United States ex rel. O'Connor v. MacDonald

• Decision Date: 30 March 1978
• Docket Number: No. 77 C 1831.,77 C 1831.
• Citation: 449 F. Supp. 291
• Parties: UNITED STATES of America ex rel. Paul O'CONNOR, Petitioner, v. Neal MacDONALD, Warden, etc., et al., Respondents.
• Court: U.S. District Court — Northern District of Illinois

449 F. Supp. 291

UNITED STATES of America ex rel. Paul O'CONNOR, Petitioner, v. Neal MacDONALD, Warden, etc., et al., Respondents.

No. 77 C 1831.

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

March 30, 1978.

Paul O'Connor, pro se.

Thomas M. Hoidal, Chicago, Ill., for petitioner.

Melbourne Noel, Jr., Asst. Atty. Gen., Chicago, Ill., for respondent.

Memorandum

LEIGHTON, District Judge.

This is an application for a writ of habeas corpus in which it is alleged that petitioner was deprived of due process and equal protection of the laws when he was denied parole by the Illinois Parole and Pardon Board. Federal jurisdiction is invoked pursuant to 28 U.S.C. § 2254; and the cause is before the court on cross motions for summary judgment. The issue presented is whether the undisputed facts of this case establish that petitioner is entitled to federal habeas corpus relief.

I.

On August 28, 1974, petitioner and a co-defendant pled guilty to a charge that they had raped a young woman in an apartment the two were burglarizing. The burglary count was dismissed, and they were sentenced to identical terms of 4-12 years. Petitioner received credit for 9 days he spent in jail awaiting trial, his co-defendant for 41. As a result of this difference in jail time credit, the co-defendant became eligible for parole one month before petitioner. At the time of their parole hearings, both were inmates in the same institution.

When petitioner's co-defendant appeared before the two-member Parole Board's subcommittee that considered him for parole, the only information available concerning the offense for which he had been sentenced was a statement prepared by the responsible prosecuting attorney in compliance with Illinois law, Ill.Rev.Stat. ch. 38, § 1005-4-1(c), (d)(5) (1973). This statement was in duplicate, one copy for petitioner, the other for the co-defendant. It stated that "on July 9, 1974, at approximately 3:30 a. m. the defendants petitioner and his co-defendant unlawfully entered the apartment of Jill Barnes, who is 18 years of age. Her apartment was located at 1107 N. Hickory Street, in Joliet, Illinois. At the time she was asleep and both defendants grabbed her, tied her hands with bedsheets and placed a knife at her throat. During a 45 minute period, both defendants forcibly had sexual intercourse with her against her will, and prior to leaving removed a sterio sic set and $40. Miss Barnes never saw either of the defendants before that time."

Petitioner's co-defendant was questioned by the subcommittee. In his answers, he said that he had once done "one year federal probation" for mail theft; that during his incarceration, he had taken college courses, and had obtained a drafting certificate from the Illinois Valley Community College. He said that he had obtained about 29 college credits, and had earned a general education degree at another institution. At the time of his interview, he was vice-president of "the Jaycees" at the institution where he was incarcerated. He explained why he had been sent to that particular one: it was because of his unwillingness to get involved in gang activities. As to his plans for the future, he said he wanted to go to an alcohol half-way house "* * * because I have a drug and alcohol background * * *." He was questioned about his involvement in the offense that led to his conviction and disclaimed an ability to recall the details. After considering his case, the subcommittee made a recommendation, and the Parole Board granted the co-defendant parole, saying "the board feels that with close supervision; participation in an alcoholic sic anonymous program, you'll be able to abide by the rules governing parole."

A little more than a month later, petitioner appeared before another two-member Board subcommittee, one member having been on the subcommittee that gave his co-defendant a favorable recommendation for parole. As to the offense that led to his conviction, as had been the case of his co-defendant, the only information available was the similarly worded statement prepared by the responsible prosecuting attorney. When petitioner was questioned, he disclosed that as a juvenile he had two misdemeanor offenses; but he had never been in trouble with the law as an adult. He said he had never been incarcerated in any juvenile facility; and as to the offense that led to his imprisonment, he was out of work, needed some money and "* * * my rap partner suggested that we go up and pull a burglary and we did and the situation went down sic"; that "it was just a freak happening that someone was there, and that's about it." He said that at the time of the offense, he was under the influence of drugs and had been drinking "most of the day."

