IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA ex rel.)

ADAM GRAY #B-77079, )

)

Petitioner, )

)

v. ) No. 12 C 1743

)

JOSEPH YURKOVICH, Warden, )

)

Respondent. )

MEMORANDUM OPINION AND ORDER

This Court has been concerned from the outset as to the

timeliness of this 28 U.S.C. §2254 Petition for Writ of Habeas 1

Corpus (“Petition”), brought on March 9, 2012 on behalf of Adam

Gray (“Gray) by the “Exoneration Project” of the University of

Chicago Law School, with two lawyers from Jenner & Block teaming

up with law students to challenge Gray’s 1996 conviction and

sentence on charges of aggravated arson and first degree murder

(two counts of the latter). Gray, who was 14 at the time of his

alleged commission of those offenses, was charged as an adult and

was convicted and sentenced to natural life in prison without the

possibility of parole.

As troubling as this Court found that scenario, its

awareness of the constraints that Congress has imposed on federal

habeas review of state convictions (including the limitations bar

established by Section 2244(d)(1)) led to its immediate issuance

 All further references to Title 28’s provisions will 1

simply take the form “Section--.”
of a March 12 memorandum order that stated in relevant part:

This Court’s threshold review of that filing, as called

for by Rule 4 of the Rules Governing Section 2254 Cases

in the United States District Courts, unsurprisingly

suggests that part or all of the Petition may be barred

by limitations under 28 U.S.C. §2244(d)(1)--indeed, was

perhaps time-barred even before any tolling kicked in

under 28 U.S.C. §2244(d)(2) by reason of Gray’s filing

of his first state post-conviction petition.

That caveat understandably led to the litigants’ ensuing filing

of two rounds of submissions on that score.

But before that briefing took place, Gray’s counsel had

accompanied the filing of the Petition with a motion (Dkt. 4)

that sought the issuance of a “stay and abey” order to facilitate

their pursuit of a third post-conviction remedy in the state

court system. That relief was requested so that all claims

sought to be advanced by the Petition could proceed later without

being confronted by a failure-to-exhaust defense. This

memorandum order now grants that motion, not only to clear away

any such procedural underbrush but also because the state court

resolution of the post-conviction proceeding may narrow or

otherwise impact upon the contentions advanced in the Petition

here.

But something more must be added at this point in light of

the repeated emphasis by Gray’s counsel on a claim that he is

actually innocent of the offenses for which he was convicted. In

that regard the Response to Petitioner’s Second Memorandum in

Support of Timeliness of Petition for a Writ of Habeas Corpus

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(Dkt. 18), filed for respondent Warden Joseph Yurkovich by an

Assistant Attorney General, has pointed to two decisions from our

Court of Appeals--Escamilla v. Jungwirth, 426 F.3d 868 (7th Cir.

2005) and Araujo v. Chandler, 435 F.3d 678 (7th Cir. 2005)--that

negate a claim of actual innocence as a stand-alone predicate for

an end run around (or a gateway through) the one-year limitation

alternatives established by Section 2244(d)(1). And although

Gray’s counsel have filed a July 12 reply (Dkt. 30) to that

memorandum that discusses various aspects of that Response in

substantive terms, it says not a word about the Escamilla and

Araujo cases--it is as though the Attorney General’s Office had

never referred to them.

That is really hard to understand, particularly given the

fact that the same Jenner & Block firm that represents Gray here

had made--and lost--the same “actual innocence” argument in

Araujo. Here is what Araujo, 435 F.3d at 680 said in that

respect:

What he does argue is that he is actually innocent and

that therefore the application of the statute of

limitations in §2244(d) to bar his petition would

result in a fundamental miscarriage of justice. He

urges us to determine that a freestanding “actual

innocence” exception must be read into the statute. 

The exception would not require a showing that a

petitioner exercised due diligence in discovering his

claim. It would be “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).

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Unfortunately for him, the argument comes too late. We

have recently decided that “[p]risoners claiming to be

innocent, like those contending that other events spoil

the conviction, must meet the statutory requirement of

timely action.” Escamilla v. Jungwirth, 426 F.3d 868

(7th Cir. 2005).

This Court will not now expand on other respects in which

the arguments advanced in support of the Petition may suffer from

an excess of advocacy, as for example by the ad hominem nature of

the attacks on Gray’s trial counsel for assertedly having

provided constitutionally inadequate representation because he

did not possess a crystal ball that anticipated later scientific

developments. For the present this Court will also not schedule 

any evidentiary hearing as to the timeliness or untimeliness of

the Petition, nor will it address any related constitutional

considerations, preferring instead to await the results of the

state court proceedings that have occasioned the current granting

of the stay-and-abey motion.

________________________________________

Milton I. Shadur

Senior United States District Judge

Date: November 15, 2012

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