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

No. 03-2076
JERMAINE GILDON,
                                             Petitioner-Appellant,
                                 v.

EDWIN R. BOWEN, Warden,
                                             Respondent-Appellee.

                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
             No. 03 C 1613—Milton I. Shadur, Judge.
                          ____________
   ARGUED MAY 26, 2004—DECIDED SEPTEMBER 30, 2004
                    ____________



 Before BAUER, POSNER, and COFFEY, Circuit Judges.
  BAUER, Circuit Judge. Petitioner-Appellant, Jermaine
Gildon, brought this habeas corpus claim under 28 U.S.C.
§ 2254 challenging his Illinois state conviction for first-
degree murder. The district court dismissed the petition as
being untimely under the one-year period of limitations
pursuant to 28 U.S.C. § 2244(d). Gildon appeals.
2                                                 No. 03-2076

                      I. Background
  Gildon was tried by a jury in the Circuit Court of Will
County, Illinois. He was convicted of first-degree murder
and sentenced to thirty years of imprisonment. His direct
appeal resulted in the state court affirming his conviction
and it became final on July 5, 2000. Gildon then filed a
post-conviction petition which was denied on December 14,
2000. A Petition for Leave to Appeal was denied on April 3,
2002. The Illinois Supreme Court’s mandate issued on May 1,
2002. Gildon did not file a petition for writ of certiorari with
the Supreme Court.
  Gildon next filed an undated, pro se federal habeas corpus
petition under 28 U.S.C. § 2254, which was file-stamped by
the Clerk of the Northern District of Illinois on March 5,
2003. On March 11, 2003, the district court sua sponte dis-
missed the habeas petition as untimely, relying on 28 U.S.C.
§ 2244(d)(1)(A), 28 U.S.C. § 2244(d)(2), and Gutierrez v.
Schomig, 233 F.3d 490 (7th Cir. 2000). On March 24, 2003,
Gildon’s motion to Alter and Amend Judgment was filed and
denied. This court granted a certificate of appealability on
July 21, 2003, allowing appeal on the following issues:
(1) whether the district court erroneously dismissed the
Petitioner’s petition for habeas corpus on timeliness grounds,
(2) whether Petitioner was denied an impartial jury when
a juror failed to disclose on voir dire that she had a familial
relationship with the victim and a hostile relationship to
the Petitioner’s family, (3) whether Petitioner was denied a
fair trial when the only witness to identify him recanted his
testimony, (4) whether Petitioner received ineffective
assistance of counsel based on counsel’s failure to object to
certain damaging testimony, and (5) whether Petitioner is
innocent and is entitled to relief under 28 U.S.C. § 2254.
  Additional facts will be discussed within the discussion
portion of this opinion as necessary.
No. 03-2076                                                  3

                      II. Discussion
A. Does the Supreme Court’s decision in Clay v. United States
   overrule this court’s decision in Gutierrez v. Schomig?
   Gildon’s first argument claims that his petition was timely
because his state post-conviction petition was pending dur-
ing the time that he could have, but did not file a petition
for writ of certiorari to the Supreme Court from the denial
of his Petition for Leave to Appeal to the Illinois Supreme
Court. In making this argument, Petitioner asks that we
reverse our earlier holding that the period of limitations
under 28 U.S.C. § 2244(d) “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.” Gutierrez, 233 F.3d at 490. Gildon claims
that Clay v. United States, 537 U.S. 522 (2003), demon-
strates that Gutierrez was wrongly decided.
  Clay dealt with the one-year period of limitations pro-
vision under 28 U.S.C. § 2255. The relevant portions of that
provision read “[a] 1-year period of limitation shall apply to
a motion under this section. The limitation period shall run
from the latest of . . . (1) the date on which the judgment
becomes final.” 28 U.S.C. § 2255. The Court held that a
direct appeal is “final” when the Supreme Court “affirms a
conviction on the merits on direct review or denies a
petition for a writ of certiorari, or when the time for filling
a certiorari petition expires.” Clay, 537 U.S. at 527.
  28 U.S.C. § 2244(d)(2) reads, “[t]he 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.” Gildon claims that Clay
requires the period of limitation to be tolled during the time
when a petitioner could have, but did not file a petition for
writ of certiorari from the denial of their State post-con-
viction relief. But Clay says nothing about a “properly filed”
or “pending” petition. Instead, that case discussed “final.”
4                                                     No. 03-2076

