner sought review of this denial by filing a pro se petition for a writ of habeas corpus in federal court on February 25, 1983, challenging the Board's rationale for his parole denial as violative of the due process and ex post facto clauses of the Constitution. As the basis for these claims, petitioner relied on two of our decisions interpreting the Illinois parole release statute, enacted in 1972 and effective January 1, 1973, which provides that parole can be denied if at least one of the three statutory criteria exists, and, that if denied, the denial must state the reasons for the Board's decision. Ill.Rev.Stat. ch. 38, Secs. 1003-3-5(c) & (f) and 1003-5-1(b). ¹ In the first of our decisions, Welsh v. Mizell, 668 F.2d 328 (7th Cir.), cert. denied, 459 U.S. 923, 103 S.Ct. 235, 74 L.Ed.2d 186 (1982), we held that it was inappropriate for the Board to apply the second criterion (providing that parole had to be denied if the prisoner's release at that time "would deprecate the seriousness of his offense or promote disrespect for the law," Ill.Rev.Stat. ch. 38, Sec. 1003-3-5(c)), since that was a marked departure from previous practice and would therefore violate the ex post facto clause. ² Shortly thereafter, in United States ex rel. Scott v. Illinois Parole and Pardon Board, 669 F.2d 1185 (7th Cir.), cert. denied, 459 U.S. 1048, 103 S.Ct. 468, 74 L.Ed.2d 617 (1982), we found that the parole release statute created a legitimate expectation that an eligible inmate was to be paroled unless one of the three specified grounds for denial was found to exist and that the statute thus spawned a constitutional liberty interest entitled to due process protection. We held that to satisfy minimal due process requirements, the Board must provide the inmate with an adequate statement of reasons why his or her request for parole has been denied. Relying on these decisions, petitioner sought a new Board hearing and a constitutionally adequate statement of reasons if the Board should again deny him parole.

While the federal habeas corpus proceeding was pending, petitioner's parole application was again heard and denied on May 19, 1983. In its report on the denial of parole to petitioner, the Board checked the box on its official preprinted form indicating "Parole denied, continued to 5/84 " (the date having been written in on the blank line). The words "Rationale to follow" also appeared on the form, and a separate sheet stating the rationale for the Board's decision was attached:

The Prisoner Review Board panel, in addition to conducting a face-to-face interview with Mr. Johnson, carefully reviewed all the materials in his file including, but not limited to, the official statement of fact, institutional adjustment, and parole plans.

Mr. Johnson is serving a 40-100 years sentence for the murder of two young men aged 14 and 17. According to the official statement of facts, both victims were executed in an alley, one by pistol wounds to the head and shotgun wound in the side, and the other by pistol wounds.

Parole plans were noted by the Panel. Mr. Johnson has received no disciplinary reports since his last appearance before the Board in November, 1982. He has recently been assigned to the Officers' Kitchen.

The Prisoner Review Board panel decides that further incarceration is needed to insure Mr. Johnson's continuing institutional stability and to therefore enhance the likelihood of his conforming to parole conditions and non-violent behavior in the free community. Parole is denied and case continued to May, 1984.

571 F.Supp. at 272-73.

Petitioner reasserted his constitutional challenge to this denial. He argued that the May 19th parole denial failed to comport with the due process requirements articulated in Scott and violated the ex post facto clause in light of Welsh. Petitioner moved to dismiss or for summary judgment. The motion was opposed by respondent on the ground that petitioner had not exhausted his state remedies (because he had not petitioned the Illinois courts for a writ of mandamus) and on the merits. The district court rejected respondent's arguments and found for petitioner. 571 F.Supp. at 279-82. The court's final amended order required the Board to conduct a parole hearing by December 16, 1983. Respondent appealed to this court and then moved the district court to stay its order. The motion to stay was carefully considered and denied by the district court on December 12, 1983. We granted an emergency stay on December 13, 1983, the day before rehearing was scheduled to take place.

II.

The federal statute concerning habeas corpus jurisdiction on the federal courts requires that the district court dismiss a petition containing any claims that have not been exhausted in the state courts. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) (interpreting 28 U.S.C. Sec. 2254 (1976) ³). The statute does not merely define a procedural requirement for habeas corpus relief, but codifies 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 on the matter.' " Rose v. Lundy, 455 U.S. at 518, 102 S.Ct. at 1203 (quoting Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950)). The exhaustion requirement not only "serves to minimize friction between our federal and state systems of justice," Duckworth v. Serrano, 454 U.S. 1, 2, 102 S.Ct. 18, 19, 70 L.Ed.2d 1 (1981) (per curiam), but allows state courts to "become increasingly familiar with and hospitable toward federal constitutional issues." Rose v. Lundy, 455 U.S. at 519, 102 S.Ct. at 1203.

The exhaustion requirement of section 2254 refers only to state remedies still available at the time the federal petition is filed. Engle v. Isaac, 456 U.S. 107, 125 n. 28, 102 S.Ct. 1558, 1570 n. 28, 71 L.Ed.2d 783 (1982). Moreover, the statute provides an exception to the exhaustion requirement if "there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner." 28 U.S.C. Sec. 2254(b) (1976). We have held that "[a] petition for a writ of mandamus in a state court must be exhausted where that proceeding was designed to protect the rights asserted [in the federal habeas corpus petition]." Toney v. Franzen, 687 F.2d 1016, 1021 (7th Cir.1982) (citations omitted). The issue here, then, is whether a state mandamus remedy is available to and must be exhausted by the petitioner.

In Judge Shadur's initial order of August 31, 1983, ⁴ he concluded that the mandamus remedy is available under Illinois law only to a petitioner who has established a clear right to have a public official perform an unquestioned duty. 571 F.Supp. at 273. Because of the nature of the mandamus remedy, Judge Shadur reasoned that if respondent asserted that mandamus were available to petitioner for purposes of the exhaustion requirement, then as a matter of law respondent also was conceding that petitioner's claim had merit. Accordingly, Judge Shadur directed respondent to inform the court whether petitioner would be given a new parole hearing. Respondent later reported to Judge Shadur that he did not acknowledge the merits of petitioner's claim and believed he had not done so by suggesting that petitioner was required to pursue the mandamus remedy in state court. In light of respondent's "retreat[ ] from the logical consequences of his 'availability' argument," id. at 279, Judge Shadur went on to conclude that because petitioner's ex post facto claim would surely be denied by the Illinois courts ⁵ and because no "direct precedent" existed under Illinois law stating that mandamus would lie to remedy petitioner's due process claim, exhaustion was not required. Id. at 280.

We disagree with Judge Shadur's initial contention that there was an "inherent anomaly" in the advancement of respondent's legal argument that mandamus is "available" in the present circumstances. Certainly Judge Shadur was correct in pointing out the logical inconsistency in respondent's argument, but the legal issue is whether an Illinois court would entertain the merits of petitioner's claim in a mandamus proceeding, not whether it would grant relief. United States ex...