Hon. Theresa L. Springmann, District Judge for the Northern



District of Indiana, sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1401

JOSEPH PRICE,

Petitioner-Appellant,

v.

GUY PIERCE,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Western Division.

No. 07 C 50111—Frederick J. Kapala, Judge.

ARGUED FEBRUARY 22, 2010—DECIDED AUGUST 13, 2010

Before KANNE and WILLIAMS, Circuit Judges, and

SPRINGMANN, District Judge.

KANNE, Circuit Judge. While incarcerated for other

crimes, Joseph Price was convicted in Illinois state court

of three counts of aggravated sexual assault for beating

and raping a fellow inmate. For these convictions he
2 No. 08-1401

was sentenced to three consecutive 35-year terms of

imprisonment. After bouncing around the Illinois court

system for ten years on numerous appeals and motions,

Price finally arrived in the federal courts by filing a

petition for a writ of habeas corpus under 28 U.S.C. § 2254.

The district court dismissed his petition as time barred,

rejecting Price’s argument that a motion under Illinois

Statute 725 ILCS 5/116-3 was a collateral attack on the

judgment against him that tolled the one-year statute of

limitations for filing a habeas petition. We now affirm.

I. BACKGROUND

In November 1995, while incarcerated at Dixon Correctional Center in Illinois, Price was charged with five

counts of aggravated sexual assault of two fellow inmates. In April 1996, a jury found him guilty on the

three counts related to one of the inmates, but not guilty

on the other two counts related to the other inmate. The

trial court sentenced Price to three consecutive 35-year

terms of imprisonment. Price filed a motion to reconsider and for a new trial in October 1996. More than one

year later, the trial court denied his motions. Almost

two years after that, in October 1999, the Appellate

Court of Illinois affirmed his convictions and sentence.

Price then filed a petition for leave to file an appeal with

the Supreme Court of Illinois, which that court denied

on February 2, 2000. Price’s window for filing a petition

for a writ of certiorari closed 90 days later in May 2000.

The one-year statute of limitations for filing a petition

for a writ of habeas corpus expired one year later in

May 2001—unless Price is correct that it was tolled.
No. 08-1401 3

Moving back in time, while Price’s petition for leave

to file an appeal was pending with the Supreme Court

of Illinois, in November 1999 he filed a motion for

forensic testing under 725 ILCS 5/116-3 (“DNA Motion”).

One year later, the state trial court dismissed the DNA

Motion as untimely. The Appellate Court of Illinois

disagreed, and it reversed and remanded the case in

2003 with instructions to the trial court to determine

the propriety of allowing three different DNA tests. In

January 2005, the trial court issued an order denying the

remanded DNA Motion on the merits. Almost eighteen

months later, the Appellate Court of Illinois affirmed

the trial court, and on September 27, 2006, the Supreme

Court of Illinois denied Price’s petition for leave to file

an appeal. In May 2007—six years after the judgment

against Price became final, but just eight months after

his DNA Motion was finally settled—Price filed his

pro se federal habeas petition, which the federal district

court denied as untimely. The district court did, however,

grant a certificate of appealability on the question of

“whether the one-year limitations period imposed by

28 U.S.C. § 2244(d)(1)(A) was tolled under § 2244(d)(2)

during the period of time in which petitioner’s motion

for forensic testing was pending in state court.” We

now address that question.

II. ANALYSIS

We review de novo the district court’s dismissal of

Price’s habeas petition as untimely. Simms v. Acevedo, 595

F.3d 774, 777 (7th Cir. 2010). In general, a prisoner may
4 No. 08-1401

petition for a writ of habeas corpus only after exhausting

all possible state remedies. 28 U.S.C. § 2254(b)(1)(A). The

petition must be filed within one year after “the date

on which the [state] judgment became final by the conclusion of direct review or the expiration of the time

for seeking such review . . . .” 28 U.S.C. § 2244(d)(1)(A).

The one-year statute of limitations can be tolled, however, if the petitioner applies for “State post-conviction

or other collateral review” of the judgment. Id. (d)(2).

