United States ex rel. Johnson v. McGinnis

• Decision Date: 05 October 1983
• Docket Number: No. 83 C 1362.,83 C 1362.
• Parties: UNITED STATES of America, ex rel. Leon JOHNSON, Petitioner, v. Kenneth McGINNIS, Warden, et al., Respondents.
• Court: U.S. District Court — Northern District of Illinois

571 F. Supp. 270

UNITED STATES of America, ex rel. Leon JOHNSON, Petitioner, v. Kenneth McGINNIS, Warden, et al., Respondents.

No. 83 C 1362.

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

August 31, 1983.

On Attorney General's Report to the Court October 5, 1983.

Leon Johnson, pro se; Stephen P. Carponelli and Gregory A. Adamski, Carponelli & Krug, Chicago, Ill., for petitioner.

Neil F. Hartigan, Atty. Gen. of Ill., Marcia Friedl, Asst. Atty. Gen., Chicago, Ill., for respondents.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Leon Johnson ("Johnson") petitioned for a writ of habeas corpus under 28 U.S.C. § 2254 ("Section 2254"), asserting the Illinois Prisoner Review Board ("Board") deprived him of due process by providing an inadequate statement of its rationale when it denied him parole in November 1982 (the "November Rationale"). Respondents and Johnson then filed cross-motions for summary judgment.¹

After respondents had filed a brief supporting their motion, in May 1983 Board conducted another hearing (the "May hearing") and again denied Johnson parole. In their closing briefs Johnson and respondents also argued the constitutional adequacy of Board's May 1983 statement of its rationale (the "May Rationale"), each side effectively moving for summary judgment on Johnson's habeas claims as amended and applied to Board's May actions. For the reasons stated in this memorandum opinion and order:

1. This Court defers ruling on the cross-motions for summary judgment.

2. Illinois' Attorney General is ordered to report at the next status hearing what action his clients have taken in conformity with the legal position he has asserted before this Court.

Facts

Johnson is an inmate at Pontiac Correctional Center. In May 1971 he was convicted of two 1969 murders and sentenced to 40 to 100 years imprisonment. This Court has been provided no information as to Johnson's direct appeals, if any, and the Petition does not attack Johnson's conviction.

Board denied Johnson parole November 17, 1982, following his fourth annual parole review. Board's official preprinted report form consists of various boxes to be checked so as to indicate the decision and supporting rationale. In November 1982 Board checked only the box indicating "Parole denied, continued to 7/83" (the date being hand-written onto a blank line) (see this opinion's Appendix I). But it appended a separate sheet stating its November Rationale:

The Prisoner Review Board has considered all factual information related to your case including your institutional adjustment and current assignment, your release plan, information from the Cook County State's Attorney sic office, as well as your presentation during your rehearing. Accordingly, the record states that after a finding of guilty for the crime of murder, you were sentenced to 40-100 years in prison.

The facts in the indictment state that the murders were gang related, the victim's ages being 17 and 14. According to the official Statement of Facts, the defendants marched the victims to an alley abutting a railroad embankment where they met with their gang Chief who told them to leave the victim alone. Defendants disregarded their Gang Chief's advise sic; and executed Reynolds who was standing against the railroad embankment with his hands in his pocket. His body was found with a shotgun wound in the side and three pistol wounds to the head. Defendants then turned to Johnnie Wilson and executed him.

The Supplemental Program Considerations Report dated October 29, 1982, indicate sic you have been assigned to the laundry building since July 1, 1982. Since your last appearance before the Prisoner Review Board, you have received one disciplinary report resulting in restriction of gym privileges for one month.

During your hearing, it was noted that you plan to enroll in a tailoring program with the Tailor's Institute of Chicago and reside with your mother in Chicago.

Johnson initially argued (Petition 4a) Board's November Rationale "does not comport with the due process requirements" stated by our Court of Appeals in United States ex rel. Scott v. Illinois Parole and Pardon Board, 669 F.2d 1185, 1190-91 (7th Cir.), cert. denied, ___ U.S. ___, 103 S.Ct. 468, 74 L.Ed.2d 617 (1982) and Welsh v. Mizell, 668 F.2d 328, 330-32 (7th Cir.), cert. denied, ___ U.S. ___, 103 S.Ct. 235, 74 L.Ed.2d 186 (1982). In sum Johnson said (Petition 9) the November Rationale "sheds no light on why Board's conclusion was reached." Though the November Rationale did recite the facts of Johnson's offenses, Johnson argued (id., emphasis in original) "unless Board denies parole to all prisoners similarly situated as the petitioner, its reasons in this case to deny parole is sic tantamount to no reason at all."² Johnson sought (id. at 11) a new Board hearing and a constitutionally adequate statement of reasons should Board again deny him parole.

