Respondents Brief — Granberry v. Greer

No. 85-6790

Suprane vee

i et

In THE

Supreme Court of the United States

Octoser Term, 1986

a

eS

WALDO E. GRANBERRY,

Petitioner,

vs.

JIM GREER, Warden,

Respondent.

On Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circuit

BRIEF FOR THE RESPONDENT

NEIL F. HARTIGAN

Attorney General, State of Illinois

ROMA J. STEWART

Solicitor General, State of Illinois

MARK L. ROTERT *

TERENCE M. MADSEN

Assistant Attorneys General

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

(312) 917-257

Attorneys for Respondent

* Counsel of Record

Po et i _—

Ba BEST AVAILABLE c

————

“Oa 4

L :

Ate

|

a> *

i

QUESTIONS PRESENTED

1. Whether, in a habeas corpus proceeding brought by

a state prisoner pursuant to 28 U.S.C. §2254, the state

forfeits the defense of non-exhaustion of state court rem-

edies by failing to raise that issue in the district court.

2. Whether Petitioner exhausted his state court reme-

dies by presenting the state’s highest court with a motion

for leave to file a petition for writ of mandamus, when

denial of the motion does not constitute a decision on the

merits and where further recourse to state courts is not

shown to be futile.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED .................-.

TABLE OF CONTENTS ........---seeeeeess

TABLE OF AUTHORITIES .................

CONSTITUTIONAL PROVISION AND

STATUTE INVOLVED .............--+--5:

STATEMENT OF THE CASE .............-.

SUMMARY OF ARGUMENT ............---.

ARGUMENT:

|

THE RESPONDENT DID NOT FORFEIT APPLI-

CATION OF THE EXHAUSTION REQUIRE-

MENT BY FAILING TO ASSERT AN EX-

HAUSTION DEFENSE IN THE DISTRICT

GE ceG cen ceerescessvecccnceeucccoses

A

The Historical Development Of The Exhaus-

tion Doctrine Recognized Only Two Excep-

tions To That Requirement, Neither Of Which

EE TEE nccvcvceccsecsccvceuccess

The Interests Promoted By The Exhaustion

Doctrine Are Essential To The Maintenance

Of An Orderly Federal System, And Would

Be Defeated If Concepts Of Waiver Or For-

feiture Were Allowed To Excuse Adherence

Sl EE oc ccccoseesecevescescece

ill

Il.

THE PETITIONER HAS NOT EXHAUSTED HIS

AVAILABLE STATE COURT REMEDIES ...

A.

A Motion For Leave To File A Petition For

Writ Of Mandamus In the Illinois Supreme

Court Does Not Satisfy The Exhaustion Re-

EE Sddd day 664 0b40660s006 000000008

B

Petitioner Should Not Be Heard To Argue

The Futility Of Taking His Claim To State

Court Where The Same Showing Is Required

There As In Federal Court ..............

EE SUncereleceseerscecececoccoore

APPENDIX

1—Opinion of the United States Court of Appeals

in Crump v. Lane, No. 86-1286 (7th Cir. 1986) ..

2—Order of the United States District Court in

U.S. ex rel. Carbona v. Huch, No. 85 C 1750

Ee ds pee eeaseewoeeees

iv

TABLE OF AUTHORITIES

——

Cases PAGE

Baker v. Grice, 169 U.S. 284 (1898), overruled on

other grounds, Hensley v. Municipal Court, 411

CE Be Be cvccccevacevecessciseesegess 6

Braden v. 30th Judicial Circuit Court, 410 U.S.

GE. CD nie ntnedondb an a pedsbainanesaseess 9,13

Clark v. Barnard, 108 U.S. 436 (1883) ........ 14

Crump v. Lane, No. 86-1286 (7th Cir. 1986) .... 12, 16

Duckworth v. Serrano, 454 U.S. 1 (1981) ......

suk bawteeeh enenkeseiSbeunennel 7, 8, 10, 16, 20, 21

E.P.A. v. Pollution Control Bd., 69 Ill. 2d 394, 372

EE Ee GREE once ccckteunaececcaseseat 15

Ex Parte Hawk, 321 U.S. 114 (1944) ........ 7, 8,19

Ex Parte Royall, 117 U.S. 241 (1886) ...... 6, 7, 8, 22

Fergus v. Russell, 270 Ill. 304, 110 N.E. 130

GED: ccvikcandsendcenbhabetendxnesuentahaune 11

Harris v. Irving, 90 Ill. App. 3d 56, 412 N.E.2d

976 (Sth Dist. 1980) ......cccccccvees 20, 21, 22, 23

Heirens v. Mizell, 729 F.2d 449 (7th Cir.), cert.

denied, 469 U.S. 842 (1984) ............4-: 22

Hughes v. Kiley, 67 Ill. 2d 261, 367 N.E.2d 700

SED no cévcedcnctbondsdenseusesenseerteds 19

Minnesota v. Brundage, 180 U.S. 499 (1901) .... 6,7

Monroe v. Collins, 393 Ill. 553, 66 N.E.2d 670

CD: oo ccnecevaunedestesesdescuseeneeeee 19

Naranjo v. Ricketts, 696 F.2d 83 (10th Cir. 1982) .. 13

Vv

Needel v. Scafati, 412 F.2d 761 (1st Cir.), cert.

denied, 396 U.S. 861 (1969) ............... 13

New York v. Eno, 155 U.S. 89 (1894) ......... 6, 22

Ohio v. Bureau of Employment Services v. Hodory,

— ae ee PPP ere re err ree 13, 14

Ohio v. Thomas, 173 U.S. 276 (1899) ......... 7

People v. Lueders, 287 Ill. 107, 122 N.E. 374

SE ccd pe cddunawasees senda sHenneensuees 19

People v. Vance, 76 Ill. 2d 171, 390 N.E.2d 867

DD ¢ccnancnes ssddads snakbeetkaasennhens 21

People ex rel. Carey v. Covelli, 61 Ill. 2d 394, 336

CE WE CRUD cv cccecdsccdddsendecseds 19

People ex rel. Scott v. Briceland, 65 Ill. 2d 485,

, Boks BB! Bt Beeererrrrrr retire 11

People ex rel. Scott v. Kerner, 32 Ill. 2d 539, 208

ee ee ED bcincdadaaexdaceinsseses 21

People ex rel. Smith v. Elrod, 511 F. Supp. 559

eA, Te GE cn ted-cudeewesuessneracuwans 10

Picard v. Connor, 404 U.S. 270 (1971) ........ 19

Pitchess v. Davis, 421 U.S. 482 (1975) ........ 19, 20

Preisser v. Rodriguez, 411 U.S. 475 (1973) .... 11

Railroad Comm’n v. Pullman, 312 U.S. 496 (1941) .. 138, 14

Re Neagle, 135 U.S. 1 (1890) .............-45. 7

Reid v. Jones, 187 U.S. 153 (1902) ........... 6

Rose v. Lundy, 455 U.S. 509 (1981) ....... 7, 8, 9, 20

Sweet v. Cupp, 640 F.2d 233 (9th Cir. 1981) .... 8, 18, 20

Torjesen v. Smith, 114 Ill. App. 3d 147, 448 N.E.

2d 273 (5th Dist. 1983), appeal dismissed, 465

Ea PD ov ceexeCeucdenedesecevasensesews 19

vi

United States ex rel. Curbona v. Huch, No. 85 C 1750

SS Pre err rere 2,17

United States ex rel. Johnson v. McGinnis, 734 F.

ee ee eo cc accdeseeenuns 20

United States ex rel. Sostre v. Festa, 513 F.2d 1313

(2d Cir.) (Feinberg, J., concurring), cert. denied,

Se Se ee ED cnc Guccucescucsonseces+ 23

United States ex rel. Trantino v. Hatrack, 563 F.2d

fF ee . AES ee rrr rer rer 13, 15

Urquhart v. Brown, 205 U.S. 179 (1907) ...... 7

Wainwright v. Sykes, 483 U.S. 72 (1977) ...... 17, 18

Welsh v. Mizell, 668 F.2d 328 (7th Cir.), cert. de-

nied, 450 U.S. 928 (1982) ........ccecceees 22

Younger v. Harris, 401 U.S. 37 (1971) ........ 14

Constitutional Provisions

CS Cet ot. 0. SG. OF cccdwcwenesscsys 22

a Ca ee Se Oe op eens bee bastennseene 11

Pe, Come. Bab. GB OD on cdcecccceccvecsanes 1, 18

Statutes

Oe TE. 6 Be ki ce dennccdssanwasacanvesss passim

a” xs & @ & % F Srrrrrrrerrre. 11

Ill. Rev. Stat. 1985, ch. 14, § 5 .............. 2, 10

Ill. Rev. Stat. 1985, ch. 110A, ¢ 315 .......... 21

Ill. Rev. Stat. 1985, ch. 110A, 4 381 .......... 18

Ill. Rev. Stat. ch. 38, 4 1003-3-5(c) ............ 22

In THE

Supreme Court of the Anited States

Octoser TreRM, 1986

WALDO E. GRANBERRY,

Petitioner,

vs.

JIM GREER, Warden,

Respondent.

