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

No. 04-2759
ADELL JONES,
                                              Petitioner-Appellant,
                                  v.

DON HULICK, Acting Warden,Œ
                                              Respondent-Appellee.
                           ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
             No. 04 C 596—Ronald A. Guzman, Judge.
                           ____________
       ARGUED MARCH 31, 2006—DECIDED JUNE 1, 2006
                     ____________



    Before ROVNER, EVANS, and SYKES, Circuit Judges.
  EVANS, Circuit Judge. Adell Jones appeals from the
dismissal of his petition for a writ of habeas corpus.
   In 1999, Jones waived his right to a jury trial and,
following a bench trial in the Circuit Court of Cook County,
Illinois, was found guilty of first degree murder and
aggravated vehicular hijacking. The trial court found Jones
eligible for a death sentence but declined to impose it,



Œ
  On April 7, 2006, the respondent-appellee filed a notice of
change of custodian. Accordingly, Don Hulick, not Alan M.
Uchtman, is now the proper party to this suit.
2                                                No. 04-2759

opting instead for a sentence of life for the murder plus a
concurrent term of 30 years for the hijacking.
  The crime was gruesome and frighteningly random. The
situation started innocently enough. At 4 a.m., Jones and a
friend, in Jones’s brother’s car, followed two women into a
gas station in an attempt to obtain their telephone num-
bers. Jones approached the women and apparently suc-
ceeded in obtaining a phone number. When he was return-
ing to his brother’s car, a woman (simply described as a
“woman with blonde hair” by the Illinois Appellate Court)
asked him to tell another man, who was at the station, to
stop harassing her. Jones did, and the man drove off. Then
Jones saw that someone was driving away in his brother’s
car. Jones and his friend then hijacked the blonde woman’s
van in order to pursue Jones’s brother’s car. The woman
began screaming and struggling, at which point Jones hit
her with his gun, which discharged and struck her in the
face. The shot was not fatal. At some point, Jones stopped
at a house to speak with his cousin. When he returned to
the van, he placed the woman in a headlock and shot her
several times in the head, killing her.
  After exhausting his state court remedies, Jones filed the
present petition for a writ of habeas corpus. He claimed, in
abbreviated fashion, that his counsel was ineffective and
that his sentence violated Apprendi v. New Jersey, 530 U.S.
466 (2000). United States District Judge Ronald A. Guzman
ordered Jones to file an amended § 2254 petition on the
form required by the District Court for the Northern
District of Illinois. Although Jones filed an amended
petition on the form, he wrote “See original petition . . . .”
on the part that asked about his issues and grounds for
relief. This petition, too, was dismissed because it vio-
lated the order dismissing the first petition, in which the
judge said that “grounds contained in the original petition
will not be considered if they are not included in the
amended petition.” The judge also stated that Apprendi did
No. 04-2759                                                  3

not apply retroactively and could not be a basis for relief.
Another amended petition and a motion for reconsideration
were ultimately filed, but they were dismissed for essen-
tially the same deficiencies noted the first time around.
Jones appeals, and we granted a certificate of appealability
on two issues.
      (1) Whether the district court can rely on N.D. Ill.
    Local Rule 81.3 in dismissing his petition and deciding
    not to examine Jones’s second claim. Specifically,
    whether the requirement in the rules governing § 2254
    cases that the “petition must substantially follow either
    the form appended to these rules or a form prescribed
    by a local district-court rule” means that prisoners must
    use the district court’s forms and, if so, whether it is
    sufficient that the petition includes the information
    that would otherwise be written on the form.
       (2) Whether Jones’s sentence violates Apprendi v.
    New Jersey, 530 U.S. 466 (2000). The parties should
    address when Jones’s sentence became final. See Beard
    v. Banks, 124 S. Ct. 2504, 2510 (2004) (a conviction
    becomes final when direct review to the state courts
    is exhausted and the time to file a petition for certiorari
    to the Supreme Court expires).
We then clarified the order, making clear that we in-
tended to certify Jones’s ineffective-assistance-of-counsel
claim as well.
  In its brief in this court, the State raises the issue of the
timeliness of the petition. Jones has replied to that claim so
we consider it first. Although the issue was not raised in the
district court, we can affirm a district court’s dismissal on
any ground supported by the record, so we push ahead. U.S.
ex rel. Lewis v. Lane, 822 F.2d 703 (7th Cir. 1987). Tangen-
tially related to our consideration of the issue is a recent
Supreme Court decision in which the Court determined that
even when the state has filed an answer which does not
4                                                No. 04-2759

