# Respondents Brief — Granberry v. Greer

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1987
- **Citation:** 481 U.S. 129

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0278%3A7. Public record. Not legal advice.