Price argues that his motion under Illinois Statute 725

ILCS 5/116-3 qualifies as “other collateral review.”

In United States v. Addonizio the Supreme Court identified three kinds of actions or claims that fell within “the

established standards of collateral attack”: a claim that

a proceeding violated defendant’s constitutional rights,

that the imposed sentence fell outside statutory limits, or

that “the proceeding was . . . infected with [an] error of

fact or law of the ‘fundamental’ character that renders the

entire proceeding irregular and invalid.” 442 U.S. 178, 186

(1979). Price urges us to find that a motion under § 116-3

falls under the latter category—that is, that a motion

under § 116-3 raises the question of a defendant’s actual

innocence, which is an error of “fundamental” character.

We have previously discussed the characteristics of a

collateral review of a judgment, as distinct from a direct

review. We explained that “[p]ost-conviction appeals . . .

provide an independent and civil inquiry into the validity

of a conviction and sentence, and as such are generally

limited to challenges to constitutional, jurisdictional, or

other fundamental violations that occurred at trial.”
No. 08-1401 5

Graham v. Borgen, 483 F.3d 475, 479 (7th Cir. 2007).

The federal habeas corpus statute is the “archetypical

collateral review.” Id. at 479-80. In assessing whether a

particular state procedure constitutes collateral review

of the judgment, “we look to how a state procedure

functions, rather than the particular name that it bears.” Id.

at 479.

Section 116-3, titled “Motion for fingerprint, Integrated

Ballistic Identification System, or forensic testing not

available at trial regarding actual innocence,” provides

in relevant part:

(a) A defendant may make a motion before the

trial court that entered the judgment of conviction in his or her case for the performance of

fingerprint, Integrated Ballistic Identification

System, or forensic DNA testing, including comparison analysis of genetic marker groupings of

the evidence collected by criminal justice agencies

pursuant to the alleged offense, to those of the

defendant, to those of other forensic evidence,

and to those maintained under subsection (f) of

Section 5-4-3 of the Unified Code of Corrections,

on evidence that was secured in relation to the

trial which resulted in his or her conviction, and:

(1) was not subject to the testing which

is now requested at the time of trial; or 

(2) although previously subjected to

testing, can be subjected to additional

testing utilizing a method that was not
6 No. 08-1401

scientifically available at the time of trial

that provides a reasonable likelihood of

more probative results. Reasonable notice of the motion shall be served upon

the State. 

(b) The defendant must present a prima facie case

that:

(1) identity was the issue in the trial which

resulted in his or her conviction; and

(2) the evidence to be tested has been

subject to a chain of custody sufficient to

establish that it has not been substituted,

tampered with, replaced, or altered in

any material aspect. 

(c) The trial court shall allow the testing under

reasonable conditions designed to protect the

State’s interests in the integrity of the evidence

and the testing process upon a determination that:

(1) the result of the testing has the scientific potential to produce new, noncumulative evidence materially relevant to

the defendant’s assertion of actual innocence even though the results may not

completely exonerate the defendant; 

(2) the testing requested employs a scientific method generally accepted within

the relevant scientific community. 

Price urges us to find that a motion under this statute

is a collateral attack on his conviction because the trial
No. 08-1401 7

court, in deciding the DNA Motion, will have to determine that identity was at issue in his trial and that the

evidence gleaned from the DNA test is “materially relevant” to his claim of innocence. (Appellee’s Br. at 12-13.)

Those determinations, so goes the argument, necessarily

require the court to determine that there was a fundamental error of fact—that is, the defendant’s innocence—and therefore a motion under § 116-3 should be

considered a collateral review of the judgment.

This is the first occasion we have had to consider

whether a motion seeking DNA testing under 725 ILCS

5/116-3 is a “collateral review” of a judgment. We

naturally turn first to Illinois state courts to see whether

Illinois construes a motion under § 116-3 as a collateral

attack. Cf. Graham, 483 F.3d at 478 (“The Wisconsin

courts’ own interpretation of the statute is certainly a

good place to begin to determine whether the review is

direct or collateral.”). Price argues that in People v.

