227 F.3d 977 (7th Cir. 2000)
Angel Fernandez, Petitioner-Appellant,v.Jerry Sternes, Warden,  Dixon Correctional Center, Respondent-Appellee.
No. 99-2887
In the  United States Court of Appeals  For the Seventh Circuit
Submitted July 31, 2000Decided September 21, 2000

Appeal from the United States District Court  for the Northern District of Illinois, Eastern Division.  No. 98 C 1332--Charles R. Norgle, Sr., Judge.
Before Coffey, Easterbrook, and Evans, Circuit Judges.
Easterbrook, Circuit Judge.


1
This appeal presents  another variation on the question whether time  spent pursuing state collateral remedies is  excluded from the year provided by 28 U.S.C.  sec.2244(d) for commencing a federal collateral  attack. Section 2244(d)(2) says that "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." We held in  Freeman v. Page, 208 F.3d 572 (7th Cir. 2000),  that whether a petition is "properly filed"  depends on state law, so that if a state court  accepts and entertains it on the merits it has  been "properly filed" but that if the state court  rejects it as procedurally irregular it has not  been "properly filed." Accord, Webster v. Moore,  199 F.3d 1256 (11th Cir. 2000); Tinker v. Hanks,  172 F.3d 990 (7th Cir. 1999). See also Bennett v.  Artuz, 199 F.3d 116, 121-23 (2d Cir. 1999), cert.  granted, 120 S. Ct. 1669 (2000). A corollary,  recognized in Jefferson v. Welborn, No. 99-2337  (7th Cir. June 29, 2000), is that a petition that  fails to comply with state procedural  requirements is still "properly filed" if the  state accepts it and issues a decision on the  merits. Jefferson applies to sec.2244(d) the  approach that Harris v. Reed, 489 U.S. 255  (1989), announces for determining when a  procedural default under state law forecloses  federal relief on collateral attack: if the state  enforces its procedural rules and deems the claim  forfeited, then federal review is barred; if the  state excuses a default, then federal review is  proper. Harris added that, if the state's  decision rests on both a procedural default and  a lack of merit, then federal review is  foreclosed, provided the finding of default is  clear. Id. at 264 n.10. Freeman and Jefferson, in  conjunction with Harris, provide a  straightforward rule for identifying "properly  filed" petitions. Today's case presents the  question: what is the period "during which" a  petition was pending, when it became "properly  filed" because the state court excused a delay?


2
Angel Fernandez was convicted before sec.2244(d)  came into being as part of the Antiterrorism and  Effective Death Penalty Act. We therefore treat  April 24, 1996, as the beginning of his year to  seek federal collateral review. Gendron v. United  States, 154 F.3d 672 (7th Cir. 1998). Fernandez  filed his federal petition on February 27, 1998,  so unless more than 10 months after the AEDPA's  effectiveness is excluded by sec.2244(d)(2), the  petition is too late and must be dismissed. When  the AEDPA was enacted, Fernandez was pursuing  collateral relief in state court. On July 19,  1996, the Appellate Court of Illinois affirmed an  order denying his petition. Under Illinois  Supreme Court Rule 315(b), Fernandez had 21 days  to file a petition for leave to appeal. He missed  that deadline but on June 12, 1997, filed a  motion for permission to file a late petition for  leave to appeal. On September 24, 1997, the  Supreme Court of Illinois issued this order:


3
The motion by petitioner for leave to file a late  petition for leave to appeal is allowed and is  treated as a petition for leave to appeal.


4
Although it accepted Fernandez's petition--a step  that rendered it "properly filed" under the  rationale of Jefferson--by order of December 3,  1997, the Supreme Court of Illinois denied the  petition for leave to appeal. About three months  later Fernandez turned to federal court, where  the district judge dismissed his petition as  untimely.


5
Jefferson and Freeman do not decide how much  time is excluded when a state court permits an  untimely filing. There are four possibilities, in  order of increasing amounts excluded


6
* Time between the order allowing the untimely  filing and the final decision on the merits.