allege a statute-of-limitations defense (thus arguably
waiving the defense), a district court has the discretion to
dismiss a petition as untimely under AEDPA’s one-year
statute of limitations. Day v. McDonough, 2006 WL
1071410 (April 25, 2006). Under Day, a court dismissing a
petition sua sponte must give the parties fair notice and an
opportunity to present their positions.
  In the case before us, the issue is not whether the defense
can be raised sua sponte. The State has explicitly raised the
issue. Jones has had an opportunity to respond, and we
have listened to argument on the issue. Under these
circumstances, the requirements for notice to Jones and an
opportunity for him to present his position are satisfied.
   But here the defense was raised for the first time on
appeal. The question, then, is whether we can consider it in
the first instance. In this case, we find that the prac-
tical considerations set out in Granberry v. Greer, 481 U.S.
129 (1987), indicate that we can. Granberry dealt with
the state’s failure to raise the defense that petitioner had
not exhausted his state court remedies. The Court declined
to set out hard and fast rules about when the issue could be
considered for the first time in the court of appeals, and
rather set out a common sense, practical, and efficient
approach. Using that approach, we note, first, that in
Jones’s case, the issue is not difficult. The facts are estab-
lished. And the issue is, for the most part, legal. Finally,
another significant factor is that the State raised the
defense at its first realistic opportunity: the petition was
dismissed in the district court prior to an answer being
filed, the answer, of course, being the usual vehicle for
raising the defense. Given this situation, we consider
whether the statute of limitations has run.
  The Antiterrorism and Effective Death Penalty Act
(AEDPA) at § 2244(d) provides for a one-year period of
limitation for applications for writs of habeas corpus. As
No. 04-2759                                                 5

relevant here, the date when the statute begins to run is set
out in subsection (d)(1)(A): “the date on which the judgment
became final by the conclusion of direct review or the
expiration of the time for seeking such review.” The time
during which a petition for certiorari to the United States
Supreme Court can be filed from a decision on direct review
is not counted because a decision does not become final
until the time for petitioning for certiorari has passed.
Anderson v. Litscher, 281 F.3d 672 (7th Cir. 2002). The
Illinois Appellate Court affirmed Jones’s conviction on May
10, 2001 (People v. Jones, 749 N.E.2d 1021 (Ill. App. Ct.
2001)); the Illinois Supreme Court denied his petition for
leave to appeal (PLA) on June 6, 2001. Jones’s conviction
became final on September 5, 2001, the day when his time
to file a petition for certiorari to the United States Supreme
Court expired.
  Thirty-five days after September 5, 2001, Jones filed a
postconviction motion. This act tolled the running of the
AEDPA clock. Subsection (d)(2) states:
    The time during which a properly filed application for
    State post-conviction or other collateral review with
    respect to the pertinent judgment or claim is pending
    shall not be counted toward any period of limitation
    under this subsection.
This seemingly simple subsection has generated its share
of litigation regarding when a petition is “pending.”
   Jones’s motion for postconviction review was pending
from the date it was filed, October 11, 2001, until the
Illinois Supreme Court denied his petition for leave to
appeal. That occurred on February 5, 2003. Jones argues
that the time should also be tolled during the 90 days in
which he could have petitioned—but did not—for certiorari
to the United States Supreme Court. Aware that our case
law goes against that position, Jones asks us to overrule our
6                                                 No. 04-2759

