1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

 ) 

ADAM THOMAS GRAY ) 

 ) 

 Petitioner, ) 

 ) No. 12-C-1743 

 v. ) 

 ) Honorable Amy J. St. Eve 

KEVWE AKPORE, Warden, ) 

 ) 

 Respondent ) 

REPLY IN SUPPORT OF PETITIONER’S 

MOTION TO LIFT STAY AND HOLD AN EVIDENTIARY HEARING

Adam Gray’s petition for writ of habeas corpus identifies new evidence that establishes 

that he has been wrongfully imprisoned for over twenty years – since he was fourteen years old – 

for an alleged arson that he did not commit and that the scientific evidence now shows very 

likely did not occur. Mr. Gray’s pending motion asks this Court to hold an expedited evidentiary 

hearing on the grounds that that he is actually innocent and thus is entitled to pursue habeas relief 

on both his exhausted and unexhausted constitutional claims. (Dkt. 40); Milone v. Camp, 22 

F.3d 693, 700 (7th Cir. 1994) (“This Court may consider [Petitioner’s] claim of actual innocence 

only in determining whether to excuse his failure to exhaust all state remedies before pursuing 

this habeas petition”). Respondent has submitted a response to the motion. (Dkt. 45.) Mr. Gray 

now submits this reply. 

I. Adam Gray Has Pled Facts Establishing His Actual Innocence. 

Adam Gray has set forth facts establishing that if he were re-tried today, no reasonable 

juror would convict him. (Dkt. 47 at 42-55.) The Cook County State’s Attorney has conceded 
2 

that those facts entitle him to an evidentiary hearing on his actual innocence claim under Illinois 

law. (Dkt. 40 at 2.) 

Respondent, however, does not take a position on the critical question of whether Mr. 

Gray has met the “fundamental miscarriage of justice” standard articulated by the United States 

Supreme Court – that is, whether Mr. Gray has pled facts showing that no reasonable juror 

hearing the entirety of the evidence today would vote to convict him. McQuiggin v. Perkins, 133 

S.Ct. 1924, 1933 (2013). Rather than address the facts alleged in Mr. Gray’s pleadings, 

Respondent repeatedly argues that Mr. Gray has “not yet proven” his actual innocence claim.1 

(Dkt. 45 at 2, 6, 7.) 

That is not a response. Mr. Gray has not had the opportunity to prove his actual 

innocence claim because he has not yet been granted a hearing at which he could present the 

evidence of his innocence to a court. That is obviously the point of this motion. 

To assist the Court in deciding this issue, Mr. Gray will first briefly summarize the facts 

that establish his innocence. Mr. Gray will then address Respondent’s arguments regarding the 

effect in this Court of the State’s Attorney’s agreement that he is entitled to an evidentiary 

hearing under the Illinois Post-Conviction Hearing Act. 

 

1

 Respondent states that he “has neither answered nor otherwise responded to petitioner’s habeas 

petition, much less been ordered to do so.” (Dkt. 45 at 12.) It is difficult to understand why 

Respondent chose not to respond to the innocence claim in his response to this motion. 

Respondent points out that Mr. Gray’s motion for leave to amend his petition was pending, (id.), 

but, as Mr. Gray stated, the Amended Petition is based on the same set of operative facts and 

raises the same claims as his initial petition. (Dkt. 39 at 2.) In addition, while Respondent 

argues that the Seventh Circuit’s opinion in Milone v. Camp was “mistaken,” (see pages 9-12 

below), it is clear that if that case applies a petitioner who sets forth a claim of actual innocence 

can proceed on his unexhausted claims. Thus, Respondent knew that it very likely would be 

necessary for this Court to reach the question of whether Mr. Gray has pled facts showing his 

actual innocence to decide the present motion. In light of that, Mr. Gray respectfully requests 

that this Court decide whether he has stated a claim for actual innocence without giving 

Respondent a second opportunity to address the issue. 
3 

A. Mr. Gray Is Entitled To Invoke The Fundamental Miscarriage of Justice 

Exception. 

