                              In the
    United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 02-4223
RODNEY WOIDTKE,
                                                Plaintiff-Appellant,
                                 v.

ST. CLAIR COUNTY, ILLINOIS,
ST. CLAIR COUNTY PUBLIC
DEFENDER’S OFFICE, BRIAN K.
TRENTMAN, et al.,
                                             Defendants-Appellees.
                          ____________
             Appeal from the United States District Court
                for the Southern District of Illinois.
              No. 02 C 225—David R. Herndon, Judge.
                          ____________
          ARGUED MAY 23, 2003—DECIDED JULY 7, 2003
                           __________

    Before EASTERBROOK, RIPPLE and WILLIAMS, Circuit Judges.
  RIPPLE, Circuit Judge. On March 29, 2002, Rodney
Woidtke, invoking the diversity jurisdiction of the district
court, see 28 U.S.C. § 1332, filed a three-count complaint
against St. Clair County and public defenders Brian Trent-
                          1
man and Vincent Lopinot. In Count I, Mr. Woidtke alleged


1
 Mr. Woidtke also named the St. Clair County Public Defender’s
Office as a defendant. The district court, however, determined
                                                 (continued...)
2                                               No. 02-4223

that Attorney Trentman, and his supervisor, Attorney
Lopinot, had been negligent in their representation of Mr.
Woidtke in a 1989 criminal proceeding that resulted in his
conviction. Mr. Woidtke further alleged that the attorneys’
negligent representation of him continued throughout his
post-conviction proceedings until their withdrawal in 1998.
In Count II, Mr. Woidtke, alleging that the attorneys’ acts
were willful and wanton, sought punitive damages.
Finally, in Count III, Mr. Woidtke alleged that St. Clair
County was liable for the wrongful acts of Trentman and
Lopinot under 745 ILCS 10/9-102. On November 8, 2002,
the district court dismissed Mr. Woidtke’s complaint as
time-barred under the relevant statute of limitations, 745
ILCS 10/8-101. Mr. Woidtke now seeks review of that
decision in this court. For the reasons set forth in the
following opinion, we affirm the judgment of the dis-
trict court.


                             I
                     BACKGROUND
  In 1989, Attorney Brian Trentman, a St. Clair County
assistant public defender, represented Rodney Woidtke
in a trial for the murder of Audrey Cardenas. Vincent
Lopinot was Trentman’s supervising attorney. Prior
to and during Mr. Woidtke’s trial, Trentman also repre-
sented Dale Anderson, who later was deemed a suspect in
Cardenas’ murder. Mr. Woidtke submits that Trentman
failed to investigate fully his claim of innocence. Had a


1
  (...continued)
that it was not an entity capable of being sued under Federal
Rule of Civil Procedure 17(b), and Mr. Woidtke does not ap-
peal that determination.
No. 02-4223                                               3

competent investigation been conducted, Mr. Woidtke
asserts, the attorney would have uncovered evidence
supporting the view that Anderson, not Mr. Woidtke, had
committed the murder of Cardenas. Mr. Woidtke was
convicted of Cardenas’ murder and sentenced to a term
of forty-five years in prison.
   Trentman also undertook Mr. Woidtke’s representa-
tion during his state post-conviction proceedings from
October 1989 until January 1998. At that point, Trentman
withdrew from the case. On May 11, 2000, after Mr. Woidtke
had obtained new counsel, the Appellate Court of Illinois
issued a final mandate vacating his conviction and re-
manding the case for a new trial. Mr. Woidtke was re-
tried for Cardenas’ murder, and on March 30, 2001, he
was found not guilty. At the time of his release, Mr.
Woidtke had been incarcerated for twelve years.
  On March 29, 2002, Mr. Woidtke filed this action against
the defendants, alleging that they were negligent in repre-
senting him. Specifically, Mr. Woidtke alleged that, by
representing both Mr. Woidtke and Anderson, Attorney
Trentman had a direct conflict of interest and that Trentman
had failed to present evidence at Mr. Woidtke’s trial that
would have established his innocence. Mr. Woidtke also
alleged that Trentman, knowing there was a conflict
of interest, nevertheless continued his representation in
post-conviction proceedings. Mr. Woidtke further alleged
that Lopinot failed to supervise Trentman and to take
steps necessary to remedy the direct conflict of interest.
  The defendants moved to dismiss Mr. Woidtke’s com-
plaint as time-barred under the relevant statute of limita-
tions, 745 ILCS 10/8-101, and statute of repose, 735 ILCS
5/13-214.3(c). Attorney Lopinot also asserted immunity
under 745 ILCS 10/2-201 (“Determination of policy or
exercise of discretion”) and 745 ILCS 10/2-204 (“Acts or
4                                               No. 02-4223

