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

No. 06-1296
JOHNNIE LEE SAVORY II,
                                         Plaintiff-Appellant,
                             v.

KEVIN W. LYONS, in his official capacity as the
State’s Attorney for Peoria County, Illinois,
CITY OF PEORIA, GARY POYNTER, in his official
capacity as Chief of Police of City of Peoria,
ROBERT SPEARS, in his official capacity as
Clerk of the Peoria County Circuit Court,
and PEORIA COUNTY, ILLINOIS,
                                       Defendants-Appellees.
                       ____________
           Appeal from the United States District Court
                 for the Central District of Illinois.
       No. 05 C 2082—Michael P. McCuskey, Chief Judge.
                       ____________
 ARGUED SEPTEMBER 11, 2006—DECIDED NOVEMBER 29, 2006
                       ____________


  Before RIPPLE, KANNE, and WILLIAMS, Circuit Judges.
  KANNE, Circuit Judge. Johnnie Lee Savory II was
convicted of murder in 1977, and is currently serving
concurrent terms of forty to eighty years in Illinois. Savory
appeals the dismissal of his suit seeking access to the
physical evidence in his case for the purposes of DNA
testing. He filed this civil rights suit pursuant to 42 U.S.C.
§ 1983 in the Central District of Illinois on April 4, 2005
2                                               No. 06-1296

alleging that the government’s refusal to grant access to the
physical evidence violates his federal constitutional rights.
The district court found that Savory otherwise stated a
claim for relief pursuant to § 1983, but that his case was
barred by the statute of limitations. We also find, without
deciding whether prisoners have a post-conviction right of
access to physical evidence, that claims seeking such access
are cognizable under § 1983, but that the statute of limita-
tions is a bar in this case. We therefore affirm.


                   I. BACKGROUND
  James Robinson and Connie Cooper were found dead
in their home in Peoria, Illinois on January 18, 1977.
Savory, who was just fourteen at the time, was tried and
convicted for the murder that June. His original convic-
tion was reversed by the Appellate Court of Illinois due to
the introduction at trial of an involuntary confession that
was obtained in violation of Miranda. People v. Savory, 403
N.E.2d 118 (3d Dist. Ill. App. Ct. 1980). Savory was re-
tried and convicted in 1981. At the second trial, three of
Savory’s friends testified that he had made inculpatory
statements to them. The physical evidence presented by the
state included hairs found at the crime scene that
were similar to Savory’s, a knife found in Savory’s home
with trace amounts of blood on it, and a pair of pants
Savory may have worn bearing a bloodstain of the same
type as the female victim’s blood.
  Since his second trial, Savory has unsuccessfully sought
relief from his conviction and sentence through direct
appeal, People v. Savory, 435 N.E.2d 226 (2d Dist. Ill. App.
Ct. 1982), state post-conviction proceedings, People v.
Savory, No. 3-90-0059 (3d Dist. Ill. App. Ct. July 21, 1991),
federal habeas corpus proceedings, United States ex rel.
Savory v. Lane, No. 84-8112, 1985 WL 2108 (N.D. Ill. July
25, 1985), aff’d, 832 F.2d 1011 (7th Cir. 1987); Savory v.
No. 06-1296                                                    3

Peters, No. 94-2224, 1995 WL 9242 (N.D. Ill. January 9,
1995), petition for writ of mandamus, Savory v. McMorrow,
No. M 11055 (Ill. Jan. 21, 2004), and petition for executive
clemency.
  Savory also filed a motion in the Circuit Court for Peoria
County, Illinois in 1998 pursuant to 725 ILCS 5/116-3
seeking DNA testing of the physical evidence in his case.
The Illinois circuit court determined on July 7, 1998 that
testing was not warranted under the terms of the statute.
People v. Savory, No. 77 CF 565, July 7, 1998, Order
(unpublished). The appellate court and the Illinois Supreme
Court upheld the order on Dec. 17, 1999 and Oct. 1, 2001
respectively. People v. Savory, 722 N.E.2d 220 (3d Dist. Ill.
App. Ct. 1999); 756 N.E.2d 804 (Ill. 2001).
   On April 4, 2005, Savory filed suit pursuant to 42 U.S.C.
§ 1983 alleging that his constitutional rights were vio-
lated by Kevin W. Lyons, State’s Attorney of Peoria County,
Illinois, Robert Spears, Clerk of the Tenth Judicial Circuit
Court of Illinois, Gary Poynter, Chief of Police of the City of
Peoria, the City of Peoria, and Peoria County, Illinois
(collectively “Peoria”) by refusing Savory access to the
physical evidence in his case.1 The constitutional rights
upon which Savory relies are procedural due process,
substantive due process, and a right to prove actual inno-
cence. Savory seeks to compel production of: (1) a pair of
bloodstained pants; (2) hair samples; (3) a pocketknife with
traces of blood on it; and (4) samples taken from Savory, his
father, and others from whom samples were collected. The
district court dismissed all claims pursuant to FED. R. CIV.
P. 12(b)(6), determining that the two-year statute of
limitations had run because the claims accrued no later