On Writ Of Certiorari To The United States

Court Of Appeals For The Seventh Circuit

BRIEF FOR THE RESPONDENT

CONSTITUTIONAL PROVISION AND

STATUTE INVOLVED

In addition to those items set forth in petitioner’s brief,

respondent relies on the following constitutional provision

and statute:

Constitution of Illinois (1970)

Article 6, Section 4(a)

The Supreme Court may exercise original jurisdic-

tion in cases relating to revenue, mandamus, prohibi-

tion or habeas corpus and as may be necessary to

the complete determination of any case on review.

”

Illinois Revised Statutes (1985)

Chapter 14, Paragraph 5(4)

The duty of each state’s attorney shall be:

(4) To defend all actions and proceedings

brought against his county, or against any county

of State officer, in his official capacity, within his

county.

STATEMENT OF THE CASE

The Statement of the Case contained in petitioner’s brief

adequately sets forth the historic facts necessary for res-

olution of the questions presented, subject to the follow-

ing additions:

1. The petition for writ of habeas corpus alleged a de-

nial of due process as well as an ex post facto claim. (J.A.

11)

2. The action was dismissed on April 18, 1983. A cer-

tificate of probable cause was denied by the district court

on May 31, 1983. A certificate of probable cause was

granted and counsel was appointed by the court of ap-

peals on January 25, 1985. On March 25, 1985, Judge Bua

of the United States District Court for the Northern Dis-

trict of Illinois, Eastern Division, dismissed an unrelated

Section 2254 petition for failure to exhaust available state

court remedies, ruling that denial of a motion for leave

to file a petition for writ of mandamus in the Illinois Su-

preme Court did not satisfy the exhaustion requirement.

The brief for the respondent was filed in the court of ap-

peals on May 10, 1985. Because of the relevance of that

holding, a copy of Judge Bua’s unreported opinion in U.S.

ex rel. Carbona v. Huch, No. 85 C 1750 (N.D. Ill.) is at-

tached as Appendix 2 to this Brief.

a |

- =

SUMMARY OF ARGUMENT

Although federal courts clearly have subject-matter

jurisdiction to grant writs of habeas corpus to prisoners

in state custody, that jurisdiction is subject to the pre-

cepts of the exhaustion doctrine. Because the exhaustion

doctrine promotes the crucial concepts of comity and fed-

eralism, it admits of only two narrow exceptions, neither

of which is present in this case.

The exhaustion doctrine furthers the legitimate goals

of fostering state court participation in the development

of federal constitutional litigation, and serves essential pur-

poses of comity and federalism:

1) by reducing friction between state and federal

courts by allowing state courts the first oppor-

tunity to pass upon and correct alleged violations

of constitutional law;

2) by avoiding disruption of the orderly progression

of state issues and cases;

3) by allowing state courts to participate in the de-

velopment and application of federal constitutional

law; and

4) hy helping to develop a sense of increased respect

for the United States Constitution within the

state courts.

In addition, the rule serves federal judicial economy by

allowing the opportunity for refinement of issues and full

factual development and by allowing the resolution of mer-

itorious claims before the cases come to the federal forum.

As such, it directly implicates the parallel interests of

the federal and state judiciaries, interests which may not

be waived or forfeited by members of a state’s execu-

onli

tive branch. In this case, wherein petitioner has clearly

failed to avail himself of an existing state remedy, it

would be inappropriate to deny the State of Illinois the

opportunity to assert their defenses under the exhaustion

doctrine because of the failure to assert those defenses

in an initial answer to a petition for habeas corpus.

Moreover, even if an express effort were made to forego

exhaustion defenses by a state official, no caselaw of this

Court or statutory authority will support petitioner’s claim

that such defenses are waived upon the respondent’s uni-

lateral decision that some other interest outweighs the

considerations underlying exhaustion. At most, an express

effort to waive the exhaustion defenses by respondent’s

counsel would permit a federal court to evaluate whether

such a waiver satisfies any of the narrow exceptions to

the doctrine itself. In no event may the doctrine’s goals

be declared forfeit merely by silence, for such would

nullify a doctrine designed to foster broader notions of

federalism and comity.

Finally, because it is apparent that the petitioner in this

case has failed to exhaust available state remedies, the

decision of the court ot appeals dismissing his petition on

that basis must be affirmed.

=

ARGUMENT

I.

THE RESPONDENT DID NOT FORFEIT APPLICATION

OF THE EXHAUSTION REQUIREMENT BY FAILING TO

ASSERT AN EXHAUSTION DEFENSE IN THE DISTRICT

COURT.

For fully a century this Court has insisted that state

prisoners seeking federal habeas corpus relief (28 U.S.C.

§ 2254) must first present their constitutional claims to

the state courts wherein they were convicted. This con-

cept, referred to as the exhaustion doctrine, promotes

crucial interests of comity and federalism in an area where

the potential for friction between the state and federal

judicial systems is particularly high. Because of its im-

portance, the exhaustion doctrine is rigidly enforced and

has been held subject to only two narrow exceptions.

The petitioner in the case at bar, having failed to ex-

haust an available state remedy before applying for fed-

eral habeas corpus relief, now urges upon the Court a

third exception, not heretofore established by any deci-

sion of this Court. He submits that the exheustion re-

quirements need not apply where there has been an ex-

plicit waiver, or indeed even an inadvertent forfeiture, of

the benefits of that doctrine by counsel for a respondent

state official.

Such a novel exception finds no historical support in the

habeas corpus statute or the precedent of this Court.

Worse, it runs counter to the underlying principles fos-

tered by the doctrine itself. As such, it is imperative that

this Court continue its tradition of consistent adherence

to the exhaustion doctrine.

=

A.

The Historical Development Of The Exhaustion Doctrine

Recognized Only Two Exceptions To That Requirement,

Neither Of Which Is Present Here.

When this Court established the exhaustion requirement

in Ex Parte Royall, 117 U.S. 241, 250-251 (1886), it ex-

plained that, while federal courts have discretionary juris-

diction upon writ of habeas corpus to inquire into the

basis of custody on state authority,

that discretion should be exercised in the light of the

relations existing, under our system of government,

between the judicial tribunals of the Union and of

the States, and in recognition of the fact that the

public good requires that those relations be not dis-

turbed by unnecessary conflict between courts equally

bound to guard and protect rights secured by the

Constitution.

Id.

Twelve years later this Court observed in Baker v. Grice,

168 U.S. 284, 290 (1898), overruled on other grounds,

Hensley v. Municipal Court, 411 U.S. 345, 351, n.8 (1973),

that the development of the caselaw since Royall made

it appear clearly that “as the settled and proper proce-

dure” federal courts “ought not to exercise (their habeas

corpus] jurisdiction by the discharge of a prisoner unless

in cases of peculiar urgency. . .” See also New York v.

Eno, 155 U.S. 89 (1894); Minnesota v. Brundage, 180 U.S.

499, 502 (1901). Shortly thereafter, this Court briefly dis-

cussed the requirement and flatly asserted that federal

courts will intervene by writ of habeas corpus in advance

of final action by the highest court of the state ‘‘only in

certain exceptional cases.”’ Reid v. Jones, 187 U.S. 153,

154 (1902).

- =

The exhaustion requirement and its lone exception based

on peculiar urgency were reiterated and strengthened in

Urquhart v. Brown, 205 U.S. i179 (1907). Urquhart, like

this case, involved a challenge, not to trial error, but to

the constitutional validity of a state statute. In Urquhart,

this Court explained that the exceptional cases in which

exhaustion may not be required

are those of great urgency that require to be prompt-

ly disposed of, such, for instance, as cases involving

the authority and operations of the General Govern-

ment, or the obligations of this country to, or its re-

lations with, foreign nations.

Urquhart, 205 U.S. at 182.

In Rose v. Lundy, 455 U.S. 509, 516 (1981) this Court

observed that this was the state of the exhaustion require-

ment, as expressly reflected in Ex Parte Hawk, 321 US.

114, 117 (1944), whei it was codified as part of the Judicial

Code of 1948 (ch. 646, § 2254, 62 Stats., 869, 967 (1948)).

The narrow special circumstances contemplated by Urqu-

hart have seldom been found by this Court. See e.g., Ohio

v. Thomas, 173 U.S. 276 (1899) (finding exception where

imprisonment of federal officer may have impeded opera-

tions of federal government); Re Neagle, 135 U.S. 1 (1890)

(finding exception where deputy U.S. Marshall committed

killing in exercise of his duty of protecting supreme court

justice); Minnesota v. Brundage, 180 U.S. 499 (1901) (no

exception where state court action may be inconsistent

with decisions of this Court or where case involves issue

of business or public interest).

In Duckworth v. Serrano, 454 U.S. at 1, 2-3 (1981) (per

curiam), this Court made clear that even a “clear violation

of a petitioner’s rights,”’ coupled with an interest in judicial

economy, will not excuse exhaustion. The Serrano Court

interpreted Ex Parte Royall and its progeny as allowing

allie

circumvention of the exhaustion requirement where the

state courts provide no opportunity for redress, or where

the state “corrective process is so clearly deficient as to

render futile any effort to obtain relief.”” Duckworth v.

Serrano, supra, 454 U.S. at 3. Subsequent to Serrano,

however, the decision in Rose drew from the language

of Hawk to make clear that the futility exception dis-

cussed in Serrano is a separate concept from exceptional

circumstances of peculiar urgency. Rose, supra, 455 U.S.

at 516, n.7.

