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August 31, 1983


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


Leon Johnson ("Johnson") petitioned for a writ of habeas corpus under 28 U.S.C. § 2254 ("Section 2254"), asserting the Illinois Prisoner Review Board ("Board") deprived him of due process by providing an inadequate statement of its rationale when it denied him parole in November 1982 (the "November Rationale"). Respondents and Johnson then filed cross-motions for summary judgment.*fn1

After respondents had filed a brief supporting their motion, in May 1983 Board conducted another hearing (the "May hearing") and again denied Johnson parole. In their closing briefs Johnson and respondents also argued the constitutional adequacy of Board's May 1983 statement of its rationale (the "May Rationale"), each side effectively moving for summary judgment on Johnson's habeas claims as amended and applied to Board's May actions. For the reasons stated in this memorandum opinion and order:

    1. This Court defers ruling on the cross-motions
  for summary judgment.
    2. Illinois' Attorney General is ordered to report
  at the next status hearing what action his clients
  have taken in conformity with the legal position he
  has asserted before this Court.


Johnson is an inmate at Pontiac Correctional Center. In May 1971 he was convicted of two 1969 murders and sentenced to 40 to 100 years imprisonment. This Court has been provided no information as to Johnson's direct appeals, if any, and the Petition does not attack Johnson's conviction.

Board denied Johnson parole November 17, 1982, following his fourth annual parole review. Board's official preprinted report form consists of various boxes to be checked so as to indicate the decision and supporting rationale. In November 1982 Board checked only the box indicating "Parole denied, continued to 7/83" (the date being hand-written onto a blank line) (see this opinion's Appendix I). But it appended a separate sheet stating its November Rationale:

  The Prisoner Review Board has considered all factual
  information related to your case including your
  institutional adjustment and current assignment, your
  release plan, information from the Cook County
  State's Attorney [sic] office, as well as your
  presentation during your rehearing. Accordingly, the
  record states that after a finding of guilty for the
  crime of murder, you were sentenced to 40-100 years
  in prison.
  The facts in the indictment state that the murders
  were gang related, the victim's ages being 17 and 14.
  According to the official Statement of Facts, the
  defendants marched the victims to an alley abutting a
  railroad embankment where they met with their gang
  Chief who told them to leave the victim alone.
  Defendants disregarded their Gang Chief's advise
  [sic]; and executed Reynolds who was standing against
  the railroad embankment with his hands in his pocket.
  His body was found with a shotgun wound in the side
  and three pistol wounds to the head. Defendants then
  turned to Johnnie Wilson and executed him.
  The Supplemental Program Considerations Report dated
  October 29, 1982, indicate [sic] you have been
  assigned to the laundry building since July 1, 1982.
  Since your last appearance before the Prisoner Review
  Board, you have received one disciplinary report
  resulting in restriction of gym privileges for one
  During your hearing, it was noted that you plan to
  enroll in a tailoring program with the Tailor's
  Institute of Chicago and reside with your mother in

Johnson initially argued (Petition 4a) Board's November Rationale "does not comport with the due process requirements" stated by our Court of Appeals in United States ex rel. Scott v. Illinois Parole and Pardon Board, 669 F.2d 1185, 1190-91 (7th Cir.), cert. denied, ___ U.S. ___, 103 S.Ct. 468, 74 L.Ed.2d 617 (1982) and Welsh v. Mizell, 668 F.2d 328, 330-32 (7th Cir.), cert. denied, ___ U.S. ___, 103 S.Ct. 235, 74 L.Ed.2d 186 (1982). In sum Johnson said (Petition 9) the November Rationale "sheds [no] light on why [Board's] conclusion was reached." Though the November Rationale did recite the facts of Johnson's offenses, Johnson argued (id., emphasis in original) "unless [Board] denies parole to all prisoners similarly situated as the petitioner, its reasons in this case to deny parole is [sic] tantamount to no reason at all."*fn2 Johnson sought (id. at 11) a new Board hearing and a constitutionally adequate statement of reasons should Board again deny him parole.