1
  The district court dismissed all claims against Gary Poynter,
Chief of Police of the City of Peoria, as redundant of the claims
against the City of Peoria, which Savory does not dispute.
4                                                No. 06-1296

than July 7, 1998, the date on which the state trial court
denied Savory’s motion for access to testing.


                      II. ANALYSIS
  Savory presents four issues on appeal: (1) whether a
suit to gain access to physical evidence for DNA testing
is cognizable under 42 U.S.C. § 1983; (2) assuming there
is a post-conviction right of access to physical evidence,
whether the denial of access is a continuing violation;
(3) whether equitable tolling applies in this case; and
(4) whether there is a constitutional post-conviction right of
access to physical evidence for testing. We review the
district court’s dismissal for failure to state a claim pursu-
ant to FED. R. CIV. P. 12(b)(6) de novo, accepting the well-
pleaded allegations in the complaint as true and drawing
all reasonable inferences in favor of the plaintiff. Marshall-
Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326 (7th
Cir. 2000). Such dismissal is only proper “where the
plaintiff can prove no set of facts that would entitle him to
relief.” Id. (citing Conley v. Gibson, 355 U.S. 41, 45-46
(1957); Porter v. DiBlasio, 93 F.3d 301, 305 (7th Cir. 1996)).


A. Cognizance of Claims under § 1983
  In order to state a claim under § 1983 a plaintiff must
allege: (1) that defendants deprived him of a federal
constitutional right; and (2) that the defendants acted
under color of state law. Lekas v. Briley, 405 F.3d 602, 606
(7th Cir. 2005); see Gomez v. Toledo, 446 U.S. 635, 640
(1980). Peoria argues that a post-conviction claim for access
to physical evidence is not cognizable under 42 U.S.C.
§ 1983. In Preiser v. Rodriguez, the Supreme Court held
that claims by state prisoners challenging the fact or
duration of their confinement are not cognizable under
§ 1983, but instead are limited to habeas corpus. 411 U.S.
No. 06-1296                                                  5

475, 490 (1973). Such challenges lie at the core of habeas
corpus, and although the broad language of § 1983 encom-
passes these claims, “Congress has determined that habeas
corpus is the appropriate remedy for state prisoners
attacking the validity of the fact or length of their confine-
ment, and that specific determination must override the
general terms of § 1983.” Id.; see also Montgomery v.
Anderson, 262 F.3d 641, 643-44 (7th Cir. 2001). Of impor-
tance to the Preiser decision were notions of federal-state
comity, in that habeas corpus requires exhaustion of state
remedies, while § 1983 does not. Preiser, 411 U.S. at 491.
  The Court elaborated upon Preiser in Heck v. Humphrey,
where Heck sought money damages for an allegedly
unconstitutionally secured conviction. The Court noted that
a claim that “would necessarily imply the invalidity of [the
plaintiff’s] conviction or sentence” is not cognizable under
§ 1983, even if the remedy sought is not a release from
confinement. 512 U.S. 477, 487 (1994). The sole avenue
open to a prisoner challenging the fact or duration of his
confinement, directly or indirectly, is habeas corpus. Heck,
512 U.S. at 481; Preiser, 411 U.S. at 490.
  Preiser and its progeny have clearly and consistently
emphasized that only those claims that, if successful, would
“necessarily” invalidate the fact or duration of the prisoner’s
confinement are restricted to habeas. Wilkinson v. Dotson,
544 U.S. 74, 82 (2005); Edwards v. Balisok, 520 U.S. 641,
645 (1997); Heck, 512 U.S. at 486-87; Wolff v. McDonnell,
418 U.S. 539, 555 (1974); Preiser, 411 U.S. at 500.
Wilkinson v. Dotson is demonstrative. In Dotson, two state
prisoners challenged the constitutionality of Ohio’s state
parole procedures under § 1983. 544 U.S. at 76-77. The fact
that the inmates’ challenges to the parole procedures were
made in the hopes of securing a speedier release from
prison was not enough to preclude remedy under § 1983.
The Court noted: “Success for [Plaintiff] means at most a
new parole hearing at which Ohio parole authorities may,
6                                                No. 06-1296

