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ARNOLD v. ILLINOIS PRISONER REVIEW BD.

October 15, 1990

SIMON ARNOLD, JR., Petitioner,
v.
ILLINOIS PRISONER REVIEW BOARD, Respondent



The opinion of the court was delivered by: SHADUR

 MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 Simon Arnold, Jr. ("Arnold") requests leave to file his pro se petition (the "Petition") under 28 U.S.C. § 2254 ("Section 2254") without prepayment of the filing fee. For the reason briefly stated in this memorandum opinion and order, this Court grants such leave but summarily dismisses the Petition without prejudice to its future refiling if and when Arnold cures the nonexhaustion problem identified here.

 Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982) calls for the dismissal of "mixed" petitions for federal habeas corpus relief -- those containing both claims that have and claims that have not been exhausted in the state courts by resort to every available state court remedy. Rose has engendered progeny too numerous to cite without needlessly prolonging this opinion. And the specialized application of the Rose teaching to Arnold's precise situation is taught by United States ex rel. Johnson v. McGinnis, 734 F.2d 1193, 1198 (7th Cir. 1984):

 
Illinois courts have recognized that petitions for writs of mandamus directed against corrections officials may be an appropriate remedy for constitutional violations of parole procedures and prison conditions.

 Arnold must exhaust that remedy before seeking federal relief.

 Arnold's petition for a writ of habeas corpus is therefore dismissed without prejudice for his failure to exhaust state court remedies. Arnold's motion for appointment of counsel is accordingly denied as moot.

19901015

© 1992-2004 VersusLaw ...

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