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March 16, 1983


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


Before the court is respondent's motion to dismiss petitioner Johnson's Petition for a Writ of Habeas Corpus. This court has jurisdiction pursuant to 28 U.S.C. § 2241. For the reasons set forth below, the motion to dismiss is granted, without prejudice, and with leave to reinstate once petitioner has exhausted his state remedies by seeking a writ of mandamus in the state courts.

Johnson seeks habeas relief on the grounds that the denial of his parole violated the ex post facto clause, due process, and equal protection. The state has moved to dismiss on the grounds that petitioner has failed to exhaust available state remedies with respect to his due process claim that the state failed to comply with the requirements of Chapter 38, § 1003-5-1(b) of the Illinois statutes.

The state argues that Johnson could have sought a writ of mandamus in the state courts to compel the parole board to state the factual information relief upon by the board in making its determination. Chapter 38, § 1003-5-1(b) of the Illinois statutes read as follows:

  If the Department or the Prisoner Review Board makes
  a determination under the Code which affects the
  length of the period of confinement or commitment,
  the committed person and his counsel shall be advised
  of factual information relied upon by the Department
  or Board to make the determination. . . .

The state alleges that mandamus is available to require the parole board to comply with this procedural mandate.

The policy behind the exhaustion requirement was recently set forth in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). In that case the Court held that a district court must dismiss "mixed petitions" containing both exhausted and unexhausted claims. The Court explained that the principle of comity underlies the exhaustion requirement.

  "The exhaustion requirement is principally designed
  to protect the state courts' role in the enforcement
  of federal law and prevent disruption of state
  judicial proceedings." Id. 102 S.Ct. at 1203.

The Court also cited Duckworth v. Serrano, 454 U.S. 1, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981), wherein the Court stated that the exhaustion requirement

  "serves to minimize friction between our federal and
  state systems of justice by allowing the state an
  initial opportunity to pass upon and correct alleged
  violations of prisoners' federal rights. [citations
  omitted]. An exception is made only if there is no
  opportunity to obtain redress in state court or if
  the corrective process is so clearly deficient as to
  render futile any effort to obtain relief."

This principle of limiting federal interference to circumstances in which it is necessary to protect federal rights guides this court in determining whether or not petitioner has exhausted his state remedies.

The exhaustion requirement does not, however, erect "insuperable or successive barriers to the invocation of federal habeas corpus." Wilwording v. Swenson, 404 U.S. 249, 252, 92 S.Ct. 407, 409, 30 L.Ed.2d 418 (1971). Nor does the "mere possibility of success in additional proceedings bar federal relief." Id. at 252, 92 S.Ct. at 409. The exhaustion requirement is "merely an accommodation of our federal system designed to give the State an initial `opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." Id. at 252, 92 S.Ct. at 409. The policy reason for so limiting the exhaustion requirement is to ensure that prisoners' substantive federal rights are not strangled by endless procedures without a reasonable prospect for relief. Justice delayed may be justice denied.

The writ of mandamus is generally held to be an extraordinary remedy. People ex rel. Cantu v. School Directors, 58 Ill. App.2d 282, 208 N.E.2d 301 (1965); People ex rel. Hoagland v. Streeper, 12 Ill.2d 204, 145 N.E.2d 625 (1957). One seeking the writ must show a clear right to it. Wilson v. Board of Education, 394 Ill. 197, 68 N.E.2d 257 (1946).

Absent authority demonstrating the availability of mandamus as a remedy, the fact that the remedy is unusual and extraordinary would require this court to hold that it need not be pursued to meet the exhaustion requirement. There is, however, authority indicating that mandamus is available in situations similar to the case at bar. In People ex rel. Abner v. Kinney, 30 Ill.2d 201, 195 N.E.2d 651 (1964), the Illinois Supreme Court held that mandamus was an appropriate remedy to compel the Illinois parole board to ...

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