The second narrow exception to the exhaustion require-

ments of Royall is referred to as the “futility exception”’,

a term which has been used to describe two slightly dif-

ferent concepts. The narrower view of “futility” is ap-

plied in cases where the highest state court has recently

addressed the issue and decided it adversely to petitioner

in the absence of any intervening decision of this Court

or any other indication that the state court is likely to

change its position. See Sweet v. Cupp, 640 F.2d 233, 236

(9th Cir. 1981) (discussing the futility exception and its

purpose). A slightly broader test of futility is expressed

in Duckworth v. Serrano, where this Court explained that

the exception is made “only if there is no opportunity to

obtain redress in state court or if the corrective process

is so clearly deficient as to render futile any effort to ob-

tain relief.”’

In any event, futility and exceptional circumstances,

however defined, are the only two narrow exceptions this

Court has recognized to the exhaustion requirement. In

all other cases, even though the requirement is not truly

jurisdeejonal, the exhaustion requirement has been rigidly

enforced by this Court. Petitioner asks this Court to cre-

ate yet a third exception based on the supposedly implicit

representation by counsel for respendent that other con-

alien

cerns or state interests should excuse the requirement.

This Court’s unwavering insistence on enforcement of the

exhaustion requirement is well-founded in view of the im-

portance of the considerations underlying the requirement

and should not yield to petitioner’s request.

B

The Interests Promoted By The Exhaustion Doctrine Are

Essential To The Maintenance Of An Orderly Federal System,

And Would Be Defeated If Concepts Of Waiver Or Forfeiture

Were Allowed To Excuse Adherence To That Doctrine.

The exhaustion requirement serves at least four essen-

tial purposes of comity and federalism:

1) by reducing friction between state and federal

courts by allowing state courts the first oppor-

tunity to pass upon and correct alleged violations

of constitutional law;

2) by avoiding disruption of the orderly progression

of state issues and cases;

3) by allowing state courts to participate in the de-

velopment and application of federal constitutional

law; and

4) by helping to develop a sense of increased respect

for the United States Constitution within the

state courts.

This Court has recently explained that “(t]he exhaus-

tion doctrine is principally designed to protect the state

court’s role in the enforcement of federal law and pre-

vent disruption of state judicial proceedings.” Rose v.

Lundy, 455 U.S. 509, 518 (1981); See also Braden v. 30th

Judicial Circuit Court, 410 U.S. 484, 490 (1973) (“(e)arly

federal intervention in state criminal proceedings would

tend to remove federal questions from the state courts,

isolate those courts from constitutional issues, and thereby

—10—

remove their understanding of and hospitality to federally

protected interests’’).

The doctrine also “serves to minimize friction between

our federal and state systems of justice by allowing the

State an initial opportunity to pass upon and correct al-

leged violations of prisoners’ federal rights.’”’ Duckworth

v. Serrano, 454 U.S. 1, 3 (1981) (per curiam).

Finally, the rule serves federal judicial economy by al-

lowing the refinement of issues and the development of

supporting facts before the case reaches the federal forum.

The rule also reduces the number of cases presented in

federal court by allowing for resolution of meritorious

claims by state courts.

Respondent urges this Court to conclude that considera-

tion of these compelling interests should not be foreclosed

by forfeiture, or even explicit waiver, based on the con-

duct of counsel from a state’s executive branch, whose

interests may or may not be co-extensive with those of

the state judiciary. The concerns underlying the exhaus-

tion doctrine require a federal court to consider whether

futility or special circumstances exist to justify the exer-

cise of its discretion, even in the face of an explicit waiver

of exhaustion by counsel for the respondent. Even an ex-

plicit waiver, while a relevant factor to the court’s deter-

mination, should not strip the court of the ability to ex-

ercise its discretion.

In this case, as in most section 2254 cases arising in

Illinois,! the respondent is warden of a correctional facili-

1 Had the custodian been one of the 102 county sheriffs in Illi-

nois, he or she would have been represented by the state’s at-

torney for his county. See Ill. Rev. Stat. 1985, ch. 14, § 5. See

e.g., People ex rel. g ith v. Elrod, 511 F. Supp. 559 (N.D. Il.

(Footnote continued on following page)

wales

ty, an officer of the executive branch; counsel for respon-

dent, an assistant attorney general, was similarly an of-

ficer of the executive branch. The Attorney General of

the State of Illinois is “the legal officer of the state.”’ IIl.

Const. Art. 5, § 15. In that capacity, the Attorney

General’s duties include that he “defend all actions and

proceedings against any state officer, in his official capaci-

ty, in any of the courts of this state or in the United

States.”’ Ill. Rev. Stat. 1985, ch. 14, § 4. Similarly, in ac-

cord with his mandate, the Attorney General represents

all of the judges and justices of the Illinois judicial sys-

tem in their capacity as state officers. In addition, the

Attorney General enjoys all of the powers assigned to that

office at common law. See Fergus v. Russell, 270 Ill. 304,

110 N.E. 130 (1915); People ex rel. Scott v. Briceland, 65

Ill. 2d 485, 359 N.E.2d 141 (1976).

Petitioner argues that the Attorney General, as the chief

legal officer of the state, can waive or forfeit the exhaus-

tion requirement because comity is a concept related to

federal-state relations overall and not restricted to judicial

relationships. He correctly points out that in Preisser v.

Rodriguez, 411 U.S. 475, 491 (1973), this Court explained

that considerations of comity have relevance beyond the

case where state judicial action is being attacked. That

observation, however, does not alter or extinguish the par-

ticularized concerns of comity and federalism when it is

a judicial action that is in issue.

As a broad generalization, it is true that the concepts of

comity and federalism implicate the relationship between

' continued

1981). Although individual county prosecutors may occasionally ap-

pear as counsel for respondent in a section 2254 proceeding, they

are not statutorily apenas to speak for the Illinois judiciary

as a whole.

= =

the federal government and a sovereign state. But in the

specific context of section 2254 cases, the specific interests

furthered by the exhaustion doctrine most directly impli-

cate the distinct roles played, in a federal system, by the

federal judiciary and the state judiciary. These unique in-

terests are negatively affected by any doctrine which per-

mits a judicial interest to be evaulated and waived by an

executive officer.

Petitioner also argues that because the Attorney Gen-

eral is the state’s chief legal officer he should be allowed

to determine whether the state’s interests in comity

should be abandoned in the face of other important state

interests. He asserts that failure to recognize the At-

torney General’s authority and role in deciding whether

to waive the judiciary’s interests ‘“denigrates his constitu-

tional authority and unnecessarily increases the friction

between the state and federal governments.” (Pet. Brief

at 18).

This position is difficult to reconcile with the Attorney

General’s own insistence in this case that the judiciary’s

interests be preserved and enforced despite the obvious

administrative economy in allowing the court of appeals

to determine the merits of a case which seems extreme-

ly likely to be ultimately decided in respondent’s favor.

See also Crump v. Lane, No. 86-1286 (7th Cir. 1986) (at-

tached hereto as App. 1).

Accordingly, the exhaustion rule must be enforced in

all Section 2254 cases arising out of Illinois which are not

subject to exception for futility or exceptional circumstances

of peculiar urgency. A federal court should never be bound

by even an explicit waiver of exhaustion. Rather, the

court should consider the waiver, and any explanation of-

fered for it, only as part of its analysis of whether futility

or some extreme circumstances exist to justify exception

~s

to the rule. See United States ex rel. Trantino v. Hatrack,

563 F.2d 86, 96-97 (3rd Cir. 1977) (waiver amounts to

nothing more than notice that the state is unopposed to

the court reaching the merits); See also Naranjo v.

Ricketts, 696 F.2d 83 (10th Cir. 1982); Sweet v. Cupp, 640

F.2d 233 (9th Cir. 1981); Needel v. Scafati, 412 F.2d 761

(Ist Cir.), cert. denied, 396 U.S. 861 (1969).

The interests of the state and federal judiciaries are

compelling. They are simply not interests that state pros-

ecutors have been, or should be, empowered to yield. See

Naranjo v. Ricketts, supra, 696 F.2d 83, 87 (10th Cir.

1982) (“the state court interest in having ‘an initial op-

portunity to pass upon and correct alleged violations of

its prisoners’ federal rights’ is simply not an interest that

state prosecutors have been empowered to yield”’).

Indeed, even if a state prosecutor were empowered to

explicitly waive the interests of the Illinois judiciary, he

could not waive the interests of encouraging state court

participation in enforcement of federal constitutional law

and its related goals of experimentation and growth in

the development of constitutional law and preservation of

a national system of courts dedicated to the supremacy

of the constitution. Cf, Braden v. 30th Judicial Circuit

Court, supra, 410 U.S. 484, 490 (1973).

The cases relied on by petitioner as representative of

analogous areas of the law are not applicable to this case.

Ohio v. Bureau of Employment Services v. Hodory, 431

U.S. 471 (1977), which allowed the state to waive similar

interests by voluntarily submitting to federal jurisdiction,

should not be extended to Section 2254 cases. In Hodory,

an amicus relied on the abstention doctrine of Railroad

Comm’s v. Pullman, 312 U.S. 496 (1941), to urge this

Court to remand a case for dismissal, while the state ex-

plicitly resisted such a remand in a case involving the con-

=e

stitutionality of a state unemployment compensation law.

