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 ) 

MEMORANDUM IN SUPPORT OF MOTION 

 TO CERTIFY QUESTION FOR APPEAL UNDER 28 U.S.C. § 1292(b)

PETITIONER ADAM THOMAS GRAY, by his counsel, submits this memorandum in 

support of his motion to certify for appeal the question whether a petitioner who presents 

compelling evidence of his actual innocence is exempt from the exhaustion requirement and 

entitled to seek immediate habeas relief. This question should be certified for an interlocutory 

appeal because it involves a controlling question of law as to which there is substantial ground 

for difference of opinion, and an immediate appeal may materially advance the ultimate 

termination of the litigation with a finding of Adam Gray’s innocence. 

BACKGROUND 

Adam Gray was wrongfully convicted of starting a fire that killed two people when he 

was fourteen years old. He received a mandatory sentence of life without parole and has been 

incarcerated for over twenty years. His pending habeas petition identifies new scientific evidence 

establishing, among other things, that there is no reason to believe that the fire was caused by 

arson at all. 

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Mr. Gray filed his habeas petition presenting this evidence contemporaneously with a 

state post-conviction petition in the Circuit Court of Cook County in March 2012. All of his 

claims in state court remain pending. 

On July 22, 2013, Mr. Gray filed a motion in this Court seeking an expedited evidentiary 

hearing on the claims raised in his habeas petition — both exhausted and unexhausted — on the 

ground that a showing of actual innocence can excuse the total exhaustion requirement imposed 

by Rose v. Lundy, 455 U.S. 509 (1982). (Dkt. 40.) The Court denied that motion on October 1, 

2013. (Dkt. 51.) Mr. Gray now seeks the Court’s permission to appeal that decision to the Court 

of Appeals for the Seventh Circuit.

ARGUMENT 

This case presents a legal question of vital importance to people who are imprisoned for 

crimes they did not commit: Can a prisoner who presents compelling evidence that he is actually 

innocent seek relief from constitutional violations in federal court without first exhausting all of 

his claims through state post-conviction procedures? 

This Court should certify that question for appeal to the Seventh Circuit. A district court 

may certify an interlocutory order for appeal when the court is of the opinion “that such an order 

involves a controlling question of law as to which there is substantial ground for difference of 

opinion and that an immediate appeal from the order may materially advance the ultimate 

termination of the litigation.” 28 U.S.C. § 1292(b); Ahrenholz v. Board of Trustees of University 

of Illinois, 219 F.3d 674, 676 (7th Cir. 2000). Upon motion of a party, a district court may amend 

a prior order to grant permission to appeal under Section 1292(b). Fed. R. App. P. 5(a)(3). The 

Court’s order meets each of that section’s requirements for the following reasons. 

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I. The Court’s Order Addressed a Controlling Question Of Law. 

The first requirement for certifying a question for appeal is that the question must involve 

a “controlling question of law.” 28 U.S.C. § 1292(b). A question of law is controlling “if its 

resolution is quite likely to affect the further course of the litigation, even if not certain to do so.” 

Sokaogon Gaming Enter. Corp., v. Tushie–Montgomery Assocs., Inc., 86 F.3d 656, 659 (7th Cir. 

1996). That requirement is plainly met. The Court’s determination that Mr. Gray must exhaust 

his state remedies before being heard is controlling because it is the basis for its refusal to lift the 

stay and conduct further proceedings at this time. 

II. The Court’s Order Addressed A Pure Question Of Law. 

The second requirement for certifying a question for appeal is that the question must be a 

“pure” question of law. Ahrenholz, 219 F.3d at 677. That requirement also is met. Whether actual 

innocence excuses a petitioner from the exhaustion requirement is a pure question of law that the 

Court of Appeals could “decide quickly and cleanly without having to study the record.”1 Id. 

III. There Is A Substantial Basis For Difference Of Opinion About Whether Actual 

Innocence Excuses The Exhaustion Requirement. 

The third requirement for certifying a question for appeal is that there must be a 

substantial basis for a difference of opinion on the question. 28 U.S.C. § 1292(b). There is a 

substantial basis for difference of opinion as to whether actual innocence excuses the exhaustion 

requirement. 

 

1

 If the Court of Appeals holds that actual innocence does excuse the exhaustion requirement, it 

could then remand the case to this Court to hold an evidentiary hearing on whether Mr. Gray is 

actually innocent — i.e., whether no reasonable juror would today convict him. McQuiggin v. 

