In the
United States Court of Appeals
For the Seventh Circuit

No. 98-1894

Darnell Tinker,

Petitioner-Appellant,

v.

Craig Hanks,

Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 1:97 CV 230 AS--Allen Sharp, Judge.

Submitted June 13, 2001--Decided June 28, 2001



  Before Posner, Easterbrook, and Kanne,
Circuit Judges.

  Posner, Circuit Judge. A state prisoner
who seeks federal habeas corpus relief
must with immaterial exceptions institute
his habeas corpus proceeding within a
year of when his conviction became final.
28 U.S.C. sec. 2244(d)(1)(A). But this
period is tolled while "a properly filed
application" for state postconviction
review is pending. sec. 2244(d)(2). When
last this case was before us, we held
that an application for permission to
file a second state postconviction
proceeding is not a "properly filed
application" for state postconviction
relief, and so the district court was
correct to hold that the petitioner’s
federal habeas corpus proceeding was
untimely. 172 F.3d 990 (7th Cir. 1999).
The Supreme Court vacated our decision
and remanded the case to us for further
consideration in light of Artuz v.
Bennett, 121 S. Ct. 361 (2000). 121 S.
Ct. 476 (2000).

  Artuz holds that an application for
state postconviction relief is "properly
filed" even if there are good defenses to
it, the requisite propriety having to do
not with the merits of the application
but with whether it conforms to purely
formal requirements such as "the form of
the document, the time limits upon its
delivery, the court and office in which
it must be lodged, and the requisite
filing fee," id. at 364 (footnote
omitted)--but also "preconditions imposed
on particular abusive filers." The Court
illustrated by quoting with pregnant
emphases 28 U.S.C. sec. 2244(b)(3)(A), a
model prefiling provision: "Before a
second or successive application
permitted by this section is filed in the
district court, the applicant shall move
in the appropriate court of appeals for
an order authorizing the district court
to consider the application." 121 S. Ct.
at 364 (emphases in original). And
elsewhere the Court’s opinion remarks "a
condition to filing, as opposed to a
condition to obtaining relief." Id. at
365.

  This case involves the former, a filing
precondition, rather than the latter, a
relief precondition. To prevent abusive
repetitive filings by its prisoners,
Indiana courts, much like federal courts
by virtue of section 2244(b)(3)(A),
quoted in the preceding paragraph,
require the would-be applicant for
postconviction relief to ask leave of
court to file a second or other
successive application for postconviction
relief. Ind. Post-Conviction R. 1(12);
Indiana ex rel. Woodford v. Marion
Superior Court, 655 N.E.2d 63, 65-66
(Ind. 1995). That is a prefiling
requirement. It is the nonpecuniary
equivalent of a stiff filing fee--an
alternative of limited utility in dealing
with prisoners. Our decision conforms to
the Supreme Court’s ruling, and we
therefore reinstate it.