Mr. Gray’s habeas petition details the facts showing he is innocent of the arson and 

felony murders of which he was convicted. (Dkt. 47.) Here is a summary of that evidence: 

1. Leading fire investigators have determined that there is no basis in the physical 

evidence to conclude that the fire in this case was caused by arson. (Dkt. 47 at 46.) 

The theories espoused by the fire investigators at trial are now known to be textbook 

errors, and any competent fire investigator today would conclude that the cause of the 

fire cannot be determined. (Id. at 45-46 & Ex. 2 Hurst Aff. at 5-12, Ex. 18 Smith Aff. 

at 1-2.) 

2. Although Adam “confessed” to starting the fire, that statement was elicited when he 

was one month past his fourteenth birthday, had no prior convictions, had never 

before been in serious trouble, and was made after detectives interrogated him for 

approximately six hours while preventing his mother and brother from seeing him. 

(Id. at 8-12, 20-21, 48-49.) A statement in those circumstances would be suppressed 

as coerced today. (Id. at 48-49, 70-71.) 

3. When Adam “confessed,” he said he started the fire using gasoline that he purchased 

in a milk jug from a Clark gas station. (Id. at 12, 49.) He said that after he started the 

fire, he ran down the alley behind the house and threw the milk jug there. (Id.) A 

police detective testified that he recovered a milk jug containing a substance that had 

a “strong odor of gasoline” from the alley half a block north of the burned house. (Id. 

at 12-13.) State prosecutors also argued in closing that the milk jug carried gasoline. 

(Id. at 26, 28-29, 62-65.) We now know, however, that the substance in the milk jug 

– called a heavy petroleum distillate, or HPD – was not gasoline. (Id. at 31, 39.) 

Furthermore, the Clark gas station attendant who identified Adam at trial has recanted 

and said that she was pressured into making an identification by the same detective 

who led the interrogation of Adam. (Id. at 13, 39-40.) Her recantation is 

corroborated by the fact that the Clark gas station did not sell any type of HPD, and 

police did not take any receipts or surveillance video showing that someone 

purchased less than a gallon of gasoline at around 2:30 AM. (Id. at 47, 59.) 

4. Chemistry testing on the day of the fire showed that an HPD was also present in 

debris from the rear porch stairs of the building. (Id. at 15.) We now know, however, 

that the HPD found in the debris was likely present because HPDs are used in wood 

preservatives and can remain detectable in wood for years. (Id. at 45.) 

5. We also now know that the HPD in the milk jug does not match the HPD in the 

debris. (Id. at 32, 33.) Thus, the milk jug – which seemed like critical corroborative 

evidence at trial – had absolutely nothing to do with the fire. 
4 

6. Teenager Kasey Paris was the State’s primary motive witness at trial, where she 

testified that Adam Gray had threatened her repeatedly because he was jealous that 

she was “dating” their mutual friend Mel Gonzalez. (Id. at 40.) Paris now attests that 

she was “never intimidated or afraid of Adam.” (Id. at 41.) She says she initially told 

police on the scene that she thought Adam started the fire because she was mad at 

him because Mel had broken up with her to hang out with him. (Id.) 

7. One remaining eyewitness, Karrie Kelly, maintains that she saw Adam Gray running 

down the alley behind Albany Avenue at around 2:45 AM on the morning of the fire. 

(Id. at 6-7, 41-42.) Kelly’s account is implausible for a multitude of reasons, 

including that she knew Adam from the neighborhood but did not identify him until 

viewing a four-person line-up, after having been around an angry crowd of people 

who were alleging that Adam had started the fire. (Id. at 50-55.) 

8. Moreover, although Kelly testified that she saw a person running north up the alley 

behind the house and the milk jug was lying in plain sight approximately fifteen yards 

up that alley, (see People’s Exhibit 13 (photo of the alley)), police did not find the jug 

until after they had elicited Adam’s statement. (Dkt. 47 at 12-13.) A detective who 

had participated in the interrogation, (id. at 8-13), testified that he found the milk jug, 

which was yellowed, flattened, and covered in settled dust. (People’s Exhibit 26 

(photo of the milk jug).) 

