In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2337

Uluches Jefferson,

Petitioner-Appellant,

v.

George C. Welborn,

Respondent-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 3342--James F. Holderman, Judge.


Submitted May 4, 2000--Decided June 29, 2000



  Before Posner, Chief Judge, and Easterbrook and Diane
P. Wood, Circuit Judges.

  Diane P. Wood, Circuit Judge. This proceeding
concerns the petition that Uluches Jefferson
filed for a writ of habeas corpus pursuant to 28
U.S.C. sec. 2254. The district court dismissed
the petition as untimely, see 28 U.S.C. sec.
2244(d), and declined to issue a certificate of
appealability. Jefferson now has filed a request
for a certificate of appealability, through which
he seeks an opportunity to have the district
court consider his claims on the merits. (The
Supreme Court’s recent decision in Slack v.
McDaniel, 120 S. Ct. 1595 (2000), makes it clear
that a certificate of appealability may be
granted on this kind of procedural ground.)
  While Jefferson’s direct appeal was still
pending before the Illinois Appellate Court, he
filed his post-conviction petition, which the
trial court subsequently denied. Thereafter, in
orders entered on September 17, 1996 (direct
appeal) and November 6, 1996 (post-conviction
appeal), the Illinois Appellate Court affirmed
both his conviction, on direct appeal, and the
denial of his post-conviction petition. On July
17, 1997, Jefferson moved for leave to file a
late petition for leave to appeal both decisions
to the Illinois Supreme Court. On September 24,
1997, the Illinois Supreme Court issued an order
in which it granted Jefferson’s motion for leave
to file a late petition for leave to appeal.
Several months later, in a routine order dated
December 3, 1997, the court denied his petition
for leave to appeal.

  Whether Jefferson is entitled to his certificate
of appealability depends on whether the district
court correctly applied the rules governing the
limitations period for filing sec. 2254 petitions
that are found in 28 U.S.C. sec. 2244(d). Subpart
(1) of that section establishes a one-year period
of limitations that runs from various points--in
Jefferson’s case, 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. See sec. 2244(d)(1)(A). Subpart (2)
of the same section provides that the time during
which a "properly filed" application for state
post-conviction relief is pending "shall not be
counted" toward the period of limitation.

  In denying Jefferson’s request for a certificate
of appealability, the district court concluded,
on the authority of Tinker v. Hanks, 172 F.3d 990
(7th Cir. 1999), that the time had to be
calculated from the actions of the Illinois
Appellate Court, because a mere petition for
permission to file a late appeal was insufficient
to toll the time under sec. 2244(d)(2). But in so
ruling, it did not have the benefit of our later
decision in Freeman v. Page, 208 F.3d 572 (7th
Cir. 2000), nor did it take into account the fact
that the application Tinker had filed in his case
was for a successive collateral attack and it was
eventually denied by the state court, while
Jefferson simply obtained an extension of time to
file his appeals in both his direct appeal and
his post-conviction appeal--something that
happens routinely in litigation.

  The Illinois Supreme Court is, of course, the
master of its own procedural rules, including the
rules governing the time for appeal and any
exceptions to those rules it chooses to
recognize. Here, the court issued two separate
orders, one directed to the timeliness of
Jefferson’s petition for leave to appeal and the
other directed to the petition itself. We can
therefore say with some confidence that the order
of December 3, 1997, denying leave to appeal, did
not rest on the procedural ground of
untimeliness, because that question had been
addressed and resolved in the July 24 order. As
such, we believe it is proper to treat the
December 3 order as a substantive rejection of
Jefferson’s petition.

  Sometimes, of course, we will not have the
benefit of the two separate orders that are
present in this case. In those instances, the
question is how to treat an order that says
nothing about its basis (which is the case with
most orders from supreme courts that are denying
discretionary review). We think that the Supreme
Court’s decision in Harris v. Reed, 489 U.S. 255
(1989), points the way to the answer. In that
case, the Court held that "a procedural default
does not bar consideration of a federal claim on
either direct or habeas review unless the last
state court rendering a judgment in the case
clearly and expressly states that its judgment
rests on a state procedural bar." Id. at 263
(internal quotations omitted). Similarly here, if
the last word from the state supreme court does
not reveal whether a procedural bar or a
substantive lack of merit motivated its ruling,
we will presume it is the latter for purposes of
sec. 2244(d), unless "the last reasoned opinion
on the claim explicitly impose[d] a procedural
default," which the denial of review by the state
supreme court does not disturb. See Ylst v.
Nunnemaker, 501 U.S. 797, 803 (1991).

  In this case, as of July 17, 1997, Jefferson
was still engaged in the process of pursuing his
state court remedies (both his direct appeal and
his post-conviction petition, in his case), as he
is required to do under O’Sullivan v. Boerckel,
526 U.S. 838 (1999). The Illinois Supreme Court
decided, as it was entitled to do, to accept the
July 17 petition for normal consideration, and it
later issued an order denying review. The
Illinois Appellate Court had not relied on
procedural default from any action of
Jefferson’s. The problem, to the extent there was
one, arose between the appellate court and the
supreme court, and the supreme court order of
July 24 indicates that it was not rejecting the
petition on timeliness grounds. This course of
events was enough to make his appeal in his state
proceeding one that was properly filed for
purposes of computing his time for filing a
petition for collateral relief in federal court.
  We explained in Freeman that the words
"properly filed" in 28 U.S.C. sec. 2244(d)(2)
take their meaning from state practice:

Whether a collateral attack is "properly filed"
can be determined in a straightforward way by
looking at how the state courts treated it. If
they considered the claim on the merits, it was
properly filed; if they dismissed it for
procedural flaws such as untimeliness, then it
was not properly filed.

208 F.3d at 576. Here, in the sense that matters,
the Illinois Supreme Court considered Jefferson’s
claims "on the merits"; hence, it was "properly
filed" for purposes of sec. 2244(d)(2). This
means in turn that the one-year statute of
limitations found in sec. 2244(d)(1) was tolled
from July 17 to December 3, 1997, the date that
the Illinois Supreme Court denied petitioner’s
petition for leave to appeal. With that time
excluded, Jefferson’s filing on March 12, 1998,
was within the permitted time, and the district
court should not have dismissed his sec. 2254
petition on that ground.

  As the Supreme Court suggested in Slack, 120 S.
Ct. at 1604, we have also taken a quick look at
the claims Jefferson wants to raise in his
petition. If they were all utterly without merit,
we could affirm the dismissal on that alternative
ground. But we do not find them so thoroughly
lacking that such a step would be appropriate
right now. Jefferson raises five claims: (1)
ineffective assistance of counsel; (2) denial of
due process; (3) a Brady violation; (4)
sufficiency of the evidence; and (5) the trial
court erred in allowing a surprise witness at
sentencing. At least some of these claims,
facially allege the "denial of a constitutional
right."

  We think it preferable for the district court
to make the first assessment of their underlying
merit. We therefore Grant the certificate of
appealability and Remand the case to the district
court for further proceedings consistent with
this order.
