The opinion of the court was delivered by: Bua, District Judge.
Petitioner Shannon Stevens filed the instant petition for a
writ of habeas corpus alleging that the actions of the
Prisoner Review Board in denying him parole violated due
process. Before the Court is the respondent's Motion for
Summary Judgment. However, for the reasons stated herein, the
Court finds that petitioner is entitled to summary judgment as
a matter of law. See, U.S. ex rel. Kimes v. Greer, 527 F. Supp. 307
(N.D.Ill. 1981); Stamatiou v. United States Gypsum Company,
400 F. Supp. 431, 440 (N.D.Ill. 1975), aff'd without opinion,
534 F.2d 330 (7th Cir. 1976); 10 Wright and Miller, Federal
Practice and Procedure, § 2720 (1973). Any issues of material
fact herein have been resolved in favor of respondent;
accordingly, an evidentiary hearing is deemed unnecessary. See,
Rule 8(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. §
2254; Blackledge v. Allen, 431 U.S. 63, 81-82, 97 S.Ct. 1621,
1632-33, 52 L.Ed.2d 136 (1977); United States ex rel. Sanders
v. Rowe, 460 F. Supp. 1128, 1131 (N.D.Ill. 1978).
Petitioner was convicted in the Circuit Court of Cook County
on December 8, 1971 and is currently serving sentences of 25
to 50 years for rape and 4 to 14 years for deviate sexual
assault. On October 21, 1982, following review of petitioner's
file and a face-to-face parole hearing, the Prisoner Review
Board of the State of Illinois denied petitioner parole. On
December 14, 1982, petitioner filed a petition for a
rehearing. Thereafter, petitioner filed for a Writ of Mandamus
in the Illinois Circuit Court, Eleventh Circuit, requesting
that the Director of the Illinois Prisoner Review Board
provide petitioner with the factual information relied upon in
the Board's denial of parole. Such petition was dismissed on
June 8, 1983.
Respondent argues that the petitioner has failed to exhaust
state remedies by allegedly failing to petition the Board for
rehearing. Under a recent supervisory order of the Illinois
Supreme Court, the Prisoner Review Board is directed to grant
parole rehearing requests in light of United States ex rel.
William Scott v. Illinois Parole and Pardon Board,
669 F.2d 1185 (7th Cir. 1982) which controls the instant lawsuit and is
Had petitioner never filed a petition for a rehearing, this
Court might agree that the instant habeas petition must be
dismissed for failure to exhaust state remedies under Rose v.
Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).
However, on December 14, 1982, petitioner did file a request
for a rehearing. Nevertheless, respondent has failed to
acknowledge such a request and has yet to take any action
thereon. As more than six months have passed since the filing
of the request, it is the opinion of this Court that the Parole
Board's inordinate delay in acting upon or even acknowledging
petitioner's request is unjustified.*fn1 Faced with such an
delay, this Court may proceed to consider the habeas petition
on its merits. Lowe v. Duckworth, 663 F.2d 42 (7th Cir. 1981).
Petitioner argues that in denying him parole the Illinois
Parole Board used inappropriate criteria, amounting to a
violation of the ex post facto clause of the U.S. Constitution,
art. 1, §§ 9, cl. 3, 10, cl. 1. Welsh v. Mizell, 668 F.2d 328
(7th Cir. 1982). Additionally, petitioner argues that by
denying him parole without giving the reasons for such denial,
the Parole Board denied his due process rights. U.S. ex rel.
Scott v. Illinois Parole and Pardon Board, 669 F.2d 1185 (7th
In denying petitioner parole, the Parole Board stated:
. . In reviewing the Statement of Facts, the
Board noted that you were convicted and sentenced
to 25-50 years for rape and to 4-14 years for
Deviate Sexual Assault. According to the Official
Statement of Facts, you accosted a 15-year-old
girl in an elevator as she was on her way to
school. The statement, further, reveals that you
forced her to disrobe, struck her, and forced her
to submit to an act of sexual intercourse, and
then committed an act of oral intercourse.
The Board acknowledges your excellent
institutional adjustment while incarcerated at
Pontiac. Your parole plans are also noted.
However, after reviewing all the materials and
all the pertinent information available to the
Board, the members feel that you are not a fit
person to serve your sentence outside the
institution, therefore, your parole is denied and
case is continued to the October, 1983 docket.
Petitioner first argues that the Parole Board's decision
reflects the use of impermissible criteria in the denial of
In 1972 the Illinois legislature enacted new criteria which
were to be considered in a parole determination. Under these
criteria, which took effect on January 1, 1973, parole is to
be denied if:
(1) there is substantial risk that [the prisoner]
will not conform to reasonable ...