1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

 ) 

ADAM THOMAS GRAY ) 

 ) 

 Petitioner, ) 

 ) No. 12-C-1743 

 v. ) 

 ) Honorable Milton I. Shadur 

KEVWE AKPORE, Warden, ) 

 ) 

 Respondent ) 

MOTION TO LIFT STAY AND HOLD AN EVIDENTIARY HEARING

PETITIONER ADAM THOMAS GRAY, by his counsel, hereby moves this Court to lift 

the stay it entered pending the resolution of his post-conviction petition in the Circuit Court of 

Cook County and order an evidentiary hearing on his habeas corpus petition pursuant to the 

Supreme Court’s recent decision in McQuiggin v. Perkins, 133 S.Ct. 1924 (2013). In support of 

this Motion, Petitioner states the following: 

I. Adam Gray’s Petition For Writ of Habeas Corpus Is Exempt From The Statute 

of Limitations Because He Has Presented Compelling Evidence That He Is 

Innocent. 

1. The Supreme Court held in McQuiggin v. Perkins that a compelling showing of 

actual innocence – where “new evidence shows it is more likely than not that no reasonable juror 

would have convicted the petitioner” – exempts a habeas petitioner from the statute of limitations 

created by the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). 133 S.Ct. at 1933. 

2. Petitioner Adam Gray was wrongfully convicted of starting a fire that killed two 

people when he was fourteen years old. He was given a mandatory sentence of life without 

parole and has been incarcerated for over twenty years. 

Case: 1:12-cv-01743 Document #: 40 Filed: 07/22/13 Page 1 of 6 PageID #:1077
2 

3. Since that time, it has become well-established that for decades many fire 

investigators erroneously determined that fires were caused by arson when they were actually 

accidentally caused. As one federal judge has observed: “By 2006... a number of articles in 

legal journals and cases cast a critical eye on the scientific reliability of arson evidence, 

methodologies, and techniques... men and women ha[ve] been convicted, sentenced, perhaps 

even executed, on the basis of flawed arson evidence.” United States v. Hebshie, 754 F. Supp. 

2d 89, 92 (D. Mass. 2010); see also Richey v. Bradshaw, 498 F.3d 344, 363 (6th Cir. 2006);

Dugas v. Coplan, 428 F.3d 317, 344 (1st Cir. 2005). 

4. Leading arson experts have reviewed the evidence in Adam’s case and concluded 

that there is no physical evidence that supports the conclusion that the fire he was convicted of 

setting was arson. (Dkt. 39, Exs. 1, 2 and 18, Affidavits of John Lentini, Gerald Hurst, and 

Dennis Smith.) 

5. Because there is no reason to believe that the fire in this case was arson, the State 

cannot meet its burden of showing that a crime was committed at all. 

6. The Cook County State’s Attorney has agreed that the new evidence Adam has 

pled in his state post-conviction petition sets forth a claim of actual innocence under the Illinois 

Constitution. (Exhibit 1, People’s Answer To The Innocence Claim.) A claim of actual 

innocence under the Illinois Constitution requires the same showing as an innocence gateway 

claim under McQuiggin. See People v. Edwards, 2012 IL 111711, ¶ 31 (a petitioner’s actual 

innocence claim must “raise the probability that it is more likely than not that no reasonable juror 

would have convicted him in the light of the new evidence”). 

7. Adam is thus one of the extraordinary petitioners able to meet the high threshold 

of proving actual innocence, and his habeas claims are exempt from the statute of limitations. 

Case: 1:12-cv-01743 Document #: 40 Filed: 07/22/13 Page 2 of 6 PageID #:1078
3 

II. McQuiggin’s Holding That Actual Innocence Can Overcome Even Statutory 

Procedural Barriers Should Be Extended to Exempt Petitioners Who Can 

Establish Innocence from the Statute Requiring Exhaustion of State Remedies. 

8. The Court in McQuiggin stated that its holding that actual innocence overcomes 

AEDPA’s statute of limitations was an application of the “fundamental miscarriage of justice 

exception,” a rule it has developed based on the “equitable discretion of habeas courts to see that 

federal constitutional errors do not result in the incarceration of innocent persons.” Id. at 1936, 

quoting Herrera v. Collins, 506 U.S. 390, 404 (1993). 

9. The Court stated that its rulings bear out that “the miscarriage of justice exception 

[] survived AEDPA’s passage.” Id. at 1932. The Court explained that it has consistently applied 

the exception to overcome various procedural obstacles, including failing to raise claims in state 

court, House v. Bell, 547 U.S. 518, 537-39 (2006), failing to develop the factual basis for claims 

in state court, Keeney v. Tamayo-Reyes, 504 U.S. 1, 11-12 (1992), and raising previouslyrejected or defaulted claims in a second federal habeas petition, Kuhlmann v. Wilson, 477 U.S. 

436, 454 (1986) (plurality opinion); McCleskey v. Zant, 499 U.S. 467, 494-95 (1991), among 

others. McQuiggin, 133 S. Ct. at 1931-32. 

