IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

United States of America, ex rel., )

ADAM GRAY (#B77079), )

)

Petitioner, )

) Case No. 12 C 1743

v. )

) Judge Amy J. St. Eve

KEVWE AKPORE, Warden, Hill )

Correctional Center, )

)

Respondent. )

ORDER

The Court denies Petitioner’s motion to lift the stay in this habeas case and for an

evidentiary hearing [40]. Status hearing set for 10/26/13 is stricken and reset to 10/30/13 at 8:30

a.m. 

STATEMENT

On March 9, 2012, Petitioner Adam Gray, through counsel, filed a petition for a writ of

habeas corpus in federal court and on August 15, 2013, Petitioner filed an amended habeas

petition. See 28 U.S.C. § 2254(d)(1). On November 15, 2012, the Court granted Petitioner’s

motion to stay his original habeas petition due to certain unexhausted constitutional claims. See

28 U.S.C. § 2254(b)(1). Petitioner filed the present motion to lift the stay on July 22, 2013, on

the grounds that he is actually innocent, and thus is entitled to seek immediate relief on his

exhausted and unexhausted constitutional claims based on the Supreme Court’s decision in

McQuiggin v. Perkins, ___ U.S. ___, 133 S.Ct. 1924, 1935, 185 L.Ed.2d 1019 (2013). Some of

Petitioner’s unexhausted claims are the subject of his successive post-conviction petition that is

now pending in state court. See 725 ILCS 5/122-1, et seq. Before the Court is Petitioner’s

motion to lift the stay and for an evidentiary hearing. For the following reasons, the Court

denies Petitioner’s motion to lift the stay. Also, the Court denies Petitioner’s motion for an

evidentiary hearing as premature.1 

BACKGROUND

In the early morning hours of March 25, 1993, a fire broke out in an enclosed wooden

staircase at the rear of a two-flat on South Albany Avenue in Chicago, Illinois killing two

1

 On August 2, 2013, the Executive Committee for the Northern District of Illinois

reassigned this case to the Court.
people. After being transferred to adult court, a jury convicted Petitioner of two homicides and

one count of aggravated arson based on the March 25, 1993, fire. The Cook County Circuit

Court judge then sentenced Petitioner to a mandatory sentence of life without the possibility of

parole. 

In the present motion, Petitioner maintains that leading arson experts have reviewed his

case file and concluded that there is no physical evidence supporting the fact that the 1993 fire

was arson. Pending in state court is Petitioner’s successive post-conviction petition pursuant to

the Illinois Post–Conviction Hearing Act, 725 ILCS 5/122–1, et seq., in which he brings an

actual innocence claim based on this new evidence, as well as other factors such as recanted trial

testimony. In the state court proceedings, Cook County State’s Attorney has agreed that an

evidentiary hearing on Petitioner’s post-conviction claim of actual innocence is warranted.2 

LEGAL STANDARD

In the context of federal habeas cases, “‘actual innocence’ is not itself a constitutional

claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise

barred constitutional claim considered on the merits.” Herrera v. Collins, 506 U.S. 390, 404,

113 S.Ct. 853, 122 L.Ed.2d 203 (1993). More specifically, the “fundamental miscarriage of

justice exception” concerns actual innocence and provides a gateway for courts to review the

merits of a habeas petitioner’s procedurally defaulted claims. See id.; Coleman v. Hardy, 628

F.3d 314, 318-19 (7th Cir. 2010). Earlier this year, the Supreme Court extended the miscarriage

of justice exception to overcome the Antiterrorism and Effective Death Penalty Act’s

(“AEDPA”) one-year limitations period. See McQuiggin v. Perkins, ___ U.S. ___, 133 S.Ct.

1924, 1935, 185 L.Ed.2d 1019 (2013). 

Unlike federal habeas claims, Illinois courts recognize actual innocence claims as stand

alone claims based on the Illinois Constitution. See People v. Washington, 171 Ill.2d 475, 489,

216 Ill.Dec. 773, 665 N.E.2d 1330 (Ill. 1996). Specifically, the “due process clause of the

Illinois Constitution allows postconviction petitioners to make freestanding claims of actual

innocence based on newly discovered evidence.” People v. Brown, 988 N.E.2d 1063, 1074, 370

Ill.Dec. 707, 718 (1st Dist. 2013). 

2

 The Court rejects Petitioner’s suggestion that the State’s Attorney’s concession that an

evidentiary hearing is warranted establishes his actual innocence. In particular, to qualify for an

evidentiary hearing under the Illinois Post-Conviction Hearing Act, a petitioner need only show

that his petition is legally sufficient, namely, that his well-pleaded allegations constitute a

constitutional violation. See People v. Domagala, 987 N.E.2d 767, 775, 370 Ill.Dec. 1, 9 (Ill.

2013). In short, the evidentiary hearing provides the post-conviction petitioner with the

opportunity to prove his actual innocence. See id. Petitioner’s evidentiary hearing in his Illinois

proceedings has yet to take place. 

2
ANALYSIS

In the present motion, Petitioner argues that the Court should extend the Supreme Court’s

decision in McQuiggin — which held that actual innocence can overcome AEDPA’s statute of

limitations — to exempt habeas petitioners from AEDPA’s exhaustion requirement. In other

words, Petitioner wants the Court to address his habeas claims before the state court decides the

same or similar claims in his successive post-conviction petition that is pending in state court.

