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UNITED STATES EX REL. JOHNSON v. MCGINNIS

United States District Court, Northern District of Illinois, E.D


August 31, 1983

UNITED STATES OF AMERICA, EX REL. LEON JOHNSON, PETITIONER,
v.
KENNETH MCGINNIS, WARDEN, ET AL., RESPONDENTS.

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

MEMORANDUM OPINION AND ORDER

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.

Facts

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
  month.

  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
  Chicago.

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):

  Section 2254 does not erect insuperable or successive
  barriers to the invocation of federal habeas corpus.
  The exhaustion requirement is merely an accommodation
  of our federal system designed to give the State an
  initial "opportunity to pass upon and correct"
  alleged violations of its prisoners' federal
  rights. . . . Petitioners are not required to file
  "repetitious applications"

  in the state courts. . . . Nor does the mere
  possibility of success in additional proceedings
  bar federal relief. . . . Whether the State would
  have heard petitioners' claims in any of the
  suggested alternative proceedings is a matter of
  conjecture; certainly no available procedure was
  indicated by the State Supreme Court in earlier
  cases. . . . Furthermore, we are not referred to a
  single instance, regardless of the remedy invoked, in
  which the Missouri courts have granted a hearing to
  state prisoners on the conditions of their
  confinement. In these circumstances § 2254 did
  not require petitioners to pursue the suggested
  alternatives as a prerequisite to taking their claims
  to federal court. As Mr. Justice Rutledge stated in
  his concurrence in Marino v. Ragen, 332 U.S. 561, 568
  [68 S.Ct. 240, 244, 92 L.Ed. 170] (1947):

    "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
    effective."

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.

APPENDIX I

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
     more of the following reasons:

? Existence of prior adult felony convictions.

        ? An apparent pattern of aggressive or assaultive
           behavior (misdemeanor offenses also considered).

        ? Prior adult parole or probation violations within
           five years prior to offense.

? Refusal to be supervised on parole.

? Inadequate parole plan.

  ? Your release would deprecate the seriousness of the
     offense or promote disrespect for the law, based upon
     one or more of the following factors:

        ? The offense for which you were convicted,
          __________________________________________

        ? The aggravating as well as mitigating
           circumstance as described by statute.

  ? Your release would have a substantially adverse effect
     on institutional discipline based upon one or more of
     the following factors as established by the finding of
     an Administrative Review Board.

        ? Physical attack on another inmate or
           in-institutional staff.

? Possession of weapons, or drugs.

        ? Repeated violations of major institutional
           rules.

? Committed an act prohibited by law.

Violator Rationale

Parole or release is violated because you:

  ? Were convicted of (charged with) ____________________
     _____________________________________________________

  ? Violated condition(s) _______________________________
     _____________________________________________________
     of your Parole or Release Agreement

  ? Violated condition(s)
     _____________________________________________________
     of your Special Order

? Absconded

? Possessed            ? Delivered

? A controlled substance

? A weapon

  ? Did not comply with your counselor's instructions
     to __________________________________________________

? Failed to report or falsified report(s)

Evidence Relied Upon

? Counselor's Report

? Police Report

? Testimony or reports of witnesses

? Own admission

? See Addendum attached to and made a part of this Order

For The Board

APPENDIX II

Name    Leon Johnson *  No. C-15276  Inst. Pontiac  Dkt. No. DC

                    STATE OF ILLINOIS
                  PRISONER REVIEW BOARD       Date May 18, 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. ________________   |
|                                                    |
|  [x] Parole denied, continued to   5/84      |
|                                                    |
|  ? 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                                |
|                                                    |
|  ? Statutory Parole                               |
|                                                    |
|  ? Release by statute                             |
|                                                    |
|----------------------------------------------------|

   ? Considering all factors of your case, it is the judgment
      of the Board that parole is warranted.

? See Addendum attached to and made a part of this Order

PDB-140-A                 Rationale to follow

White: Board

Canary: Inst. File

Pink: Resident

Goldenrod: Clinical or Parole Services

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 or parole, based upon one or
       more of the following reasons:

? Existence of prior adult felony convictions.