Clay, 537 U.S. at 524. However, Gildon claims that Griffith
v. Kentucky, 479 U.S. 314, 321 (1987), which was cited with
approval in Clay, used the terms “pending” and “final”
interchangeably. Therefore, the argument continues, “under
the reasoning in Clay, the term ‘pending’ in 28 U.S.C. §
2244(d)(2) should also include the time for filing a petition for
certiorari to the United States Supreme Court.”
   We are not persuaded that Clay overruled Gutierrez. The
cases have almost nothing in common, nor do the statutes
at issue; Clay dealt with a federal prisoner’s habeas petition,
Gildon is a State prisoner; the term construed in Clay was
“final”, where here, the term is “pending”; the issue in Clay
dealt with finality of a direct appeal, while here, we ask
whether a properly filed post-conviction petition was pend-
ing. Clay, 537 U.S. at 524. Such distinctions are not minor,
especially in light of the Supreme Court’s statement that
“[f]inality is variously defined; like many legal terms, its
precise meaning depends on context.” Id. at 527. Nevertheless,
any doubts which we might have habored about the applica-
bility of Clay to § 2244(d)(2) are resolved by the legislature’s
use of the words “properly filed.”
  Even if Clay’s interpretation of “final” in 28 U.S.C. § 2255
can be transferred to interpret the meaning of “pending” in
18 U.S.C. § 2244(d)(2), our decision would remain the same.
As Gutierrez points out, “[b]ecause [petitioner] 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., [28 U.S.C.] § 2244(d)(1)(A).”1 Gutierrez,
233 F.3d at 492. Such a reading comports with the “plain



1
  28 U.S.C. § 2244(d)(1)(A) reads, “[t]he limitation period shall run
from the latest of . . . the date on which the judgment became final
by the conclusion of direct review or the expiration of the time for
seeking such review.”
No. 03-2076                                                   5

language” rule of statutory construction. Estate of Cowser
v. Comm’r of Internal Revenue, 736 F.2d 1168, 1171 (7th Cir.
1984) (“It is a common rule of statutory construction that
when the plain language of a statute is clear, courts need
look no farther than those words in interpreting the stat-
ute”). Further, though we need go no further, it is notewor-
thy that when Congress includes language in one section of
a statute, but omits such language in another section, it is
presumed that Congress acted intentionally in authoring
disparate statutes. Duncan v. Walker, 533 U.S. 167, 173
(2001).
   Gildon next claims that “consistency and fairness argue
strongly for tolling the 1–year limitations period during the 90
day period that petition for writ of certiorari is available to
the Petitioner.” However laudable the goals, we are pri-
marily concerned with what the legislature intended when
it enacted the statute. Any inconsistencies in the period of
limitation under 28 U.S.C. § 2244(d) are therefore, an issue
for Congress, not the courts.


B. Equitable Tolling
  Before considering the equitable tolling claim, we address a
related issue; whether the district court erred when it dis-
missed sua sponte Gildon’s petition as being untimely. Since
the period of limitations is an affirmative defense, the state
has the burden of showing that the petition is untimely.
Acosta v. Artuz, 221 F.3d 117, 121-22 (2nd Cir. 2000). In our
adversary system, it is the usual rule that a court rule on
an affirmative defense after the input of the parties. Id.,
citing United States v. Burke, 504 U.S. 229, 246 (1992)
(Scalia, J. concurring) (“The rule that points not argued will
not be considered is more than just a prudential rule of
convenience; it’s observance, at least in the vast majority of
cases, distinguishes our adversary system of justice from an
inquisitorial one.”). Nevertheless, the district court may
6                                                No. 03-2076

