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HORTON v. IRVING

December 13, 1982

EUGENE HORTON, PETITIONER,
v.
JAMES R. IRVING, PAST CHAIRMAN OF THE ILLINOIS PRISONER REVIEW BOARD; JOSEPH MCCOMBS, PRESENT CHAIRMAN OF THE ILLINOIS PRISONER REVIEW BOARD; RICHARD W. DEROBERTIS, WARDEN, STATEVILLE CORRECTIONAL CENTER, RESPONDENTS. UNITED STATES OF AMERICA, EX REL., PHILLIP LEWIS JACOBS, PETITIONER, V. RICHARD DEROBERTIS, WARDEN, STATEVILLE CORRECTIONAL CENTER; ILLINOIS PAROLE AND PARDON BOARD (PRISONER REVIEW BOARD), RESPONDENTS.



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

MEMORANDUM OPINION AND ORDER

These two habeas corpus petitions come before the Court on respondents' motions for summary judgment, which in each case have been supplemented with motions to dismiss. Both petitioners allege that the denial of their applications for parole release deprived them of their rights under the Due Process and Ex Post Facto Clauses of the United States Constitution. Because of the identity of the issues involved in these two actions, the Court has consolidated them for purposes of ruling on the pending motions.

I. JACOBS' PETITION

The petitioner in 82 C 4356, Phillip Lewis Jacobs ("Jacobs"), was convicted of murder in the Circuit Court of Du Page County, Illinois and sentenced to a term of 45 to 65 years imprisonment. The murder was committed on June 20, 1970. See People v. Jacobs, 44 Ill. App.3d 290, 2 Ill.Dec. 601, 357 N.E.2d 821 (1976). Jacobs appeared before the Illinois Prisoner Review Board ("Board") for parole release consideration in 1979, 1980, and 1981. Jacobs alleges that on each occasion the Board denied him parole for the reason that "your release at this time would deprecate the seriousness of your offense and promote disrespect for the law." Ill.Rev.Stat. 1981, ch. 38, § 1003-3-5(c),*fn1 which first took effect on January 1, 1973, requires the Board to deny parole to a prisoner if it determines that release at that time would deprecate the seriousness of his offense.

After the most recent hearing, which took place on June 3, 1982, the Board again denied parole to Jacobs, giving the following reasons for its decision:

  The Board, considering all factors in your case,
  is denying parole at this time because of the
  following reasons:
  The Board has heard your case and rendered its
  decision in accordance with the statute in effect
  at the time of your offense.
  The Board, having given full consideration to all
  the facts and circumstances in this case, is of
  the opinion that the risks involved in granting
  parole outweigh the factors in favor of granting
  parole.

Jacobs contends that these reasons, as well as those given for the denial of parole in the three preceding years, violated the ex post facto prohibition and denied him minimum due process. He requests the Court to issue the writ of habeas corpus releasing him from prison.

II. HORTON'S PETITION

Petitioner in 82 C 2569,*fn2 Eugene Horton ("Horton"), was convicted of murder in the Circuit Court of Cook County, Illinois and sentenced to a term of 100 to 150 years imprisonment. The murder was committed on March 21, 1971. See People v. Horton, 14 Ill. App.3d 957, 304 N.E.2d 21 (1973). Horton first appeared before the Board for parole release consideration on March 3, 1981. At that time, Horton was denied parole on the basis of the length of his sentence and the nature of his offense.

On March 3, 1982, Horton again appeared before the Board for parole release consideration. The Board denied parole giving verbatim the same reasons that it gave Jacobs for the denial of his request for parole. Like Jacobs, Horton contends that the Board's action denied him due process and violated the prohibition against ex post facto laws. As relief he seeks a new parole hearing that accords with the requirements of the Constitution.

III. MOTION TO DISMISS JACOBS' PETITION

Respondents move to dismiss Jacobs' petition on the ground that it duplicates a class action suit currently pending before Judge Prentice H. Marshall. They contend that since Jacobs is a member of the class certified by Judge Marshall, his claim for relief is subsumed by that action. They urge that interests of judicial and administrative economy and uniformity favor dismissal of his petition without prejudice to his rights under the class ...


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