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UNITED STATES EX REL. ISAAC v. FRANZEN

February 10, 1982

UNITED STATES OF AMERICA EX REL. WILLIAM L. ISAAC, PETITIONER,
v.
GAYLE M. FRANZEN, MICHEAL P. LANE [SIC], EUGENE M. VENEGONE, RICHARD DE ROBERTIS AND JAMES ERVING, RESPONDENTS. UNITED STATES OF AMERICA EX REL. WILLIAM L. ISAAC, PETITIONER, V. GAYLE M. FRANZEN, MICHEAL P. LANE [SIC], RICHARD DE ROBERTIS, EUGENE VENEGONE AND JAMES ERVING, RESPONDENTS. UNITED STATES OF AMERICA EX REL. WILLIAM L. ISAAC, PETITIONER, V. GAYLE M. FRANZEN, MICHEAL P. LANE [SIC], RICHARD DE ROBERTIS, EUGENE M. VENEGONE AND JAMES ERVING, RESPONDENTS. UNITED STATES OF AMERICA EX REL. WILLIAM L. ISAAC, PETITIONER, V. GAYLE M. FRANZEN, MICHEAL P. LANE [SIC], RICHARD DE ROBERTIS, EUGENE VENEGONE, JAMES ERVING AND TYRONE C. FAHNER, RESPONDENTS. (TWO CASES) UNITED STATES OF AMERICA EX REL. WILLIAM L. ISAAC, PETITIONER, V. GAYLE M. FRANZEN, MICHEAL LANE [SIC], RICHARD DE ROBERTIS, EUGENE VENEGONE, JAMES ERVING AND TYRONE C. FAHNER, RESPONDENTS. UNITED STATES OF AMERICA EX REL. WILLIAM L. ISAAC, PETITIONER, V. GAYLE M. FRANZEN, MICHEAL LANE [SIC], RICHARD DE ROBERTIS, EUGENE M. VENEGONE, JAMES ERVING AND TYRONE C. FAHNER, RESPONDENTS. WEST PAGE 1087 UNITED STATES OF AMERICA EX REL. WILLIAM L. ISAAC, PETITIONER, V. MICHEAL P. LANE [SIC], RICHARD DE ROBERTIS, EUGENE VENEGONE, JAMES ERVING AND TYRONE C. FAHNER, RESPONDENTS. UNITED STATES OF AMERICA EX REL. WILLIAM L. ISAAC, PETITIONER, V. MICHAEL P. LANE, RICHARD W. DE ROBERTIS, TRAVIS WHEATON, JAMES ERVING AND TYRONE C. FAHNER, RESPONDENTS.



The opinion of the court was delivered by: Will, District Judge.

MEMORANDUM OPINION

Petitioner William L. Isaac, a prisoner at the Stateville Correctional Center of the Illinois Department of Corrections, brings these nine petitions seeking issuance of writs of habeas corpus pursuant to 28 U.S.C. § 2254. Each petition alleges numerous due process violations in the course of one or more prison disciplinary proceedings against petitioner. Because a question of law common to each of these petitions is dispositive, we have consolidated them for purposes of decision.

Two petitions, 81 C 1349 and 81 C 3249, come before us for preliminary consideration pursuant to Rule 4 of the Rules Governing Section 2254 Cases. The state has filed a response to the remaining petitions in the form of either a motion for summary judgment, or a motion to dismiss, or in the alternative, for summary judgment. The motions filed by the state contend that the procedures accompanying the imposition of disciplinary sanctions upon petitioner were constitutionally sufficient and seek to have the petitions dismissed on the merits. Before reaching the merits of petitioner's claim, however, we must first consider an issue left unaddressed by the state: whether petitioner has exhausted his available state court remedies as required by 28 U.S.C. § 2254(b) and (c).*fn1 Because we find that petitioner has not met the threshold requirement of exhaustion of state remedies, we dismiss the petitions.

I.

  [I]t would be unseemly in our dual system of
  government for a federal district court to upset a
  state court conviction without an opportunity to
  the state courts to correct a constitutional
  violation. . . . Solution was found in the
  doctrine of comity between courts, a doctrine
  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.

Id. at 419-20, 83 S.Ct. at 838-39, quoting Darr v. Buford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761 (1950). The limitations on the exercise of federal habeas corpus jurisdiction embodied in the doctrine of exhaustion are now codified in 28 U.S.C. § 2254.

In Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), the Supreme Court made clear that the exhaustion requirement imposed by the habeas corpus statutes applies with equal force to a suit challenging state administrative action affecting the length of a prisoner's confinement. In Preiser, three state prisoners sought an injunction to restore good-conduct credits that they had lost as a result of prison disciplinary proceedings. Although plaintiffs had brought their suits under 42 U.S.C. § 1983, the Court held that section 2254, with its requirement of exhaustion of state remedies, was their exclusive federal remedy because the nature of the relief they sought — an earlier release from confinement — fell within the traditional scope of habeas corpus. Id. at 487, 93 S.Ct. at 1835. In rejecting any attempt to evade the exhaustion requirement by a suit under section 1983, Preiser specifically recognized that the doctrine of federal-state comity is as relevant to federal review of administrative decisions by state prison authorities as it is to federal review of state judicial proceedings.

  The strong considerations of comity that require
  giving a state court system that has convicted a
  defendant the first opportunity to correct its own
  errors thus also require giving the States the
  first opportunity to correct errors made in the
  internal administration of their prisons.

Id. at 492, 93 S.Ct. at 1837.

Given the importance of the policy considerations expressed in the exhaustion requirement, the state's failure in this case to seek dismissal of the petitions on exhaustion grounds does not relieve the court of its duty to ensure compliance with the dictates of 28 U.S.C. § 2254(b) and (c). Only special circumstances justify deviation from the congressionally-mandated exhaustion requirement. See Baldwin v. Lewis, 442 F.2d 29, 35 (7th Cir. 1971). The limited circumstances that foreclose a federal court from raising the issue of exhaustion sua sponte are an explicit waiver of the exhaustion requirement by the state or a considerable expenditure of judicial resources prior to consideration of the issue of exhaustion. United States ex rel. Lockett v. Illinois Parole and Pardon Board, 600 F.2d 116 (7th Cir. 1979). Neither of those factors is present in the cases now before us. Thus, the state's failure to raise the issue of exhaustion does not relieve us from initiating our own inquiry into this important question affecting federal-state comity. We therefore consider whether Illinois provides petitioner with an adequate and available remedy to challenge the loss of good-conduct credits in a prison disciplinary hearing.

II.

We find, however, that petitioner had and continues to have two potential avenues for relief in the state courts. Illinois courts have recognized both habeas corpus and mandamus as proper remedies for prisoners who seek to challenge the revocation of good-conduct credits in prison disciplinary hearings. Petitioner's failure to pursue these state judicial remedies may be excused only if the remedies are "so clearly deficient as to render ...


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