UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

DAVID CLARK,

Petitioner,

v.

MICHELLE EVANS,

Respondent.

No. 20 C 2431

Judge Thomas M. Durkin

MEMORANDUM OPINION AND ORDER

Petitioner David Clark filed a petition for writ of habeas corpus pursuant to 

Title 28 U.S.C. § 2254. R. 10. Illinois Attorney General Kwame Raoul1 moved to 

dismiss the petition, arguing Clark failed to exhaust his state court remedies. R. 13. 

For the following reasons, the motion to dismiss is granted and the petition is denied

without prejudice. 

Background

Clark was found not guilty by reason of insanity of aggravated battery in 

DuPage County in January 2018. R. 13-1; 17 C 134. After civil commitment 

proceedings he was committed to Elgin Mental Health Center for treatment not to 

extend past August 7, 2020. R. 13-2; 17 C 134. He was released from Elgin Mental 

Health Center on that date but remains confined at a secure group home. R. 18 at 3.

1 Clark brought his petition against Michelle Evans, the Hospital Administrator at 

Elgin Mental Health Center. Because he is no longer in the custody of Elgin Mental 

Health Center, the motion to dismiss and all subsequent documents have been filed

by the Attorney General of Illinois, the appropriate respondent at this stage. 

Case: 1:20-cv-02431 Document #: 25 Filed: 10/27/21 Page 1 of 6 PageID #:94
2

Clark filed several petitions for discharge or conditional release which were 

denied. R. 13-3. He did not appeal those decisions. R. 13 at 2. Clark then filed his 

amended habeas petition on July 14, 2020, arguing his counsel was ineffective for 

failing to assert a right to an independent evaluation under 405 ILCS 5/3-804; failing 

to inform him of his right to appeal; and failing to assert a right to a jury to determine 

if he was subject to involuntary commitment under 405 ILCS 5/3-802. R. 10 at 5-6. 

The Attorney General filed a motion to dismiss the petition without prejudice

on September 14, 2020, arguing Clark’s claims are not exhausted because he failed 

to raise them in any state court. R. 13. 

Analysis

The Attorney General argues Clark failed to exhaust his state court remedies. 

R. 13. Because Clark wasn’t criminally convicted, the Post-Conviction Hearing Act 

does not apply to him. People v. Vincent, 226 Ill.2d 1, 6 (2007) (The Act provides relief 

from criminal convictions). Instead, as both the Attorney General and Clark point 

out, 735 ILCS 2-1401 provides a potential remedy in state court. Section 2-1401 

provides a comprehensive, statutory procedure that allows for relief from a final 

judgment older than 30 days and extends to criminal cases as well as civil. Id. at 7. 

Clark was not convicted of a crime, and his challenges to aspects of the proceedings 

leading to his commitment would therefore be appropriate under Section 2-1401, 

rather than the Post-Conviction Hearing Act. 

Case: 1:20-cv-02431 Document #: 25 Filed: 10/27/21 Page 2 of 6 PageID #:95
3

Clark argues his state court remedies are foreclosed under 735 ILCS 2-1401(c) 

as more than two years have passed since entry of judgment.2 R. 18 at 2. The Attorney 

General acknowledges that Clark would be untimely in state court, but points to the 

“legal disability” exception to the two-year rule. R. 19 at 2. In the alternative, the 

Attorney General argues Clark’s claims are procedurally defaulted. The Court 

addresses each argument in turn. 

I. If the Court Accepts Clark’s Theory, His Claims are Procedurally 

Defaulted. 

Clark concedes he is untimely under 2-1401’s two-year statute of limitations. 

He argues, however, that his untimeliness means he is “foreclosed” from bringing a

petition in state court. R. 18 at 2. Futility can sometimes be a reason to excuse a 

failure to administratively exhaust. Lindemann v. Mobil Oil Corp., 79 F.3d 647, 650 

(7th Cir. 1996)). But it was not futile for Clark to petition under 2-1401; he is simply 

late. Under Clark’s theory, then, his habeas petition is procedurally defaulted and 

should be dismissed. See Richardson v. Lemke, 745 F.3d 258, 268 (7th Cir. 2014) (A 

claim is procedurally defaulted “when a petitioner fails to fairly present his claim to 

the state courts,” and to fairly present his claim, “a petitioner must assert that claim 

throughout at least one complete round of state-court review”); see also Guest v. 

McCann, 474 F.3d 926, 930 (7th Cir. 2007) (“In Illinois, this means that a petitioner 

2 See 725 ILCS 5/2-1401(c) (“[T]he petition must be filed no later than 2 years after 

the entry of judgment”).