Johnson (June 27 Mem. 1-2) and respondents (Aug. 1 Mem. 2 and Ex. A) informed this Court Johnson was again considered for parole May 18, 1983.³ On its official May 19 report as to that hearing Board checked only the box indicating "Parole denied, continued to 5/84" (the date again being handwritten onto a blank line). But also handwritten on the form are the words "Rationale to follow" (see this opinion's Appendix II), and appended is a separate sheet stating the May rationale:

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 a 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.

Johnson argues (June 27 Mem. 2-4) (1) the May Rationale is also defective under Scott and (2) really amounts to a denial of parole solely on the basis of the facts — and hence the seriousness — of his offenses. Welsh, 668 F.2d at 330-31 teaches the Ex Post Facto Clause would bar using the seriousness of Johnson's 1969 offenses as the determinative factor in Johnson's parole denial, for citation of that factor derives from Illinois parole criteria enacted in 1973. Respondents retort (Aug. 1 Mem. 2) the May Rationale passes muster under Scott and Welsh even if the November Rationale did not.

Exhaustion of Available State Remedies

As a threshold matter the parties argue extensively whether Johnson has exhausted his state court remedies as to his due process claim,⁴ as Section 2254 requires. Rose v. Lundy, 455 U.S. 509, 515-20, 102 S.Ct. 1198, 1201-04, 71 L.Ed.2d 379 (1982). Johnson argues (1) Illinois courts would not entertain his due process claim and (2) in any event pursuit of state remedies would be futile. Petition 5; June 2 Mem. 2-3; July 21 Mem. 4-12. Respondents contend Johnson can pursue that claim in Illinois courts via mandamus proceedings. May 4 Mem. 2-4; May 9 Supp.Mem. and Ex. A; June 10 Mem. 1-2; Aug. 1 Mem. 1-2.

One thing is clear: Our Court of Appeals specifically held in Welsh, 668 F.2d at 329-30, it would have been futile to seek an Illinois state court remedy on the ex post facto claim urged by the petitioner there. For that proposition the Court cited Harris v. Irving, 90 Ill.App.3d 56, 45 Ill.Dec. 394, 412 N.E.2d 976 (5th Dist.1980), in which (1) the Illinois Appellate Court had rejected that claim as to application of Illinois' 1973 parole criteria to pre-1973 offenses and (2) the Illinois Supreme Court had denied leave to appeal. Thus, as to Johnson's ex post facto claim, there are clearly no available state court remedies (as respondents admit, see n. 4).

As for Johnson's due process claim, Board can point to no possible "available" remedy other than a petition for writ of mandamus. There is an inherent anomaly in Board's advancement of its exhaustion-of-remedies argument to embrace that remedy in the present circumstances. Under Illinois law:

1. Mandamus is an extraordinary remedy. People ex rel. Hoagland v. Streeper, 12 Ill.2d 204, 218, 145 N.E.2d 625, 632 (1957); People ex rel. Cantu v. School Directors, 58 Ill.App.2d 282, 287-89, 208 N.E.2d 301, 304-05 (1st Dist.1965). It is available only to those who have established the clearest of rights to a public official's performance of an unquestioned duty (and not simply a claimed erroneous exercise of the official's discretion). People ex rel. Heydenreich v. Lyons, 374 Ill. 557, 567-68, 30 N.E.2d 46, 52 (1940).

2. Only the Illinois Attorney General, who is properly serving as Board's counsel before this Court, may represent Illinois public officials such as Board. People ex rel. Scott v. Briceland, 65 Ill.2d 485, 492-500, 3 Ill.Dec. 739, 744-45, 359 N.E.2d 149, 154-56 (1976).

Yet Board comes to this Court, stating through the Attorney General that state mandamus will lie (that is, that Johnson has the clearest of rights to the relief he seeks⁵), but still having deprived him of that clear and unquestioned right — not once but twice! If Board and the Attorney General are correct, Johnson's state court petition for writ of mandamus would be a feigned proceeding, with petitioner and respondents in total agreement and with no case or controversy thus before the state court. It would be the legal...