9. Adam slept over at his friend Mel Gonzalez’s house on the night the fire occurred. 

(Id. at 7.) He, Mel, and Mel’s young brother all slept in the living room. (Id. at 7.) 

Mel, his sister Rosemary, and his mother Lita all testified that they had not heard 

anyone get up or leave the house that night. (Id. at 7-8.) 

Given these facts, where the scientific evidence contradicts the State’s arson theory, 

where multiple witnesses testified that Adam was asleep at the time of the incident, and where 

the only conceivable remaining evidence against Mr. Gray is his coerced statement as a fourteenyear-old and a dubious eyewitness identification, no reasonable juror would convict on re-trial. 

See House v. Bell, 547 U.S. 518, 554 (2006) (holding that a petitioner had proven his actual 

innocence). 

Courts around the country have recognized that mistakes made by untrained fire 

investigators have been responsible for numerous wrongful convictions. One federal judge has 

observed that “[b]y 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 
5 

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 (6th Cir. 2006) (overturning an arson conviction); Dugas v. Coplan,

428 F.3d 317 (1st Cir. 2005) (same); Souliotes v. Hedgpeth, No. 06-CV-00667, 2012 WL 

2684972 (E.D. Cal. July 6, 2012) (same). 

Souliotes v. Hedgpeth is a case that should guide the Court here. The court in Souliotes 

addressed claims of actual innocence and ineffective assistance of counsel raised by a petitioner 

who was convicted of an arson and three homicides in 1997. 2012 WL 2684972, at *3-4. The 

prosecution’s case at trial was based on a fire investigator’s opinion that the fire was an arson 

started by a liquid accelerant, chemistry findings that appeared to show medium petroleum 

distillate (“MPD”) both in carpet samples from the fire scene and on the defendant’s shoes, and 

an eyewitness who testified that she saw the defendant at the scene of the fire just before it 

started. Souliotes v. Hedgpeth, 2012 WL 1458087, at *2-4 (E.D. Cal. Apr. 26, 2012) (Report and 

Recommendation of Seng, M.J.). In 2006, the petitioner filed a federal habeas petition 

presenting evidence that the fire investigator’s opinion was based on discredited beliefs that 

certain “pour patterns” and “deep charring” meant that the fire was started with an ignitable 

liquid. Id. at *18. The petitioner also presented evidence that the MPD found on his shoes was 

chemically distinguishable from that found in the carpet samples.2

 Id. at *23. On the basis of 

that evidence, the court closely examined the single eyewitness’s testimony and determined that 

it was not credible and that the petitioner had established his actual innocence. 

 

2

 The State of California agreed with the petitioner’s expert, John Lentini, that the MPDs in that 

case did not match. Id. at *3. Mr. Lentini, a former Chair of the American Society of Testing 

and Materials Committee for Forensic Sciences, is one of the chemists who has submitted an 

affidavit attesting that the HPDs found in this case do not match. (Dkt. 47, Ex. 1, Lentini Aff. at 

1, 3.) 
6 

The court observed that “the fire science evidence presented at trial, including the MPD 

evidence placing Petitioner at the scene, was extremely strong evidence implicating Petitioner’s 

guilt because reasonable and conscientious jurors may well have found Petitioner guilty in light 

of that evidence alone. Because the fire science evidence presented at trial has been discredited, 

the Magistrate Judge was correct to scrutinize the remaining evidence, with careful attention paid 

to [the single eyewitness’s] testimony – the only remaining evidence that directly linked 

Petitioner to the scene of the fire.” Souliotes, 2012 WL 2684972, at *4. 

This Court should follow Souliotes and hold that Adam Gray has pled facts that establish 

his actual innocence. 

B. The State’s Attorney Has Agreed That Mr. Gray Has Stated An Actual 

Innocence Claim Under The Same Standard As Applies Here. 