in their discretion, decline to shorten his prison term.” Id.
at 82. The focus remained on whether the § 1983 claim
“necessarily” implicated the fact or duration of confinement.
  The Fourth, Fifth, Sixth, Ninth, and Eleventh Circuits
have considered the issue of whether a claim for post-
conviction access to physical evidence is cognizable under
§ 1983. In Bradley v. Pryor, the Eleventh Circuit an-
swered this question in the affirmative, expressly dis-
agreeing with the Fourth Circuit’s opinion in Harvey v.
Horan, 278 F.3d 370 (4th Cir. 2002) (“Harvey I”). See 305
F.3d 1287, 1290-91 (11th Cir. 2002). The Eleventh Circuit
reasoned that post-conviction DNA testing of the physical
evidence in a case may not be exculpatory, and could even
be inculpatory. These possibilities “suffice[ ] to establish
that the asserted right of mere access is not a direct, or for
that matter even an indirect, attack on one’s conviction
or sentence.” Id. (quoting Harvey v. Horan, 285 F.3d 298,
308 (4th Cir. 2002) (Luttig, J., respecting the denial of
rehearing en banc) (“Harvey II”)). Furthermore, to overturn
his conviction, “the petitioner would have to initiate an
entirely separate action at some future date, in which he
would have to argue for his release upon the basis of
a separate constitutional violation altogether.” Id. (quot-
ing same). The Ninth Circuit adopted the reasoning from
Bradley in Osborne v. District Attorney’s Office for the Third
Judicial District, 423 F.3d 1050, 1054 (9th Cir. 2005),
finding that Dotson clearly explained that “Preiser’s implied
exception to § 1983 coverage exists where the claim
seeks—not where it simply relates to—core habeas corpus
relief . . . .” Id. at 1055 (quotations omitted).
  The Fourth Circuit thought it enough to preclude the
use of § 1983 that a prisoner would “use his claim for access
to evidence to set the stage for a future attack on his
confinement.” Harvey I, 278 F.3d at 378. In Kutzner
v. Montgomery County, the Fifth Circuit joined the Fourth
Circuit’s reasoning in holding that “under Heck, . . . no
No. 06-1296                                                 7

§ 1983 claim exists for injunctive relief to compel DNA
testing.” 303 F.3d 339, 340 (5th Cir. 2002) (per curium). In
an unpublished opinion, the Sixth Circuit adopted the same
reasoning. Boyle v. Mayer, 46 Fed. Appx. 340 (6th Cir.
2002).
  We find the Eleventh and Ninth Circuits’ interpretation
and approach to be more consistent with Preiser and its
progeny. The exception to § 1983 jurisdiction is a narrow
one, designed to preserve the specific role of habeas
corpus relief. Dotson, 544 U.S. at 81. Special attention,
however, must be given to the manner in which the plaintiff
frames his complaint, and the consequences that would
follow from a favorable disposition. In the instant case,
Savory will not be released from prison, nor will his sen-
tence be shortened, if he successfully gains access to
physical evidence for DNA testing. Such access would not
imply the invalidity of his conviction. At most, he would
have the opportunity to use the results of the DNA testing
in a future proceeding. Thus, success in Savory’s action
“will not demonstrate the invalidity of any outstanding
criminal judgment against [him],” and will not unduly
intrude upon the territory of core habeas corpus relief.
Heck, 512 U.S. at 487 (emphasis in original). Savory’s
suit is cognizable under § 1983.


B. Continuing Violation
  In actions filed pursuant to 42 U.S.C. § 1983, courts look
to the statute of limitations for personal injury in the
state where the injury occurred. Kelly v. City of Chicago, 4
F.3d 509, 510 (7th Cir. 1993). Illinois personal injury
actions are subject to a two-year statute of limitations. 725
ILCS 5/13-202. While the state tolling rules are used, the
accrual of claims is governed by federal law. “Section 1983
claims ‘accrue when the plaintiff knows or should know that
his or her constitutional rights have been violated.’ ” Kelly,
8                                                No. 06-1296

