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UNITED STATES EX REL. STEVENS v. KLINCAR

July 8, 1983

UNITED STATES EX REL. SHANNON STEVENS, PETITIONER,
v.
PAUL KLINCAR, ACTING CHAIRMAN OF THE ILLINOIS PRISONER REVIEW BOARD, RESPONDENT.



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

MEMORANDUM ORDER

  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.

I.

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 discussed infra.

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 unjustified delay, this Court may proceed to consider the habeas petition on its merits. Lowe v. Duckworth, 663 F.2d 42 (7th Cir. 1981).

II.

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 Cir. 1982).

  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.

A.

Petitioner first argues that the Parole Board's decision reflects the use of impermissible criteria in the denial of parole.

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 ...

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