            ? An apparent pattern of aggressive or assaultive
               behavior (misdemeanor offenses also considered).

            ? Prior adult parole or probation violations within
               five years prior to offense.

? Refusal to be supervised on parole.

? Inadequate parole plan.

    ? Your release would deprecate the seriousness of the
       offense or promote disrespect for the law, based upon one
       or more of the following factors:

            ? The offense for which you were convicted.
               _________________________________________

            ? The aggravating as well as mitigating circumstance
               as described by statute.

    ? Your release would have a substantially adverse effect on
       institutional discipline based upon one or more of the
       following factors as established by the finding of an
       Administrative Review Board.

            ? Physical attack on another inmate or institutional
               staff.

? Possession of weapons or drugs.

? Repeated violations of major institutional rules.

? Committed an act prohibited by law.

Violator Rationale

Parole or release is violated because you:

    ? Were convicted of (charged with) _____________________
       ______________________________________________________

    ? Violated condition(s) ________________________________
       ______________________________________________________
       of your Parole or Release Agreement

    ? Violated condition(s) ________________________________
       ______________________________________________________
       of your Special Order

? Absconded

? Possessed            ? Delivered

? A controlled substance

? A weapon

    ? Did not comply with your counselor's instructions
       to ____________________________________________________

? Failed to report or falsified report(s)

Evidence Relied Upon

? Counselor's Report

? Police Report

? Testimony or reports of witnesses

? Own admission

? See Addendum attached to and made a part of this Order

For The Board

Anne Taylor

L. Dreaklin

P. Klincer

ON ATTORNEY GENERAL'S REPORT TO THE COURT

This Court's August 31, 1983 memorandum opinion and order (the "Opinion", 571 F. Supp. 270) took the Illinois Attorney General at his word in contending mandamus is an available and unexhausted remedy for petitioner Leon Johnson ("Johnson"), thus defeating Johnson's right to federal habeas corpus under 28 U.S.C. § 2254 ("Section 2254"). Defendants were directed to apprise this Court, by the September 21 status call set by the Opinion, whether Johnson would therefore be accorded a new parole hearing.

Now the Attorney General has filed a September 19 "Report to the Court," and he has supplemented that Report with an oral confirmation at the status call, stating Johnson does not have a clear right to relief in mandamus. Instead the Attorney General urges Johnson's mere right to file a paper (a petition for writ of mandamus), which would by definition be unsuccessful because Johnson does not have "the clearest of rights to a public official's performance of an unquestioned duty" (Opinion at 273), demonstrates the "availability" of the state remedy of mandamus.

It is unnecessary to repeat the analysis of the Opinion, which views mandamus as qualitatively different from other truly available remedies under the circumstances here. Obviously the Attorney General's perception of "available" remedies displays less candor than did his predecessor of a generation ago in confessing error in Marino v. Ragen, 332 U.S. 561, 562, 68 S.Ct. 240, 241, 92 L.Ed. 170 (1947) (per curiam) (see Opinion at 274-75).[fn1a] Because the Attorney General has thus retreated from the logical consequence of his "availability" argument, this supplemental opinion must proceed with the further analysis referred to in the Opinion at 275 n. 8.

Mandamus As An "Available" Remedy

Complex exhaustion problems usually arise when a habeas petitioner has committed a procedural default in state court. Then the question becomes whether Illinois courts will relax their prevailing "waiver" or "forfeiture" rules to allow the petitioner's previously unasserted claim to be advanced in some form of state post-conviction proceeding. See, e.g., Gray v. Greer, 707 F.2d 965, 967-69 (7th Cir. 1983); Perry v. Fairman, 702 F.2d 119, 120-23 (7th Cir. 1983). In that context our Court of Appeals will find a habeas claim unexhausted only if there is "direct precedent" indicating Illinois courts would relax their "waiver" doctrine "under the particular circumstances of a prisoner's case." Gray, 707 F.2d at 968; Perry, 702 F.2d at 121 (both quoting United States ex rel. Williams v. Brantley, 502 F.2d 1383, 1386 (7th Cir. 1974)).