omissions of another person”). Defendant St. Clair County
also contended that it could not be held liable under 745
ILCS 10/2-109 for the acts or omissions of its employees
(Trentman and Lopinot) if the employees themselves were
                 2
not held liable. On November 8, 2002, the district court
granted the defendants’ motion to dismiss Mr. Woidtke’s
complaint on the ground that it was barred by the stat-
ute of limitations. Under 745 ILCS 10/8-101, any action
against a local entity or its employees must be commenced
within one year from the date that the cause of action
accrued.
  In submitting their motion to dismiss, the defendants
had taken the view that Mr. Woidtke’s complaint
was untimely because his cause of action accrued on May
11, 2000, when the Illinois Appellate Court issued its
final mandate vacating his conviction. Because Mr.
Woidtke did not file suit within one year of that date, his
claim was barred. Mr. Woidtke, on the other hand, argued
that his complaint was timely because his cause of action
did not accrue until March 30, 2001, when he was found
not guilty after a retrial. He contended that, because he
had filed suit within one year of that date, he had complied
with the statute of limitations. The district court, relying
primarily upon Griffin v. Goldenhersh, 752 N.E.2d 1232 (Ill.
App. Ct. 2001), determined that Mr. Woidtke’s cause
of action accrued on May 11, 2000, when the state appel-
late court issued its final mandate “overturning Woidtke’s
conviction and remanding the case for a new trial if the
state chose to pursue Woidtke’s prosecution.” R.36 at 5.



2
  The parties agreed that St. Clair County was a local entity
and that Trentman and Lopinot were employed by St. Clair
County.
No. 02-4223                                                5

The court reasoned that, as of May 11, 2000, “all of the
elements of Woidtke’s cause of action were present.” Id.


                             II
                      DISCUSSION
                             A.
  Mr. Woidtke does not dispute that he had one year from
the date when his cause of action accrued to file suit
against the defendants. See 745 ILCS 10/8-101 (“No civil
action may be commenced in any court against a local
entity or any of its employees for any injury unless it is
commenced within one year from the date that the injury
was received or the cause of action accrued.”). He sub-
mits, however, that the district court erred when it dis-
missed his complaint as time-barred because his cause
of action did not accrue until March 30, 2001, when he
was acquitted upon retrial. The defendants, on the other
hand, maintain that the district court correctly determined
that Mr. Woidtke’s cause of action accrued on May 11, 2000,
when the Illinois Appellate Court issued its final mandate
overturning his conviction.
  We review de novo the district court’s decision to dis-
miss a complaint based on a statute of limitations defense.
See Perry v. Sullivan, 207 F.3d 379, 382 (7th Cir. 2000). In
undertaking our review, we must accept “as true all of
plaintiff’s factual allegations and the reasonable infer-
ences drawn from them.” Id. Because the jurisdiction of
the district court was based on diversity of citizenship,
our task is “to ascertain the substantive content of state
law as it either has been determined by the highest court
of the state or as it would be by that court if the present
case were before it now.” Allstate Ins. Co. v. Menards, Inc.,
285 F.3d 630, 637 (7th Cir. 2002).
6                                                  No. 02-4223

