233 F.3d 490 (7th Cir. 2000)
AUGUSTINE GUTIERREZ, Petitioner-Appellant,v.JAMES M. SCHOMIG, Respondent-Appellee.
No. 00-1384
In the  United States Court of Appeals  For the Seventh Circuit
Submitted September 28, 2000Decided November 30, 2000

Appeal from the United States District Court  for the Northern District of Illinois, Eastern Division.  No. 99 C 5392--Blanche M. Manning, Judge.
Before Coffey, Kanne, and Diane P. Wood, Circuit  Judges.
KANNE, Circuit Judge.


1
Augustine Gutierrez seeks  review of the district court's judgment  dismissing his petition for a writ of habeas  corpus as untimely under 28 U.S.C. sec. 2244(d).  This appeal presents a statute of limitations  issue that this court has yet to address whether  the time during which a state prisoner can, but  does not, file a petition for a writ of  certiorari from the denial of his state post-  conviction petition tolls the one-year statute of  limitation under sec. 2244(d)(2). See Fernandez  v. Sternes, 227 F.3d 977, 980 (7th Cir. 2000)  (reserving "the question whether time provided  for filing a petition or appeal to a higher court  is treated as time during which an application is  pending, if the time expires without a filing").  We grant Gutierrez's request for a certificate of  appealability to address this question. For the  reasons that follow, however, we conclude that  the one-year limitations period is not tolled  during the time a state post-conviction  petitioner could have filed, but did not file, a  petition for certiorari review in the United  States Supreme Court, and thus we affirm the  district court judgment.


2
In August 1993, Gutierrez was convicted on two  counts of first degree murder and sentenced to  natural life in prison. On January 27, 1995, the  Illinois Appellate Court affirmed his conviction.  Gutierrez did not file a timely petition for  leave to appeal to the Illinois Supreme Court.  Instead, three and a half years later he sought  leave to file a late appeal; his motion was  denied. Thus, Gutierrez's conviction became final  on January 27, 1995--before the Antiterrorism and  Effective Death Penalty Act of 1996 injected a  statute of limitations provision into the  statutes governing collateral attacks.


3
Gutierrez filed a petition for state post-  conviction review in October 1997. His petition  was denied, the appellate court affirmed the  denial of post-conviction relief, and, on  December 2, 1998, the Illinois Supreme Court  denied his timely petition for leave to appeal.  Gutierrez had ninety days to appeal the Illinois  Supreme Court's decision to the United States  Supreme Court, but he did not do so. Instead, on  August 12, 1999, Gutierrez filed a petition for  a writ of habeas corpus in the federal district  court.


4
Judge Manning dismissed Gutierrez's petition,  concluding that it was untimely under 28 U.S.C.  sec. 2244(d). She reasoned that Gutierrez's one-  year clock began ticking on April 24, 1997, the  day after the filing grace period for petitioners  whose conviction became final pre-AEDPA,1 see  Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir.  1996), rev'd on other grounds, 521 U.S. 320  (1997); the clock stopped 188 days later, on  October 29, 1997, when Gutierrez filed his state  post-conviction petition; and it remained stopped  while his state petition was pending in the state  courts. After an extensive analysis, Judge  Manning concluded that the statute of limitations  was not tolled during the time Gutierrez could  have filed a petition for certiorari review and,  thus, the clock resumed ticking on December 2,  1999, when the state supreme court denied his  petition for leave to appeal. Accordingly, Judge  Manning found that Gutierrez had 441 days of  "countable" time and that his petition was  therefore untimely under sec. 2244(d).