 Rather than address the facts in Mr. Gray’s petition, Respondent spends six pages 

discussing the effect of the Cook County State’s Attorney’s agreement that Mr. Gray is entitled 

to an evidentiary hearing on his actual innocence claim in Illinois state court. (Dkt. 45 at 2-7.) 

Respondent first argues that he should not be estopped by the position taken by the 

State’s Attorney on Mr. Gray’s actual innocence claim. (Dkt. 45 at 2.) Mr. Gray submits that 

there is no point in addressing that question at this time because Respondent has not yet taken a 

position that could be inconsistent with the State’s Attorney’s position. 

Respondent next argues that the State’s Attorney’s agreement that Mr. Gray is entitled to 

a hearing on his actual innocence claim under Illinois law does not equate to a concession that 

Mr. Gray’s pleadings meet the fundamental miscarriage of justice standard under Supreme Court 

precedent. (Dkt. 45 at 2-7.) Respondent misunderstands Illinois law on this point. 

 As stated in Mr. Gray’s motion, the standard to establish actual innocence under the 

Illinois Constitution is the same as the standard to establish an actual innocence gateway claim 
7 

under the United States Constitution. (Dkt. 40 at 2); compare People v. Edwards, 2012 IL 

111711, ¶32 (“the evidence in support of the claim must be newly discovered; material and not 

merely cumulative; and of such conclusive character that it would probably change the result on 

retrial”) (internal quotation and citations omitted), with McQuiggin, 133 S.Ct. at 1933 (a 

petitioner demonstrates his actual innocence where “new evidence shows it is more likely than 

not that no reasonable juror would have convicted the petitioner”), quoting Schlup v. Delo, 513 

U.S. 298, 329 (1995). The Illinois Supreme Court, in fact, has relied on Schlup in articulating its 

actual innocence standard. Edwards, 2012 IL 111711, at ¶33. 

Respondent argues that the State’s Attorney’s agreement that Mr. Gray is entitled to an 

evidentiary hearing under the Illinois Post-Conviction Hearing Act (“the Act”) does not amount 

to a concession that he has stated an actual innocence gateway claim under federal law because a 

petitioner can obtain a hearing under the Act upon only a “substantial showing” of a violation of 

a constitutional right. (Dkt. 45. at 4, citing People v. Lofton, 2011 IL App (1st) 100118.) While 

Respondent’s position would be welcome news to many Illinois post-conviction petitioners, it 

would make little sense to hold hearings where petitioners cannot actually state claims upon 

which relief may be granted. That is not the law in Illinois. 

Respondent’s interpretation of the “substantial showing” requirement confuses the 

evidentiary showing required to warrant a hearing with a petitioner’s burden of proof. Postconviction proceedings are obviously collateral proceedings that take place after direct appeal 

has been exhausted. The Act therefore requires petitions to have attached “affidavits, records, or 

other evidence supporting its allegations.” 725 ILCS 5/122-2. That is an essential requirement. 

People v. Harris, 224 Ill. 2d 115, 126 (2007) (“Failure to comply with section 122-2 is fatal and 

by itself justifies the petition’s summary dismissal”). 
8 

The Illinois Supreme Court cases from which the “substantial showing” language arise 

make clear that they are referring to the section 122-2 evidentiary requirement. People v. Curtis, 

48 Ill. 2d 25, 27 (1971) (“Before a hearing is required a petitioner must make a substantial 

showing of a violation of constitutional rights and to accomplish this the allegations in the 

petition must be supported by the record in the case or by accompanying affidavits”) (emphasis 

added and internal quotation omitted); People v. Gaines, 105 Ill. 2d 79, 91-92 (1984) (same); 

People v. Coleman, 183 Ill. 2d 366, 381 (1998) (same); People v. Harper, 2013 IL App (1st) 

