In the
United States Court of Appeals
For the Seventh Circuit

No. 01-2628

Ivy J. Carter,

Petitioner-Appellant,

v.

Jon E. Litscher,

Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 00-C-1229--Patricia J. Gorence, Magistrate Judge.

Submitted December 13, 2001--Decided December 28, 2001


  Before Bauer, Easterbrook, and Evans,
Circuit Judges.

  Easterbrook, Circuit Judge. A prisoner
seeking to wage a federal collateral
attack on a criminal judgment normally
must file the proceeding within one year
of the judgment’s finality. 28 U.S.C.
sec.sec. 2244(d), 2255 para.6. Several
provisions allow extra time. This case
presents a question about one of these,
sec.2244(d)(2), which provides:

The 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.

Ivy Carter, serving a life sentence in
Wisconsin for murder, pursued collateral
review twice in state court, and the
state concedes that both proceedings were
"properly filed." See Artuz v. Bennett,
531 U.S. 4 (2000); Freeman v. Page, 208
F.3d 572 (7th Cir. 2000). If the time
they were pending counts under
sec.2244(d)(2), then Carter’s federal
petition is timely; otherwise it is not.
The district court concluded that some of
the time (enough to make a difference)
does not count, because the issues Carter
presented to the state tribunal differ
from those presented to the federal
tribunal. According to the district
court, time is excluded by sec.2244(d)(2)
only if the prisoner raises in the state
collateral challenge at least one of the
federal constitutional issues in the
federal challenge. Thus if, for example,
a state prisoner presents his main
federal constitutional claims on direct
appeal and uses a state collateral attack
to raise claims based on state law (or
federal constitutional claims later
omitted from the federal collateral
attack), then sec.2244(d)(2) does not
apply. This approach has the support of
Austin v. Mitchell, 200 F.3d 391 (6th
Cir. 1999), but has been rejected by
Tillema v. Long, 253 F.3d 494 (9th Cir.
2001). Carter’s appeal is properly before
us, even though the certificate of
appealability fails to identify a
substantial constitutional issue and thus
does not satisfy 28 U.S.C.
sec.2253(c)(2), see Slack v. McDaniel,
529 U.S. 473, 483-85 (2000), because the
state has made nothing of this problem
and thus has forfeited the benefits of
that statute. Owens v. Boyd, 235 F.3d 356
(7th Cir. 2000); United States v.
Marcello, 212 F.3d 1005 (7th Cir. 2000).

  Austin concluded that tolling occurs
under sec.2244(d)(2) only if a prisoner
includes in his state collateral attack
at least one of the issues raised in the
federal challenge. The court reasoned:
"Otherwise, the purpose of tolling, which
is to provide the state courts with the
first opportunity to resolve the
prisoner’s federal claim, is not
implicated." 200 F.3d at 395. This is not
correct; it confuses tolling with
exhaustion. A state court must be given
the first opportunity to address the
federal issue, see 28 U.S.C.
sec.2254(b)(1); O’Sullivan v. Boerckel,
526 U.S. 838 (1999); but this exhaustion
requirement can be satisfied on direct
appeal as well as on collateral attack.
Usually it is preferable to raise the
federal question as soon as possible,
which means at trial and on direct
appeal. Cf. Wainwright v. Sykes, 433 U.S.
72 (1977). This does not imply, however,
that state prisoners must proceed
immediately from their direct appeals to
federal collateral attacks. A state
collateral proceeding based solely on
state-law issues may avoid the need for
federal relief, and a tolling rule
permits prisoners to pursue such theories
in state court without jeopardizing their
ability to raise the federal
constitutional issues later in federal
court, if that proves to be necessary.
See Duncan v. Walker, 533 U.S. 167, 121
S. Ct. 2120, 2128 (2001).

  No matter what one makes of the policy
arguments, however, the language of
sec.2244(d)(2) offers no leeway for them.
See Artuz, 531 U.S. at 10 ("Whatever
merits . . . policy arguments [concerning
sec.2244] may have, it is not the
province of [judges] to rewrite the
statute to accommodate them."). Time is
suspended while a "properly filed" state
collateral attack "with respect to the
pertinent judgment or claim is pending"
(emphasis added). Austin reads the word
"judgment" out of sec.2244(d)(2) and
tolls the time only while a particular
"claim" (which Austin took to mean
"theory of relief") is before the state
court. That is just not what the statute
says. Any properly filed collateral
challenge to the judgment tolls the time
to seek federal collateral review. Even
Austin’s implicit definition of "claim"
is questionable, for this word usually
denotes a whole transaction rather than a
legal theory. Cf. Brannigan v. United
States, 249 F.3d 584 (7th Cir. 2001)
(discussing other possible meanings of
the word "claim" in the aedpa). We
therefore disapprove Austin’s holding.
Properly filed collateral challenges to
the judgment Carter wants to contest were
pending in state court for long enough to
make Carter’s federal challenge timely.
His petition must be adjudicated on the
merits.

Reversed and Remanded