LaPointe, the Supreme Court of Illinois determined that

a motion under § 116-3 is a collateral attack. 879 N.E.2d

275 (Ill. 2007). The court in LaPointe, while detailing the

many legal actions the defendant had filed, said that

the defendant “began filing a series of collateral challenges to the conviction.” Id. at 276. It went on to list and

describe the procedural history behind a number of

challenges, including a federal habeas corpus petition, a

post-conviction petition in state court, and a claim of

actual innocence. Id. At the tail end of this lengthy procedural history, the court noted that the defendant also

filed a motion under § 116-3, arguing that a DNA test

would prove his innocence. Id.
8 No. 08-1401

At first blush, Price’s interpretation of LaPointe appears to be correct. But we are hesitant to read too much

into what appears to be a simple introduction to

a complex procedural history rather than a reasoned

holding, especially without some affirmative statement

or actual analysis by the court on the point in question.

Price also points to other Illinois Supreme Court cases

that say the DNA testing must “significantly advance” a

defendant’s claim of actual innocence, People v. Savory,

756 N.E.2d 804, 811 (Ill. 2001), and that the trial court

should evaluate the evidence introduced at trial and

the evidence the defendant is moving to test, People v.

Johnson, 793 N.E.2d 591, 601 (Ill. 2002). We are uncertain,

however, how either of those opinions addresses, much

less settles, the questions before us.

We are also hesitant to give too much weight to the

Supreme Court of Illinois’s passing comment in LaPointe

because other Illinois court decisions strongly suggest that Illinois does not consider a § 116-3 motion to be

a collateral attack. For example, the Appellate Court of

Illinois noted in People v. Price that a motion under § 116-3

leads only to forensic testing, not a new trial. 801 N.E.2d

1187, 1192-93 (Ill. App. Ct. 2003) (citing People v. Rokita,

736 N.E.2d 205, 212 (Ill. App. Ct. 2000)). It went on to

note that it “must be cautious not to ‘collapse’ [its] consideration of defendant’s section 116-3 motion and defendant’s claim of actual innocence into a single analysis.”

Id. at 1193 (citing People v. Henderson, 799 N.E.2d 682, 692-

93 (Ill. App. Ct. 2003)). 

Further, the court in Henderson, which both parties cite

in support of their respective positions, clearly perceived
No. 08-1401 9

a § 116-3 motion as a mere discovery motion, separate

from a claim of actual innocence, which is properly

brought under the Post-Conviction Hearing Act, 725

ILCS 5/122-1 et seq. 799 N.E.2d at 692; see also People v.

Permanian, 886 N.E.2d 1028, 1031 (Ill. App. Ct. 2008)

(“A section 116-3 order initiates a separate proceeding

independent of any claim for post-conviction or other

relief.”). The Henderson court also noted that the

standards for reviewing a § 116-3 motion and a claim

of actual innocence are different. Henderson, 799 N.E.2d.

at 692-93. 

Even if Price and Henderson are inconclusive on the

issue, the Supreme Court of Illinois’s decision in People

v. Shum, 797 N.E.2d 609 (Ill. 2003), puts the issue to rest.

There, the defendant filed a post-conviction petition

claiming actual innocence and requesting DNA testing.

Id. at 614-15. He did not file a separate § 116-3 motion

because that section had not yet been made effective. Id.

at 621. The court did not require the defendant to re-file

his request for DNA testing as a § 116-3 motion because

his request clearly met the § 116-3 criteria. Id. However,

the court refused to consider the defendant’s claim

of actual innocence because the results of the testing

were not yet available. Id. It was not until after the

DNA testing had occurred—a product of the § 116-3

motion—that the defendant’s separate claim of actual

innocence was ripe.

Our review of the plain language of § 116-3 and the

Illinois state court decisions discussing that provision

lead us to conclude that a motion under § 116-3 is not

a collateral review of the underlying judgment and there-
10 No. 08-1401

fore does not toll the statute of limitations for bringing

a federal habeas corpus petition under 28 U.S.C. § 2255.