By analogy, respondents need a "direct precedent" here to show the "availability" of Illinois mandamus proceedings on Johnson's due process claims against Board. On that score respondents have come up short with the citations they adduce in their support:

    1. Toney v. Franzen, 687 F.2d 1016, 1021 (7th Cir.
  1982) cites People ex rel. Abner v. Kinney, 30 Ill.2d 201,
  195 N.E.2d 651 (1964), for the proposition
  "Under Illinois law, mandamus is clearly the
  appropriate procedure to compel the Department of
  Corrections to set petitioner's mandatory release
  date in accordance with law."

    2. People ex rel. Tucker v. Kotsos, 68 Ill.2d 88,
  99, 11 Ill.Dec. 295, 300, 368 N.E.2d 903, 908 (1977),
  held "mandamus will lie to enforce the accused parole
  violator's right to a reasonably prompt final revocation
  hearing."[fn2a]

    3. United States ex rel. Clark v. Klincar, No. 83 C
  695, (N.D.Ill. Mar. 31, 1983) concluded (slip op. at
  2) a due process parole-denial claim could still be
  argued on petitioner's "pending state court appeal."
  There is no indication whether Judge Getzendanner
  referred to petitioner's direct appeal or to an
  appeal in a post-conviction or collateral proceeding.
  There is in any event no reference to mandamus
  proceedings.

    4. United States ex rel. Mitchell v. McComb, No. 82
  C 3962 (N.D.Ill. Mar. 7,

  1983) did deal with claims identical to Johnson's.
  But in concluding petitioner had an available
  mandamus remedy Judge Decker (slip op. at 2) relied
  solely on the inapposite Toney, Tucker and Abner
  cases.

Respondents' most "direct precedent" is United States ex rel. Johnson v. Klincar, 572 F. Supp. 924, 927 (N.D.Ill. 1983).[fn3a] There Judge Roszkowski surveyed Abner and other "similar" cases involving mandamus proceedings against state prison officials involving various claims.[fn4a] Although Judge Roszkowski decided petitioner should first test the availability of the state mandamus remedy, he acknowledged (id. at 7):

  No Illinois cases have come to this court's attention
  on the issue of whether mandamus is available to
  compel the parole board to state the facts upon which
  it relied in reaching its determination.

Notably also, respondents have not informed this Court how the test recommended in Judge Roszkowski's Johnson case has gone.

On the other side of the coin, there is also United States District Court authority for Johnson's position here. See United States ex rel. Hurst v. Harvey, No. 79 C 1566, slip op. at 2 (N.D.Ill. Mar. 21, 1980) (Grady, J.); United States ex rel. O'Connor v. MacDonald, 449 F. Supp. 291, 295 & n. 2 (N.D.Ill. 1978) (Leighton, J.). But the current problem cannot be answered by weighing and balancing federal authorities. It must always be remembered that under Perry and its progeny federal courts are not the creators of state remedies — only the mirrors of those remedies. What is revealing for this Court is (1) our Court of Appeals teaches the burden is clearly on respondents to come forward with "direct precedent" in Illinois state court law for their contention as to exhaustion of Johnson's due process claim and (2) respondents have utterly failed to meet that burden.

Thus artificial self-levitation, in the form of counting up federal cases, will not do the job. There is no "direct precedent" in the Illinois state cases to meet the Gray-Perry-Williams requirement. Consequently mandamus is indeed not an unexhausted and still-available remedy. This Court is free to turn to the merits of Johnson's contention (for which purpose the following discussion takes off where the Opinion ended).

Merits

Though respondents are wholly unpersuasive in arguing the November Rationale meets the requirements of Scott, 669 F.2d at 1191,[fn5a] that is really of no moment. After all, Johnson's only remedy as to his November Rationale due process claim would have been a remand to Board for a rehearing. Id.; Welsh v. Mizell, 668 F.2d 328, 332-33 (7th Cir.), cert. denied, ___ U.S. ___, 103 S.Ct. 235, 74 L.Ed.2d 186 (1982). So as a technical matter the May hearing mooted Johnson's Petition and the cross summary judgment motions as originally filed.