Case: 1:20-cv-02431 Document #: 25 Filed: 10/27/21 Page 3 of 6 PageID #:96
4

must have directly appealed to the Illinois Appellate Court and presented the claim 

in a petition for leave to appeal to the Illinois Supreme Court.”).3

II. Clark Failed to Exhaust his State Court Remedies.

The Attorney General, however, points out that Clark may still have an avenue 

for relief in state court. Section 2-1401 includes an exception for “legal disability.” 

See 725 ILCS 5/2-1401(c). Clark was found not guilty by reason of insanity, was 

committed to a mental health center, contends he is “diagnosed with a major mental 

illness that could cause him to be a threat to himself and others,” and argues he had 

no access to legal resources while committed. R. 10 at 2, 6; R. 18 at 3. These 

arguments may be made, in state court, in support of the position that Clark suffered 

a legal disability and should be released from the two-year statute of limitations.

It is not for this Court to decide whether Clark will be successful in state court. 

The question before the Court is “‘not whether the state could be inclined to rule in 

the petitioner’s favor, but whether there is any available state procedure for 

determining the merits of petitioner’s claim.’” Spreitzer v. Schomig, 219 F.3d 639, 647 

(7th Cir. 2000) (quoting White v. Peters, 990 F.2d 338, 342 (7th Cir. 1993)). Put simply, 

3Procedural default does not act as an absolute bar, and courts may hear procedurally 

defaulted claims where a petitioner demonstrates cause for the default and prejudice 

resulting therefrom, Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977), or where he 

convinces the court that a miscarriage of justice will result if his claim is not 

entertained on the merits. Murray v. Carrier, 477 U.S. 478, 495-96 (1986). Clark 

makes no such argument here, and regardless, the Court need not reach that 

analysis, as his petition is being denied for a failure to exhaust state court remedies. 

If he exhausts his remedies in state court and returns to this Court, he would have 

the opportunity to demonstrate cause for the default and resulting prejudice. The 

Court is not making a determination as to whether Clark’s claims would be 

procedurally defaulted after his state court remedies are exhausted.

Case: 1:20-cv-02431 Document #: 25 Filed: 10/27/21 Page 4 of 6 PageID #:97
5

if a petitioner can put his claim before the state courts, he must do so. See United 

States ex rel. Porm v. Merchant, No. 04 C 4304, 2004 WL 2533819, *2 (N.D. Ill. Sept. 

28, 2004) (citing Spreitzer, 219 F.3d at 647). Clark has not yet done so, and his claims 

are therefore unexhausted. 

In sum, Clark’s failure to raise his claim in state court results in a dismissal 

at this stage under either scenario. Either (1) Clark is time-barred in state court and 

cannot present his claim, making it procedurally defaulted in this Court; or (2) Clark 

may still present his claims in state court and argue he suffered a legal disability, 

making his claims unexhausted for purposes of this proceeding. The Court finds the 

second scenario to be an accurate application of the exhaustion doctrine—Clark’s 

claims may still be brought in state court, and he must present them there before 

filing in federal court. 

III. Certificate of Appealability

The Court declines to issue a certificate of appealability pursuant to 28 U.S.C. 

§ 2253(c)(2). Rule 11(a) of the Rules Governing § 2254 Proceedings provides that the 

district court “must issue or deny a certificate of appealability when it enters a final 

order adverse to the applicant.” See Gonzalez v. Thaler, 565 U.S. 134, 143 n.5 (2012). 

To obtain a certificate, a habeas petitioner must make “a substantial showing of the 

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This demonstration “includes 

showing that reasonable jurists could debate whether (or, for that matter, agree that) 

the petition should have been resolved in a different manner or that the issues 

presented were adequate to deserve encouragement to proceed further.” Slack v. 

Case: 1:20-cv-02431 Document #: 25 Filed: 10/27/21 Page 5 of 6 PageID #:98
6

McDaniel, 529 U.S. 473, 484 (2000); see also Lavin v. Rednour, 641 F.3d 830, 832 (7th 

Cir. 2011). Here, the Court’s denial of Clark’s petition relies on application of wellsettled precedent. Accordingly, certification of Clark’s claims for appellate review is 

denied. 

Conclusion

For the foregoing reasons, the Attorney General’s motion to dismiss, R. 13 is 

granted. Clark’s § 2254 petition, R. 10 is denied without prejudice for failure to 

exhaust state court remedies pursuant to 28 U.S.C. § 2254(b)(1)(A).

ENTERED:

______________________________

Honorable Thomas M. Durkin

United States District Judge

Dated: October 27, 2021

Case: 1:20-cv-02431 Document #: 25 Filed: 10/27/21 Page 6 of 6 PageID #:99