In the district court the state had argued abstention but

the court expressly concluded that the abstention doctrine

did not bar the suit. The state then appealed to this Court

and abandoned the abstention argument. This Court held

that Hodory was not a Pullman-abstention case, but was

controlled by Younger v. Harris, 401 U.S. 37 (1971),? and

then held that although this case was within the purview

of Younger, that doctrine need not be enforced when the

state voluntarily submits to the federal jurisdiction.

Initially, it may be noted that Hodory is not inconsis-

tent with the rule urged in this case, in that the exhaus-

tion doctrine is not without some exception, i.e., the

“futility” and “special circumstances” principles discussed

above. Limiting the exceptions to these two narrow in-

stances, however, even in the face of an explicit waiver,

is not inconsistent with Hodory in view of the recogni-

tion in Younger that the considerations underlying that

decision are particularly compelling in cases involving

state criminal prosecutions. Younger v. Harris, supra, 401

U.S. at 43. While not an ongoing prosecution, the underly-

ing issue here goes directly to the scheme for enforce-

ment of state criminal sentences and is equally compelling.

Petitioner’s additional cases involving the waiver of per-

sonal rights by parties have no bearing on this case where

the interests at stake do not belong to the parties. See,

e.g., Clark v. Barnard, 108 U.S. 436 (1883).

2 Pullman-abstention focuses on the possibility that the State

may interpret a statute in a manner which may eliminate or

materially alter the constitutional question. Younger-abstention

focuses on the importance of state court participation in the deter-

mination of federal constitutional claims.” 431 U.S. at 477.

= =

This Court should determine in this case that the nature

of the interests underlying the exhaustion requirement are

sufficiently compelling and unique to require federal courts

to satisfy themselves that either futility or exceptional cir-

cumstances justify abandonment of the requirement. While

an explicit waiver by counsel for respondent, accompanied

by the reasons for the waiver, should be helpful to the

court in making its assessment, waiver cannot preclude

the court from making its own determination. See, United

States ex rel. Trantino v. Hatrack, 563 F.2d 86 (1977).

Nonetheless, even if this Court determined that the at-

torney general could explicitly waive exhaustion, policy

considerations dictate against inferring forfeiture solely

from the failure of respondent’s counsel to raise an ex-

haustion defense in his initial response to the petition.

In a Section 2254 proceeding arising out of Illinois,

the attorney general represents specific executive branch

clients who are generally either corrections or parole

authorities. In cases where the constitutionality of a stat-

ute is in issue, as here, he must also protect interests

of the legislature. In all Section 2254 actions he must pro-

tect interests of the judiciary whether the case relates

directly to the integrity of a judicial proceeding or whether

the interest is concerned more with the state court’s role

in interpreting and applying state law and the federal

constitution.

Although the state judiciary is not a party to a Section

2254 proceeding, the judiciary is a client of the attorney

general. While this relationship is not precisely akin to

a traditional attorney-client relationship (See E.P.A. v.

Pollution Control Bd., 69 Ill. 2d 394, 401, 372 N.E.2d 50

(1977)), the Attorney General cannot, in accord with his

duties and obligations, simply ignore the interests of the

judiciary. The importance he places on his duty to the

= s

judiciary is evidenced in the facts of both this case and

Crump v. Lane, supra, (A-1) where after prevailing on

the merits in the district court and while fully expecting

to prevail on the merits in the court of appeals, he sought

dismissal for exhaustion when it became apparent that the

claim remained unexhausted. He did so with the recogni-

tion that administrative and even judicial expedience are

not special circumstances which can justify scrapping the

interests underlying the exhaustion requirement. Duck-

worth v. Serrano, supra, 454 U.S. at 3 (reversing a writ

issued despite failure to exhaust where the court of ap-

peals had relied on a “clear violation of rights” and judi-

cial economy in finding that exhaustion was not required).

The Attorney General of Illinois, therefore, in accord

with his duties and obligations cannot ignore the judici-

ary’s interests. For this reason, anything but an explicit

and explained attempt to waive exhaustion can only be

indicative of lack of development of the law, mistake or

inadvertence. In this case, the fact that the State did not

intend to waive exhaustion is obvious from the fact that

the issue was pressed on appeal when respondent’s coun-

sel realized that the case was unexhausted.

The petition below was prepared in August, 1983 (J.A.

8). An assistant attorney general moved the magistrate

to dismiss the petition for failure to state a claim before

filing an Answer pursuant to Rule 5. 28 U.S.C. foll.

§ 2254, Rule 5. The respondent did not address exhaus-

tion in his motion. While that motion was pending, the

United States Court of Appeals for the Seventh Circuit

reversed the opinion on which petitioner had based his

claim. As a result, the magistrate recommended that the

petition be denied and the district court agreed on April

18, 1984 (J.A. 18-21).

iitiin

Nearly one year later Judge Bua of the United States

District Court for the Northern District of Illinois in dis-

missing a Section 2254 petition swa sponte in an unpub-

lished Order, held for the first time that denial of a mo-

tion for leave to file a petition for writ of mandamus by

the Illinois Supreme Court does not s2*isfy the exhaus-

tion requirement. United States e~ rel. Carbona v. Huch,

No. 85 C 1750 (March 26, 1985) (A-17).

Respondent then urged a similar argument in his brief

before the Circuit Court of Appeals, which was filed on

May 10, 1985. The case at bar was the first time that

the court of appeals adopted the position previously an-

nounced by Judge Bua in Carbouna.

Even if this Court were willing to accept petitioner’s

argument that the Attorney General has the power to

determine that some other state interest offsets the con-

cerns of comity and, in accord with that determination,

to expressly waive the interests of the judiciary, that

argument should not be extended to cases where, as here,

no such determination was made. The attorney general

has made clear that Illinois desires that the exhaustion

doctrine be enforced in this case from the earliest indica-

tion that there was a failure to exhaust.

Finally, and contrary to petitioner’s position, requiring

exhaustion in the absence of futility or special circum-

stances is consistent with Wainwright v. Sykes, 433 U.S.

72 (1977) and its progeny, regardless of how or when the

failure to exhaust is brought to the attention of, or discov-

ered by, the federal court. The rule of Wainwright, like

the exhaustion requirement itself, was developed to en-

courage petitioners to fully litigate their constitutional

claims in the state courts. See Wainwright v. Sykes, 433

U.S. at 81-83. Similarly, rigid adherence to the exhaus-

tion doctrine promotes the parallel goals of permitting

=

state courts an equal participatory share in the develop-

ment of constitutional jurisprudence. If anything, peti-

tioner’s efforts to seek application of the Wainwright de-

fault doctrine to questions of exhaustion are contrary to

the underlying principles of comity and federalism in-

herent in both the procedural default doctrine and the ex-

haustion doctrine.

Respondent urges this Court to hold that a federal court

on Section 2254 review should refuse to consider any un-

exhausted petition not subject to exception for futility or

special circumstances, regardless of how or when the fail-

ure to exhaust comes to the court’s attention.

THE PETITIONER HAS NOT EXHAUSTED HIS AVAIL-

ABLE STATE COURT REMEDIES.

A.

A Motion For Leave To File A Petition For Writ Of Man-

damus In The Illinois Supreme Court Does Not Satisfy The

Exhaustion Requirement.

Petitioner contends that he exhausted his available state

court remedies by filing a motion for leave to file a peti-

tion for writ of mandamus in the Illinois Supreme Court.

Petitioner’s argument is wholly without support in either

federal or Illinois caselaw. The Illinois Supreme Court’s

denial of petitioner’s motion for leave to file a petition

for writ of mandamus clearly did not amount to an ad-

judication on the merits of his claim.

Original jurisdiction mandamus in the Illinois Supreme

Court is authorized by the Illinois Constitution, Ill. Const.

Art. 6, § 4(a), and procedurally governed by Supreme

Court Rule 381. 87 Ill. 2d, at 420 (1981); Ill. Rev. Stat.

1985, ch. 110A, ¢ 381.

==

The Illinois Supreme Court’s discretionary jurisdiction

in mandamus is normally exercised only where no ordi-

nary remedy is available or adequate. Hughes v. Kiley,

67 Ill. 2d 261, 266, 367 N.E.2d 700, 702 (1977); See also,

People ex rel. Carey v. Covelli, 61 Ill. 2d 394, 400, 396

N.E.2d 759 (1975) (writ entertained where the issue is

“novel” and appears “to be of considerable importance

to the administration of justice’’); People v. Lweders, 287

Ill. 107, 112, 122 N.E. 374 (1919) (the exercise of man-

damus jurisdiction “by this court is discretionary, and the

court will assume jurisdiction in cases only where there

is a special reason and the remedy in the trial court is

ineffective. . .’’).

Contrary to petitioner’s suggestion, the Illinois Supreme

Court’s refusal to exercise this extraordinary jurisdiction

is not an adjudication on the merits and does not preclude

seeking relief in the circuit court and eventually perfect-

ing an appeal to the Illinois Supreme Court. Monroe v.

Collins, 393 Ill. 553, 556-557, 66 N.E.2d 670, 672 (1946);

See also Torjesen v. Smith, 114 Ill. App. 3d 147, 448

N.E.2d 273 (5th Dist. 1983), appeal dismissed, 465 U.S.

