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
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.
"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
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
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 ...