102181, ¶49-52 (ordering a third-stage evidentiary hearing on a claim of actual innocence where 

new affidavits, “if believed by the fact finder in the event of a retrial, would likely change the 

outcome of the case”).3

Respondent cites no case where a court granted a post-conviction petitioner an 

evidentiary hearing on allegations that amounted to less than a constitutional violation. Rather, 

in an effort to define what a “substantial showing” might be as a burden of proof standard, 

Respondent relies on two cases for the proposition that a “substantial showing falls somewhere 

between mere denials on the one hand and proof by a preponderance of the evidence on the 

other.” (Dkt. 45 at 4, citing People v. Pearson, 271 Ill. App. 3d 640 (1st Dist. 1995); People v. 

Lucente, 506 N.E.2d 1269, 1277 (Ill. 1987).) Those cases, however, addressed whether a 

criminal defendant was entitled to an evidentiary hearing under Franks v. Delaware, 438 U.S. 

 

3

 Indeed, even at the first stage of post-conviction proceedings where only the “gist” of a 

constitutional claim need be stated, the Supreme Court has held that a petition may be dismissed 

if it presents “an indisputably meritless legal theory” such as one “completely contradicted by the 

record.” People v. Hodges, 234 Ill. 2d 1, 16 (2009). Moreover, where a petition advances to the 

second stage, counsel is appointed to an indigent defendant. People v. Hodges, 234 Ill. 2d 1, 10 

(2009); 725 ILCS 5/122-4. It would make little sense to permit a hearing where even a petitioner 

represented by counsel could not state a claim upon which relief could be granted. 
9 

154 (1978), on a motion to quash a search warrant on the grounds that it was based on false 

information. They are totally irrelevant to the law on post-conviction proceedings. 

In sum, a post-conviction petitioner in Illinois is entitled to a hearing only if he is able to 

state claims upon which relief can be granted. Adam Gray has pled facts that show his actual 

innocence, as the Cook County State’s Attorney has agreed. This Court should reach the same 

conclusion.4

II. The Seventh Circuit Has Extended The Fundamental Miscarriage Of Justice 

Exception To Exempt Actually Innocent Petitioners From The Total Exhaustion 

Requirement. 

Respondent dismisses as “mistaken,” and “dicta,” the Seventh Circuit’s opinion in 

Milone v. Camp, 22 F.3d 693 (7th Cir. 1994), which squarely held that a petitioner who presents 

persuasive evidence of his actual innocence is entitled to habeas relief even on unexhausted 

claims. 

This is what Milone said: 

• “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.” Id. at 699. 

 

4

 Respondent also argues in a footnote that “petitioner has not adequately explained why he 

waited until 2010 to seek the FOIA request that uncovered the data underlying his actualinnocence claim.” (Dkt. 45 at 9 n. 3.) As an initial matter, and as Respondent should know, 

Petitioner did submit a FOIA request to the Chicago Police Department in 2008 that should have 

returned the chromatograms, but was told they no longer existed. (Dkt. 17 at 8-9 & Ex. 7.) 

More fundamentally, Respondent ignores the affidavit from Adam’s prior post-conviction 

counsel, Marc Kadish, Director of Pro Bono Activities and Litigation Training at Mayer Brown, 

LLP, explaining that he believed the record showed that gasoline was present. (Dkt. 20 Ex. 1.) 

Mr. Kadish’s belief was doubtlessly caused by the prosecutors’ attempts to mislead the jury to 

believe that gasoline had been found and Adam’s counsel’s failure to understand that it had not. 

The fact that no gasoline was present anywhere was buried so deeply by Adam’s prosecution that 

Clark Refining & Marketing, Inc., even settled a civil suit predicated on the allegation – which it 

stipulated to be true – that it had sold gasoline to Adam in a milk jug. (Dkt. 17 at 6 & Exs. 4, 5.) 
10 

• “This Court may consider Milone’s claim of actual innocence only in determining 

whether to excuse his failure to exhaust all state remedies before pursuing this habeas 

petition.” Id. at 700. 