4 F.3d at 511 (quoting Wilson v. Giesen, 956 F.2d 738, 740
(7th Cir. 1992)). In Hileman v. Maze, we set forth a two-part
inquiry for determining the accrual of claims. 367 F.3d 694,
696 (7th Cir. 2004). “First, a court must identify the injury.
Next, it must determine the date on which the plaintiff
could have sued for that injury.” Id. (citations omitted).
That is the date that the plaintiff knew or should have
known that his constitutional rights had been violated. Id.
  Savory clearly alleges that his injury is the denial of
access to the physical evidence in his case for the pur-
poses of scientific testing. The district court determined
that the relevant accrual date was July 7, 1998, the date on
which the Illinois circuit court denied Savory’s request for
DNA testing under Illinois law. Absent application of the
continuing violation doctrine or equitable principles, Savory
does not dispute this accrual date.
  Savory contends that his claims are timely because
Peoria’s failure to release the evidence for testing is a
continuing violation, and Savory therefore should not
have been required to sue earlier. This court has applied
the continuing violation doctrine when the plaintiff
could not reasonably be expected to perceive the alleged
violation before the limitations period has run, or when
the violation only becomes apparent in light of later events.
See Hardin v. S.C. Johnson & Son, Inc., 167 F.3d 340, 344
(7th Cir. 1999); Dasgupta v. Univ. of Wisconsin Bd. of
Regents, 121 F.3d 1138, 1139 (7th Cir. 1997). The continu-
ing violation doctrine is also applicable when the state actor
has a policy or practice that brings with it a fresh violation
each day. Reese v. Ice Cream Specialties, Inc., 347 F.3d
1007, 1012-14 (7th Cir. 2003); Wagner v. NutraSweet Co., 95
F.3d 527, 534 (7th Cir. 1996). The Supreme Court applied
the continuing violation doctrine in Bazemore v. Friday,
noting that “[e]ach week’s paycheck that delivers less to a
black than to a similarly situated white is a wrong action-
able under Title VII, regardless of the fact that this pattern
No. 06-1296                                                  9

was begun prior to the effective date of Title VII.” 478 U.S.
385, 395-96 (1986).
  In the case before us, the key inquiry is whether Peoria’s
continued refusal to release the physical evidence for
testing was a fresh act each day, or whether it was a
discrete act that took place upon the first refusal that
merely had lingering consequences. See Pitts v. City of
Kankakee, Illinois, 267 F.3d 592, 595 (7th Cir. 2001). The
Supreme Court addressed this issue in Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101 (2002). With respect to the
alleged employment violations, the Court stated: “Discrete
acts such as termination, failure to promote, denial of
transfer, or refusal to hire are easy to identify.” Id. at 114.
The Court earlier noted in Delaware State College v. Ricks,
that “[t]he emphasis is not upon the effects of earlier . . .
decisions; rather, it is upon whether any present violation
exists.” 449 U.S. 250, 258 (1980) (citations and quotations
omitted).
  Savory points to our decisions in Palmer v. Bd. of Educ.,
46 F.3d 682, 685 (7th Cir. 1995) and Heard v. Sheahan, 253
F.3d 316 (7th Cir. 2001), to support application of the
continuing violation doctrine in this case. Palmer involved
racial discrimination in schools, while Heard involved
the failure to provide needed medical treatment to a state
prisoner. Savory’s claims for access to physical evidence
for testing are unlike these injuries. Savory was notified on
a specific day, July 7, 1998, that the state of Illinois had
denied his request for testing. If he was unaware of an
alleged violation of his rights prior to the ruling, he was
certainly aware of it on that date. His continued lack of
access to the evidence is not a fresh act on the part of
Peoria. Rather, it is the natural consequence of the discrete
act that occurred when Peoria first denied access to the
evidence. See Hildebrandt v. Illinois Dept. of Natural Res.,
347 F.3d 1014 (7th Cir. 2003).
10                                               No. 06-1296

  While Savory also relies upon cases in which the wrongful
failure to release a prisoner was considered a continuing
violation, we cannot consider Savory’s confinement in this
context. See, e.g., Abif v. Slaton, 806 F. Supp. 993 (N.D. Ga.
1992). As Savory has taken pains to point out, he is not
attacking the fact or duration of his confinement. If he
were, § 1983 would not be open to him; thus, the only injury
we are considering is the denied access to physical evidence.
The continuing violation doctrine does not apply in this
case. Savory’s claim accrued on July 7, 1998; thus, the
statute of limitations expired on July 7, 2000.


