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UNITED STATES EX REL. KING v. MCGINNIS

March 17, 1983

UNITED STATES OF AMERICA, EX REL. GERALD BERNARD KING, PETITIONER,
v.
KENNETH L. MCGINNIS, WARDEN, AND PAUL J. KLINCAR, ACTING CHAIRMAN, ILLINOIS PRISONER REVIEW BOARD, RESPONDENTS.



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.

II. EX POST FACTO CLAIM

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 964.

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.


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