But as the Opinion at 5 reflects, Johnson now contends (June 27 Mem. 1-4) the May Rationale is also defective. In effect he amends his Petition to apply also to that latter rationale. Johnson asserts both ex post facto and due process claims in an interrelated argument: He says the May Rationale still cites no facts or reasons to support its merely conclusory determinations except the facts of his crimes, so he is being denied parole solely because of the seriousness of his offenses. According to Johnson the May Rationale flagrantly flouts Scott and subtly violates Welsh. Respondents just as vigorously assert (Aug. 1 Mem. 2) the May Rationale passes muster under Scott and Welsh.

Matters are not quite so simple as either Johnson or respondents would have it. Scott condemned the use of a generic description of an inmate's offense (e.g., murder) as the only predicate for the denial of parole. But in part of its discussion en route to that decision, the Scott court distinguished (669 F.2d at 1191 & n. 8) two earlier decisions in which the United States Board of Parole and the Illinois Prisoner Review Board had described the specific facts of the prisoner's offense, and in which the Court of Appeals had found the requirements of due process satisfied. Garcia v. United States Board of Parole, 557 F.2d 100 (7th Cir. 1977); United States ex rel. Richerson v. Wolff, 525 F.2d 797 (7th Cir. 1955). And it is certainly true the May Rationale briefly sketches the facts that led to Johnson's conviction:

  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.

Thus we are not faced with a carbon copy of what Scott held fatally flawed in due process terms. But the raison d'etre of Scott (and Richerson) surely demands more than the May Rationale gives Johnson. After all there is a reason that due process requires the furnishing of reasons to a prisoner. That reason of course is the one Scott (669 F.2d at 1191 n. 7) quoted from Chief Justice Burger's opinion for the Court in Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 15-16, 99 S.Ct. 2100, 2108, 60 L.Ed.2d 668 (1979):

  The Board communicates the reason for its denial as a
  guide to the inmate for his future behavior. . . .
  [W]hen parole is denied it informs the inmate in what
  respects he falls short of qualifying for parole;
  this affords the process that is due under these
  circumstances. The Constitution does not require
  more.[fn6a]

So it is that Scott, 669 F.2d at 1190-91 makes it plain Board is not required to cite all the particular evidence for its stated reasons, but it must state those reasons clearly. Board must inform Johnson (id. at 1191, emphasis added) "of what in his record was felt by the Board to warrant his denial and why." Indeed Board's own pre-printed official form confesses there is a point acceptable to it on the continuum between (1) stating no reasons and (2) providing full summaries of all the evidence it considered. That form provides check-boxes by which to indicate the specific facts supporting Board's citation of the statutory criteria for parole denial. Those boxes invite Board to give Johnson precisely the "essential facts" he seeks and Scott requires.

Let Board take a step back to look at its May Rationale objectively. Plainly Board has not said the facts of Johnson's initial offense were so heinous as to bar him from parole forever[fn7a] — else why did the May Rationale refer to (1) the absence of disciplinary reports since the time of the November Rationale, (2) Johnson's recent assignment to the Officers' Kitchen, (3) the need "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" and (4) a continuance of the case to May 1984? It looks as though Board is doing its job of trying to make the necessary current judgment about probable future conduct — the essence of the parole decision — yet the problem in due process terms remains that Board's reasons for parole denial are not articulated.

For aught that appears the May Rationale relies only on the seriousness of Johnson's pre-1973 offenses as the predicate for a present denial of parole.[fn8a] At least there is no indication as to why the needs quoted in item (3) in the preceding paragraph led to Board's decision, and that "why" explanation is what Scott, Greenholtz and kindred cases mandate. Accordingly the May Rationale does not meet the demands of the Due Process Clause.

Conclusion

Technically the May hearing mooted Johnson's Petition and the cross summary judgment motions as originally filed (related as they were to the November Rationale). As for the May Rationale, put into issue by agreement of the parties, there is no genuine issue of fact material to the question whether it satisfied the due process requirements under Scott. It did not. Johnson is therefore entitled to a judgment as a matter of law, and respondents' cross motion for summary judgment is denied. Board is directed within 63 days from the date of this order to (1) reconsider Johnson for parole and (2) should it again deny him parole, provide him with a constitutionally adequate statement of the facts and reasons supporting its decision.


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