decision in Gutierrez v. Schomig, 233 F.3d 490 (7th Cir.
2000).
  Gutierrez arose in the context of the denial of a
postconviction motion by the Illinois state courts. The issue
was, following the denial of the postconviction motion,
whether the time during which a petitioner could, but did
not, file a petition for certiorari with the United States
Supreme Court was excluded from the limitations period.
We said it was not.
  We reaffirmed Gutierrez in Gildon v. Bowen, 384 F.3d 883
(7th Cir. 2004). We returned to the issue because, after our
decision in Gutierrez, the Supreme Court decided Clay v.
United States, 537 U.S. 522 (2003), which, it was argued,
cast doubt on our position. Ultimately, we concluded that
Clay did not cast doubt on Gutierrez. Clay was a petition
brought under 28 U.S.C. § 2255, not § 2254. Furthermore,
it involved the finality of a direct appeal, not whether a
postconviction motion remained pending. In the present
case, we decline to disturb Gutierrez and Gildon.
  We are aware that the Supreme Court has recently
granted certiorari in Lawrence v. Florida, 2006 WL 219613
(Mar. 27, 2006) on the following question:
    Where a defendant facing death has pending a United
    States Supreme Court certiorari petition to review the
    validity of the state’s denial of his claims for state post-
    conviction relief, does the defendant have an applica-
    tion pending which tolls the 2244(d)(2) statute of
    limitations?
However, in Lawrence, a petition for certiorari was filed,
and in the arcane world of § 2244 we are not convinced that
the ultimate decision in Lawrence will necessarily be
controlling here because Jones never actually filed a
certiorari petition. Accordingly, we find that the AEDPA
statute of limitations clock began running again on Febru-
No. 04-2759                                                  7

ary 5, 2003, when the Illinois Supreme Court denied Jones’s
PLA. His habeas petition was not filed in district court until
January 21, 2004, 350 days later. Adding the 35 days
between the finality of the direct appeal and the filing of his
motion for postconviction relief to the 350 days means that
385 days passed. Thus, his petition is untimely.
  Other questions are alluded to in this appeal, such as
whether the various PLAs and motions for rehearing in
the Illinois courts tolled the statute. Even though Jones
cannot prevail on these issues, we will briefly mention
them. For instance, Jones filed a document labeled a motion
for rehearing with the Illinois Supreme Court on February
27, 2003, 22 days after the February 5 denial of his PLA
from the decision on postconviction relief. Illinois law allows
him 21 days in which to file such a document. His motion
was not considered by the Illinois Supreme Court. Then on
March 22, 2003, he filed a motion for leave to file a motion
for reconsideration. That motion was denied by the Illinois
Supreme Court on April 8, 2003.
  Those documents do not affect the running of the AEDPA
statute of limitations. In Wilson v. Battles, 302 F.3d 745
(7th Cir. 2002), we said that the issue of whether an
application for postconviction relief is “pending” for habeas
purposes is governed by state law. Illinois Supreme Court
Rule 367 grants a party 21 days to petition for rehearing
after a ruling. Illinois case law also provides, however, that
a judgment is final when it is entered and that the filing of
a petition for rehearing does not alter the effective date of
the judgment unless the court allows the petition
for rehearing. In the latter case, the date the judgment
is final is the date that judgment is entered on rehearing.
We concluded in Wilson that any provision allowing time for
a rehearing petition “has no bearing on AEDPA’s one-year
statute of limitations.” Wilson, at 748. Similarly, it has no
bearing here.
8                                                No. 04-2759