“Generally, a petitioner must raise a claim in state court before raising it on federal

habeas review.” McNary v. Lemke, 708 F.3d 905, 919 (7th Cir. 2013); see also Bolton v. Akpore,

___ F.3d ___, 2013 WL 4840483 (7th Cir. Sept. 12, 2013) (“Where state remedies remain

available to a habeas petitioner who has not fairly presented his constitutional claim to the state

courts, the exhaustion doctrine precludes a federal court from granting him relief on that

claim.”). AEDPA provides for two exceptions to exhaustion:

(b)(1) An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted unless it appears

that— 

(A) the applicant has exhausted the remedies available in the

courts of the State; or

(B)(i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to

protect the rights of the applicant.

28 U.S.C. § 2254(b)(1)(B)(1). The Seventh Circuit has articulated another exception to

exhaustion, namely, the “[i]nordinate, unjustifiable delay in a state-court collateral proceeding

excuses the requirement of petitioners to exhaust their state-court remedies before seeking

federal habeas corpus relief.” Jackson v. Duckworth. 112 F.3d 878, 881 (7th Cir. 1997).

Here, Petitioner does not rely on the statute’s exceptions to exhaustion nor does

Petitioner develop his argument that the Court should extend the Supreme Court’s decision in

McQuiggin. In addition, Petitioner does not argue that there has been an inordinate or

unjustified delay in his Illinois post-conviction proceedings that are presently ongoing.3

 Instead,

Petitioner relies upon a pre-AEDPA case, Milone v. Camp, 22 F.3d 693, 699 (7th Cir. 1994), to

support his argument that his actual innocence claim relieves him from exhausting his claims in

his pending successive post-conviction petition. In Milone, the Seventh Circuit reasoned:

3

 The next status hearing in Petitioner’s Illinois post-conviction proceeding is on October

16, 2013.

3
A claim of actual innocence is relevant to determining whether a habeas

corpus petition may be brought before a federal tribunal at all; it is not ordinarily

cognizable in determining whether the writ should issue. Generally, before a

federal court will entertain a habeas petition, the petitioner must meet certain

procedural requirements. Among these is the requirement that the petitioner has

presented to the state courts all of the claims contained in his habeas petition. 

While “there is a strong presumption in favor of requiring the prisoner to pursue

his available state remedies,” under some circumstances federal courts may relax

the total exhaustion requirement. One of the circumstances upon which the total

exhaustion requirement may be relaxed appears to be a “colorable claim[]” by the

petitioner that he is actually innocent of the crime for which he was convicted. In

this manner a claim of actual innocence provides “a gateway through which a

habeas petitioner must pass to have his otherwise barred constitutional claim

considered on the merits.”

Id. (internal citations omitted). Besides Milone, Petitioner does not cite any other controlling

legal authority excepting the exhaustion requirement based on a claim of actual innocence and

the Court could find none.

After reviewing Milone and Petitioner’s attendant arguments, there are certain

distinguishing factors that merit discussion. First, in certain circumstances, federal appellate

courts, unlike federal district courts, have the discretion to consider unexhausted habeas claims. 

See Wood v. Milyard, ___ U.S. ___, 132 S.Ct. 1826, 1833, 182 L.Ed.2d 733 (2012) (citing

Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987)); see also Pierson v.

O’Leary, 959 F.2d 1385, 1392 (7th Cir. 1992) (“This court has the discretion to consider whether

‘the administration of justice would be better served by insisting on exhaustion or by reaching

the merits of the petition forthwith.”) (citation omitted). Therefore, Milone does not necessarily

lend guidance to the Court’s analysis of the present actual innocence argument.

Moreover, the statement in Milone that actual innocence is an exception to the exhaustion

requirement is dicta because the Milone panel did not analyze whether petitioner’s claim of

actual innocence excepted his unexhausted claims — instead, the appellate court concluded that

it was more efficient to skip to the merits of petitioner’s habeas claims. See Tate v. Showboat

Marina Casino P’ship, 431 F.3d 580, 582 (7th Cir. 2005) (dicta is what a court “says” not what

it “holds”); see also United States v. Elliott, 467 F.3d 688, 690 (7th Cir. 2006) (language that

does not play any role in the court’s disposition is dictum). 

Even if the Milone analysis is not dicta, there is an important factual distinction in the

present case, namely, the Milone petitioner did not have a post-conviction petition pending in the

state court at the time he filed his habeas petition in federal court. See id. at 700. Under the

present circumstances in which there is a pending post-conviction petition, the interests of

comity support the Court’s decision to deny the present motion to lift the stay. As the Supreme

Court teaches:

4
State courts, like federal courts, are obliged to enforce federal law. Comity thus

dictates that when a prisoner alleges that his continued confinement for a state

court conviction violates federal law, the state courts should have the first

opportunity to review this claim and provide any necessary relief. Rose v. Lundy,

455 U.S. 509, 515-516, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Darr v. Burford,

339 U.S. 200, 204, 70 S.Ct. 587, 94 L.Ed. 761 (1950). This rule of comity

reduces friction between the state and federal court systems by avoiding the

“unseem[liness]” of a federal district court’s overturning a state court conviction

without the state courts having had an opportunity to correct the constitutional

violation in the first instance.

O’Sullivan v. Boerckel, 526 U.S. 838, 844-45, 119 S.Ct. 1728, 1732, 144 L.Ed.2d 1 (1999); see

also Lieberman v. Thomas, 505 F.3d 665, 669 (7th Cir. 2007) (“exhaustion-of-state-remedies

doctrine serves the interests of federal-state comity by giving states the first opportunity to

address and correct alleged violations of a petitioner’s federal rights”). 

CONCLUSION

For these reasons, the Court denies Petitioner’s motion to lift the stay of his federal

habeas proceedings. The Court further denies Petitioner’s motion for an evidentiary hearing as

premature.

Date: October 1, 2013 _____________________________

AMY J. ST. EVE

United States District Court Judge

5