Price’s argument to the contrary is based on his misunderstanding of the process that accompanies a § 116-3

motion. As the cases discussed above make clear, when

a defendant moves under § 116-3 for forensic testing, the

best that can happen is that the trial court grants the

motion, the tests are performed, and the defendant

receives the results. The defendant may choose to use

the results of the DNA test in a separate post-conviction

petition for relief claiming his or her actual innocence,

but no hearing automatically follows. Further, nothing

in the plain language of the statute or in any of the

state court opinions of which we are aware gives the

trial court the authority to release a defendant from

custody under § 116-3. 

Price argues that People v. Dodds, 801 N.E.2d 63, 68

(Ill. App. Ct. 2003), and People v. Starks, 850 N.E.2d 206, 212

(Ill. App. Ct. 2006), both said that a court should release a defendant if DNA evidence proved to be “truly

exculpatory.” However, the defendants in both cases had

contemporaneously filed motions for post-conviction

relief, and neither court expressly found that § 116-3

itself gives a court authority to release a prisoner. See

Dodds, 801 N.E.2d at 65; Starks, 850 N.E.2d at 212 (construing the defendant’s untimely “motion for a new

trial” as a motion for post-conviction relief under 725

ILCS 5/122-1(d)). In light of the Supreme Court of Illinois’s

treatment of the issue in Shum, 797 N.E.2d 609, we are

convinced that it is the motion for post-conviction relief,

and not the motion for DNA testing under § 116-3, that
No. 08-1401 11

gives an Illinois court the authority to release a prisoner

who is subsequently exonerated by DNA evidence.

Price mistakenly argues that in deciding a § 116-3

motion, the trial court must determine whether a defendant is actually innocent, or at least whether it is probable that he might be. Illinois courts have specifically cautioned against considering a defendant’s claim

of actual innocence when considering a § 116-3 motion.

See, e.g., Henderson, 799 N.E.2d at 692-93; Shum, 797

N.E.2d at 621. To grant relief under § 116-3, a court need

not determine that it is probable that a defendant is innocent, but rather only that evidence produced from

reliable forensic testing has the scientific potential to

“significantly advance” the defendant’s claim of actual

innocence. See People v. Johnson, 793 N.E.2d 591, 600 (Ill.

2002). Determining whether evidence is materially

relevant to a claim of actual innocence is a far cry from

determining actual innocence itself; the former is a question about the propriety of allowing discovery, while

the latter provides grounds for overturning a conviction.

At least two other circuits have considered state DNA

statutes, and the results are divided. The Eleventh Circuit

held that Florida’s DNA testing statute, Florida Rule of

Criminal Procedure 3.853, did not toll the statute of

limitations in the Antiterrorism and Effective Death

Penalty Act (AEDPA). Brown v. Sec’y for the Dep’t of

Corr., 530 F.3d 1335 (11th Cir. 2008). The court described

Florida’s process and its reasoning:

If the movant is successful, those procedures

culminate only in the results of the DNA testing
12 No. 08-1401

ordered by the court [being] provided in writing

to the court, the movant, and the prosecuting

authority. Thus, a Rule 3.853 proceeding involves

an application for discovery only, pursuant to

which the court lacks authority to order relief

from the movant’s sentence or conviction based

on the DNA test results. If the movant believes

those results provide a basis for a successful collateral attack on his judgment of conviction, he

may then institute a proceeding under Florida’s

collateral attack rules and only in that manner

secure such relief.

Id. at 1337-38 (citations and internal quotation marks

omitted). Because the Illinois DNA statute involves a

virtually identical procedure to Florida’s, our decision

here accords with the Eleventh Circuit’s in Brown.

The Fifth Circuit reached the opposite conclusion

regarding Texas’s DNA testing statute. In Hutson v.