   Under Illinois law, a cause of action for legal malpractice
accrues when the client discovers, or should have discov-
ered, the facts establishing the elements of his cause of
action. See Profit Mgmt. Dev. Group v. Jacobson, Brandvik &
Anderson, Ltd., 721 N.E.2d 826, 841 (Ill. App. Ct. 1999); Kohler
v. Woollen, Brown & Hawkins, 304 N.E.2d 677, 681 (Ill. App.
Ct. 1973). The elements of a cause of action for attorney
malpractice are: (1) an attorney-client relationship; (2) a
duty arising from that relationship; (3) a breach of that
duty; and (4) actual damages or injury proximately caused
by that breach. See Sorenson v. Law Offices of Theodore
Poehlmann, 764 N.E.2d 1227, 1229 (Ill. App. Ct. 2002); Profit
Mgmt. Dev. Group, 721 N.E.2d at 842. In the case of a mal-
practice action brought against a criminal defense attor-
ney, the plaintiff has the additional burden of proving
his innocence of the crime for which the defendant rep-
resented him. See Moore v. Owens, 698 N.E.2d 707, 709
(Ill. App. Ct. 1998) (holding that a plaintiff must prove
“actual innocence” in a malpractice action against his
criminal defense counsel); Kramer v. Dirksen, 695 N.E.2d
1288, 1290 (Ill. App. Ct. 1998) (holding that a plaintiff
must prove his own innocence before he may recover for
his criminal defense attorney’s malpractice); see also Levine
v. Kling, 123 F.3d 580, 582 (7th Cir. 1997) (holding that,
under Illinois law, a plaintiff suing his former criminal
defense counsel must prove his own innocence and that
a plaintiff is precluded from doing so if the conviction
has not been overturned).
  The Supreme Court of Illinois has not addressed the
issue of when a former criminal defendant’s cause of action
for legal malpractice accrues against his former counsel.
“[I]n the absence of prevailing authority from the state’s
highest court, federal courts ought to give great weight
to the holdings of the state’s intermediate appellate
courts and ought to deviate from those holdings only
No. 02-4223                                                   7

when there are persuasive indications that the highest
court of the state would decide the case differently from
the decision of the intermediate appellate court.” Allstate,
285 F.3d at 637.
  The Illinois Appellate Court has addressed the issue on
two separate occasions, once in Johnson v. Halloran, 728
N.E.2d 490 (Ill. App. Ct. 2000), aff’d on other grounds, 742
N.E.2d 741 (Ill. 2001), and again in Griffin v. Goldenhersh, 752
N.E.2d 1232 (Ill. App. Ct. 2001). In both Johnson and Griffin,
the court determined that a former criminal defendant’s
cause of action accrues against his former counsel for legal
malpractice when his conviction is overturned. See Griffin,
752 N.E.2d at 1241 (“[A] cause of action accrues when the
reviewing court gives a final mandate [overturning the
conviction] that is not stayed pending an appeal to an-
other court.”); Johnson, 728 N.E.2d at 494 (“Plaintiff’s cause
of action accrued . . . when his criminal conviction was
overturned.”).
   The outcomes in Johnson and Griffin did not depend upon
the distinction at issue in this case between the date
of vacatur and the date of acquittal. In Johnson, the plain-
tiff filed a legal malpractice action against his former
attorneys based on their representation of him in a pros-
ecution for aggravated sexual assault, which resulted in
his conviction. In February and March of 1993, he sent
letters to the defendants, as well as the Attorney Registra-
tion and Disciplinary Commission, complaining about
the legal representation that he had received in his crim-
inal case; the plaintiff specifically mentioned DNA evi-
dence. On March 8, 1996, in state post-conviction pro-
ceedings, the plaintiff’s conviction was vacated based on
DNA test results. The plaintiff filed a malpractice action
against the defendants on November 22, 1996. In reply, the
defendants argued that the plaintiff’s cause of action was
8                                                  No. 02-4223