• “...the remainder of this opinion is premised on the assumption that Milone has made a 

sufficient showing of actual innocence to warrant habeas review of all of his 

constitutional claims, unexhausted as well as exhausted.” Id. at 701. 

The Court’s decision that it could consider – via an evidentiary hearing as the district 

court in Milone held, id. at 698 – unexhausted claims based on the petitioner’s persuasive 

showing of innocence thus was indisputably deliberate. Moreover, that decision was a necessary 

analytical step to the Court’s ultimate conclusion that, while it was “sympathetic to Milone’s 

position” because he had “made a credible claim that newly-discovered evidence... would 

exonerate him,” his trial was not infected with constitutional error. Id. at 705. The Court’s 

decision that it could hear the petitioner’s unexhausted claims was thus part of the Court’s 

holding. Tate v. Showboat Marina Casino P’ship, 431 F.3d 580, 582 (7th Cir. 2005) (“the 

holding of a case includes, besides the facts and the outcome, the reasoning essential to that 

outcome”).5

 Respondent’s dismissive assertion that Milone made no holding on point is 

incorrect. 

 

5

 To further underscore the deliberate nature of the Court’s decision, it is worth noting that 

Petitioner Milone directly raised the issue in both the district court and on appeal. Id. at 700 

(“[Petitioner] wishes the Court to excuse his failure to exhaust all of his state remedies on the 

ground that it would constitute a miscarriage of justice, due to his innocence of the murder, not 

to entertain his petition”). The Seventh Circuit squarely considered the issue. Id. at 699 (“This 

opinion will first address the effect of a claim of actual innocence on habeas corpus review of 

state proceedings...”). The Court, in fact, carefully reviewed the Supreme Court’s decisions on 

actual innocence and reserved the question of what showing a petitioner professing his innocence 

must make in order to have his unexhausted claims be heard.5

 Id. at 701; Brumley v. Godinez, 

No. 93-CV-4817, 1994 WL 411381, at *7 n. 3 (N.D. Ill. Aug. 3, 1994). These are all hallmarks 

of a binding determination. United States v. Bloom, 149 F.3d 649, 653 (7th Cir. 1998) (rejecting 

an argument that a passage was dictum because it “explains the Court’s rationale and thus is part 

of the holding,” and further stating that “[e]ven if the passage could be called dictum, it is not an 

aside unrelated to the subject of the case. The question had been briefed by the parties, so the 

statement was informed rather than casual; it is a considered expression by the Court supported 
11 

Respondent also brashly asserts that the Seventh Circuit “erroneously” interpreted the 

four Supreme Court cases addressing the fundamental miscarriage of justice exception it relied 

on in reaching its decision. A more plausible interpretation – and the one this Court is obligated 

to adopt – is that the Seventh Circuit understood those cases and meant what it said. 

Respondent’s bluster on this point is particularly unreasonable in that he cites nothing to support 

his assertion and does not attempt to address the logic implicit in Milone’s concluding citation to 

Murray v. Carrier, 477 U.S. 478, 496 (1986). Murray held that a federal habeas court may hear 

claims that were procedurally defaulted in state court if necessary to correct a fundamental 

miscarriage of justice. Id. It makes sense to infer – as the Seventh Circuit manifestly did – that 

if a court may hear claims that were not presented in state post-conviction procedures, then it 

may hear claims that have not been presented in state post-conviction procedures. 

Significantly, in House v. Bell, 547 U.S. 518, 536 (2006), the Supreme Court reaffirmed 

its holding in Murray following the enactment of the Anti-Terrorism and Effective Death Penalty 

Act (“AEDPA”). The Supreme Court’s recent holding in McQuiggin that a persuasive showing 

of actual innocence can overcome AEDPA’s statutory bars further demonstrates that there is no 

reason to believe that Milone should be overturned. See McQuiggin, 133 S.Ct. at 1934 (“we will 

not construe a statute to displace courts’ traditional equitable authority absent the clearest 

command”), quoting Holland v. Florida, 130 S.Ct. 2549, 2562 (2010). 