5
Gutierrez argues that the ninety days during  which he could have filed a certiorari petition  to the United States Supreme Court from the  denial of his state post-conviction petition  tolled the limitations period and, thus, that his  petition is timely. This court has not yet  decided whether the limitations period for habeas  corpus actions is tolled under such  circumstances, but several of our sister circuits  have answered the question in the negative. See  Isham v. Randle, 226 F.3d 691 (6th Cir. 2000);  Coates v. Byrd, 211 F.3d 1225 (11th Cir. 2000);  Ott v. Johnson, 192 F.3d 510 (5th Cir. 1999); cf.  Rhine v. Boone, 182 F.3d 1153 (10th Cir. 1999)  (holding that the time during which a properly  filed certiorari petition from the denial of  state post-conviction relief is pending does not  toll the statute of limitations). We now join the  Sixth, Eleventh, and Fifth Circuit Courts in  their conclusion, but, as explained below, on a  somewhat narrower basis.


6
Section 2244(d)(1) imposes a one-year statute of  limitations on state prisoners seeking habeas  corpus relief. Section 2244(d)(2), however,  provides that the limitations period is tolled  during time that "a properly filed application  for State post-conviction or other collateral  review with respect to the pertinent judgment or  claim is pending." Thus, we must determine  whether the 90 days during which a certiorari  petition could be filed falls within the language  of sec. 2244(d)(2), whether that time period by  itself constitutes "a properly filed application  . . . [that] is pending."


7
Put this way the answer is clearly no. Because  Gutierrez never filed a petition for certiorari  review in the Supreme Court, his potential  certiorari petition was never "properly filed."  When Congress intended to exclude from the  limitations period time during which a pleading  could have been filed, it did so explicitly. See,  e.g., sec. 2244(d) (1)(A) (The limitations period  runs from "the date on which the judgment became  final by the conclusion of direct review or the  expiration of the time for seeking such  review."). Here, instead of excluding time a  pleading could have been filed, Congress  explicitly required a "properly filed" pleading  to toll the statute of limitations. Gutierrez did  not properly file a petition for certiorari and,  thus, the one-year limitations period was not  tolled during the time which he could have filed  such a petition. Likewise, a petition for  certiorari that is not actually filed cannot  reasonably be considered "pending." Cf.  Fernandez, 227 F.3d at 979 ("But no one would  suppose, if a state allows a second collateral  attack, that this excludes all time since the  prisoner began his first collateral attack, even  though nothing at all was 'pending' during the  intervening months. Just so, again, with motions  to file untimely appeals and applications for  discretionary review.").


8
In general, the courts that have previously  addressed this issue reason that state post-  conviction review is complete once the state's  highest court has ruled. In other words,  according to these courts, a petition for  certiorari, filed or not, simply does not  constitute an "application for State post-  conviction or other collateral review." See  Isham, 226 F.3d at 695 ("A petition for  certiorari to the United States Supreme Court is  not 'post-conviction relief.'"); Coates, 211 F.3d  at 1227 ("[A]n application 'for State post-  conviction or other review . . . is pending,' 28  U.S.C. sec. 2244(d)(2), only so long as the case  is in the state courts."); Rhine, 182 F.3d at  1155 ("The time after which the Oklahoma Court of  Criminal Appeals finally denied his post-  conviction application until the United States  Supreme Court denied his petition for certiorari  was not 'time during which a properly filed  application for State post-conviction . . .  review . . . [was] pending.'"). We need not go so  far to resolve the issue, however, and emphasize  that we do not address the impact of a properly  filed petition for certiorari from the denial of  state post-conviction relief on the statute of  limitations in habeas corpus actions.

CONCLUSION

9
For the reasons stated above, we GRANT  Gutierrez's request for a certificate of  appealability and AFFIRM the district court  judgment that his petition for a writ of habeas  corpus is untimely.



Notes:


1
 We express no opinion on the propriety of using  the day after the Lindh grace period expired as  the first countable day for purposes of the  statute of limitations. But see Fernandez, 227  F.3d at 978 ("Fernandez was convicted before sec.  2244(d) came into being . . . . We therefore  treat April 24, 1996, as the beginning of his  year to seek federal collateral review."). The  government did not argue the issue in the  district court and, therefore, waived it on  appeal.