time-barred because his action had accrued in February or
March of 1993 when he wrote letters complaining about
the representation he received at his criminal trial. The
court disagreed. See Johnson, 728 N.E.2d at 494. It held
that the plaintiff’s cause of action was timely filed because
it “accrued on March 8, 1996, when his criminal convic-
tion was overturned.” Id. The court reasoned that “[i]t
was at this point that all of the elements of plaintiff’s cause
of action were present.” Id.
  In Griffin, the plaintiff filed suit against his former attor-
neys based on their allegedly negligent representation of
him in a murder trial. The plaintiff had been convicted in
June of 1981. On May 4, 1995, the United States District
Court had granted the plaintiff’s motion for a writ of
habeas corpus based on ineffective assistance of counsel.
On May 21, 1996, this court had affirmed the district
court’s decision to issue the writ. We stated that “plaintiff
is to be released from custody, ‘unless the State of Illinois
elects to retry [plaintiff] within [120] days from the is-
suance of this [c]ourt’s final mandate.’ ” Griffin, 752 N.E.2d
at 1237 (alteration in original) (quoting Griffin v. McVicar, 84
F.3d 880, 891 (7th Cir. 1996)). We denied the State’s peti-
tion for rehearing on September 23, 1996, and issued our
final mandate on September 27, 1996. The plaintiff was
released from prison on October 9, 1996. On June 29, 1998,
the plaintiff filed a malpractice action against his former
counsel. The defendants contended that the plaintiff’s cause
of action was time-barred under the relevant two-year
statute of limitations, 735 ILCS 5/13-214.3(b), because his
action accrued when he was convicted in June of 1981. The
plaintiff, on the other hand, argued that his complaint
was timely filed because his cause of action did not accrue
until we issued our final mandate on September 27, 1996,
vacating his conviction.
No. 02-4223                                                  9

   The court agreed with the plaintiff. See Griffin, 752 N.E.2d
at 1238. After reviewing Johnson (and similar decisions
from other state courts), the court held that “a legal mal-
practice cause of action does not accrue until the plain-
tiff’s conviction is overturned.” Id. at 1240. The court
reasoned that “a plaintiff must prove his innocence before
he may recover for his criminal defense attorney’s malprac-
tice,” but “he is collaterally estopped from arguing facts
established and issues decided in a criminal proceeding. . . .
Thus, before a plaintiff’s conviction is overturned, the
plaintiff is collaterally estopped from arguing his inno-
cence, leaving him with no cause of action.” Id. at 1239
(internal quotation marks and citations omitted).
  The court in Griffin then turned to the parties’ dispute
over the date upon which the plaintiff’s conviction was
“overturned.” The Illinois Appellate Court agreed with the
plaintiff that the relevant date was September 27, 1996, the
date of this court’s final mandate. After noting that “a
reviewing court’s judgment overturning a plaintiff’s
conviction may be reversed by another court,” the court
determined that, “[b]ecause of the policy reasons underly-
ing the unique nature of legal malpractice claims arising
out of criminal proceedings, a cause of action accrues
when the reviewing court gives a final mandate that is
not stayed pending an appeal to another court.” Id. at 1240-
41 (internal quotation marks and citations omitted). The
court reasoned that a legal malpractice plaintiff is injured
“when he has suffered a loss for which he may seek dam-
ages,” and until this court issued its final mandate, the
plaintiff’s damages were speculative. Id. at 1241.
  Relying principally on Griffin, the district court in the
case now before us held that “Woidtke’s legal malpractice
claim accrued, if ever, on May 11, 2000,” the date upon
which the Appellate Court of Illinois had issued its final
10                                               No. 02-4223

mandate overturning his conviction and remanding the
case for a new trial. R.36 at 5. The district court reasoned
that “[w]hen a plaintiff’s conviction is overturned by a final
appellate mandate, all of the elements of his legal mal-
practice claim exist, and a plaintiff may then bring suit,
as collateral estoppel can no longer be used to preclude
him from proving facts establishing his innocence.” Id.
Because Mr. Woidtke filed his action against the defen-
dants on March 29, 2002, more than one year after the
cause of action accrued, the court concluded that his
complaint was untimely.
   In evaluating the analysis of the district court, we begin
by noting that the district court employed the correct
methodology in approaching the issue before it. Faced
with the task of interpreting a state statute in the absence
of a pronouncement from the state’s highest court, the
district court, following our decision in Allstate, looked to
the decisions of the state intermediate appellate court for
guidance. Although these decisions arise in somewhat
different procedural contexts and, standing alone, do
not provide a direct answer to the issue in this case, the
district court discerned correctly that they do provide
meaningful guidance on the approach that Illinois has
chosen to take to this problem. Both of these cases sug-
gest a common theme: An existing conviction prevents
the plaintiff in a malpractice case from asserting that he
is innocent of the crime for which he was convicted. Until
a plaintiff can make such an assertion and go on to estab-
lish, by a preponderance of the evidence, that he is inno-
cent of the crime, he simply does not have a viable cause
of action for malpractice.
  In discerning this theme in the Illinois case law, the
district court did not cull verbiage out of context to sup-
port its result. Rather, it recognized in these opinions
an approach that is found throughout the Illinois cases
No. 02-4223                                                11