1015.

The denial of leave to file a petition for writ of man-

damus in the Illinois Supreme Court is, therefore, not an

adjudication on the merits and it is not a refusal by the

state judiciary to consider a claim.

The decisions of this Court make it clear that a state

supreme court’s denial of a petition for an extraordinary

writ does not satisfy the exhaustion requirement where

the denial does not constitute an adjudication on the merits.

See Pitchess v. Davis, 421 U.S. 482, 488 (1975); Ex Parte

Hawk, 321 U.S. 114, 116 (1944). Pitchess relies on this

Court’s teaching in Picard v. Connor, 404 U.S. 270,

275-276 (1971), that exhaustion of state court remedies re-

quires that claims be exhausted by fair presentation to

the state courts and not merely by passage through the

state courts. Pitchess, supra, 421 U.S. at 487.

B.

Petitioner Should Not Be Heard To Argue The Futility Of

Taking His Claim To State Court Where The Same Show-

ing Is Required There As In Federal Court.

Invoking the “futility” exception to the exhaustion rule

discussed in Duckworth v. Serrano, supra, 454 U.S. 1, 4

(1981), petitioner argues that relief on his ex post facto

claim is precluded in Illinois because of the decision in

Harris v. Irving, 90 Ill. App. 3d 56, 412 N.E.2d 976 (5th

Dist. 1980). In Harris, the court rejected an ex post facto

argument virtually identical to that raised by petitioner.

At the outset, petitioner does not address the exhaus-

tion of his due process claim. That claim is clearly cog-

nizable in an Illinois mandamus pvoceeding. See United

States ex rel. Johnson v. McGinnis, 734 F.2d 1193 (7th

Cir. 1984). As a result, even if his ex post facto claim is

within the “futility” exception, the failure to exhaust the

due process claim requires dismissal of the entire peti-

tion. Rose v. Lundy, 455 U.S. 509 (1982). Nonetheless,

petitioner’s futility argument should be rejected.

As discussed above, the “futility exception” is a term

which has been used to describe two slightly different con-

cepts. The narrower view of “futility” is applied in cases

where the highest state court has recently addressed the

issue and decided it adversely to petitioner in the absence

of any intervening decision of this Court or any other in-

dication that the state court is likely to change its posi-

tion. See Sweet v. Cupp, 640 F.2d 233, 236 (9th Cir. 1981)

(discussing the futility exception and its purpose).

-

While the Illinois Supreme Court did deny discretionary

leave to appeal in Harris pursuant to Illinois Supreme

Court Rule 315 (104 Ill. 2d at XXV, Ill. Rev. Stat. 1985,

ch. 110A, ¢ 315), that court has never entertained the

merits of a claim similar to that raised by petitioner in

this action. See People v. Vance, 76 Ill. 2d 171, 183, 390

N.E.2d 867, 872 (1979) (denial of a petition for leave to

appeal carries no connotation of approval or disapproval

of the appellate court’s action).

Thus, while it is true that the only appellate court to

have addressed the issue did reject it, the highest state

court has not considered this issue on the merits. As a

result, this futility exception is not applicable to this case.

The broader test of futility expressed in Duckworth v.

Serrano, supra, 454 U.S. 1, 3 (1981), explains that the ex-

ception is made “only if there is no opportunity to ob-

tain redress in state court or if the corrective process is

so clearly deficient as to render futile any effort to ob-

tain relief.”

This exception also does not apply to this case. An avail-

able avenue for relief clearly exists through a petition for

writ of mandamus in circuit court and the claim is not

precluded by any ruling of the state supreme court. Since

mandamus is an appropriate vehicle for considering stat-

utory constitutionality (See People ex rel. Scott v. Kerner,

32 Ill. 2d 539, 208 N.E.2d 561 (1965)), the remedy would

be identical to that available to petitioner if he could

prevail under Section 2254.

' Under either approach to futility, therefore, the excep-

tion has no application in this case.

Moreover, even if the exception were applicable, the

peculiar circumstances attendant to this case militate

against the application of the futility exception.

=

In Harris the Appellate Court of Illinois rejected the

ex post facto argument advanced by petitioner. In Welsh

v. Mizell, 668 F.2d 328 (7th Cir.), cert. denied, 459 U.S.

923 (1982), the court mentioned and rejected Harris, in

holding that the 1973 revisions to Ill. Rev. Stat. ch. 38,

¢ 1003-3-5(c), violated the Ex Post Facto Clause (U.S.

Const. art. 1, § 10, cl. 1) when applied to inmates sen-

tenced for crimes committed prior to the adoption of that

section.

Two years later, in Heirens v. Mizell, 729 F.2d 449, 459

(7th Cir.), cert. denied, 469 U.S. 842 (1984), the court ex-

plicitly reversed the ex post facto holding of Welsh, plac-

ing the state and federal courts in agreement on the

question.

Having been rejected by the middle level appellate

courts of both jurisdictions petitioner’s claim is equally

“futile” in federal and state court. In this Court, peti-

tioner “‘strongly contends” that the decision in Heirens

is incorrect and that he believes that he can demonstrate

that the statute is an ex post facto law “as applied to

him.” Pet. Brief at 22, fn. 2. If petitioner does indeed have

a convincing ex post facto argument, that argument should

be as convincing in the Appellate Court of Illinois, Fifth

District, as it could be in the United States Court of Ap-

peals for the Seventh Circuit. It is well-settled that state

courts of original jurisdiction are both competent to decide

federal constitutional questions and are under an “‘obliga-

tion to render such decision as will give full effect to the

supreme law of the land and protect any right secured

by it to the accused [which] is the same that rests upon

the courts of the United States.” New York v. Eno, 155

U.S. 89, 98 (1894); See also Ex Parte Royall, 117 U.S.

241, 251 (1886). (State courts are “equally bound to guard

and protect rights secured by the Constitution.’’)

—23—

Allowing the state court to consider the claim in the

first instance avoids requiring a federal court to interpret

and apply a state procedural statute and its related ad-

ministrative rules with regard to a specific constitutional

claim without the benefit of the guidance of a state court.

Moreover, failure to allow the state court to review the

issue before it is taken to a federal forum deprives IIli-

nois of the first opportunity to correct its own problems.

See United States ex rel. Sostre v. Festa, 513 F.2d 1313,

1319 (2d Cir.) (Feinberg, J., concurring), cert. denied, 423

U.S. 841 (1975) (state should be allowed the opportunity

to keep its own house in order). Whatever petitioner’s

convincing new argument may be, it must first be pre-

sented to the courts of Illinois.

The available state remedy in this case is capable of

providing petitioner a hearing on his claim which would

be as full and fair as a Section 2254 proceeding and which

would be equally adequate in that it can provide the same

relief that petitioner could obtain in federal court if he

can prevail. In both forums petitioner will be required to

direct an argument to an Illinois statute which is suffi-

cient to overcome adverse precedent in both jurisdictions.

If petitioner’s argument is futile, it is futile in both courts.

Conversely, if it is strong, it is equally strong in both

courts which are equally bound to uphold and enforce the

Constitution.

Because it is an Illinois statute and Illinois procedures

which are implicated by petitioner’s claim, the courts of

Illinois must have the first opportunity to consider his

new or additional argument. Serrano, supra.

—24—

CONCLUSION

The state did not forfeit the defense of non-exhaustion

of state court remedies by failing to raise that issue in

the district court. Petitioner has not exhausted his avail-

able state court remedies.

For the reasons stated herein, respondent respectfully

prays that the judgment of the United States Court of

Appeals for the Seventh Circuit be affirmed.

Respectfully submitted,

NEIL F. HARTIGAN

Attorney General, State of Illinois

ROMA J. STEWART

Solicitor General, State of Illinois

MARK L. ROTERT *

TERENCE M. MADSEN

Assistant Attorneys General

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

(312) 917-2570

Attorneys for Respondent

* Counsel of Record

A. 1

APPENDIX 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 86-1286

PAUL O. CRUMP,

Petitioner-Appellant,

v.

MICHAEL P. LANE, Director, Illinois

Department of Corrections, et al.,

Respondents-A ppellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 82 C 7043—Paul E. Plunkett, Judge.

ARGUED OcToBER 20, 1986—DeEcIDED DECEMBER 19, 1986

Before BAUER, Chief Judge, CUMMINGS and EASTER-

BROOK, Circuit Judges.

CUMMINGS, Circuit Judge. This action challenges a series

of decisions by the Illinois Prisoner Review Board (‘‘the

Board”) denying plaintiff's release on parole on eight sep-

arate 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 pur-

suant 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

A. 2

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 com-

plaint to add challenges based on the 1983 and 1984 de-

nials of parole. After a full evidentiary hearing, the dis-

trict 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 plain-

tiff appeals.

I.

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 re-

quired by 28 U.S.C. § 2254(b). They contend that plain-

tiff must seek a writ of mandamus in an Illinois circuit

court _— the exhaustion requirement may be deemed

satisfied.

This is not the first time that the exhaustion require-

ment 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 rem-

edies for denial of parole because he had 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 had exhausted all state remedies, the district court

reinstated plaintiff's action on July 30, 1985.

