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

No. 01-3619
GREGORY J. MOORE,
                                            Petitioner-Appellant,
                               v.


STEVEN BRYANT, Warden, Robinson
Correctional Center,
                                            Respondent-Appellee.
                        ____________
           Appeal from the United States District Court
                 for the Central District of Illinois.
           No. 00-CV-2119-Michael P. McCuskey, Judge.
                        ____________
        ARGUED APRIL 25, 2002—DECIDED JULY 9, 2002
                        ____________


  Before CUDAHY, RIPPLE and ROVNER, Circuit Judges.
  RIPPLE, Circuit Judge. Illinois inmate Gregory Moore
brought a petition for a writ of habeas corpus under 28
U.S.C. § 2254, alleging that his trial counsel was ineffective
for incorrectly advising him about the sentencing conse-
quences of pleading guilty. The district court denied the
petition on the ground that Mr. Moore had procedurally
defaulted his ineffective assistance claim in state court, but
granted Mr. Moore a certificate of appealability. For the
reasons set forth in this opinion, we reverse the judgment of
2                                                  No. 01-3619

the district court and remand the case for further proceed-
ings.


                               I
                      BACKGROUND
A. State Court Proceedings
  In 1994, when Mr. Moore was 15 years old, he was
charged as an adult with first-degree murder for his in-
volvement in a shooting. Attorney James Kuehl was ap-
pointed to represent Mr. Moore. In May 1995, just before the
case was scheduled to go to trial, Mr. Moore pleaded guilty
in exchange for the state’s recommendation that he receive
the minimum twenty-year prison sentence. The trial court
accepted the guilty plea and sentenced Mr. Moore to 20
years of imprisonment. Shortly thereafter, however, Mr.
Moore moved to withdraw his plea, and the trial court ap-
pointed another attorney, Sherman Brown, to represent him.
Attorney Brown then filed an amended motion to withdraw
the guilty plea. That motion submitted that Mr. Moore’s
plea was not knowingly or voluntarily made because,
among other things, Attorney Kuehl had told Mr. Moore
that, if he were convicted after a trial, Illinois’ newly enacted
good-time credit statute would require that he serve 85% of
the sentence imposed. By comparison, if he pleaded guilty
immediately, he would serve, under the then-current Illinois
law, 50% of a twenty-year sentence. However, Mr. Moore
did not face the choice posed to him by his counsel. The new
good-time statute, 730 ILCS 5/3-6-3(a)(2), only applied to
offenses committed after its passage in August 1995, and
thus did not apply to Mr. Moore’s 1994 offense.
  At the hearing on the amended motion to withdraw his
guilty plea, Mr. Moore testified that, about a week before
No. 01-3619                                                3

trial was to begin, Attorney Kuehl told him that he thought
Mr. Moore would lose at trial and that a new good-time
statute was going into effect soon that would require him to
serve 85% of his sentence. Attorney Kuehl told Mr. Moore
that, if convicted, the court would impose a sentence within
the range of 25 to 30 years of which he would have to serve
22 to 27 years; if he accepted the plea offer, he would only
have to serve 10 years of a twenty-year sentence. Attorney
Kuehl therefore had recommended that Mr. Moore accept
the state’s offer.
  Mr. Moore testified that he was scared at the time. He did
not want to accept the offer, but did not know what else to
do. Mr. Moore’s mother corroborated her son’s testimony.
Attorney Kuehl also testified at the hearing. He stated that
he indeed was concerned about Mr. Moore’s having to serve
more time if he was convicted after the new good-time stat-
ute became effective and that he had discussed those con-
cerns with Mr. Moore. Attorney Kuehl, however, said that,
at the time he gave the advice, he did not have a copy of the
statute and was unsure whether it would apply to Mr.
Moore. Attorney Kuehl testified that Mr. Moore ultimately
decided that it was in his best interest to accept the plea
offer, but did so reluctantly.
  The trial court denied the motion to withdraw the plea; it
concluded that Mr. Moore had entered his plea knowingly
and voluntarily. The Illinois Appellate Court affirmed his
conviction in June 1997. The appellate court noted that Mr.
Moore had waived his ineffective assistance claim by failing
to argue it in the trial court, but the court then went on to
reject the claim on the merits. Mr. Moore then petitioned the
Supreme Court of Illinois for leave to appeal. The court
denied leave to appeal, but vacated part of the appellate
court’s decision denying Mr. Moore presentence credit. In
May 1998, Mr. Moore filed a timely pro se petition for post-
conviction relief under the Illinois Post-Conviction Hearing
4                                                No. 01-3619

