In the
United States Court of Appeals
For the Seventh Circuit

Nos. 01-1888 & 01-1889

United States of America ex rel.

Clayborn Smith, Jr.,

Petitioner-Appellant,

v.

Jonathan R. Walls, Warden,
Menard Correctional Center,

Respondent-Appellee.

Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 1814--Elaine E. Bucklo, Judge.

Submitted November 21, 2001--Decided January 7, 2002



  Before Posner, Manion, and Rovner, Circuit
Judges.

  Per Curiam. Clayborn Smith, an Illinois
state prisoner serving a life sentence
for first-degree murder, brought a
petition for a writ of habeas corpus
under 28 U.S.C. sec. 2254. The district
court dismissed his petition, finding
that it was barred by the one-year
statute of limitations under the
Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA). The district court,
however, granted Smith a certificate of
appealability to address whether, in
light of Artuz v. Bennett, 531 U.S. 4
(2000), a post-conviction petition
dismissed by the Illinois courts as
successive is nevertheless "properly
filed" for purposes of tolling the one-
year limitation period. Because we
conclude that it is, we vacate the
judgment and remand the case to the
district court for further proceedings.

I.
  On May 20, 1994, Smith was convicted of
murdering his great aunt and grandfather.
The Illinois appellate court affirmed his
conviction on October 28, 1996. He then
petitioned the Illinois Supreme Court for
leave to appeal. The Illinois Supreme
Court denied this petition on December 3,
1997. Smith then petitioned the United
States Supreme Court for a writ of
certiorari. The Court denied that
petition on May 18, 1998, and so Smith’s
conviction became final on that date. See
28 U.S.C. sec. 2244(d)(1)(A); Williams v.
Artuz, 237 F.3d 147, 151 (2d Cir. 2001);
Smith v. Bowersox, 159 F.3d 345, 347-48
(8th Cir. 1998).

  On March 19, 1997, while his direct
appeal was still pending, Smith filed a
pro se petition for post-conviction
relief under the Illinois Post-Conviction
Hearing Act, 725 ILCS 5/122-1, et seq.
The petition was skeletal. In it Smith
alleged that he was denied effective
assistance of trial and appellate
counsel, denied his right to trial
counsel after being formally charged, and
denied his right to a fair trial, but he
did not state any factual basis for those
claims or attach any exhibits. He did
attach, however, a motion for extension
of time to file "post-conviction and
attached exhibits due 4-28-97." In that
motion he claimed that the prison was on
lockdown and that he needed proof of a
court deadline to gain access to the law
library and complete the preparation of
his petition. On May 21, 1997, he mailed
a second petition stating that "[t]his is
Petitioner’s petition he requested time
to file on or about March 1997." This
lengthy petition elaborated on the claims
alleged in his first petition and
included supporting exhibits. This second
petition was file-stamped by the court
June 3, 1997.

  But just a few days before, on May 30,
1997, the circuit court had dismissed
Smith’s first petition as frivolous for
failing to assert any factual basis for
his claims or to attach any supporting
documentation. The court did not mention
Smith’s motion for extension of time when
dismissing the petition. Then, on June
20, 1997, the circuit court summarily
dismissed Smith’s second petition as
successive. Smith asked the court to
vacate its judgment and reinstate the
petition, but the court denied his
request on July 16, 1997. Smith then
appealed the dismissal of his second
petition to the Illinois appellate court,
arguing that his second petition was not
successive because it sought merely to
amend the initial petition, as
demonstrated by his request for extension
of time. On April 30, 1999, the appellate
court affirmed the dismissal of the
petition, and denied rehearing on June
28, 1999. Smith then petitioned the
Illinois Supreme Court for leave to
appeal, but the court denied leave on
December 1, 1999.

  On March 24, 2000, Smith filed his
petition for federal habeas corpus, which
the state moved to dismiss as time-barred
under AEDPA. On November 6, 2000, the
district court denied the state’s motion
because the state court’s dismissal of
Smith’s second post-conviction petition
as successive did not rest on an
independent and adequate state law
ground; according to the district court,
the state court’s dismissal of the
petition on procedural grounds failed to
consider whether the second petition
constituted an amendment or was otherwise
proper. The district court went on to
conclude that the second petition did
amend the original petition and thus was
not an impermissible successive petition,
and so its filing tolled the statute of
limitations for federal habeas corpus
relief. On reconsideration, however, the
district court dismissed the petition as
untimely. Relying on our decision in
Braun v. Powell, 227 F.3d 908, 912 (7th
Cir. 2000), the court concluded that the
state court had in fact based its
decision on an adequate state ground
because Illinois courts do "consistently
and frequently" apply a procedural bar
against successive post-conviction
petitions. Because the Illinois appellate
court had held that Smith’s amended
petition was procedurally barred as
successive, it was not "properly filed"
and so its filing did not toll the
statute of limitations.

II.

  A state prisoner seeking federal habeas
corpus relief must file a petition within
a year of when his or her conviction
became final. 28 U.S.C. sec.
2244(d)(1)(A). Smith’s conviction became
final on May 18, 1998, and he therefore
had until May 18, 1999 to file his
petition for federal habeas corpus. He
did not file it until March 2000. Thus
his petition is timely only if the one-
year limitation period was tolled while
his second post-conviction petition was
pending.