Johnson (June 27 Mem. 1-2) and respondents (Aug. 1 Mem. 2 and Ex. A) informed this Court Johnson was again considered for parole May 18, 1983.*fn3 On its official May 19 report as to that hearing Board checked only the box indicating "Parole denied, continued to 5/84" (the date again being handwritten onto a blank line). But also handwritten on the form are the words "Rationale to follow" (see this opinion's Appendix II), and appended is a separate sheet stating the May rationale:

  The Prisoner Review Board panel, in addition to
  conducting a face-to-face interview with Mr. Johnson,
  carefully reviewed all the materials in his file
  including, but not limited to, the official statement
  of fact, institutional adjustment, and parole plans.
  Mr. Johnson is serving a 40-100 years sentence for
  the murder of two young men aged 14 and 17. According
  to the official statement of facts, both victims

  were executed in an alley, one by pistol wounds to
  the head and a shotgun wound in the side, and the
  other by pistol wounds.
  Parole plans were noted by the Panel. Mr. Johnson has
  received no disciplinary reports since his last
  appearance before the Board in November, 1982. He has
  recently been assigned to the Officers' Kitchen.
  The Prisoner Review Board panel decides that further
  incarceration is needed to insure Mr. Johnson's
  continuing institutional stability and to therefore
  enhance the likelihood of his conforming to parole
  conditions and non-violent behavior in the free
  community. Parole is denied and case continued to
  May, 1984.

Johnson argues (June 27 Mem. 2-4) (1) the May Rationale is also defective under Scott and (2) really amounts to a denial of parole solely on the basis of the facts — and hence the seriousness — of his offenses. Welsh, 668 F.2d at 330-31 teaches the Ex Post Facto Clause would bar using the seriousness of Johnson's 1969 offenses as the determinative factor in Johnson's parole denial, for citation of that factor derives from Illinois parole criteria enacted in 1973. Respondents retort (Aug. 1 Mem. 2) the May Rationale passes muster under Scott and Welsh even if the November Rationale did not.

Exhaustion of Available State Remedies

As a threshold matter the parties argue extensively whether Johnson has exhausted his state court remedies as to his due process claim,*fn4 as Section 2254 requires. Rose v. Lundy, 455 U.S. 509, 515-20, 102 S.Ct. 1198, 1201-04, 71 L.Ed.2d 379 (1982). Johnson argues (1) Illinois courts would not entertain his due process claim and (2) in any event pursuit of state remedies would be futile. Petition 5; June 2 Mem. 2-3; July 21 Mem. 4-12. Respondents contend Johnson can pursue that claim in Illinois courts via mandamus proceedings. May 4 Mem. 2-4; May 9 Supp.Mem. and Ex. A; June 10 Mem. 1-2; Aug. 1 Mem. 1-2.

One thing is clear: Our Court of Appeals specifically held in Welsh, 668 F.2d at 329-30, it would have been futile to seek an Illinois state court remedy on the ex post facto claim urged by the petitioner there. For that proposition the Court cited Harris v. Irving, 90 Ill. App.3d 56, 45 Ill.Dec. 394, 412 N.E.2d 976 (5th Dist. 1980), in which (1) the Illinois Appellate Court had rejected that claim as to application of Illinois' 1973 parole criteria to pre-1973 offenses and (2) the Illinois Supreme Court had denied leave to appeal. Thus, as to Johnson's ex post facto claim, there are clearly no available state court remedies (as respondents admit, see n. 4).

