The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
Petitioner Gerald King filed a pro se petition for habeas
corpus relief pursuant to 28 U.S.C. § 2254 against Kenneth
McGinnis, Warden of Pontiac Correctional Center, and Paul
Klincar, Acting Chairman of the Illinois Prisoner Review Board
("Board"). King alleges violations of his constitutional rights
in the denial of his application for parole. The cause is before
the Court on cross motions for summary judgment and respondents'
motion to dismiss.
King is currently serving a sentence of twenty to thirty-three
years for murder. The Board refused to grant King parole in 1980,
1981 and 1982, stating in 1982 that:
Upon careful examination of the facts and
circumstances surrounding the criminal behavior which
led to your incarceration, the Board feels the risk
of further nonconforming behavior is too great for
release at this time.
Respondents' Memorandum of Law in Support of Answer to Petition
for Writ of Habeas Corpus and Motion for Summary Judgment at 6.
King asserts several grounds for relief.*fn1 First, he argues that
the reason given by the Board for denial of parole violated the
ex post facto prohibition. Second, King contends that the Board's
statement of reasons for denial was unconstitutionally vague. He
also alleges that the Board denied him due process in that it
failed to comply with Ill.Rev.Stat. ch. 38, § 1003-5-1(b), which
requires that an inmate be advised of factual information relied
on whenever the Board makes a decision "which affects the length
of the period of confinement or commitment." Finally, King claims
that to deny him parole while granting it to other inmates
convicted of murder violates the equal protection clause.
I. EXHAUSTION REQUIREMENT OF 28 U.S.C. § 2254
Respondents move to dismiss King's petition on the ground that
King has failed to exhaust his available state court remedies as
required by 28 U.S.C. § 2254(b) and (c). Respondents argue that
the questions of whether Ill.Rev.Stat. ch. 38, § 1003-5-1(b)
applies to the parole denial decision and, if so, whether the
criteria for denial given in this case satisfy the requirements
of the state statute are matters best left to the state court.
Thus, respondents urge the Court to require King to attempt to
correct the alleged noncompliance with the statute through a writ
of mandamus in state court.
We disagree. We do not construe King's petition as requesting
relief for violation of a state statute, but read it as alleging
that the parole board denied King due process in failing to
comply with the statute. This constitutional claim is properly
raised in a habeas corpus proceeding. See 28 U.S.C. § 2254(a).
Furthermore, respondents have not pointed to a single case
demonstrating that Illinois courts would entertain an action in
mandamus to redress federal constitutional violations in the
context of parole denial. Therefore, we find that King has met
the threshold requirement of exhaustion of state remedies.
The ex post facto clause prohibits enactment of any law which
punishes an act not punishable at the time of its commission or
enhances the punishment originally prescribed. Weaver v. Graham,
450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). A two-part test
is used to determine whether a criminal or penal law is ex post
facto: (1) does it operate retrospectively, and (2) does it
disadvantage the offender affected by it? Id. at 29, 101 S.Ct. at
In the case at bar, King relies on Welsh v. Mizell,
668 F.2d 328 (7th Cir.), cert. denied, ___ U.S. ___, 103 S.Ct. 235, 74
L.Ed.2d 186 (1982), to support his ex post facto claim. The Welsh
court held that a prisoner who committed his offense prior to
1973 could not be denied parole solely on the ground that
"release would deprecate the seriousness of the offense." The
court found that this criterion, Ill.Rev.Stat. ch. 38, §
1003-3-5(c)(2), enacted in 1973, imported a new factor of general
deterrence into the parole release process. Welsh, 668 F.2d at
331. Prior to 1973, Illinois law applied special deterrence
criteria to parole decisions. This approach focused on the
individual, giving significant weight to his behavior while
incarcerated and his prospects for rehabilitation. The Welsh
court reasoned that the parole board's reliance on the new
seriousness-of-the-offense criterion as the sole basis for the
denial of parole to prisoners convicted before 1973 constituted
an after-the-fact enhancement of punishment. Welsh, 668 F.2d at
331. Citing the Weaver test, Welsh concluded that retroactive
application of the new general deterrence standard disadvantaged
the petitioner, resulting in an ex post facto violation. Id.