  Other courts of appeals have views different from ours.
See Serrano v. Williams, 383 F.3d 1181 (10th Cir. 2004)
(state habeas petition was pending, and the AEDPA
limitations period tolled, during the 15 days following New
Mexico Supreme Court’s denial of petition for writ of
certiorari during which petitioner could have filed motion
for rehearing); Nix v. Sec’y for Dep’t of Corr., 393 F.3d 1235
(11th Cir. 2004) (conviction became “final” upon the expira-
tion of the 90-day period for seeking certiorari review with
the Supreme Court from the denial of motion to correct his
sentence); Lookingbill v. Cockrell, 293 F.3d 256 (5th Cir.
2002) (statute of limitation is tolled during the period in
which a Texas petitioner has filed a motion for rehearing).
The split in the circuits regarding tolling of the statute
while an application for state postconviction review is
pending is the stated reason why certiorari was granted in
Lawrence. Nevertheless, we remain convinced that Jones’s
petition is untimely.
  Jones next argues that he is entitled to equitable tolling
of the statute. First, he says he was, as a result of a false
accusation, placed in segregation for 60 days during the
limitations period. During that time he had no access to the
law library. Furthermore, he says, the state of Illinois limits
access to the law library for all prisoners. He also contends
that the state interferes with prisoners’ mail. And finally,
he says he was a victim of a fraud targeting Illinois prison-
ers. An organization called University Legal Services falsely
promised to prepare and file his habeas petition.
  Equitable tolling excuses an untimely filing when, despite
exercising reasonable diligence, a petitioner could not have
learned the information he needed in order to file on time.
Taliani v. Chrans, 189 F.3d 597 (7th Cir. 1999). But
equitable tolling is rarely granted, and we see nothing that
would justify such a finding here.
 Even were the statute of limitations not dispositive, and
were we to look at the other issues raised in this appeal, we
No. 04-2759                                                9

would find Jones’s petition properly dismissed, though not
always on the grounds given by the district court.
  As to the Apprendi issue, the district judge determined
that the case did not apply retroactively to Jones’s 1999
conviction and there was no violation because Jones had a
bench trial, not a jury trial. That is half right.
  Apprendi was decided June 26, 2000, and, at that time,
Jones’s case was pending on direct appeal before the Illinois
Appellate Court. 749 N.E.2d 1021. Therefore, Jones can rely
on Apprendi in support of his claim.
   Were we to consider the merits of the claim, however,
Jones cannot prevail. Because the merits were addressed by
the state court, to prevail in the present petition Jones
would need to show that the Illinois Appellate Court’s
decision was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as deter-
mined by the Supreme Court of the United States” or was
“based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceed-
ing.” 28 U.S.C. § 2254(d)(1) & (2). He can do neither.
  Jones argues that the Illinois statute under which he was
sentenced violated Apprendi and his right to have the
factual findings upon which his sentence is based proven
beyond a reasonable doubt. On the particular facts of
Jones’s case, the Illinois Appellate Court rejected the claim
in a decision well in line with Supreme Court precedent.
  Under Apprendi, “[o]ther than the fact of a prior convic-
tion, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.” 530 U.S. at
490. At a bench trial, a judge must find beyond a reasonable
doubt not only the elements of the offense but also facts
establishing the maximum sentence. See United States v.
Brough, 243 F.3d 1078 (7th Cir. 2001).
10                                               No. 04-2759

  In this case, as we have noted, the judge found Jones
eligible for the death penalty but declined to impose it due
to the presence of various mitigating factors. Jones then
received a natural life sentence for the murder.
  The version of the statute under which Jones was sen-
tenced, 730 ILCS 5/5-8-1(a)(1)(b) (1999), provided for the
imposition of a natural life sentence “if the court finds that
the murder was accompanied by exceptionally brutal or
heinous behavior indicative of wanton cruelty or . . . that
any of the aggravating factors listed in [720 ILCS 5/9-1] are
present . . . .” An aggravating factor exists if the victim was
killed in the course of another felony, including aggravated
vehicular hijacking. Following Apprendi, the statute was
amended to require that the factfinding, whether by a judge
or jury, be made beyond a reasonable doubt. See 730 ILCS
5/5-8-1(a)(1)(b)(2005). Because his case was decided before
the statute was amended, Jones argues that the aggravat-
ing factor on which his life sentence was based was not
found beyond a reasonable doubt as Apprendi requires.
Implicit in the argument is a contention that his jury
waiver somehow did not extend to the sentencing proceed-
ing.
  The Illinois Appellate Court found that Jones waived his
right to a jury at all stages of the proceedings. The court
then found that the aggravating factor on which the life
sentence was based was that the murder was committed in
connection with an aggravated vehicular hijacking. The
court concluded:
     Where the trial court sentenced defendant to natural
     life imprisonment pursuant to an aggravating factor
     listed in section 9-1(b) for which he waived his right to
     a jury and the State proved beyond a reasonable doubt
     that defendant committed aggravated vehicular hijack-
     ing, Apprendi does not require the reversal of defen-
     dant’s sentence.
No. 04-2759                                                 11

