                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 07-3672

H ECTOR DE JESUS,
                                                Petitioner-Appellant,
                                  v.

G ERARDO A CEVEDO , Warden of Hill Correctional Center,

                                                Respondent-Appellee.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
                No. 07 C 2579—Amy J. St. Eve, Judge.



        A RGUED M AY 26, 2009—D ECIDED JUNE 9, 2009




  Before E ASTERBROOK, Chief Judge, and B AUER and
P OSNER, Circuit Judges.
   E ASTERBROOK, Chief Judge. Hector de Jesus, who in
1991 was convicted of murder, contends that a federal
collateral attack in 2007 is timely because a state court
accepted, and rejected on the merits, a collateral attack he
filed in 2000. Yet the time to file for federal relief ex-
pired in April 1997 (one year after the Antiterrorism and
2                                                No. 07-3672

Effective Death Penalty Act became law). A state court’s
later refusal to upset a conviction does not open a new
window for federal collateral review.
   That the time for federal review expired in April 1997
is common ground among the parties. If de Jesus had
filed a federal collateral attack in May 1997, it would have
been dismissed as untimely. What de Jesus contends is
that all time since 1991 was tolled, retroactively, when
the state courts entertained (and denied) collateral attacks
filed in 2000 and 2002, which were consolidated and
finally resolved in January 2007.
    The AEDPA’s time limit is in 28 U.S.C. §2244(d):
     (1) A 1-year period of limitation shall apply to an
     application for a writ of habeas corpus by a person
     in custody pursuant to the judgment of a State
     court. The limitation period shall run from the
     latest of—
         (A) the date on which the judgment became
         final by the conclusion of direct review or the
         expiration of the time for seeking such review;
         (B) the date on which the impediment to filing
         an application created by State action in viola-
         tion of the Constitution or laws of the United
         States is removed, if the applicant was pre-
         vented from filing by such State action;
         (C) the date on which the constitutional
         right asserted was initially recognized by the
         Supreme Court, if the right has been newly
No. 07-3672                                                  3

        recognized by the Supreme Court and made
        retroactively applicable to cases on collateral
        review; or
        (D) the date on which the factual predicate of
        the claim or claims presented could have been
        discovered through the exercise of due dili-
        gence.
    (2) The time during which a properly filed applica-
    tion 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.
For de Jesus, the latest date in subsection (1)’s list is in
1991, when his conviction became final. None of the
other subsections applies. But he contends that, when a
state decides a collateral attack on the merits, that petition
should be treated as if it had been pending on all earlier
dates, so that all time until the resolution of the collateral
attack is excluded by subsection (2).
  This line of argument treats the disposition of a state
collateral attack as restarting the federal time, as if it were
one of the events in subsection (1). Yet what subsection
(2) does is exclude particular time from the year, not
restart that year. So if a state conviction becomes final on
March 1, 2008, and a collateral attack in state court begins
on July 1, 2008, and lasts until July 1, 2009, the prisoner
then has eight months (or until March 1, 2010) to launch
a federal collateral attack. Subsection (2)’s approach to
excluding time is straightforward. It follows that a state
proceeding that does not begin until the federal year
has expired is irrelevant. Any other approach would
4                                                No. 07-3672

eliminate all federal time limits whenever a state
does not have (or does not enforce) a time limit for collat-
eral review: a state collateral proceeding, however belated
and however unmeritorious, would reset the federal clock.
But §2244(d) is an independent federal rule; a state’s
latitude or lassitude with respect to time does not extend
the AEDPA’s limit. So we have held in several decisions.
See, e.g., Fernandez v. Sternes, 227 F.3d 977 (7th Cir. 2000);
Escamilla v. Jungwirth, 426 F.3d 868 (7th Cir. 2005).
  Although de Jesus contends that the state courts consid-
ered his petitions in 2000 and 2002 only because they
concluded that he had received incorrect advice in 1991 (a
state judge told him to seek review in the Supreme Court
of Illinois rather than the Appellate Court), this does not
imply that any action was “pending” between 1991 and
2000. A state’s decision to accept an untimely filing does
not justify back-dating that filing. The federal courts
were available to de Jesus between 1991 and 1997, when
the AEDPA’s time limit ran out. Incorrect advice
rendered in 1991 might or might not have been the basis
of federal relief; it does not justify pretending that a state
proceeding not filed until 2000 had been pending for
nine years before its commencement.
   De Jesus contends that Jimenez v. Quarterman, 129 S. Ct.
681 (2009), requires a different approach, one in which a
state collateral attack must be treated as “pending” before
it is filed. But Jimenez does not hold any such thing.
  Jimenez’s conviction became final in 1996, when he
failed to appeal. In 2002 a state court held that the lack of
No. 07-3672                                               5

an appeal was attributable to ineffective assistance of
counsel. It granted Jimenez’s petition for collateral relief
and as a remedy gave him a new opportunity to take a
direct appeal from the 1996 conviction. Jimenez used that
opportunity but did not obtain any further relief. The
state’s appellate process came to an end in 2004. Jimenez
then filed a federal collateral attack—one that was timely
if 2004 was “the date on which the judgment became
final by the conclusion of direct review” (§2244(d)(1)(A))
but untimely otherwise. The Supreme Court held that,
when a state grants a petition for collateral relief and
restarts the appellate process, the federal clock runs from
“the date on which the judgment became final by the
conclusion of direct review”—for the new decision is one
on “direct review,” and §2244(d) says that the federal
time starts on “the latest of” any of the four events listed
in subsection (d)(1).
  Jimenez does not help de Jesus, for two reasons. First,
Jimenez obtained collateral relief from state court, leading
to a new final decision, while de Jesus did not obtain
any relief from state court, so the date of final decision
on direct review in his case remains 1991. Second, Jimenez
concerned the interpretation of §2244(d)(1)(A), while the
argument that de Jesus makes depends on §2244(d)(2).
Jimenez does not offer any reason to think that the inter-
pretation of §2244(d)(2) in Fernandez or Escamilla is incor-
rect. We therefore reiterate the conclusion of those opin-
ions: A state court’s order denying a request for collateral
review (whether on the merits or for any procedural
reason) does not require the exclusion, under §2244(d)(2),
6                                        No. 07-3672

of time that passed before the state collateral pro-
ceeding began.
                                           A FFIRMED




                       6-9-09
