The opinion of the court was delivered by: Getzendanner, District Judge:
MEMORANDUM OPINION AND ORDER
Petitioner Norman Brown brings this application for the writ
of habeas corpus pursuant to 28 U.S.C. § 2254. Respondents
Kenneth L. McGinnis and the Illinois Prisoner Review Board
("the Board") answer the application pursuant to Rule 5,
governing § 2254 cases in the United States District Courts, by
claiming that Brown has not exhausted the state remedies
available to him under the statutes and procedural rules of
Illinois. Specifically, respondents claim that "petitioner has
an available avenue of state court relief in the state writ of
mandamus." (Respondent's Answer p. 2.) Respondents further
answer that petitioner's transcripts of conviction are not
relevant to petitioner's application, but do not answer
substantively any of the application's allegations.
In his application, Brown does not challenge the
constitutional validity of his conviction. Rather, he claims
that the statement of reasons provided by the Board for
denying him parole in April 1983 were constitutionally
deficient for several reasons. The court dismissed Brown's
original application in an opinion of June 9, 1983. Brown v.
McGinnis, et al., No. 83 C 3454, slip op. (N.D.Ill. June 9,
1983). There the court held that in denying Brown's parole, the
Board's statement of reasons and facts supporting those reasons
satisfied due process. The cover sheet to Brown's parole denial
contains a list of the three reasons why parole may be denied
and, under each reason a list of factors relevant to that
reason. Boxes listed opposite these reasons and factors are
unchecked on Brown's cover sheet. Instead, an attached
"Rationale" explains that Brown is a poor risk in the free
community and mentions some facts about Brown's crime. The
court found that the Board's denial of parole was based upon
the substantial risk that Brown would not be able to conform to
the reasonable conditions of parole. In reaching that
conclusion, the Board properly considered not the seriousness
of Brown's offense, but the particular nature of the crime. The
court concluded that because the reasons and factors for the
denial of Brown's parole request were constitutionally
sufficient and proper, Brown failed to state a violation of
federal law. His application was dismissed.
Pursuant to a motion to reconsider its June 9, 1983 ruling,
the court again found that Brown's original application did
not state a constitutional claim. However, responding to new
arguments presented by Brown, the court found that one aspect
of Brown's parole denial may have been constitutionally
deficient. While Brown was provided a permissible reason for
the denial of his parole request, see Ill.Rev.Stat. ch. 38,
§ 1003-3-5(c)(1), and was provided with the factual basis
supporting that reason, see Scott v. Illinois Parole and Pardon
Board, 669 F.2d 1185, 1191 (7th Cir.) cert. denied,
459 U.S. 1048, 103 S.Ct. 468, 74 L.Ed.2d 617 (1982), there is no
indication that the supporting facts are among the factors
listed by the Board in their own rules as relevant to the
finding that Brown would not yet be able to conform to the
reasonable conditions of parole. Brown v. McGinnis, et al., No.
83 C 3454, slip op. at 6 (N.D.Ill. September 8, 1983).
The court concluded that two legal issues were presented by
the Brown application. First, a question was raised as to
whether the set of factors listed in Rule V under each of the
three criteria is exclusive so that the Board must grant
parole if "it does not rely on a statutory reason based on one
or more of the underlying factors." If the set under each
factor is exclusive, another question is raised as to whether
the Board is constitutionally required to follow Rule V.
Id. As some support existed for finding the factors exclusive
and the Board bound by its own rules, the court granted Brown's
motion for reconsideration and reinstated the case.
Implicit in the September 8, 1983 opinion is that if the
Rule V factors are not exclusive, Brown will not have stated
a claim since, according to the June 9 opinion, he was
properly provided with a statutorily mandated reason for the
denial of parole with an indication of the factors supporting
that reason. If Rule V's factors are exclusive, a question is
raised as to whether the Board followed its own rules. The
Rationale's factor is not one of those listed under the reason
provided for Brown's denial. Hence, it would appear that the
rule was violated, although the court's September 8 opinion
suggests that the Rationale is confusing on this point. In any
case, to be cognizable in this court, the violation of Rule V
must also have violated federal law. 28 U.S.C. § 2254(a).
Hence, even were the court to determine that Rule V's factors
are exclusive and that they were violated in this case, the
court would also have to reach the issue of whether the Board
must, under federal law, comply with its own rules. Respondents
argue vigorously that these issues should first be presented to
the Illinois state courts for review in a petition for
mandamus. 28 U.S.C. § 2254(b), (c).
Under 28 U.S.C. § 2254, federal courts should require the
exhaustion of state remedies that are neither futile nor
deficient. Duckworth v. Serrano, 454 U.S. 1, 102 S.Ct. 18, 70
L.Ed.2d 1 (1981); Echevarria v. Bell, 579 F.2d 1022, 1026-27
(7th Cir. 1978). Moreover, where the state remedy is
conjectural, a petitioner may not be required to exhaust it.
Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 408, 30
L.Ed.2d 418 (1971). However, the exhaustion requirement of §
2254(b) and (c) does not compel the court to predict the
outcome of the available state court remedy. See Moore v.
Duckworth, 581 F.2d 639, 644 (7th Cir. 1978), aff'd,
443 U.S. 713, 99 S.Ct. 3088, 61 L.Ed.2d 865 (1979); U.S. ex rel. Isaac
v. Franzen, 531 F. Supp. 1086, 1093 (N.D.Ill. 1982). This
circuit has once refused to require a petitioner under
28 U.S.C. § 2254 to exhaust a state mandamus remedy as the strict
conditions for the issuance of the writ — a clear right to
relief and a showing that defendants had a preexisting duty to
grant the relief — were not present. U.S. ex rel. Morgan v.
Sielaff, 546 F.2d 218, 222 (7th Cir. 1976). The court must
therefore address petitioner's claim that a mandamus remedy in
state court is not available to rectify the constitutional
violations he alleges.
Other cases in which prisoners have applied to courts in
this district for habeas corpus relief from allegedly
constitutionally deficient denials of parole have been
dismissed for failure to exhaust state remedies. E.g., U.S. ex
rel. Reese v. Illinois Prisoner Review Board, No. 82 C 6353,
slip op. at 3-4 (N.D.Ill. October 25, 1983) (Board allegedly
violated due process by failing to provide petitioner with
adequate statement of reasons for denial of parole); U.S. ex
rel. Williams v. DeRobertis, No. 83
C 3679 (N.D.Ill. October 6, 1983); U.S. ex rel. Barksdale v.
Thompson, No. 83 C 1946 (N.D.Ill. April 14, 1983); U.S. ex rel.
Johnson v. Klincar, 572 F. Supp. 924 (N.D.Ill. 1983). Such cases
concern whether the Board's rationale for denial of parole
satisfied the due process mandates of Scott. Presumably in the
resulting mandamus action the court would evaluate the
particular Board rationale against federal due process
requirements and, if the rationale were found deficient, order
the Board to comply with the law and issue a proper statement
of reasons or release the prisoner.
Here, were the court to require petitioner to seek mandamus,
the state court would be faced with the interpretation of Rule
V, whether it was followed in Brown's case, and if not,
whether Brown's federal due process rights were thereby
The court concludes that the state court would likely
entertain Brown's action in a mandamus hearing. Although
mandamus is an extraordinary remedy, People ex rel. Hoagland v.
Streeper, 12 Ill.2d 204, 145 N.E.2d 625, 632 (1957), that will
issue only upon a clear showing of rights to an official's
performance of an unquestioned duty, People ex rel. Heydenreich
v. Lyons, 374 Ill. 557, 567-68, 30 N.E.2d 46, 52 (1940), it is
not necessary to demonstrate with certainty that the writ would
issue before the court may require this avenue exhausted, U.S.
ex rel. Williams v. DeRobertis, No. 83 C 3679, slip op. at 3
(N.D.Ill. October 6, 1983); U.S. ex rel. Taylor v. Welborn, et
al., No. 83 C 3358, slip op. at 12 (N.D.Ill. January 10, 1984).
Here, Brown seeks to require the Board to follow its rules
for parole denial. In Taylor v. Franzen, 93 Ill. App.3d 758,
417 N.E.2d 242, 48 Ill.Dec. 840 (Fifth Dist. 1981), aff'd on
rehearing, 93 Ill. App.3d 1152, 420 N.E.2d 1203, 51 Ill.Dec.
645 (1981), the Illinois Appellate Court found mandamus the
appropriate remedy for petitioner Taylor's allegation that his
good time credit was revoked in violation of the Department of
Corrections' own rules. The Department of Corrections was
required to prescribe rules governing the granting and
revocation of good time credits. According to Taylor, the
administrative procedures prescribed by the enacted rules for
such revocation were not followed in his case.
On review of the circuit court's denial of mandamus, the
Illinois Appellate Court interpreted the rules allegedly
violated and found that the administrative proceedings in
Taylor's case did not comport with those rules. The Court
concluded that a new hearing should be held to comply with the
rules. Although Taylor raised a federal due process claim, the
Court's decision found that it could "address petitioner's
allegations that applicable regulations were violated
independent of his federal constitutional claims." 48 Ill.Dec.
at 843, 417 N.E.2d at 245.
As support for its finding that "mandamus is the correct
remedy to carry out our mandate [in granting a new hearing],"
id. at 845, the Court cited People v. Kinney, 30 Ill.2d 201,
195 N.E.2d 651 (1964). There, the Illinois Supreme Court found
mandamus to be the appropriate vehicle to compel the Parole and
Pardon Board to hold a hearing to determine a prisoner's
eligibility for parole. The Supreme Court also "implied that
mandamus would be appropriate to compel prison officials to
follow their internal rules." 48 Ill.Dec. at 845,
717 N.E.2d ...