Finally, Respondent argues that given the enactment of AEDPA, following Milone’s 

holding would now have the consequence that deference under 28 U.S.C. § 2254(d) could not be 

applied. (Dkt. 45 at 8.) That is not a novel result. In fact, it is precisely how the Seventh Circuit 

 

by earlier cases ... and is not incompatible with any decision before or since”), abrogated on 

other grounds by Skilling v. United States, 130 S.Ct. 2896, 2932-33 (2010). 
12 

has held that claims that were procedurally defaulted in state court but saved for habeas review 

by a convincing showing of innocence should be treated. With respect to those claims, the Court 

has stated that “when no state court has squarely addressed the merits of a habeas claim, [] we 

review the claim under the pre-AEDPA standard of 28 U.S.C. § 2243, under which we ‘dispose 

of the matter as law and justice require.’” Morales v. Johnson 659 F.3d 588, 599 (7th Cir. 2011) 

(internal quotations omitted), citing Kerr v. Thurmer, 639 F.3d 315, 326 (7th Cir. 2011); 

Coleman v. Hardy, No. 99-C-2635, 2012 WL 1192200, at *7 (N.D. Ill. Apr. 10, 2012). 

 Milone controls this case and demonstrates that the Seventh Circuit has held that habeas 

courts should extend the fundamental miscarriage of justice exception to hear unexhausted 

claims where it is necessary to end the wrongful incarceration of an innocent person, who was 

convicted in violation of the Constitution. 

III. The Equities Clearly Weigh In Favor Of Granting Mr. Gray An Expedited 

Evidentiary Hearing. 

Respondent concludes by making several arguments related to the practicality and 

equities of holding a hearing on Mr. Gray’s federal constitutional claims. (Dkt. 45 at 12-13.) 

To be clear, Mr. Gray is willing to present his claims in either this Court or the Circuit 

Court of Cook County, or both, and is ready to do so. The reality of the situation is simply that 

federal courts have the resources to hear cases more quickly than Illinois state courts. 

With respect to the seventeen months Mr. Gray’s post-conviction petition has been 

pending in state court, Mr. Gray submits that this Court absolutely should consider the 

imperative to address his claims quickly in deciding this motion. See Souliotes, 2013 WL 

1098255, at *2 (stating that the Court of Appeals had ordered the district court to “determine 

Petitioner’s claims in an expedited manner due to Petitioner’s advanced age and strong showing 

of innocence”). Respondent states blithely that Mr. Gray’s petition has been “pending only since 
13 

March 2012.” (Dkt. 45 at 9 n. 3). Respondent, however, is not the one who has been in prison. 

See Lowe v. Duckworth, 663 F.2d 42, 43 (1981) (“A seventeen-month delay is inordinate.”).6

 

Ordering an expedited evidentiary hearing on Mr. Gray’s unexhausted claims would not 

overburden this court or establish precedent that would overburden the federal courts. As 

Respondent notes, the Supreme Court has stated that the miscarriage of justice exception applies 

to a “severely confined category: cases in which new evidence shows it is more likely than not 

hat no reasonable juror would have convicted the petitioner.” McQuiggin, 133 S.Ct. at 1933; 

(Dkt. 45 at 4). In an influential article arguing that habeas corpus proceedings should be 

reoriented to focus on claims of innocence, Judge Friendly stated, “a requirement that, with 

certain exceptions, an applicant for habeas corpus must make a colorable showing of innocence 

would enable courts of first instance to screen out rather rapidly a great multitude of applications 

not deserving their attention and devote their time to those few where injustice may have been 

done.” Friendly, “Is Innocence Irrelevant? Collateral Attack on Criminal Judgments,” 38 U. 

Chi. L. Rev. 142, 150 (1970). 