As for Johnson's due process claim, Board can point to no possible "available" remedy other than a petition for writ of mandamus. There is an inherent anomaly in Board's advancement of its exhaustion-of-remedies argument to embrace that remedy in the present circumstances. Under Illinois law:

    1. Mandamus is an extraordinary remedy. People ex
  rel. Hoagland v. Streeper, 12 Ill.2d 204, 218,
  145 N.E.2d 625, 632 (1957); People ex rel. Cantu v.
  School Directors, 58 Ill. App.2d 282, 287-89,
  208 N.E.2d 301, 304-05 (1st Dist. 1965). It is available
  only to those who have established the clearest of
  rights to a public official's performance of an
  unquestioned duty (and not simply a claimed erroneous
  exercise of the official's discretion). People ex
  rel. Heydenreich v. Lyons, 374 Ill. 557, 567-68,
  30 N.E.2d 46, 52 (1940).
    2. Only the Illinois Attorney General, who is
  properly serving as Board's counsel before this
  Court, may represent Illinois

  public officials such as Board. People ex rel.
  Scott v. Briceland, 65 Ill.2d 485, 492-500, 3
  Ill.Dec. 739, 744-45, 359 N.E.2d 149, 154-56 (1976).

Yet Board comes to this Court, stating through the Attorney General that state mandamus will lie (that is, that Johnson has the clearest of rights to the relief he seeks*fn5), but still having deprived him of that clear and unquestioned right — not once but twice! If Board and the Attorney General are correct, Johnson's state court petition for writ of mandamus would be a feigned proceeding, with petitioner and respondents in total agreement and with no case or controversy thus before the state court. It would be the legal duty of the Attorney General to confess error and require his clients to act immediately to give Johnson his due process rights. See Marino v. Ragen, 332 U.S. 561, 562, 68 S.Ct. 240, 241, 92 L.Ed. 170 (1947) (per curiam).

All this induces a powerful sense of deja vu — of "plus ca change, plus c'est la meme chose." There was a time when Illinois was a byword for the frustration of prisoners' rights — when it had constructed a maze of procedural obstacles to post-conviction hearings, with nothing except a blind alley at the end of each path. Whatever avenue a prisoner sought to take, he was told he had pursued the wrong remedy and must try another route. See Note, A Study of the Illinois Supreme Court, 15 U.Chi.L.Rev. 107, 118-31 (1947) (written by this Court as a law student); Katz, An Open Letter to the Attorney General, 15 U.Chi.L.Rev. 251 (1948). In Marino, 332 U.S. at 562, 68 S.Ct. at 241 it was the Illinois' Attorney General's confession of error and the Supreme Court's response (see particularly Justice Rutledge's blistering concurrence, id. at 563-70, 68 S.Ct. at 241-45)*fn6 that finally broke the log jam. Indeed the Illinois Post-Conviction Hearing Act, Ill.Rev.Stat. ch. 38, §§ 122-1 to 122-7, was a direct outgrowth of that shameful chapter in the State's history.

This case does not present the normal exhaustion-of-remedies situation, in which considerations of "Our Federalism" and comity require that state courts be given the first opportunity to consider whether under the facts the Constitution — which the state courts are equally bound to uphold — does or does not guarantee the right a prisoner seeks to invoke. See United States ex rel. Mitchell v. DeRobertis, 553 F. Supp. 93, 96 (N.D.Ill. 1982). Instead the very availability of the mandamus remedy urged by the Board necessarily implies (or more accurately guarantees as a matter of law) Johnson's absolute and unquestioned right to relief.

It cannot be that the State's highest law officer, charged with the duty to represent the People in the classic sense, would take a different stance before a state tribunal (asserting the nonexistence of a clear right to relief and hence the unavailability of mandamus). Were such a possibility to exist,*fn7 the teaching of Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 408-09, 30 L.Ed.2d 418 (1971) is that there would be no "available" state remedy required to be exhausted (citations omitted):

    "The exhaustion-of-state-remedies rule should not
    be stretched to the absurdity of requiring the
    exhaustion of . . . separate remedies when at the
    outset a petitioner cannot intelligently select the
    proper way, and in conclusion he may find only that
    none of the [alternatives] is appropriate or