Quarterman, 508 F.3d 236 (5th Cir. 2007), the court held

that a motion filed under Texas’s DNA testing statute,

Texas Code of Criminal Procedure article 64.04, was a

collateral review of the judgment that tolled AEDPA’s

statute of limitations. Id. at 239. But that decision was

specific to Texas’s DNA testing rule, which differs in

important ways from the procedure that Illinois has

established. The Huston court described Texas’s procedure as follows:

If these requirements [from Texas Code of Criminal Procedure articles 64.01-64.03] are met, the

court may order DNA testing. After examining
No. 08-1401 13

the results of the testing, the convicting court

shall hold a hearing and make a finding as to

whether it is reasonably probable that the person

would not have been convicted had the results

been available during the trial of the offense. If

the convicting court decides that the finding is

favorable to the convicted person under article

64.04, the court may release the convicted person on

bail pending the conclusion of court proceedings

or proceedings under Section 11, Article IV, Texas

Constitution, and Article 48.01. Section 11 of

Article IV and Article 48.01 give the governor

power to pardon and dictate the procedure for

pardoning a convicted person.

Id. at 238-39 (footnotes and internal quotation marks

omitted) (emphasis added). As understood by the Fifth

Circuit, Texas’s DNA testing procedure provides for an

automatic consideration of the testing results that may

ultimately lead to a defendant’s release from prison. The

court also relied on a number of Texas state court

opinions that it characterized as equating “the Texas

statute providing for post-conviction DNA proceedings

with habeas corpus proceedings in that both make a

collateral inquiry into the validity of the conviction.” Id.

at 239 (internal quotation marks omitted).

Unlike Texas’s procedure, a motion for post-conviction

DNA testing in Illinois does not automatically lead to a

court’s determination of the defendant’s actual innocence. Nor does a court have the authority to release a

prisoner under § 116-3. Because of these important dif-
14 No. 08-1401

ferences, we find the decision in Hutson inapposite. Cf.

Brown, 530 F.3d at 1338. 

A few federal district courts have also addressed this

issue. See Wolf v. Carroll, No. Civ.A. 04-130, 2005 WL

2454889, at *4 (D. Del. Oct. 5, 2005) (holding without

discussion that “a motion for post-conviction relief and

DNA testing” under Delaware law tolled AEDPA’s statute of limitations); McDonald v. Smith, No. 02-CV-6743,

2003 WL 22284131, at *5 (E.D.N.Y. Aug. 21, 2003) (“Motions

pursuant to [New York’s DNA testing statute] are

motions to vacate and, therefore, challenge the conviction.”). The motions under Delaware and New York law

appear to hold the potential to release a prisoner

should the DNA evidence come out in the prisoner’s

favor, similar to the process under Texas law discussed

in Hutson. Therefore, we find Wolf and McDonald as

inapposite as Hutson, and for the same reason.

We note that our decision here should not have the

unintended consequence of forcing prisoners to choose

between pursuing habeas corpus relief in federal court

or DNA testing in state court. See Hutson, 508 F.3d at 239-

40 (reasoning that “[c]omity . . . dictates that the federal

courts give Texas courts the time to review these DNA

claims and provide necessary relief without forcing

convicted persons to choose between the two systems

thereby undermining the remedy the Texas legislature

has provided”). As other cases have made abundantly

clear, a prisoner who wishes to pursue both federal

habeas relief and move for DNA testing under § 116-3

may timely file his or her habeas petition and then move
No. 08-1401 15

to stay the federal proceedings while the Illinois courts

consider the DNA testing motion. See, e.g., Pace v.

DiGuglielmo, 544 U.S. 408, 416 (2005); Newell v. Hanks, 283

F.3d 827, 834 (7th Cir. 2002). Although a motion under

§ 116-3 is not a collateral review of a judgment and therefore does not toll AEDPA’s statute of limitations, the

principles of comity, finality, and federalism should

strongly militate in favor of staying a prisoner’s federal

habeas petition while Illinois courts have an opportunity

to consider the prisoner’s § 116-3 motion, and where

appropriate, subsequent collateral attack on the underlying judgment.

III. CONCLUSION

We AFFIRM the district court’s dismissal of Price’s

petition for a writ of habeas corpus as untimely.

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