When asked whose idea was it to commit the burglary and rape the young woman, he replied that "it was kind of a combination. He started, I stopped. I woke her up and left the room and I came back and he was in there talking to her, and he produced a knife and I told her, I said `Don't get upset because he is crazy,' and he is. That was the situation." Then, without being asked, he added: "the girl that was there was not supposed to be there. See I knew the people that — I knew the girl that had rented the apartment, and she was gone. When we came by her car was gone, so we anticipated that nobody was home. Like I say, that was the circumstances sic."

From what petitioner said, his institutional record was a good one. A member of the subcommittee read a letter from the Dean of Student Development congratulating petitioner for his academic grade point average of 4.0 which qualified him for the fall semester Dean's List. For this he was complimented by both members. After further discussion concerning his family which he said consisted of his wife who was ill and a four-year-old child, he was informed that his case would be considered, and a decision reached would be sent to him later that evening. The subcommittee deliberated and reached the following conclusion, read into the record by the member who had voted in the earlier subcommittee to give the co-defendant parole.

"This is a minimum case. The inmate is serving four to 12 years for rape. The most interesting part about this case is that his rap partner, who was also serving four to 12 years for rape was paroled on the minimum a month ago, and this panel, with some concerns about paroling the inmate due to the seriousness of the offense, is reluctant to parole this one on the minimum.

While his program participation has been above average, the staff prognosis for parole success is rated as fair to good, with the recommendation that he disassociate himself from his rap partner if he is paroled.

He states that he has a job earning $4.55 a hour in Oak Park working from the hours of 7:00 p. m. to 3:00 a. m. He has also participated in the A.A. Program her sic and states that he didn't feel he needed a drug abuse program, because he was not addicted. There is a very strong letter from the State's Attorney's Office. There is also an indication that he applied for Work Release, and he states that he was turned down on several occasions. However, his rappee was approved for Work Release and he filed a grievance and was again turned down for the program. This gives some credence to the possibility that he was the main instigator in this particular crime. Although, they both got the same sentence.

He stated that he knew the woman that rented the apartment and felt that she was not at home, and did not know that this other woman was going to be there when they went to rob the place.

His wife appeared on his behalf and made an urgent plea for his need at home, followed by his mother, who also established the need for him at home.

The Board feels that he should be gradually released to the community, and that the Work Release Program is a better way for him to go out, rather than by out-and-out parole. With that in mind the Board is recommending the staff evaluate him for the Work Release Program. Parole is denied, continued to the September, 1977 Docket."

Based on this conclusion, the Parole Board denied petitioner parole, saying that "the seriousness of the offense precludes favorable recommendation at this time, but due to your positive attempts to rehabilitate yourself through the programs of the institution, the Board believes that Work Release is a better way for you to be released, and is recommending that staff evaluate you for that program."¹

II.

On these facts, petitioner contends that in denying him parole because of the seriousness of his offense, the Board's action was based on an impermissible reason and was thus arbitrary and capricious; that its identification of him as the main instigator of the offense for which he and his co-defendant were convicted was without evidentiary support, and thus an arbitrary and capricious conclusion; and that granting parole to his co-defendant while denying him the same consideration, when he was a better candidate, was discriminatory action by the Board, an agency of the State of Illinois. Therefore, he insists that in denying him parole, the Board deprived him of due process of law and equal protection of the laws in violation of the Fourteenth Amendment to the constitution of the United States.

In furnishing the information required of an applicant for federal habeas corpus relief, petitioner disclosed that the grounds he advances in this application have never been presented to a state court. For this reason, respondents immediately filed a motion to dismiss this petition on the ground that petitioner has failed to exhaust state remedies available to him. They argue that since he is seeking release from an Illinois incarceration through parole, the Illinois Habeas Corpus Act, Ill.Rev.Stat. ch. 65, § 22(2) (1975), provides him with a remedy because under its terms a state prisoner "* * * can be discharged * * * where, though the original...