dismiss a petition sua sponte if it appears on its face to be
without merit. Acosta, 221 F.3d at 122. Although the
petition appeared to be untimely, it is difficult to conceive
of a situation where a claim of equitable tolling would be
clear on the face of the petition. So, we will address Gildon’s
claim in this respect.
   Petitioner argues that he should be allowed to proceed
with his habeas claim under the principles of equitable toll-
ing. Equitable tolling is proper when extraordinary cir-
cumstances outside of the petitioner’s control prevent timely
filing of the habeas petition. United States v. Marcello, 212
F.3d 1005, 1010 (7th Cir. 2000). Gildon explains that he is
entitled to benefit from this doctrine because his application
would have been timely if the corrections officers had
delivered his mail on time. That story follows.
  Gildon’s attorney assisted in preparing the habeas appli-
cation, and on February 11, 2003, the attorney sent the appli-
cation, via Federal Express, to Gildon.2 Gildon however,
never received the application and his brief states that the
correctional center employees never delivered the package.
Gildon then says, “[i]f Centralia Correctional Center had
delivered the application, petitioner would have clearly had
the application on file prior to February 14, 2003.” He
claims that February 14, 2003 was the day the clock ran out
under 28 U.S.C. § 2244(d). He is mistaken.
  Gildon arrives at February 14, 2003 as the deadline for fil-
ing his habeas claim by claiming that the Illinois Appellate
Court’s ruling on his post-conviction proceedings was pending
until the court issued its mandate. The government, on the
other hand, argues that the decision became final on the
day the judgment was entered. The issue is important be-


2
  Gildon’s brief says that the application was sent to him on
February 11, 2002, not 2003. We assume that this is a mistake.
Nevertheless, neither date will affect the opinion.
No. 03-2076                                                   7

cause Gildon cannot meet the equitable tolling require-
ments if the period of limitations expired prior to February
12, 2003, the day that Gildon should have received the
habeas application.
   State law controls the issue of when a state action if pend-
ing and when it is final. Wilson v. Battles, 302 F.3d 745, 747
(7th Cir. 2002). This court has noted in the past that the
judgment of an Illinois Court of Appeals is final on the day
it is entered. Wilson, 302 F.3d at 747 (citing PSL Realty Co.
v. Granite Inv. Co., 427 N.E.2d 563, 569-70 (Ill. 1981)). There-
fore, Gildon’s State post-conviction proceedings became final
when the judgment was entered. This means that the
period of limitations ran out well before February 14, 2003
which, in turn, means that equitable tolling is unavailable.


C. Actual Innocence
  Gildon finally attempts to circumvent the constraints of
28 U.S.C. § 2244 by arguing “actual innocence.” However,
neither the Supreme Court nor this court has ever applied
the actual innocence exception to overcome the failure to
timely file under § 2244. We find the Eight Circuit’s anal-
ysis of this issue in Flanders v. Graves, to be persuasive.
    We do not hold that actual innocence can never be rele-
    vant to a claim that the habeas statute of limitations
    should be equitably tolled. For such a claim to be viable,
    though, a petitioner would have to show some action or
    inaction on the part of the respondent that prevented
    him from discovering the relevant facts in a timely
    fashion, or, at the very least, that a reasonably diligent
    petitioner could not have discovered these facts in time
    to file a petition within the period of limitations.
Flanders v. Graves, 299 F.3d 974, 978 (8th Cir. 2002).
Like Flanders, Gildon has not made such a showing and
therefore, the district court did not err in dismissing his
petition as untimely.
8                                               No. 03-2076

                     III. Conclusion
  Because we find that the district court did not err in dis-
missing Gildon’s habeas petition as untimely under 28 U.S.C.
§ 2244(d), we do not address the merits of his claim. The
decision of the district court is AFFIRMED.

A true Copy:
      Teste:

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




                   USCA-02-C-0072—9-30-04