C. Equitable Tolling
   Equitable tolling of the statute of limitations “permits a
plaintiff to sue after the statute of limitations has expired
if through no fault or lack of diligence on his part he was
unable to sue before, even though the defendant took no
active steps to prevent him from suing.” Donald v. Cook
County Sheriff’s Dept., 95 F.3d 548, 561 (7th Cir. 1996)
(quoting Singletary v. Cont’l Illinois Nat’l Bank and Trust
Co. of Chicago, 9 F.3d 1236, 1241 (7th Cir. 1993)). Such may
be the case if the plaintiff is unable to determine
who caused his injury, has received inadequate notice, or if
the appointment of counsel is pending. Donald, 95 F.3d at
562 (citing Baldwin County Welcome Ctr. v. Brown, 466
U.S. 147, 151 (1984)). Once extraordinary circumstances
weighing in favor of equitable tolling are identified, they
must be balanced against any prejudice that the delay
might cause the defendants. Id.
  Savory puts forth several sets of facts that he claims
create the extraordinary circumstances required for the
doctrine of equitable tolling. First, Savory contends that the
circumstances of his previous habeas corpus petition create
extraordinary circumstances. When this court reviewed the
No. 06-1296                                               11

denial of his petition and conducted a harmless error
analysis, we stated that “[t]he physical evidence, too, was
damning.” Savory v. Lane, 832 F.2d 1011, 1020 (7th Cir.
1987). Savory contends that due to our reliance on the
physical evidence in the previous proceeding, equity
demands that he now gain access to the evidence for
testing. But, the statement itself expresses our belief that
evidence other than the physical evidence remained credi-
ble. The physical evidence was not the only basis for our
decision, and our harmless error analysis does not give rise
to extraordinary circumstances for the purposes of equitable
tolling.
  Second, Savory claims that the recent development of
DNA testing technology is an extraordinary circum-
stance warranting equitable tolling. But we, as the dis-
trict court did, have already determined that his claim
did not accrue until after he surely was aware of how
DNA technology might apply to his case. Because Savory
waited seven years after demonstrating his awareness
of DNA technology to file suit under § 1983, equitable
tolling is not appropriate. Third, Savory asserts that his
continued claims of innocence warrant equitable tolling.
But, if this were sufficient, the statute of limitations
could virtually never run for § 1983 claims by prisoners. See
Balsewisc v. Kingston, 425 F.3d 1029, 1032-33 (7th Cir.
2005) (discussing actual innocence in context of habeas
corpus).
  Savory finally claims that equitable tolling is appropriate
because of his diligence in pursuing access to the physical
evidence in his case and in other proceedings asserting his
innocence. Indeed, Savory has used a variety of avenues to
assert his innocence and appealed Illinois’s denial of access
to the physical evidence to the Supreme Court of Illinois.
But the Supreme Court of Illinois upheld the order denying
DNA testing of the evidence on October 1, 2001—more than
three years before Savory filed this action under § 1983.
12                                               No. 06-1296

Unlike habeas corpus, § 1983 does not require exhaustion
in state courts, and in Edwards v. Balisok, the Supreme
Court criticized a district court for staying § 1983 proceed-
ings while state proceedings continued, stating: “absent
some other bar to the suit, a claim either is cognizable
under § 1983 and should immediately go forward, or is not
cognizable and should be dismissed.” 520 U.S. at 649. Even
if we viewed Savory’s appeal of his Illinois statutory claim
for DNA testing as an extraordinary circumstance worthy
of equitable tolling, that would only take him to 2001, and
he did not file this action until 2005. In light of the Court’s
reasoning in Edwards, we also decline to extend equitable
tolling because of Savory’s writ of mandamus and executive
clemency petitions. Id. Therefore, Savory has not alleged
extraordinary circumstances sufficient for the doctrine
of equitable tolling and his claims are not timely.


D. Post-Conviction Right of Access to Physical Evidence for
   Testing
  Savory sets forth several grounds that could potentially
support a constitutional right of post-conviction access to
physical evidence for the purposes of DNA testing. One
potential ground is procedural due process, as discussed
in Thomas v. Goldsmith, 979 F.2d 746, 749-50 (9th Cir.
1992); Moore v. Lockyer, No. C 04-1952 MHP, 2005 WL
2334350 (N.D. Cal. Sept. 23, 2005); see also Brady v.
Maryland, 373 U.S. 83, 87 (1963). Substantive due pro-
cess or a right to prove actual innocence might also support
a post-conviction right of access to physical evidence. See
Harvey II, 285 F.3d at 319 (Luttig, J., respecting the denial
of rehearing en banc); Armstrong v. Squadrito, 152 F.3d 564
(7th Cir. 1998); Yarris v. County of Delaware, No. 05-1319
(3d Cir. Oct. 2, 2006); see also Schlup v. Delo, 513 U.S. 298,
318 (1995). But, as Savory’s claims are not timely we need
not reach that determination, as important as it is. Thus,
No. 06-1296                                           13

we reserve that decision for a time when the issue is
properly before us.


                  III. CONCLUSION
  For the foregoing reasons, the judgment of the district
court is AFFIRMED.

A true Copy:
      Teste:

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




                 USCA-02-C-0072—11-29-06