749 N.E.2d at 1032. The obvious problem Jones encounters
on his Apprendi claim is that he waived the jury, the judge
found him guilty beyond a reasonable doubt of aggravated
vehicular hijacking at the guilt phase of the trial, and that
was the basis for his life sentence. Necessarily, then, the
sentencing factor—aggravated vehicular hijacking—was
found beyond a reasonable doubt, whether the statute
then required it or not. The decision of the Illinois Appellate
Court did not come to a conclusion which in any way
violates Supreme Court precedent.
  The other issue on which we granted a certificate of
appealability was whether it was proper to dismiss
the ineffective-assistance-of-counsel claim because, rather
than writing it out on the form required by District Court
for the Northern District of Illinois, Jones incorporated by
reference the previous statement of his claim. We are
somewhat baffled as to why the district judge dismissed the
ineffective assistance claim on this basis but reached the
merits of the Apprendi claim, which was also incorporated
by reference.
  Rule 2 of the Rules Governing Section 2254 Cases states
that a petition must “substantially follow either the form
appended to these rules or a form prescribed by a local
district-court rule.” Local Rule 81.3 of the Northern District
of Illinois states that petitions shall be “submitted on forms
approved by the Executive Committee.” The rule says
nothing about a prohibition on incorporating other docu-
ments by reference. The instruction sheet provided with the
form, however, advises a petitioner that he “may not answer
a question by referring to another document.” Then the
instructions go on to explain the manner in which other
documents should be attached to the petition. There are
significant questions, in our view, as to whether the
instructions to the form are clear, whether they are binding,
and whether it was appropriate to invoke the rule, espe-
12                                              No. 04-2759

cially to dismiss the ineffective assistance claim when the
Apprendi claim was considered.
  Looking to the merits, we note that the Illinois Appellate
Court carefully considered the claim. The court determined
that it was a claim subject to analysis under Strickland v.
Washington, 466 U.S. 668 (1984), rather than United States
v. Cronic, 466 U.S. 648 (1984). The court then proceeded to
analyze the claim under the second prong of the Strickland
test: whether there is a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have
been different. That is a proper statement of Supreme Court
precedent.
  We also see no problem with the conclusion that there
was no reasonable probability that the result would have
been different but for counsel’s performance. Jones con-
fessed to the crime in great detail after receiving Miranda
warnings. Furthermore, the complaints Jones makes are
more relevant to a jury, rather than a bench trial. It
could well have been, for instance, trial strategy in a
bench trial to limit cross-examination, assuming that the
judge’s evaluation of the testimony would be more sophisti-
cated than a jury’s and that a judge might be less impressed
by trial theatrics. Finally, we note that defense counsel was
successful on a highly significant issue. He convinced the
judge that mitigating factors existed to prevent the imposi-
tion of the death penalty. Even had Jones’s petition been
timely, it would properly have been dismissed.
  In conclusion, we return to the fact that Jones’s petition
was, in fact, untimely, and for that reason the order
dismissing the case is AFFIRMED. We have added our
discussion on the merits just in case we are wrong about
what will result from the Supreme Court’s decision in
Lawrence.
No. 04-2759                                        13

A true Copy:
      Teste:

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




               USCA-02-C-0072—6-1-06