10. Prior to AEDPA’s passage, the Seventh Circuit stated that a persuasive showing 

of actual innocence could exempt a petitioner from the requirement to exhaust state remedies 

before seeking habeas relief. Milone v. Camp, 22 F.3d 693, 701 (7th Cir. 1994) (assuming 

without deciding that a petitioner “made a sufficient showing of actual innocence to warrant 

habeas review of all of his constitutional claims, unexhausted as well as exhausted”). Other 

courts have suggested the same rule. Coningford v. Rhode Island, 640 F.3d 478, 482 n.2 (1st 

Cir. 2011) (Selya, J.) (“There may be an exception to the exhaustion bar for cases involving 

colorable claims of actual innocence”); Sanders v. Ryder, 342 F.3d 991, 1001 (9th Cir. 2003) 

Case: 1:12-cv-01743 Document #: 40 Filed: 07/22/13 Page 3 of 6 PageID #:1079
4 

(reserving the question of whether a claim of actual innocence would excuse a failure to exhaust 

where the Court held that the petitioner had sufficiently exhausted his ineffective assistance 

claim). The existence of an exception to the exhaustion requirement is consistent with the 

Supreme Court’s holding in House v. Bell – a decision applying AEDPA – that innocence can 

overcome even the default of claims under state procedural rules. 547 U.S. at 537-39; see also In 

re Davis, 130 S. Ct. 1 (2009) (ordering the district court to hold an evidentiary hearing on an 

innocence claim where “no court, state or federal, has ever conducted a hearing to assess the 

reliability of the score of postconviction affidavits that, if reliable, would satisfy the threshold 

showing for a truly persuasive demonstration of actual innocence”) (Stevens, J., concurring) 

(internal punctuation and citation omitted). 

11. Petitioner commenced post-conviction proceedings in the Circuit Court of Cook 

County based on the same evidence presented in this habeas petition on March 9, 2012. (Ex. 2, 

Motion for Leave To File a Successive Post-Conviction Petition.) The State filed a motion to 

dismiss all claims except the actual innocence and Eighth Amendment claims. (Ex. 3, State’s 

Motion to Dismiss the Non-Innocence Claims). That motion remains pending. 

12. Depriving an innocent person of liberty for over twenty years – in fact, a fourteenyear-old child who had no prior convictions and was an exceptional student with a bright future – 

is an abhorrent injustice that requires immediate correction. 

13. The Supreme Court has stated that “in appropriate cases, the principles of comity 

and finality [that underlie deference to state courts] must yield to the imperative of correcting a 

fundamentally unjust incarceration.” House, 547 U.S. at 536, quoting Murray v. Carrier, 477 

U.S. 478, 495 (1986). This is such a case, and Petitioner respectfully requests that this Court 

Case: 1:12-cv-01743 Document #: 40 Filed: 07/22/13 Page 4 of 6 PageID #:1080
5 

hold that he is exempt from the requirement to exhaust his state remedies and order an expedited 

hearing on his constitutional claims. 

Dated: July 22, 2013 

By:

Respectfully submitted, 

/s/ R. Douglas Rees 

 

 

Tara Thompson 

THE EXONERATION PROJECT 

The University of Chicago Law School 

1111 E. 60th Street 

Chicago, IL 60637 

Phone: (773) 702-9611 

Email: tthompson@law.uchicago.edu 

Julia Kasper 

KATTEN MUCHIN ROSENMAN, LLP 

525 W. Monroe Street 

Chicago, IL 60661-3693 

Phone: (312) 902-5280 

Email: julia.kasper@kattenlaw.com 

 One of Petitioner’s attorneys 

R. Douglas Rees 

Brij B. Patnaik 

JENNER & BLOCK LLP 

353 N. Clark Street 

Chicago, IL 60654-3456 

Phone: (312) 840-8662 

Fax: (312) 840-8762 

Email: bpatnaik@jenner.com 

Case: 1:12-cv-01743 Document #: 40 Filed: 07/22/13 Page 5 of 6 PageID #:1081
6 

CERTIFICATE OF SERVICE

I, Brij B. Patnaik, hereby certify that a copy of the foregoing Motion to Lift Stay and Hold an 

Evidentiary Hearing was served upon the following on July 22,2013 by the Court’s CM/ECF 

system, in accordance with the Administrative Procedures for the Case Management/Electronic 

Case Filing System for the Northern District of Illinois. 

 Leah M. Bendik 

 Assistant Attorney General 

 Criminal Appeals Division 

 100 W. Randolph, 12th Floor 

 (312) 814-5029 

 LBendik@atg.state.il.us 

 

Dated: July 22, 2013 

By: /s/ Brij B. Patnaik 

 

 

Tara Thompson 

THE EXONERATION PROJECT 

The University of Chicago Law School 

1111 E. 60th Street 

Chicago, IL 60637 

Phone: (773) 702-9611 

Email: tthompson@law.uchicago.edu 

Julia Kasper 

KATTEN MUCHIN ROSENMAN, LLP 

525 W. Monroe Street 

Chicago, IL 60661-3693 

Phone: (312) 902-5280 

Email: julia.kasper@kattenlaw.com 

 One of Petitioner’s attorneys 

R. Douglas Rees 

Brij B. Patnaik 

JENNER & BLOCK LLP 

353 N. Clark Street 

Chicago, IL 60654-3456 

Phone: (312) 840-8662 

Fax: (312) 840-8762 

Email: bpatnaik@jenner.com 

Case: 1:12-cv-01743 Document #: 40 Filed: 07/22/13 Page 6 of 6 PageID #:1082