A. 3

rt, on our decision in Granberry v. Mizell, 780 F.2d

14 (7th Cir. 1985), certiorari granted swh nom. Granberry

v. Greer, 107 S. Ct. 62 (No. 85-6790), defendants argue

that plaintiff must seek a writ of mandamus in an appro-

priate 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.

Plaintiff 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 cir-

cuit 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 demon-

strate that the motion for leave to file in his case was

denied with prejudice.

The exhaustion issue here obviously turns 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 peti-

tion for a writ of mandamus. Plaintiff has provided us with

no Illinois caselaw to support his proposition that the de-

nial was a ruling on the merits and accordingly with pre)-

udice. The Illinois Attorney General has cited the case of

People ex rel. Yarrow v. Leuders, 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.

A.4

Leuders did not address the question of whether the IlIli-

nois Supreme Court’s denial of a motion for leave to file

a petition for a writ of mandamus would preclude the peti-

tioner 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 cir-

cuit 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 Su-

preme Court is not an adjudication on the merits and does

not preclude the plaintiff from prosecuting an action seek-

ing the same relief in a circuit court and eventually per-

fecting an appeal to the Illinois Supreme Court. 393 III.

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:

[T]he 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 neces-

sary that a judgment possess before it may be pleaded

in bar of a subsequent action. The making of the ap-

plication 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 applica-

tion and have no opportunity to resist it. It is clear

that if an application for leave to file should be al-

lowed, there would be nothing in the order allowing

it that would operate as a bar to the defenses any

defendant might interpose.

393 Ill. at 556, 66 N.E.2d at 672.

In reviewing a mandamus case the Appellate Court of

Illinois has recently relied on Monroe v. Collins to hold

that the denial of a motion for leave to file a complaint

for mandamus directly with the Illinois Supreme Court

does not operate as a bar to a subsequent proceeding in

an Iilinois circuit court based on the same complaint. Tor-

jesen v. Smith, 114 Ill. App. 3d 147, 150, 448 N.E.2d 273,

A. 5

275 (5th Dist. 1983), appeal dismissed, 465 U.S. 1015. There-

fore when the Illinois Supreme Court denied Crump’s mo-

tion for leave to file a petition for a writ of mandamus,

it was without prejudice to his refiling the petition in cir-

cuit court. Moreover, as Monroe and Torjesen illustrate,

if the circuit court were to deny Crump’s petition for man-

damus, he would then be free to seek review in the IIli-

nois appellate courts.

Crump maintains that he did file a petition for a writ

of mandamus in an Illinois circuit court in 1974. People

ex rel. Crump v. Brantley, 17 Ill. App. 3d 318, 307 N.E.

2d 651 (1st Dist. 1974), certiorari denied, 419 U.S. 1111.

However, because only the most recent parole denial in

1984 is the proper subject of Crump’s habeas corpus peti-

tion, since it is pursuant to this latest determination that

Crump remains in custody, United States ex rel. King v.

McGinnis, 558 F. Supp. 1343, 1345 n.1 (N.D. Ill. 1983),

it is obviously impossible for Crump to have raised his

claims surrounding the 1984 denial in a petition for man-

damus filed in 1974.

Crump makes a more serious argument when he complains

that the Illinois Attorney General waived the exhaustion

issue in the district court. Indeed, when the district court

reinstated Crump’s second amended complaint on July 30,

1985, the Attorney General apparently conceded that Crump

had fully exhausted his state remedies. In his memoran-

dum opinion below, Judge Plunkett acknowledged this fact

when he wrote, “‘Both sides agree that Crump has ex-

hausted all state court remedies, a prerequisite to this

court’s consideration of a petition for a writ of habeas cor-

pus.”’ Crump v. Lane, No. 82 C 7043, slip op. at 2 (N.D.

Ill. Oct. 29, 1985).

The Attorney General now argues that the defendants

did not waive the exhaustion issue but merely erred in

failing to press it before the district court. Before our

decision in Granberry, he contends, there was insufficient

support in the law for the defendants to have insisted that

the district court should dismiss plaintiff's habeas peti-

tion for failure to exhaust and instruct him to file a peti-

A.6

tion for a writ of mandamus in the proper Illinois circuit

court.

The waiver question presented here is similar to that

before this Court in United States ex rel. Lockett v. IIli-

nois Parole & Pardon Bd., 600 F.2d 116 (7th Cir. 1979).

In Lockett, the state had failed to raise the exhaustion

issue in the district court and in the briefs on appeal. Be-

tween the time that the Lockett briefs were filed a and the

oral argument on appeal, this Court handed down a decision

which suggested that the petitioner had not exhausted all

available state court remedies.! Consequently, the state

urged the exhaustion issue at the Lockett argument for

the first time. Acknowledging that the Circuits were divided

as to whether the state could waive the exhaustion require-

ment, we concluded that the exhaustion issue had not been

waived by the state in Lockett because the state had made

no explicit waiver and had orally raised exhaustion before

us on appeal. 600 F.2d at 118. Moreover, we concluded

that there was no bar to raising the exhaustion issue on

our own. Id. See Mattes v. Gagnon, 700 F.2d 1096, 1098

n.1 (7th Cir. 1983) (court must consider whether petitioner

succeeded in exhausting his state remedies as required

by § 2254(b), “although the parties do not raise the ques-

tion”’).

To be sure, this Circuit has not spoken with one voice

on whether the exhaustion requirement may be waived

by the state. In Heirens v. Mizell, 729 F.2d 449, 457 (7th

Cir. 1984), certiorari denied, 469 U.S. 842, the Court in

dicta suggested that the exhaustion issue may be waived

if the state fails to raise the issue in the proceeding before

the district court. The cases cited as authority in Heirens,

however, did not involve the exhaustion requirement, but

merely expressed the general rule that a party on appeal

may not raise arguments that were not first presented

to the district court. More importantly, in Granberry, we

1 United States ex rel. Williams v. Morris, 594 F.2d 614 (7th Cir.

1979).

A.7

expressly rejected Heirens to the extent that it could be

read “as suggesting that the exhaustion requirement may

be waived by the failure to assert it in the district court.”

780 F.2d at 15. The Illinois Attorney General in Gran-

berry asserted the exhaustion requirement for the first

time on appeal, but we nonetheless concluded that the

state had not waived exhaustion and remanded the case

to the district court with instructions to dismiss for failure

to exhaust state remedies.

Although it was seemingly suggested in dicta in Gran-

berry that even an explicit waiver by the state of the ex-

haustion requirement would be ineffectual, 780 F.2d 15-16,

this Circuit has never adopted such a far-reaching rule.”

In United States ex rel. Russo v. Attorney General of IIli-

nois, 780 F.2d 712, 714 n.1 (7th Cir. 1986), certiorari de-

nied, 106 S. Ct. 2922, we declined to order swa sponte

dismissal for failure to exhaust because the state had failed

to raise the exhaustion issue both in the district court

and on appeal. Similarly, in Mosley v. Moran, 798 F.2d

182, 184 (7th Cir. 1986), we held that this Court need not

2 Two recent Seventh Circuit cases have suggested, while ex-

ay declining to hold, that the state may not waive the de-

ense of exhaustion of state remedies. Barrera v. Young, 794 F.2d

1264, 1267-1268, 1269 n.* (7th Cir. 1986); Walberg v. Israel, 766

F.2d 1071, 1072 (7th Cir. 1985), certiorari denied, 106 S. Ct. 546.

These cases note that the statutory basis of the exhaustion doc-

trine, § 2254(b), is phrased in mandatory terms. If the satisfaction

of § 2254(b) is construed to be a precondition to a federal court’s

exercising jurisdiction over a habeas corpus action, even an ex-

plicit waiver - the state of the exhaustion requirement would

not authorize the federal court to reach the merits of the peti-

tioner’s claim. In Walberg, the court also noted that considerations

of comity and federalism should make a federal court determine

on its own initiative whether the petitioner has exhausted his state

remedies because the state attorney general may not be represent-

ing the interests of the state as a collective. Sua sponte considera-

tion of the exhaustion requirement by the court of appeals may

be necessary if the attorney general is “less zealous in protecting

the prerogatives of the state than he ought to be.” 766 F.2d at

1072.

A.8

always reach the exhaustion issue swa sponte when the

state has failed to press it on appeal and special circum-

stances counsel against dismissing the action for failure

to exhaust. In Mosley, the state had argued exhaustion

in the district court but chose not to raise it on appeal.

While deciding not to reach the exhaustion issue, we em-

phasized that “a federal court should reach nonexhausted

habeas claims only ‘in those rare instances where justice

so requires.’ ”’ 798 F.2d at 184 (quoting United States ex

rel. Trantino v. Hatrack, 563 F.2d 86, 95 (3d Cir. 1977),

certiorari denied, 435 U.S. 928). These cases obviously dif-

fer from the one now before us in that the Illinois Attor-

ney General is urgently pressing the exhaustion issue here

on appeal.

As indicated above, the Supreme Court on October 6,

1986, granted certiorari in Granberry. 107 S. Ct. 62. One

of the questions to be presented to the Supreme Court

is “Does state’s failure to raise issue of non-exhaustion

of state court remedies in district court foreclose consid-

eration of that issue on appeal in federal habeas corpus

petition brought by state prisoner under 28 U.S.C. § 2254?”