Moreover, Mr. Gray’s claims have merit that is evident on their face and could be quickly 

decided. See Dozie v. Cady, 430 F.2d 637, 637 (7th Cir. 1970) (ordering an evidentiary hearing 

on a habeas petition where the district court could hear claims more quickly than the state court 

and “Petitioner’s allegations of error in his trial present a strong case for review”). Mr. Gray 

anticipates that the scientific evidence in this case will not be disputed. The State’s own expert 

from trial acknowledges that no gasoline was present in the samples. (Dkt. 47, Ex. 5 Shambee 

 

6

 Respondent also represents that an evidentiary hearing “is expected to begin, imminently, in 

state court.” (Dkt. 45 at 13.) That statement is baseless. (Expected by whom?) Mr. Gray’s 

counsel have not been party to any discussions regarding scheduling a hearing in state court. In 

counsel’s experience litigating post-conviction cases in the Circuit Court of Cook County, a 

typical wait for a hearing after a decision on a motion to dismiss is approximately nine months, 

and can be substantially longer in busy courts. 
14 

Aff. at ¶5.) The type of chemical analysis that Mr. Gray’s experts have performed that 

establishes that the HPDs do not match was stipulated by the State of California to be reliable 

and accurate in another case. Souliotes, 2012 WL 1458087, at *3. And as discussed above, the 

testimony at trial that the burn patterns from the fire indicated that it was started by an accelerant 

is now widely acknowledged to be mistaken. (See Dkt. 47, Ex. 18 Smith Aff. at 9-10 (explaining 

that the notion of “alligator char” advanced at trial and many other misconceptions “have been 

almost completely removed from the fire investigation lexicon today”).) 

The now-indisputable fact that no gasoline was present alone largely proves two of Mr. 

Gray’s constitutional claims. Mr. Gray’s claim of ineffective assistance is based on the fact that 

his attorneys did not understand that no gasoline was present in this case about whether he 

started a fire using gasoline. That was clearly a mistake, and it clearly prejudiced Mr. Gray. 

(See Dkt. 47, Ex. 19 Hurst Dep. at 157 (“I hate to bring this up, but I’ve got to. That is probably 

the worst defense I have seen. That is the worst cross-examination of experts I have ever 

seen.”))7

; Richey, 498 F.3d at 364 (holding that a state-court determination that petitioner’s 

counsel was not ineffective was unreasonable under § 2254(d) where counsel failed to retain an 

expert who could have “disputed the State’s conclusion that any of the samples contained traces 

of gasoline or paint thinner” and “testified that the burn patterns, about which [the State’s expert] 

made so much, were just as consistent with a naturally occurring fire”). 

Similarly, Mr. Gray’s claim of prosecutorial misconduct is based on the deliberately 

misleading presentation of evidence and deliberately misleading arguments made by the State at 

trial, all of which are now evident from the record. The only theory of the crime the State 

 

7

 Dr. Hurst is a Cambridge-educated chemist who invented some of the world’s most powerful 

explosives, the Mylar balloon, and the modern formulation for Liquid Paper before devoting 

most of the past two decades to working on arson cases pro bono. (Dkt. 47, Ex. 19 Hurst Dep. at 

8-14.) 
15 

presented was predicated on the idea that gasoline had been found. (See L-136, State’s closing 

argument: “He goes to the Clark gas station with an empty plastic gallon of milk, this one. And 

he goes to a black lady, and he purchases gasoline from the black lady.); (J-219, testimony of 

Det. Crescenzo, “[I] detected a strong odor of gasoline [from the milk jug]”). The State knew 

that was false. Mr. Gray respectfully submits that this Court could grant him relief on these 

claims on the trial record alone. 

CONCLUSION 

For the foregoing reasons, Adam Gray respectfully requests that this Court lift the stay of 

this case and schedule an expedited hearing on his claims, or order such other procedures as it 

deems appropriate. 

Dated: August 20, 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 
16 

CERTIFICATE OF SERVICE

I, Brij B. Patnaik, hereby certify that a copy of the foregoing Reply in Support of Petitioner’s 

Motion To Lift Stay and Hold an Evidentiary Hearing was served upon the following on August 

20, 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: August 20, 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