Perkins, 133 S. Ct. 1924, 1933 (2013). That was the procedure followed in Souliotes v. 

Hedgpeth, a case similar to this one, where the court first held an evidentiary hearing to 

determine whether Mr. Souliotes was actually innocent, then addressed the merits of his 

constitutional claims. No. 06-cv-00667, 2013 WL 875952, at *11-12 (E.D. Cal. Mar. 7, 2013). 

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This Court acknowledged in its October 1 order that the Seventh Circuit has stated that 

“[o]ne 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.” (Dkt. 51 at 4, quoting Milone v. Camp, 22 F.3d 693, 699 (7th Cir. 1994).) The 

Court concluded that Milone is not controlling, however, for three reasons: (1) the Court 

recognized that in certain circumstances, federal appellate courts, unlike federal district courts, 

have the discretion to consider unexhausted claims; (2) the Court concluded that the statement in 

Milone that actual innocence is an exception to the exhaustion requirement is dicta; and (3) the 

Court ruled that even if the quoted language is not dicta, Milone is distinguishable from Mr. 

Gray’s case because comity weighs more strongly in favor of exhaustion where a post-conviction 

petition is pending in state court, as here. (Dkt. 51 at 4-5.) 

Mr. Gray respectfully submits that in light of Milone and other cases, there is a 

substantial difference of opinion that justifies submitting this question to the Court of Appeals. 

First, this Court itself observed that federal appellate courts have discretion to consider 

unexhausted claims in certain circumstances while federal district courts do not. (Dkt. 51 at 4.) 

That factor weighs in favor of permitting the Court of Appeals to decide whether it should 

exercise that discretion in Mr. Gray’s case. 

Second, for the reasons stated in Mr. Gray’s reply brief, (Dkt. 48 at 9-11), Mr. Gray 

respectfully disagrees with this Court’s conclusion that the statement in Milone that actual 

innocence is an exception to the exhaustion requirement was non-controlling dicta. (Dkt. 51 at 

4.) But even if the analysis in Milone was dicta, it was deliberate and reasoned dicta that 

demonstrates there is a substantial basis for differing opinions on this issue. Milone, 22 F.3d at 

699-701. The Seventh Circuit has instructed that considered dicta from an appellate court is 

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entitled to deference. United States v. Bloom, 149 F.3d 649, 653 (7th Cir. 1998). Notably, this 

Court did not find fault with the reasoning in Milone. 

Third, this Court noted that there was no other controlling authority addressing whether 

actual innocence excuses the exhaustion requirement. (Dkt. 51 at 4.) The First Circuit, however, 

has stated that “[t]here may be an exception to the exhaustion bar for cases involving colorable 

claims of actual innocence.” Coningford v. Rhode Island, 640 F.3d 478, 482 n.2 (1st Cir. 2011). 

The Ninth Circuit also has recognized that the issue is a live one. Sanders v. Ryder, 342 F.3d 

991, 1001 (9th Cir. 2003) (reserving the question whether a claim of actual innocence excuses 

the exhaustion requirement). Respondent cited no cases holding or suggesting that the 

fundamental miscarriage of justice exception does not apply to the exhaustion requirement. (Dkt. 

45 at 7-13.) 

Fourth, although this Court concluded that comity weighs more strongly in favor of 

requiring exhaustion in this case because Mr. Gray has a pending post-conviction petition, while 

petitioner Milone did not, reasonable minds could differ on that point. The Supreme Court has 

consistently and repeatedly held that a showing of actual innocence overcomes procedural 

hurdles to habeas relief. McQuiggin v. Perkins, 133 S. Ct. 1924, 1931-32 (2013).2 In fact, in the 

course of holding that claims that were procedurally defaulted in state court may still be heard by 

habeas courts, the Supreme Court has expressly rejected the argument that comity outweighs the 

 

2

 The Court in McQuiggin observed that the fundamental miscarriage of justice exception 

excuses a petitioner’s 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 previously rejected 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 other things. McQuiggin, 133 S. Ct. at 1931-32. In 

short, “[t]he Court uniformly has been guided by the proposition that the writ should be available 

to afford relief to those persons whom society has grievously wronged.” Kuhlmann, 477 U.S. at 

447. 

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imperative of correcting a wrongful conviction. Murray v. Carrier, 477 U.S. 478, 495 (1986). 