and that this court has noted in our previous decisions.
Both Illinois courts and this court have stressed that a
successful malpractice action requires that the plaintiff
affirmatively establish that he is innocent of the crime
charged. See Moore v. Owens, 698 N.E.2d 707, 709 (Ill.
App. Ct. 1998); Kramer v. Dirksen, 695 N.E.2d 1288, 1290 (Ill.
App. Ct. 1998); see also Levine v. Kling, 123 F.3d 580, 582
(7th Cir. 1997). It is the existence of an outstanding con-
viction, not the absence of a subsequent acquittal, that
prevents the plaintiff from maintaining that he is actually
innocent. Indeed, a subsequent verdict of not guilty,
although some evidence of innocence, is not sufficient to
carry the burden of establishing actual innocence in a
malpractice action. See Moore, 698 N.E.2d at 709; see also
Levine, 123 F.3d at 583.
   The district court therefore correctly declined to accept
Mr. Woidtke’s view, repeated before us, that the state’s
election to refrain from retrying the plaintiff in Griffin was
integral to the Illinois Appellate Court’s determination
of the date upon which his tort claim accrued. See Appel-
lant’s Br. at 15. Mr. Woidtke’s submission that a mal-
practice action against a criminal defense attorney does
not accrue until the criminal proceedings against the
plaintiff have been terminated cannot, in our view, be
reconciled with the approach of the Illinois courts. It is
true, as Mr. Woidtke points out, that the plaintiff in
Griffin was not retried, and that therefore the criminal
proceedings actually terminated when we issued our final
mandate. However, as the district court pointed out, the
Illinois court in Griffin “did not condition [its] holding
on the State’s choice not to retry Griffin, nor did the court
hold that the cause of action would have accrued on a
different date had the State elected to retry Griffin.” R.36
at 6. We agree that the Illinois court did not indicate that
its holding was dependent upon the state’s decision not
12                                                  No. 02-4223

to retry the plaintiff. That court could have held that the
plaintiff’s cause of action accrued when the state de-
                                              3
cided not to retry him and he was released. Rather, the
court indicated that its primary reason for adopting the
rule that the malpractice cause of action accrues at the
time of the vacation of the conviction was to overcome
the problem of collateral estoppel. Once the plaintiff’s
conviction is overturned, collateral estoppel no longer
operates to preclude the plaintiff from proving his inno-
cence.
   We are aware that other states have chosen a different
approach and require that the malpractice plaintiff wait
until the termination of the criminal proceedings. See Britt
v. Legal Aid Soc’y, Inc., 741 N.E.2d 109 (N.Y. 2000). In Britt,
the plaintiff pleaded guilty to attempted rape. On Sep-
tember 30, 1994, the trial court vacated Britt’s guilty plea
and remanded the case for further proceedings. The plain-
tiff was released from prison on December 27, 1994, and
on March 7, 1996, the indictment against him was dis-
missed. The New York Court of Appeals held that the
plaintiff’s cause of action did not accrue until the indict-
ment against him was dismissed. See id. at 113. The
court reasoned that “[v]acatur of the conviction and re-
mand of the matter to the trial docket did not signal the
accrual of Britt’s cause of action for Britt’s criminal liability
was still in doubt. A conviction on the indictment re-
mained possible and would serve to bar his malpractice
claim anew.” Id. at 112; see also Glaze v. Larsen, 55 P.3d 93, 97
(Ariz. Ct. App. 2002) (“[T]he harm to the aggrieved party is