Act, 725 ILCS 5/122-1, et seq. In the petition, he primarily
alleged that he was denied effective assistance of counsel
because of Attorney Kuehl’s incorrect advice regarding his
potential sentence. The trial court dismissed this petition as
frivolous, holding that, because the appellate court had
addressed this ineffective assistance argument on direct
appeal, Mr. Moore was barred by the res judicata doctrine
from asserting the issue again in his post-conviction peti-
tion. In July 1999, the appellate court affirmed, and the
Supreme Court of Illinois denied leave to appeal in October
1999.


B. District Court Proceedings
   In May 2000, Mr. Moore filed his petition for a writ of
habeas corpus under § 2254, again raising his ineffective
assistance of counsel claim. The district court denied the
petition without reaching the merits; it concluded that the
Illinois state courts had rejected the claim based on the
independent and adequate state procedural grounds of
waiver and res judicata. Therefore, federal review was
barred. The district court, however, granted Mr. Moore a
certificate of appealability because “jurists of reason” would
find it debatable whether Mr. Moore was denied his consti-
tutional right to effective assistance of counsel and whether
the court’s procedural ruling was correct. See Slack v. Mc-
Daniel, 529 U.S. 473, 484 (2000). When, as here, both consti-
tutional and procedural issues are certified for appeal, we
resolve the procedural issue first. See id. at 485.


                             II
                        ANALYSIS
  We review the district court’s procedural default ruling de
novo. See Franklin v. Gilmore, 188 F.3d 877, 882 (7th Cir.
No. 01-3619                                                 5

1999). Mr. Moore submits that he did not procedurally
default his ineffective assistance claim because, on direct
review, the Illinois Appellate Court did not clearly rely on
waiver as an independent and adequate state ground for its
decision, but rather denied his claim on its merits. We agree.
   A federal court will not review a question of federal law
decided by a state court if the decision of the state court
rests on a state procedural ground that is independent of the
federal question and adequate to support the judgment.
Stewart v. Smith, 01-339, 2002 WL 1392891, at *2-3 (U.S. June
28, 2002); Coleman v. Thompson, 501 U.S. 722, 729 (1991). The
independent and adequate state ground doctrine “applies to
bar federal habeas when a state court declined to address a
prisoner’s federal claims because the prisoner had failed to
meet a state procedural requirement.” Id. at 729-30. But this
doctrine will not bar habeas review unless the state court
actually relied on the procedural default as an independent
basis for its decision. Harris v. Reed, 489 U.S. 255, 261-62
(1989); Braun v. Powell, 227 F.3d 908, 912 (7th Cir. 2000).
Thus, if the decision of the last state court to which the pe-
titioner presented his federal claims fairly appears to rest
primarily on the resolution of those claims, or to be interwo-
ven with those claims, and does not clearly and expressly
rely on the procedural default, we may conclude that there
is no independent and adequate state ground and proceed
to hear the federal claims. Harris, 489 U.S. at 263-65; Cole-
man, 501 U.S. at 735.
  Here, the Illinois Appellate Court’s decision on direct
appeal fairly appears to rest primarily on its resolution of
Mr. Moore’s ineffective assistance claim or to be intertwined
with that claim. The appellate court noted that, despite
having raised the issue in his amended motion to withdraw,
Mr. Moore’s newly appointed counsel did not argue Kuehl’s
ineffectiveness at the plea withdrawal hearing. Thus, the
court stated that Mr. Moore had “waived consideration of
6                                                   No. 01-3619

