                              In the

United States Court of Appeals
                 For the Seventh Circuit

No. 08-1401

JOSEPH P RICE,
                                                Petitioner-Appellant,
                                  v.

G UY P IERCE,
                                               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.



    A RGUED F EBRUARY 22, 2010—D ECIDED A UGUST 13, 2010




   Before K ANNE and W ILLIAMS, Circuit Judges, and
S PRINGMANN, District Judge. 
  K ANNE, 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



  Hon. Theresa L. Springmann, District Judge for the Northern
District of Indiana, sitting by designation.
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. B ACKGROUND
  In November 1995, while incarcerated at Dixon Correc-
tional Center in Illinois, Price was charged with five
counts of aggravated sexual assault of two fellow in-
mates. 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 recon-
sider 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. A NALYSIS
  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 con-
clusion 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, how-
ever, 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 identi-
fied 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 convic-
    tion in his or her case for the performance of
    fingerprint, Integrated Ballistic Identification
    System, or forensic DNA testing, including com-
    parison 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 no-
       tice 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 scien-
       tific potential to produce new, noncumu-
       lative evidence materially relevant to
       the defendant’s assertion of actual inno-
       cence even though the results may not
       completely exonerate the defendant;
       (2) the testing requested employs a scien-
       tific 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 deter-
mine that identity was at issue in his trial and that the
evidence gleaned from the DNA test is “materially rele-
vant” 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 funda-
mental error of fact—that is, the defendant’s inno-
cence—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 chal-
lenges 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 pro-
cedural 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 ap-
pears 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 sug-
gest 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] consid-
eration of defendant’s section 116-3 motion and defen-
dant’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 misun-
derstanding 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 re-
lease 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 (con-
struing 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 defen-
dant is actually innocent, or at least whether it is prob-
able that he might be. Illinois courts have specifi-
cally 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 in-
nocent, 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 ques-
tion 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 col-
     lateral 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 proce-
dure as follows:
     If these requirements [from Texas Code of Crim-
     inal 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 inno-
cence. 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 stat-
ute 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 convic-
tion.”). 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 there-
fore 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 under-
lying judgment.


                    III. C ONCLUSION
  We A FFIRM the district court’s dismissal of Price’s
petition for a writ of habeas corpus as untimely.




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