3
  In its rendition of the facts, the court in Griffin specifically
stated that we had issued our final mandate on September 27,
1996, and that the plaintiff was released from prison on Octo-
ber 9, 1996.
No. 02-4223                                                   13

uncertain until the termination of criminal proceedings
because the criminal defendant is not harmed by his or her
attorney’s malpractice if the defendant is properly con-
victed after a new trial.”).
  The rule advocated by Mr. Woidtke and adopted by New
York and Arizona may have policy reasons to recom-
mend it, including principles of judicial economy. If a
plaintiff files suit against his former counsel and then is
subsequently convicted, his cause of action must fail. Such
a rule also would permit a more focused assessment of
damages.
  On the other hand, the Illinois approach is not without
force. The necessary elements of a malpractice action exist
once the conviction is overturned; collateral estoppel no
longer operates to preclude the plaintiff from asserting his
innocence. See Levine, 123 F.3d at 583 (“[B]y operation of
the doctrine of collateral estoppel, a valid criminal con-
viction acts as a bar to overturning that conviction in a
civil damages suit,” but “[s]hould he succeed in getting his
conviction overturned, he can bring a new malpractice
suit.”). Moreover, the fact that Mr. Woidtke eventually
was acquitted does not establish his innocence; to prevail
on his malpractice claim, he must prove his actual inno-
cence by a preponderance of the evidence. See Moore, 698
N.E.2d at 709 (“We do not believe that even if a criminal
defendant is acquitted on retrial, that alone will suffice
as proof of innocence, although it may be evidence for a
                            4
fact-finder to consider.”).


4
  As to damages, it is certainly possible to conclude that dam-
ages are no longer speculative once the plaintiff’s conviction is
overturned. Although the possibility that a second trial might
result in conviction is always present, we note that Illinois
                                                   (continued...)
14                                                 No. 02-4223

  Put simply, all the necessary elements for Mr. Woidtke’s
cause of action were present once his conviction was
overturned. Of course, the possibility remained that he
would be retried and convicted, but had he filed suit, the
court concerned by issues of judicial economy, could have
stayed the malpractice proceedings pending a final resolu-
tion of the criminal case.


                         Conclusion
  The district court followed the appropriate methodology
and correctly determined that Mr. Woidtke’s claims are




4
   (...continued)
has accepted the analogous risk in malpractice cases arising
from civil actions. These cases hold that the statute of limita-
tions begins to run from the date of the initial adverse judg-
ment, not from the denial of post-trial motions. See Hermitage
Corp. v. Contractors Adjustment Co., 651 N.E.2d 1132, 1140 (Ill.
1995) (holding that cause of action accrued when circuit court
entered order substantially reducing mechanic’s lien, even
though the court could have reconsidered its decision); Belden
v. Emmerman, 560 N.E.2d 1180, 1182-83 (Ill. App. Ct. 1990)
(holding that cause of action accrued when trial court entered
the order that was the subject of the legal malpractice action,
not when appellate court affirmed trial court’s order); Zupan
v. Berman, 491 N.E.2d 1349, 1351-52 (Ill. App. Ct. 1986) (holding
that statute of limitations commenced on date trial court en-
tered judgment adverse to plaintiff, rather than date plaintiff’s
post-trial motions were denied). The Supreme Court of Illinois
has warned that, were it otherwise, “the statute of limitations
could be postponed indefinitely until all avenues of appeal in
the earlier suit were exhausted.” Hermitage, 651 N.E.2d at 1139.
No. 02-4223                                                 15
                                                5
barred by the applicable statute of limitations. Accordingly,
the judgment of the district court is affirmed.
                                                    AFFIRMED

A true Copy:
        Teste:

                           _____________________________
                           Clerk of the United States Court of
                             Appeals for the Seventh Circuit




5
   Because we determined that the applicable statute of limita-
tions bars Mr. Woidtke’s claims, it is unnecessary to deter-
mine the applicability of the statute of repose or the addi-
tional defenses asserted by individual defendants.


                     USCA-02-C-0072—7-7-03