that argument on appeal.” People v. Moore, 681 N.E.2d 1089,
1091-92 (Ill. App. Ct. 1997). But the Illinois Appellate Court
then discussed the merits of that argument in some detail.
The court ultimately concluded that Kuehl’s advice, even if
it was incorrect, did not prejudice Mr. Moore’s decision to
plead guilty. The court then stated, “[a]ccordingly, we hold
that the trial court did not abuse its discretion by denying
defendant’s motion to withdraw his guilty plea.” Id. at 1092.
  A state court may reach the merits of a federal claim in an
alternative holding; if it does so explicitly, then the inde-
pendent and adequate state ground doctrine “curtails re-
consideration of the federal issue on federal habeas.” Harris,
489 U.S. at 264 n.10; see also Brooks v. Walls, 279 F.3d 518, 522-
23 (7th Cir. 2002); Prihoda v. McCaughtry, 910 F.2d 1379,
1383-84 (7th Cir. 1990). As the district court noted, the Illi-
nois Appellate Court prefaced its analysis of Mr. Moore’s
ineffective assistance claim with language suggesting the
alternative nature of its holding: “Even if defendant had not
waived this argument, we would conclude that he failed to
demonstrate ineffective assistance of counsel.” Moore, 681
N.E.2d at 1092. But “[s]tate procedural bars are not immor-
tal, . . . they may expire because of later actions by state
courts.” Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991); see also
Brooks, 279 F.3d at 522 (“[W]hen state courts disagree about
the right ground of decision, the ruling of the last state court
to articulate a reason governs.”). The Illinois Appellate
Court’s decision on direct appeal did not mark the end of
Mr. Moore’s ineffective assistance challenge in state court.
Mr. Moore also filed a petition for post-conviction relief,
arguing not only that Kuehl was ineffective for failing to
properly advise him regarding his potential sentence, but
also that Brown, counsel appointed to represent him at the
plea withdrawal hearing, was ineffective for failing to argue
Kuehl’s alleged ineffectiveness.
No. 01-3619                                                   7

   The Illinois courts’ treatment of Mr. Moore’s ineffective
assistance claims on collateral review demonstrates that, on
direct appeal, the appellate court’s merits determination had
not been merely an alternative holding. Under Illinois law,
“where a petitioner has previously taken a direct appeal
from a judgment of conviction, the judgment of the review-
ing court is res judicata as to all issues actually decided by
the court, and any other claims that could have been pre-
sented to the reviewing court, if not presented, are waived.”
People v. Flores, 606 N.E.2d 1078, 1083 (Ill. 1993). Signifi-
cantly, the Illinois post-conviction court did not conclude
that the direct appeal court’s waiver determination barred
consideration of Mr. Moore’s claim on collateral review.
Rather, the post-conviction court stated that the direct ap-
peal court only “noted” that Mr. Moore had waived the
issue but actually held that the claim was meritless. People
v. Moore, No. 95-CF-12 (Ill. Cir. Ct. May 26, 1998) (unpub-
lished order) (Pet. App. 29, 31). Because the issue had been
“specifically addressed” on direct appeal, the court con-
cluded, it was barred by res judicata. Id. Likewise, the post-
conviction court rejected Mr. Moore’s argument that Brown
was ineffective for waiving the ineffectiveness argument in
the trial court, stating that “[i]n light of the Appellate Court
holding that the original trial counsel [Kuehl] was not in-
effective, there can be no argument that the subsequent trial
counsel or the appellate counsel were ineffective for failure
to raise the issue of the ineffectiveness of the original trial
counsel.” Id. at 31.
  The post-conviction appellate court affirmed the dismissal
of Mr. Moore’s petition on res judicata. People v. Moore, No.
4-98-487 (Ill. App. Ct. July 1, 1999) (unpublished order) (Pet.
App. 19, 26). In its order—authored by the same justice who
wrote for the court on Mr. Moore’s direct appeal—the court
explained that its decision on direct appeal primarily rested
not on waiver, but on its resolution of Mr. Moore’s ineffec-
8                                                         No. 01-3619