The Court ruled in Murray that “in appropriate cases the principles of comity and finality... must 

yield to the imperative of correcting a fundamentally unjust incarceration.” Id. It would be 

inconsistent and ironic for the federal courts to hear claims where a petitioner has bypassed the 

state court entirely, like the petitioner in Milone did, but not hear innocence claims by petitioners 

who diligently pursue relief, as Mr. Gray has done. Especially given that Mr. Gray has diligently 

complied with state court procedures but has faced a very long, continuing delay, his right to 

pursue habeas relief should not be delayed compared to petitioners who do not present or who 

default their claims in state court. 

Fifth, the fact that Mr. Gray’s petition has been pending for well over a year and a half in 

state court and has yet to receive a decision on the State’s Attorney’s motion to dismiss certain of 

his claims shows that the State of Illinois has had every opportunity comity could require to 

adjudicate this case. The Seventh Circuit has held that a seventeen-month delay in reaching a 

decision on a post-conviction petition is inordinate. Lowe v. Duckworth, 663 F.2d 42, 43 (7th 

Cir. 1981); Dozie v. Cady, 430 F.2d 637, 638 (7th Cir. 1970). Mr. Gray’s post-conviction 

petition in state court already has been pending for more than nineteen months and there is no 

indication that the state court will be able to hear and decide his claims anytime soon. (Dkt. 50.) 

Given the strong evidence of Mr. Gray’s innocence and the delay in state court, comity cannot 

outweigh the imperative for a court to give Mr. Gray a hearing. 

For all of these reasons, there is a substantial basis for a difference of opinion as to 

whether the evidence of Mr. Gray’s actual innocence excuses the exhaustion requirement, and 

there is substantial reason for the Court of Appeals to decide that issue promptly. 

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IV. Appellate Resolution Of This Issue May Materially Advance This Litigation. 

Finally, resolution of this question by the Court of Appeals may materially advance the 

ultimate termination of this litigation. 28 U.S.C. § 1292(b). The statute does not require certainty 

that an appeal will advance the ultimate termination of the litigation, but only that it may, 

depending on the appellate court’s resolution of the question. Sterk v. Redbox Automated Retail, 

LLC, 672 F.3d 535, 536 (7th Cir. 2012). Here, the habeas litigation is currently stayed and not 

advancing. Commentators have noted that “Orders deferring the exercise of jurisdiction may . . . 

be suitable for appeal. Examples include stay orders entered on grounds of abstention, primary 

jurisdiction, or more general grounds.” Wright & Miller, Federal Practice & Procedure § 3931. 

If the Court of Appeals decides that Mr. Gray can proceed on his claims, this litigation would 

advance and the time he remains wrongfully imprisoned could be significantly shortened. 

CONCLUSION 

 For these reasons, Mr. Gray respectfully asks this Court to amend its October 1 order to 

grant him permission under 28 U.S.C. § 1292(b) to appeal that order to the Court of Appeals for 

the Seventh Circuit.3 

 

3

 Because this Court’s order stayed the litigation pending exhaustion of state remedies, Mr. Gray 

also plans to appeal that order as of right under the “collateral order” doctrine. A collateral order 

is one that “conclusively determines a disputed question that is separate from the merits of the 

case and is effectively unreviewable on an appeal from the final judgment.” Jones v. Clark, 630 

F.3d 677, 679 (7th Cir. 2011), citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978). 

Collateral orders may be appealed as of right, and are also suitable for permissive appeal under 

Section 1292(b). Weir v. Propst, 915 F.2d 283, 285 (7th Cir. 1990). 

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Dated: October 22, 2013 

By:

Respectfully submitted, 

/s/ R. Douglas Rees 

 

 

Tara Thompson 

THE EXONERATION PROJECT 

 at the University of Chicago Law School 

6020 S. University Avenue 

Chicago, IL 60637 

Phone: (312) 243-5900 

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 

 

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CERTIFICATE OF SERVICE

I, Brij B. Patnaik, hereby certify that a copy of the foregoing Memorandum In Support Of 

Motion To Certify Question For Appeal Under 28 U.S.C. § 1292(b) was served upon the 

following on October 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: October 22, 2013 

By:

Respectfully submitted, 

/s/ Brij B. Patnaik 

 

 

Tara Thompson 

THE EXONERATION PROJECT 

 at the University of Chicago Law School 

6020 S. University Avenue 

Chicago, IL 60637 

Phone: (312) 243-5900 

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 

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