The opinion of the court was delivered by: Bua, District Judge.
Petitioner, Kelly Devine, has filed a pro se petition for a writ of
habeas corpus. In his petition, Devine challenges the action of the
Illinois Prisoner Review Board in twice denying his application for
parole. Before the court is the motion to dismiss of the various
respondents. For the reasons which follow, the motion to dismiss is
Petitioner was convicted of the offense of murder after entering a plea
of guilty in the Circuit Court of Cook County on March 23, 1972. This
conviction arose out of the shooting of a police officer. Petitioner was
sentenced to an indeterminate term of imprisonment for a period of 30 to
70 years. Petitioner first appeared before the Illinois Prisoner Review
Board in September, 1980. He was denied parole at this time because the
Board was of the opinion that allowing parole would deprecate the
seriousness of the offense. In July, 1981, petitioner again appeared
before the Board and his parole was denied for the same reason.
On each occasion, petitioner's application was reviewed by a panel of
ten Board members. Seven of the members that reviewed petitioner's
application had extensive law enforcement backgrounds. Petitioner contends
that the composition of the Board contains a disproportionate number of
individuals with law enforcement backgrounds.*fn1 Petitioner argues that
because members of the Board with prior law enforcement experience are
not required by law, policy, or practice to recuse themselves from
consideration of an application for parole by an inmate convicted of
murdering a police officer, an inmate convicted of such a crime is denied
his right to an impartial hearing. In addition, petitioner argues that as
a result of the composition of the Board he is denied equal protection
because other felons guilty of murder are more likely to obtain release
on parole than those felons convicted of murdering a police officer.
Petitioner makes no procedural due process claim.
Petitioner's argument that due process considerations attach to the
Illinois parole release statute is well taken. U.S. ex rel. Scott v.
Illinois Parole and Pardon Board, 669 F.2d 1185 (7th Cir. 1982);
Greenholtz v. Nebraska Penal and Correctional Center, 442 U.S. 1, 99
S.Ct. 2100, 60 L.Ed.2d 668 (1979). Petitioner is also correct in
asserting that the Due Proces Clause entitles a person to an impartial
disinterested tribunal. Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71
L.Ed. 749 (1927); Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct.
80, 34 L.Ed.2d 267 (1972); Marshall v. Jerrico, Inc., 446 U.S. 238, 100
S.Ct. 1610, 64 L.Ed.2d 182 (1980). Petitioner has failed to allege,
however, that the Board members had some personal or official stake in
the decision whether parole should be granted comparable to the risk of
bias presented in Tumey or Ward. See generally Tumey v. Ohio, 273 U.S. 510,
47 S.Ct. 4Z7, 71 L.Ed.2d 749 (1927); Ward v. Village of Monroeville,
409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972). Nor has petitioner
alleged that the Board had manifested some bias directed toward him
personally. See Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d
897 (1974). In addition, petitioner's allegations that as a matter of
policy individuals that are convicted of murdering police officers are
uniformly treated differently than other murderers, is insufficient to
overcome the presumption of honesty and integrity which attaches to the
activity of policymakers in the decision making process. Hortonville
Dist. v. Hortonville Ed. Assn., 426 U.S. 482, 96 S.Ct. 2308, 49 L.Ed.2d 1
(1976). Cf. United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999, 85
L.Ed. 1429 (1941); FTC v. Cement Institute, 333 U.S. 683, 68 S.Ct. 793,
92 L.Ed. 1010 (1948). In sum, petitioner's allegations related to the
bias of the Board members with prior law enforcement experience do not
rise to the level of a due process violation.
Similarly, petitioner's allegations which are directed to the disparate
treatment between classes of felons convicted of murdering law
enforcement officers and other types of murder also fail to state a claim
upon which relief may be granted. Petitioner argues that the statute which
creates the Board and provides for the appointment of Board members with
law enforcement experience, while nondiscriminatory on its face, operates
in fact to deprive felons convicted of murdering police officers of equal
protection. Assuming, as this court must, that the Parole Board treats
petitioner's offense differently than other types of murder in assessing a
parole application, this disparity in treatment does not offend the Equal
Protection Clause. A state is not "constrained in the exercise of its
police power to ignore experience which marks a class of offenders or a
family of offenses for special treatment. Nor is it prevented by the
equal protection clause from confining its restrictions to those classes
of cases where the need is deemed to be the clearest." Skinner v.
Oklahoma, 316 U.S. 535, 540, 62 S.Ct. 1110, 1112, 86 L.Ed. 1655 (1942).
Petitioner's allegations that the Board has adopted a policy of
automatically denying parole to those guilty of a particular type of
offense is not constitutionally impermissible. U.S. ex rel. Scott v.
Ill. Parole and Pardon Board, 669 F.2d 1188, 1191 (1982).
For the reasons stated, respondents' motion to ...