United States ex rel. Johnson v. Klincar

• Decision Date: 16 March 1983
• Docket Number: No. 82 C 7036.,82 C 7036.
• Citation: 572 F. Supp. 924
• Parties: UNITED STATES of America ex rel. Milton JOHNSON, Petitioner, v. Paul J. KLINCAR, Acting Chairman, Illinois Prisoner Review Board, Respondent.
• Court: U.S. District Court — Northern District of Illinois

572 F. Supp. 924

UNITED STATES of America ex rel. Milton JOHNSON, Petitioner, v. Paul J. KLINCAR, Acting Chairman, Illinois Prisoner Review Board, Respondent.

No. 82 C 7036.

United States District Court, N.D. Illinois, E.D.

March 16, 1983.

Milton Johnson pro se.

Tyrone C. Fahner, Atty. Gen., Michael Weinstein, Asst. Atty. Gen., Chicago, Ill., for defendant.

ORDER

ROSZKOWSKI, District Judge.

Before the court is respondent's motion to dismiss petitioner Johnson's Petition for a Writ of Habeas Corpus. This court has jurisdiction pursuant to 28 U.S.C. § 2241. For the reasons set forth below, the motion to dismiss is granted, without prejudice, and with leave to reinstate once petitioner has exhausted his state remedies by seeking a writ of mandamus in the state courts.

Johnson seeks habeas relief on the grounds that the denial of his parole violated the ex post facto clause, due process, and equal protection. The state has moved to dismiss on the grounds that petitioner has failed to exhaust available state remedies with respect to his due process claim that the state failed to comply with the requirements of Chapter 38, § 1003-5-1(b) of the Illinois statutes.

The state argues that Johnson could have sought a writ of mandamus in the state courts to compel the parole board to state the factual information relief upon by the board in making its determination. Chapter 38, § 1003-5-1(b) of the Illinois statutes read as follows:

If the Department or the Prisoner Review Board makes a determination under the Code which affects the length of the period of confinement or commitment, the committed person and his counsel shall be advised of factual information relied upon by the Department or Board to make the determination....

The state alleges that mandamus is available to require the parole board to comply with this procedural mandate.

The policy behind the exhaustion requirement was recently set forth in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). In that case the Court held that a district court must dismiss "mixed petitions" containing both exhausted and unexhausted claims. The Court explained that the principle of comity underlies the exhaustion requirement.

"The exhaustion requirement is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Id. 102 S.Ct. at 1203.

The Court also cited Duckworth v. Serrano, 454 U.S. 1, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981), wherein the Court stated that the exhaustion requirement

"serves to minimize friction between our federal and state systems of justice by allowing the state an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights. citations omitted. An exception is made only if there is no opportunity to obtain redress in state court or if the corrective process is so clearly deficient as to render futile any effort to obtain relief."

This principle of limiting federal interference to circumstances in which it is necessary to protect federal rights guides this court in determining whether or not petitioner has exhausted his state remedies.

The exhaustion requirement does not, however, erect "insuperable or successive barriers to the invocation of federal habeas corpus." Wilwording v. Swenson, 404 U.S. 249, 252, 92 S.Ct. 407, 409, 30 L.Ed.2d 418 (1971). Nor does the "mere possibility of success in additional proceedings bar federal relief." Id. at 252, 92 S.Ct. at 409. The exhaustion requirement is "merely an accommodation of our federal system designed to give the State an initial `opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." Id. at 252, 92 S.Ct. at 409. The policy reason for so limiting the exhaustion requirement is to ensure that prisoners' substantive federal rights are not strangled by endless procedures without a reasonable prospect for relief. Justice delayed may be justice denied.

The writ of mandamus is generally held to be an extraordinary remedy. People ex rel. Cantu v. School Directors, 58 Ill.App.2d 282, 208 N.E.2d 301 (1965); People ex rel. Hoagland v. Streeper, 12 Ill.2d 204, 145 N.E.2d 625 (1957). One seeking the writ must show a clear right to it. Wilson v. Board of Education, 394 Ill. 197, 68 N.E.2d 257 (1946).

Absent authority demonstrating the availability of mandamus as a remedy, the fact that the remedy is unusual and extraordinary would require this court to hold that it need not be pursued to meet the exhaustion requirement. There is, however, authority indicating that mandamus is available in situations similar to the case at bar. In People ex rel. Abner v. Kinney, 30 Ill.2d 201, 195 N.E.2d 651 (1964), the Illinois Supreme Court held that mandamus was an appropriate remedy to compel the Illinois parole board to grant a prisoner eligible for parole a hearing to determine whether he should be released on parole. In so holding, the Court said:

"The first Illinois Parole Act was passed in 1885; its constitutionality was upheld several years later in 1897, citation omitted. That act and all subsequent parole acts contain provisions relating to procedures before the Board, including the time for eligibility to apply for parole. These provisions have always been viewed as creating mandatory duties on the Board." (emphasis added). Id. 195 N.E.2d at 653-54.

It would seem that the requirement that the parole board provide the committed person and his counsel with the "factual information relied upon ... to make the parole determination" is one of the procedures which the board is under a mandatory duty to follow. As a writ of mandamus may be used to compel a public officer "to perform some public duty which the relator is entitled of right to have performed and which the party owing the duty has failed to perform," People ex rel. Heydenreich v. Lyons, 374 Ill. 557, 30 N.E.2d 46 (1940), it would appear that mandamus is an appropriate remedy.¹

There is also Illinois authority suggesting that mandamus is available in situations similar to the case at bar as a remedy for claims of constitutional violations. In U.S. ex rel. Isaac v. Franzen, 531 F.Supp. 1086 (N.D.Ill.1982), the Court found that because the petitioner for a writ of habeas corpus had failed to seek a writ of mandamus to challenge, based on due process, the revocation by state prison authorities of good conduct credits in disciplinary hearings, he had not exhausted his state remedies. The Court based its decision on several Illinois cases which suggested that...