tive assistance claim. The appellate court stated that on
direct appeal it “considered at length defendant’s claim that
Kuehl’s ineffectiveness resulted in defendant’s involuntary
guilty plea.” Id. at 26. Because that claim was considered
and rejected on its merits, the court concluded that “the trial
court here correctly determined that further consideration
of defendant’s claim was barred by res judicata.” Id.
  Before us, the state nevertheless argues that the post-con-
viction appellate court used the term “res judicata” to mean
                                      1
that it had previously found waiver. But the appellate court
did not discuss its prior waiver determination in its post-
conviction order. To the contrary, the court stated that “[a]t
the hearing on the motion, defendant presented evidence in
support of his motion and testified in his own behalf. Thus,
defendant properly presented his ineffective assistance of
counsel claim on direct appeal.” Id. In its order, the court
also reiterated its reasons for rejecting that claim on direct
appeal—that the trial court fully admonished Mr. Moore
regarding the consequences of his guilty plea and that Mr.
Moore’s responses did not reveal “any misunderstanding or
hesitancy in his decision to plead guilty.” Id. at 25. Those



1
   The state also argued, and the district court agreed, that the post-
conviction appellate court’s res judicata holding was an additional
independent and adequate state ground barring federal review. At
oral argument, however, the state abandoned that argument, ac-
knowledging that we have repeatedly held that res judicata is not a
bar to consideration of claims in a federal habeas action. See Patrasso
v. Nelson, 121 F.3d 297, 301 (7th Cir. 1997); Porter v. Gramley, 112 F.3d
1308, 1316 (7th Cir. 1997). Indeed, a state court’s invocation of res
judicata “simply means that the state courts have already resolved
the matter and want nothing more to do with it.” Porter, 112 F.3d at
1316. Thus, the district court also erred in concluding that res ju-
dicata prevented it from reviewing the merits of Mr. Moore’s federal
claim.
No. 01-3619                                                   9

conclusions, the court stated, “were essential to our decision
on direct appeal.” Id. Thus, the post-conviction appellate
court applied res judicata because it had already resolved
the ineffective assistance claim on direct appeal.
  Notably, our colleagues in the Third Circuit have held that
a waiver determination on direct appeal is not an independ-
ent and adequate state ground when on collateral review the
state courts treated the direct appeal decision as resting on
the merits and not on waiver. See Riley v. Taylor, 277 F.3d
261, 274-75 (3d Cir. 2001) (en banc). In Riley, the state su-
preme court concluded on direct appeal that the petitioner’s
federal claim was not fairly presented to the trial court, but
held “in the alternate” that the claim failed on the merits. Id.
at 274. When the petitioner attempted to reassert his federal
claim on state collateral review, the trial court addressed the
claim, and the state supreme court “expressly reaffirmed”
that his federal claim lacked merit. Id. Notably, the Third
Circuit stated, the post-conviction appellate court did not
reaffirm its prior holding regarding procedural default; nor
did it discuss that holding in its decision. Because the post-
conviction appellate court treated its previous decision as a
rejection of the petitioner’s claim on the merits, the peti-
tioner was not barred from seeking federal habeas review of
that claim. Id. at 274-75. We are confronted with the same
situation and resolve the matter in the same way as did our
colleagues in the Third Circuit. Here, the post-conviction
appellate court treated its direct appeal decision as rejecting
Mr. Moore’s ineffective assistance claim on the merits rather
than on waiver. Thus, waiver is not an independent and
adequate state ground precluding federal review of that
claim.
  Because the district court concluded otherwise, it did not
address Mr. Moore’s ineffective assistance claim on the
merits. Moreover, the state has not yet addressed the merits
10                                                 No. 01-3619

in the district court or in its brief to this court. The district
court is in the best position to make the first assessment of
the underlying merit of Mr. Moore’s ineffective assistance
claim. See Rice v. Bowen, 264 F.3d 698, 702 (7th Cir. 2001).


                         Conclusion
   Mr. Moore did not procedurally default his ineffective
assistance of counsel claim. Therefore, we reverse the
judgment of the district court and remand this case for
further proceedings consistent with this opinion.
                                    REVERSED and REMANDED

A true Copy:
        Teste:

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




                      USCA-97-C-006—7-9-02