As already said, the necessary corollary of the Attorney General's position is that he will direct his clients (respondents here) to provide Johnson the relief he seeks in this Court. "Availability" of the mandamus remedy in the present context, unlike the "availability" of some other procedures, is not simply the "right" to file a mandamus action. Because of the inherent nature of mandamus, it is "available" to Johnson only if he has the true "right" — the right to relief — and not merely the opportunity to present a piece of paper to a court.*fn8

In sum the Attorney General's insistence Johnson has a mandamus remedy has to mean Johnson (1) is correct on the merits and (2) has an unquestioned right to a parole rehearing and a constitutionally adequate rationale for Board's actions. It may be the Attorney General has not thought through the inexorable significance of his own arguments. It may even be (though this Court would be loath to make such an assumption) his argument about "availability" of mandamus is not one of real availability, but rather a reprise of the kind of lip-service "availability" (but real-world unavailability) that ultimately led to Illinois' discredit in Marino. This Court prefers to take the Attorney General at his word. In those terms the Attorney General necessarily admits Johnson has an unquestioned right to the relief he now seeks, and the Attorney General has a consequent duty to instruct Board accordingly.

This Court therefore defers ruling on the pending motions for summary judgment. This matter is set for a status report September 21, 1983 at 9 a.m., at which time the Attorney General is ordered to report to this Court on whether Board has granted (or has made arrangements to grant) Johnson a hearing in compliance with Scott and Welsh.


Name    Leon Johnson    No.  C-15276,  Pontiac  Dkt. No. EF
                  STATE OF ILLINOIS
                PRISONER REVIEW BOARD         Date May 17, 1983

To the Warden —

The following order is your authority to release this individual on parole to the custody and supervision of the Office of Community Supervision, or continue to hold as indicated. If parole is ordered, said order is subject to being vacated prior to release to parole.

Any release is contingent upon execution of Parole or Mandatory Supervised Release Agreement.

|  ? Parole granted effective when             |
|                                               |
|          ? Parole plans are approved         |
|                                               |
|          ? Minimum is served                 |
|                                               |
|          ? Eligible                          |
|                                               |
|  ? Subject to regular conditions and         |
|                                               |
|          ? Close Supervision                 |
|                                               |
|          ? Special Condition No. __________  |
|                                               |
|          ? Recommendation No. _____________  |
|                                               |
|  ? Parole denied, continued to     7/83      |
|                                               |
|  ? Hearing continued to ___________________  |
|                                               |
|          ? Psychiatric report, requested     |
|                                               |
|          ? For verification of parole plans  |
|                                               |
|          ? At inmate's request               |
|                                               |
|                                               |
|  ? Release date offer addended to this Order |
|  ? Declared a violator as of                 |
|          _________________________________ on |
|                                               |
|          ? Statutory Parole                  |
|                                               |
|          ? Mandatory Supervised Release      |
|                                               |
|          ? Parole                            |
|                                               |
|      ? Parole or release revoked             |
|                                               |
|          ? Continued to ___________________  |
|             ________________________________  |
|                                               |
|      ? Parole or release continued           |
|                                               |
|          ? Effective ______________________  |
|             ________________________________  |
|                                               |
|          ? Effective when plans are approved |
|                                               |
|  ? Found not to be a violator                |
|                                               |
|  ? Hearing continued to ___________________  |
|                                               |
|          ? For further information           |
|                                               |
|          ? At inmate's request               |
|                                               |
|          ? For Violation Report              |
|                                               |
|          ? Recommendation No. _____________  |
|                                               |
|          ? Special Condition No. __________  |
|  ? Order of _____                            |
|                                               |
|          ? Amended                           |
|                                               |
|          ? Stayed                            |
|                                               |
|          ? Vacated                           |
|                                               |
|  ? Warrant withheld                          |
|                                               |
|  ? Warrant withdrawal request                |
|                                               |
|          ? Granted                           |
|                                               |
|          ? Denied                            |
|                                               |

The Board, considering all factors in your case, is denying parole at this time because of one or more of the following statutory reasons:

  ? There is a substantial risk that you will not conform to
     the reasonable conditions of parole, based upon one or

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