55 U.S.L.W. 3267 (U.S. . 14, 1986). The Court’s answer

should resolve the uncertainty within our Circuit over the

waiver problem, not to mention the division within the

Circuits, see Granberry, 780 F.2d at 15 (discussing cases

from different Circuits). Until the Supreme Court renders

its decision, the controlling law in this Circuit is that the

state will not be deemed to have waived the exhaustion

requirement as long as it presses the issue on appeal.

Moreover, there is an important distinction between this

case and Granberry. Although the opinion there is silent,

it appears that the state’s failure to raise the exhaustion

issue in the district court in Granb was the result

of mere carelessness by the Attorney General. See also

Barrera v. Young, 794 F.2d 1264, 1267 (7th Cir. 1986) (pos-

ing the question as “whether exhaustion of remedies may

be waived by oversight’’). In this case, like the Lockett

situation, the state did not argue exhaustion before the

district-court because until we issued our opinion in Gran-

A.9

berry, the Attorney General did not believe that he had

sufficient —— to advance the proposition that a habeas

petitioner challenging a parole denial must seek a writ

of mandamus in a circuit court in order to satisfy the ex-

haustion requirement of § 2254(b), even though the Illinois

Supreme Court may have previously denied a motion for

leave to file an original petition for a writ of mandamus.

That the Attorney General was generally concerned with

the exhaustion requirement is evidenced by the fact that

he was successful in convincing the district court to dis-

miss Crump’s habeas petition in 1984 for failure to ex-

haust on the ground that he had failed to seek a writ of

mandamus in any Illinois court. We therefore conclude that

the defendants here have not waived the defense of failure

to exhaust state remedies.

As the Attorney General argues, dismissal for failure

to exhaust state remedies is particularly appropriate here

because the Illinois courts have apparently not yet had

an opportunity to interpret the particular provision of the

Illinois parole statute under which Crump’s due process

claims arise. Ill. Rev. Stat. ch. 38, ¢ 1003-3-5(cX1).* This

fact takes on special importance in light of the larger ques-

tion of whether the parole statute creates the sort of “‘lib-

erty or — interest entitled to constitutional pro-

tection. In Scott v. Illinois Parole & Pardon Bd., 669 F.2d

1185 (7th Cir. 1982) (per curiam), certiorari denied, 459

U.S. 1048, this Court held that the Illinois parole statute

does create a legitimate expectation of release on parole

and thus gives rise to a constitutionally protected liber-

ty interest. The Court noted, however, that the Illinois

courts had never interpreted the scope of the interest, if

any, which the statute was intended to afford Illinois state

prisoners, 669 F.2d at 1189 and n.4, and the decision was

3 Subsection (cX1) provides:

The Board shall not parole a person eligible for parole if it

determines that:

(1) there is a substantial risk that he will not conform to

reasonable conditions of parole; ... .

A. 10

based on a prediction about the course of decision in the

Illinois state courts. The Illinois courts have yet to con-

strue the Illinois parole statute in light of our decision

in Scott.4 Moreover, in Huggins v. Isenbarger, 798 F.2d

203 (7th Cir. 1986), this Court held that the Indiana parole

statute, similar in most respects to the Illinois statute,

did not create a constitutionally protected interest, again

on the basis of a prediction about what the Indiana state

courts will do. This confusion has led the Supreme Court

to grant certiorari in Allen v. Board of Pardons, 792 F.2d

1404 (9th Cir. 1986), certiorari granted, 55 U.S.L.W. 3335

(No. 86-461, Nov. 10, 1986), which followed the approach

taken in Scott, to determine whether the Montana parole

statute creates a constitutionally protected “liberty inter-

est entitlement in parole release.”’ The uncertainty sur-

rounding the construction of state parole statutes makes

it all the more important to allow the Illinois courts an

opportunity to state their view of the meaning of the IIli-

nois parole statute.

We appreciate that the district court has already held

a full evidentiary hearing on the merits of Crump’s claims.

* In People ex rel. Burbank v. Irving, 108 Ill. App. 3d 697, 439

N.E.2d 554 (3d Dist. 1982), the Appellate Court of Illinois ruled

that the Illinois Habeas Corpus Act does not provide relief to a

risoner whose request for parole has been unreasonably, arbitrari-

y or capriciously denied. In so doing, the court noted that in IIli-

nois the mere existence of a parole system does not transform

parole into a legal right and that the decision to modify a pris-

oner’s status from incarceration to parole lies within the largely

unreviewable discretion of the Prisoner Review Board. 108 TIIl.

App. 3d at 702, 439 N.E.2d at 557. Although this decision would

tend to suggest that our prediction in Scott may not have been

correct, we do not find it conclusive because the court was con-

struing the Habeas Corpus Act, not the parole statute. See

Heirens v. Mizell, 729 F.2d 449, 465-466 n.18 (7th Cir. 1984) (refus-

ing to reconsider Scott in light of Burbank because it did not directly

address whether the Illinois parole statute creates an ex tion

of parole requiring protection under due process). Furthermore,

because it was released shortly after our decision in Scott, the de-

cision did not take note of Scott.

A. 11

Unfortunately, this fact in itself does not allow us to cir-

cumvent the exhaustion requirement of § 2254(b). It should,

however, substantially obviate the need for further fact-

finding if Crump chooses to reinstate his action in the

district court upon exhausting all available state court

remedies.

For the reasons set out above, we remand plaintiff's

action to the district court with instructions to dismiss

for failure to exhaust state remedies.

Il.

Ordinarily our holding that plaintiff failed to exhaust his

state remedies would end our consideration of the case

on appeal. In addition to his habeas corpus petition, how-

ever, Crump has also brought a § 1983 action seeking

damages and a declaratory judgment that he is being

illegally confined in violation of the United States Con-

stitution. Unlike federal habeas claims, § 1983 actions are

not subject to the requirement that the plaintiff must first

exhaust all available state court remedies. In Wolff v. Mc-

Donnell, 418 U.S. 539, the Supreme Court explored the

interrelationship between 28 U.S.C. § 2254 and 42 U.S.C.

§ 1983 in actions brought by prisoners. The Court recog-

nized that in Preiser v. Rodriguez, 411 U.S. 475, it had

previously held that a writ of habeas corpus is the sole

federal remedy for state prisoners challenging the very

fact or duration of their confinement and seeking a speedier

release. The Court in Preiser, however, had also held that

“habeas corpus is not an appropriate or available federal

remedy” for damages claims, 411 U.S. at 494, and that

damages claims could be pressed under § 1983 along with

suits challenging the conditions of confinement rather than

the fact or length of custody. Jd. at 498-499.

The Wolff Court affirmed the holding in Preiser and fur-

ther clarified the distinction between habeas relief and

§ 1983 actions. While emphasizing that prisoners seeking

actual release must first exhaust their available state court

remedies, the Court indicated that claims properly brought

A. 12

under § 1983 may go forward in federal court at the same

time. 418 U.S. at 554. Claims properly brought under § 1983

include those seeking damages, a declaratory judgment as

a predicate to a damages award, or an injunction against

future misconduct. Jd. at 554-555.5

In Hanson v. Heckel, 791 F.2d 93 (7th Cir. 1986) (per

curiam), this Court recently held that a prisoner may not

maintain a § 1983 action until he has exhausted all avail-

able state remedies if a decision on the civil rights claim

would be tantamount to a decision on his entitlement to

an immediate or more speedy release. Plaintiff Hanson’s

§ 1983 action alleged that he was arbitrarily denied meri-

torious good-time credits against his sentence in violation

of his constitutional rights under the due process and equal

protection clauses. Hanson requested that the district court

enter a declaratory judgment and award damages for the

alleged deprivation of good-time credits, but he did not

request the award or restoration of any credits. Hanson,

however, had pending in the Illinois state courts a habeas

corpus action raising the identical claims advanced in the

§ 1983 action. This Court concluded that Hanson raised

issues which were properly the basis for a habeas corpus

action and therefore held that he could not proceed with-

out first exhausting his state court remedies.

5 The sole federal remedy for a prisoner who seeks release be-

cause of a constitutional defect in his conviction is habeas corpus,

even if he seeks _ ~~ stemming from his alleged unlawful con-

viction. See, e.g., Hadley v. Werner, 753 F.2d 514, 516 (6th Cir.

1985) (per curiam); Richardson v. Fleming, 651 F.2d 366, 373 (5th

Cir. 1981); Parkhurst v. Wyoming, 641 F.2d 775, 777 (10th Cir.

1981) curiam), Williams v. Ward, 556 F.2d 1143, 1150 (2d Cir.

1977). decisions are motivated not as much by the considera-

tions laid out by the Supreme Court in Preiser as by the absten-

tion doctrine of Younger v. Harris, 401 U.S. 37, which bars federal

court interference with on-going state criminal proceedings. In

these cases, without a requirement that the prisoner first exhaust

all available state court remedies, the federal court’s resolution

of the prisoner’s claim for money damages would involve a deter-

mination of the validity of a state court conviction simultaneously

under review in the state appellate courts.

A. 13

On its face, this broad holding would appear to conflict

with the Supreme Court’s decision in Wolff. That case in-

volved a § 1983 class action brought by state prisoners

challenging on due process grounds the disciplinary pro-

cedures used to award good-time credits against their sen-

tences. Following Preiser, the Court held that the pris-

oners were required to seek restoratiou of good-time credit,

which would of course affect their reiease date, in a habeas

corpus proceeding after first exhausting state remedies.

