Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 82 C 7043 -- Paul E. Plunkett, Judge.
Before BAUER, Chief Judge, CUMMINGS and EASTERBROOK, Circuit Judges.
This action challenges a series of decisions by the Illinois Prisoner Review Board ("the Board") denying plaintiff's release on parole on eight separate occasions between February 1977 and April 1984. Plaintiff seeks both money damages and declaratory relief under 42 U.S.C. § 1983 and a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On March 19, 1953, plaintiff Paul Crump was convicted of killing an unarmed security guard during a robbery. Crump was sentenced to death for the murder. In 1955 the Illinois Supreme Court reversed Crump's conviction and remanded the case for a new trial Crump was retried and again convicted of murder and sentenced to death. On August 1, 1962, his sentence of death was commuted to a term of "199 years, without parole." In 1976 the "without parole" provision was stricken from the previous commutation order. Between February 1977 and April 1984, Crump has been considered for parole by the Board eight times, and the Board has denied parole each time.
Plaintiff filed the present action in federal district court on November 17, 1982. Plaintiff twice amended his complaint to add challenges based on the 1983 and 1984 denials of parole. After a full evidentiary hearing, the district court denied Crump's petition for a writ of habeas corpus and entered judgment in favor of the defendants on all other claims. It is from these judgments that plaintiff appeals.
The defendants assert that this Court is precluded from reviewing the merits of plaintiff's claims because he has failed to exhaust his available state court remedies as required by 28 U.S.C. § 2254(b). They contend that plaintiff must seek a writ of mandamus in an Illinois circuit court before the exhaustion requirement may be deemed satisfied.
This is not the first time that the exhaustion requirement has been at issue in this case. On December 18, 1984, the district court dismissed the habeas portion of plaintiff's complaint for failure to exhaust his state remedies for denial of parole because he failed to seek a writ of mandamus in the Illinois courts in accordance with this Court's decision in United States ex rel. Johnson v. McGinnis, 734 F.2d 1193 (7th Cir. 1984). Plaintiff then proceeded to file a motion for leave to file a petition for an original writ of mandamus with the Illinois Supreme Court, which was denied on June 25, 1985. Finding that plaintiff has exhausted all state remedies, the district court reinstated plaintiff's action on July 30, 1985.
Relying on our decision in Granberry v. Mizell, 780 F.2d 14 (7th Cir. 1985), certiorari granted sub nom. Granberry v. Greer, 479 U.S. 813, 107 S. Ct. 62, 93 L. Ed. 2d 21 (No. 85-6790), defendants argue that plaintiff must seek a writ of mandamus in an appropriate Illinois circuit court. In essence, their position is that the Illinois Supreme Court's denial of the motion for leave to file a petition for a writ of mandamus was not a decision on the merits and thus plaintiff must now seek a writ in circuit court.
Plaintiffs attempts to distinguish his case from the factual situation before this Court in Granberry. In Granberry, the Illinois Supreme Court denied the petitioner's motion seeking leave to file a petition for a writ of mandamus "without prejudice to proceeding in any appropriate circuit court for consideration of the question presented." 780 F.2d at 16. In contrast, plaintiff argues, the language used by the Illinois Supreme Court in his case was merely "Motion denied. " (Plaintiff's Reply Br. App. 1). Plaintiff draws a negative inference from the language used by the Illinois Supreme Court in the Granberry case to demonstrate that the motion for leave to file in his case was denied with prejudice.
The exhaustion issue here obviously turn on what res judicata effect the Illinois courts give to a denial by the Illinois Supreme Court of a motion for leave to file a petition for a writ of mandamus. Plaintiff has provided us with no Illinois caselaw to support his proposition that the denial was a ruling on the merits and accordingly with prejudice. The Illinois Attorney General has cited the case of People ex rel. Yarrow v. Lueders, 287 Ill. 107, 122 N.E. 374 (1919), as authority for the proposition that the denial was not a ruling on the merits and thus without prejudice. Our reading of the Leuders case, however, does not yield the proposition that the Attorney General claims. In Leuders, the Illinois Supreme Court held that the exercise of its original jurisdiction in mandamus is discretionary and that it would assume jurisdiction in a mandamus case "where there is a special reason and the remedy in the trial court is ineffective" even though an identical proceeding was pending in a lower court. 287 Ill. at 112, 122 N.E. at 376. Leuders did not address the question of whether the Illinois Supreme Court's denial of a motion for leave to file a petition for a writ of mandamus would preclude the petitioner from refiling the petition in circuit court.
Our own research has revealed several Illinois cases which hold that the Illinois Supreme Court's denial of a motion for leave to file is without prejudice to refiling in the circuit court. In Monroe v. Collins, 393 Ill. 553, 66 N.E.2d 670 (1946), the Illinois Supreme Court held that an order denying leave to file an original action in the Illinois Supreme Court is not an adjudication on the merits and does not preclude the plaintiff from prosecuting an action seeking the same relief in a circuit court and eventually perfecting an appeal to the Illinois Supreme Court. 393 Ill. at 556-557, 66 N.E.2d at 672. The court based its holding on the nature of the motion for leave to file an original action:
The procedure in making the application and the order of denial does not include the fundamentals of parties and a decision on the merits, which are necessary that a judgment possess before it may be pleaded in bar of a subsequent action. The making of the application and its consideration by this court are ex parte. The persons who are to be defendants, if leave to file is granted, are not in court on such application and have no opportunity to resist it. It is clear that if an application for leave to file should be ...