Savory v. Lyons

Decision Date29 November 2006
Docket NumberNo. 06-1296.,06-1296.
Citation469 F.3d 667
PartiesJohnnie 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.
CourtU.S. Court of Appeals — Seventh Circuit

Matthew M. Neumeier, Christopher Tompkins (argued), Jenner & Block, Chicago, IL, for Plaintiff-Appellant.

William W. Atkins (argued), Peoria County State'S Attorney Peoria County Courthouse, Peoria, IL, Clifton J. Mitchell, City of Peoria, Peoria, IL, for Defendants-Appellees.

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 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 limitations is a bar in this case. We therefore affirm.


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 conviction 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, 82 Ill.App.3d 767, 38 Ill.Dec. 103, 403 N.E.2d 118 (3d Dist. 1980). Savory was retried 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, 105 Ill.App.3d 1023, 61 Ill.Dec. 737, 435 N.E.2d 226 (2d Dist. 1982), state post-conviction proceedings, People v. Savory, 221 Ill.App.3d 1124, 203 Ill.Dec. 99, 638 N.E.2d 1225 (3d Dist. 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. 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, 309 Ill.App.3d 408, 242 Ill.Dec. 731, 722 N.E.2d 220 (3d Dist.1999); 197 Ill.2d 203, 258 Ill. Dec. 530, 756 N.E.2d 804 (2001).

On April 4, 2005, Savory filed suit pursuant to 42 U.S.C. § 1983 alleging that his constitutional rights were violated 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 innocence. 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 than July 7, 1998, the date on which the state trial court denied Savory's motion for access to testing.


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 pursuant 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, 78 S.Ct. 99, 2 L.Ed.2d 80 (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, 100 S.Ct. 1920, 64 L.Ed.2d 572 (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. 475, 490, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Such challenges lie at the core of habeas corpus, and although the broad language of § 1983 encompasses 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 confinement, 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 importance 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, 93 S.Ct. 1827.

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, 114 S.Ct. 2364, 129 L.Ed.2d 383 (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, 114 S.Ct. 2364; Preiser, 411 U.S. at 490, 93 S.Ct. 1827.

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, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005); Edwards v. Balisok, 520 U.S. 641, 645, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997); Heck, 512 U.S. at 486-87, 114 S.Ct. 2364; Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Preiser, 411 U.S. at 500, 93 S.Ct. 1827. 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, 125 S.Ct. 1242. 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, in their discretion, decline to shorten his prison term." Id. at 82, 125 S.Ct. 1242. 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 answered this question in the affirmative, expressly disagreeing 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...

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