  Only a "properly filed" application for
state post-conviction review will toll
the one-year limitation period. 28 U.S.C.
sec. 2244(d)(2); Rice v. Bowen, 264 F.3d
698, 700 (7th Cir. 2001). In its November
6, 2000 order (and again on
reconsideration), the district court
reasoned that if the state courts treated
the petition as successive and rejected
it on procedural grounds without first
reaching the merits, then the petition
was not "properly filed." See Freeman v.
Page, 208 F.3d 572, 576 (7th Cir. 2000).
But on November 7, 2000, the United
States Supreme Court decided Artuz v.
Bennett, 531 U.S. 4 (2000), in which it
defined "properly filed" within the
meaning of AEDPA. The Court held that
whether an application for state post-
conviction relief is "properly filed"
depends not on the merits of the
application but rather on its compliance
with formal filing 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 8. Thus
an application is "properly filed" when
its "delivery and acceptance are in
compliance with the applicable laws and
rules governing filings" regardless of
whether the state court later dismissed
it as procedurally barred. Id. at 8-10.

  Since the Court decided Artuz, we have
not been presented with the precise
question here: whether a successive
Illinois post-conviction petition may be
"properly filed" for purposes of AEDPA
even though it contained claims that were
procedurally barred by Illinois law. We
have recently addressed the question
whether an application for leave to file
a successive post-conviction proceeding
in Indiana was a "properly filed"
application for state post-conviction
relief, and held that it was not. See
Tinker v. Hanks, 255 F.3d 444, 445-46
(7th Cir. 2001). Our holding in Tinker
turned on the fact that Indiana requires
a would-be applicant for post-conviction
relief to ask the appellate court for
leave before a successive petition may be
filed. See Ind. Post-Conviction R.1 (12).
If that "filing precondition" is not met,
we explained, the petition is not
"properly filed." Tinker, 255 F.3d at
445-46. But unlike Tinker this case does
not involve a filing precondition.
Although both Indiana and Illinois envis
age that only one post-conviction
petition will be filed, see People v.
Jones, 191 Ill.2d 194, 198 (Ill. 2000),
Illinois does not require that a state
prisoner obtain leave of court before
filing a second or otherwise successive
petition, see 725 ILCS 5/122-1.

  Like Artuz this case involves a
condition for obtaining relief. The New
York statutes that barred the prisoner’s
successive petition in Artuz required the
denial of petitions raising claims
"previously determined on the merits" or
claims "that could have been raised on
direct appeal but were not." 531 U.S. at
10-11. The Court concluded that those
statutes did not "purport[ ] to set forth
a condition to filing, as opposed to a
condition to obtaining relief." Id. at
11. The Illinois Post-Conviction Hearing
Act similarly limits the circumstances
under which a successive petition’s
claims may be considered on the merits,
by providing that "[a]ny claim of
substantial denial of constitutional
rights not raised in the original or an
amended petition is waived." 725 ILCS
5/122-3. As a result, an Illinois
prisoner "faces a daunting procedural
hurdle when bringing a successive post-
conviction petition," Jones, 191 Ill.2d
at 198, though this procedural hurdle can
be surmounted if the proceedings on the
initial petition were "deficient in some
fundamental way." People v. Flores, 153
Ill.2d 264, 273-74 (Ill. 1992). As with
the New York statutes in Artuz,
successive petitions in Illinois that
fail to satisfy these conditions to
relief "will not be successful, but they
have been properly delivered and accepted
so long as the filing conditions have
been met." Artuz, 531 U.S. at 11; see
also Hardy v. Sec’y for the Dep’t. of
Corr., 246 F.3d 1300, 1301-02 (11th Cir.
2001) (petition denied as successive
under state law may be properly filed if
it met state’s filing conditions);
Dictado v. Ducharme, 244 F.3d 724, 726-27
(9th Cir. 2001) (petition dismissed under
state statute barring successive
petitions unless "good cause" is shown
for not raising claims earlier may be
properly filed); Emerson v. Johnson, 243
F.3d 931, 934-35 (5th Cir. 2001) (state
habeas petitioner’s motion for
reconsideration may be properly filed
despite state statute barring such
motions); Snow v. Ault, 238 F.3d 1033,
1034-35 (8th Cir. 2001) (petition denied
as successive under state law may be
properly filed).

  Because Illinois does not impose any
filing preconditions for successive
petitions, a successive petition that is
later dismissed as procedurally barred is
"properly filed" as long as it conforms
to Illinois’ formal filing requirements.
Here Smith’s second post-conviction
petition satisfied those requirements, as
reflected by the court’s acceptance of
the petition and the docket sheet
notation that the petition was "filed."
The second petition therefore tolled the
one-year statute of limitations until
December 1, 1999, the date when the
Illinois Supreme Court denied leave to
appeal the dismissal of that petition.
See Gutierrez v. Schomig, 233 F.3d 490,
491-92 (7th Cir. 2000) (concluding that
statute of limitations is not tolled
under sec. 2244(d)(2) for the 90-day
period during which certiorari could have
been sought from the denial of state
post-conviction relief). Because Smith
filed his sec. 2254 petition on March 24,
2000, within a year of the state supreme
court’s denial of leave to appeal, the
petition was timely. We therefore VACATE
the judgment of the district court and
REMAND the case to the district court for
further proceedings.