It also held, however, that short of ordering the actual

restoration of good time already cancelled, the district

court could review the allegedly unconstitutional proce-:

dures in a § 1983 action and could grant damages, or a

declaratory judgment as a predicate to an award of dam-

ages, and injunctive relief with regard to future proceed-

ings involving good-time rights. 418 U.S. at 554-555.

Other circuits which have adopted approaches consistent

with our result in Hanson have attempted to distinguish

Wolff from those cases in which the § 1983 action raises

no issue other than the fact or length of a particular pris-

oner’s confinement. In Alexander v. Ware, 714 F.2d 416,

418-419 (5th Cir. 1983), the Fifth Circuit held that where

a prisoner challenges a single, isolated constitutional viola-

tion resulting in his illegal confinement, he is in essence

attacking the fact and duration of his custody and must

first resort to habeas and exhaust state remedies. If, how-

ever, the prisoner mounts a broad, systematic due process

challenge to a prison disciplinary system, or a procedure

or policy employed therein, he is in essence challenging

the conditions of his confinement, even though the chal-

lenged practice may also affect the fact or length of his

own confinement, and may pursue a remedy under § 1983.

The Fourth Circuit, in Todd v. Baskerville, 712 F.2d

70, 72-73 (4th Cir. 1983), explained that a § 1983 action

may be maintained without exhaustion of state remedies

when the prisoner’s claim (1) alleges a constitutional due

process violation relating to prison procedures that do not

affect the length or duration of his sentence as then ex-

isting, or (2) seeks damages because of mistreatment vio-

A. 14

lative of constitutional rights and relating strictly to the

conditions of his confinement and not its fact or duration.

If, however, the core of the prisoner’s claim is the length

or duration of his sentence and “any claim of damages

is purely ancillary to and dependent on a favorable resolu-

tion of the length or duration of his sentence,” the pro-

ceedings must first be in habeas and are subject to ex-

haustion. 712 F.2d at 73.

It would appear that under certain circumstances at least,

a prisoner may pursue a § 1983 action in federal court

without first exhausting his state court remedies even

though, as in Wolff, the claims raised in the-§ 1983 ac-

tion are virtually identical to those raised in a habeas cor-

pus proceeding.* We need not precisely define those cir-

cumstances now because the facts of the instant case are

virtually identical to those in Hanson.? Crump’s § 1983

6 If the prisoner were successful in his § 1983 action, he would

be entitled to damages and whatever injunctive relief would be

appropriate within the limitations set out in Wolff. He would not,

of course, be entitled to release. As the Supreme Court noted in

Wolff at 418 U.S. 554 n.12, however, the adjudication of the federal

§ 1983 claim may through res judicata determine the outcome of

the state proceedings in which the prisoner is seeking release.

7 The difficulty in differentiating between which prisoner petitions

are properly brought as § 1983 actions and which are properly

brought as habeas corpus actions is further illustrated by the fact

that this Circuit allows prisoners to challenge le denials in

§ 1983 actions as long as they do not assert a right to be released

on parole, but seek only a statement of reasons for the denial or

an injunction requiring a rehearing by the Board in accordance

with due process. See Huggins v. Isenbarger, 798 F.2d 203, 204

(7th Cir. 1986); Walker v. Prisoner Review Bd., 694 F.2d 499, 501

(7th Cir. 1982). Although the relief sought in the § 1983 action

might improve the prisoner’s chance of parole, these cases main-

tain that the question of release would still remain within the dis-

cretion of the parole board. The holding of these cases has been

criticized on the ground that although the complaint may not for-

mally pray for release, the prisoner is actually seeking, sooner or

later, just that. Huggins, 798 F.2d at 207 (Easterbrook, J., con-

curring).

A. 15

action does not challenge the constitutionality of the pro-

cedures or the statutory provisions and regulations used

by the Illinois Prisoner Review Board in making their

decisions. Rather, Crump merely alleges that the Board’s

repeated decisions to deny him parole violated his consti-

tutional rights to due process and equal protection because

they were arbitrary and capricious and based on grounds

which were unsupported by the evidence and impermissi-

ble under the terms of the Illinois parole statute.

Were we to entertain Crump’s § 1983 action and find

that the Board’s decisions indeed violated his constitu-

tional rights, it would be tantamount to deciding that

Crump is being illegally confined in violation of the United

States Constitution. In his dissent in Preiser, even Justice

Brennan acknowledged that where a prisoner’s selection

of an alternative remedy to habeas corpus undermines and

effectively nullifies the habeas exhaustion requirement, the

suit should be viewed as “an impermissible attempt to

circumvent that requirement.” 411 U.S. at 524 n.14. The

core of Crump’s claim concerns the fact or duration of

his confinement, and any award of damages would be en-

tirely dependent upon the favorable resolution of that

issue. Before Crump may properly maintain a § 1983 ac-

tion for damages arising out of his allegedly illegal con-

finement, he must first exhaust his state court remedies

as required by 28 U.S.C. § 2254(b).8 The judgment of the

district court finding in favor of the defendants on the

§ 1983 claims is vacated.

8 As we pointed out in Hanson, 791 F.2d at 97 and n.8, Crump’s

right to seek relief under § 1983 will not be prejudiced by the

running of the relevant statute of limitations, Ill. Rev. Stat. ch.

110, 4 13-202. See Wilson v. Garcia, 471 U.S. 261 (appropriate

state statute of limitations that federal court must borrow in

§ 1983 suit is the statute of limitations for personal injury suits).

Ill. Rev. Stat. ch. 110, ¢ 13-211 specifically tolls the statute for

persons imprisoned on a criminal charge until 2 years after their

release. See Bailey v. Faulkner, 765 F.2d 102, 104 (7th Cir. 1985)

(when federal court borrows a state statute of limitations, it bor-

rows any applicable tolling provisions as well).

A. 16

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

A. 17

APPENDIX 2

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Unitep States ex rel. RuTHE MariE CARBONA,

Plaintiff,

No. 85 C 1750 Vv.

JANE E. Hucu, et al.,

Defendants.

Honorable Nicholas J. Bua, Presiding

ORDER

Petitioner brings this habeas corpus petition pursuant

to 28 U.S.C. §2254 to challenge the constitutional adequacy

of reasons given her for denying her parole request. In

United States ex rel. Johnson v. McGinnis, 734 F.2d 1193

(7th Cir. 1984), the Seventh Circuit held that Illinois pro-

vides a judicial remedy for such a claim by way of man-

damus. Petitioner in the instant case filed a motion for

leave to file a petition for writ of mandamus in the II-

linois Supreme Court. On October 1, 1984, that court sum-

marily denied petitioner’s motion.

To exhaust state remedies under 28 U.S.C §2254(b), a

state prisoner must give the state courts a fair oppor-

tunity to address the claimed violations of her federal con-

stitutional rights. Toney v. Franzen, 687 F.2d 1016, 1021

(7th Cir. 1982). Generally, the prisoner must follow the

normal appellate or post-conviction procedural routes for

pursuing her claim through the state courts. Carter v.

A. 18

Estelle, 677 F.2d 427, 448 (5th Cir. 1982), cert. denied,

460 U.S. 1056 (1983). Thus, a state supreme court’s denial

of a petition for an extraordinary writ does not satisfy

the exhaustion requirement where denial did not con-

stitute an adjudication on the merits of the issues

presented, and where other more appropriate state

remedies are available. Pitchess v. Davis, 421 U.S. 482,

488 (1975).

The Illinois Supreme Court’s summary denial of peti-

tioner’s motion for leave to file her petition for a writ

of mandamus clearly did not amount to an adjudication

on the merits of her claim. Although Ill. Rev. State. ch.

110A, §381 (1983), authorizes original jurisdiction man-

damus in the Illinois Supreme Court, the terms of §381

and relevant case law indicate that it is a highly extraor-

dinary remedy available under limited conditions and

awarded rarely. See Hughes v. Kiley, 67 Ill.2d 261, 266,

367 N.E.2d 700, 702 (1977); Touhy v. State Bd. of Elec-

tions, 62 IIl.2d 303, 312, 342 N.E.2d 364, 369 (1976).

In United States ex rel. Milone v. Greer, 581 F.Supp.

1251 (N.D. Ill. 1984), this court denied habeas relief where

the prisoner had not exhausted Illinois mandamus to con-

test the denial of parole. The Court’s decision rested, in

part, on Sharp v. Klincar, No. 83 MR 66 (Ill. Jud. Cir.

Dec. 5, 1983), where a state circuit court ruled upon the

merits of an inmate’s constitutional challenge to parole

denial. Because petitioner in the present case has not

sought mandamus at the circuit court level, we find that

she had not exhausted available state court remedies.

Accordingly, petitioner’s motion for leave to file in for-

ma pauperis is granted. Because petitioner has failed to

exhaust state remedies, however, the habeas corpus peti-

tion is dismissed without prejudice. See Rose v. Lundy,

455 U.S. 509 (1982). Petitioner’s motions for appointment

of counsel and for summary judgment are denied as moot.

IT IS SO ORDERED.

/s/ Nicholas J. Bua

Judge, United States District Court

Dated: March 26, 1985