7
* Time between the application for leave to file  out of time and the final decision on the merits.


8
* Time between the application for leave to file  out of time and the final decision on the merits,  plus the time originally available (but not used)  to file a timely application.


9
* Time between the previous adjudication of  petitioner's claim and the final decision on the  merits.


10
The first possibility (which the district court  adopted) treats the petition as on file "during"  September 24, 1997, to December 3, 1997, or 70  days; the second treats the petition as on file  from June 12, 1997, to December 3, 1997, or 174  days; the third adds 21 days, for a total of 195;  the fourth treats the petition as on file from  July 19, 1996, the date of the appellate  decision, to December 3, 1997, or 502 days.


11
Section 2244(d) does not address this subject  directly, but the phrase "during which a properly  filed application for State . . . collateral  review . . . is pending" is incompatible with two  of the four possibilities. The first does not  fit, because it concentrates on the period while  the court is considering the application, rather  than the entire period "during which [the  application] is pending". Fernandez filed his  motion on June 12, 1997, and it was pending  between then and December 3, 1997. In this  respect a motion for leave to pursue an untimely  application works like a motion for leave to  commence a second collateral attack under state  law. We held in Tinker that if the state court  declines to allow a second collateral attack,  then none of the period following the application  counts as time "during which a properly filed  [application] is pending"; but if the state court  allows the second collateral attack to proceed,  then the whole period from filing to conclusion  logically is excluded under sec.2244(d)(2). Just  so with motions to file untimely appeals and  applications for discretionary review. But no one  would suppose, if a state allows a second  collateral attack, that this excludes all time  since the prisoner began his first collateral  attack, even though nothing at all was "pending"  during the intervening months. Just so, again,  with motions to file untimely appeals and  applications for discretionary review.


12
Fernandez did not have a collateral attack  under consideration by Illinois between July 19,  1996, and June 12, 1997, so none of that was time  "during which a properly filed application for  State . . . collateral review . . . is pending".  This 11-month gap, plus the 3 months between the  state Supreme Court's final decision and  Fernandez's federal petition, add to more than a  year of countable time, so the district court  correctly denied his petition as time-barred. Our  conclusion that the right period of exclusion is  all time between the filing of the request to  excuse the default and the state court's decision  on the merits (if it elects to excuse the  default) matches the period we selected in  Jefferson, but the issue had not been raised by  the parties, and Jefferson did not explain why we  chose this period, rather than one of the other  possibilities. Now that the question has been  squarely presented, we convert Jefferson's  assumption into a holding. It is unnecessary to  decide, and we therefore reserve, the question  whether time provided for filing a petition or  appeal to a higher court is treated as time  during which an application is pending, if the  time expires without a filing. See also Gendron  v. United States, 154 F.3d 672, 674 n.2 (7th Cir.  1998) (reserving a similar issue affecting the  starting date of the one-year period). Twenty-one  days more or less makes no difference to  Fernandez.


13
Only one other court of appeals has dealt with  this subject. Saffold v. Newland, 2000 U.S. App.  Lexis 16489 (9th Cir. July 17, 2000), adopts the  fourth possibility we have enumerated, holding  that if a state's supreme court entertains an  untimely request for discretionary review (or an  original writ of habeas corpus), then all time  from the commencement of the collateral attack in  state court is excluded under sec.2244(d)(2). The  ninth circuit did not explain how time during  which no collateral attack is pending in state  court may be deemed time "during which a properly  filed application for State . . . collateral  review . . . is pending"; Saffold does not  analyze the language of sec.2244(d)(2). Indeed,  the ninth circuit may not have appreciated the  existence of the other three possibilities and  does not indicate why it chose the fourth--and  this despite Judge O'Scannlain's dissent, which  challenged the lack of a reason underpinning the  majority's conclusion. All the majority said for  itself is that Nino v. Galaza, 183 F.3d 1003 (9th  Cir. 1999), supported its conclusion. But Nino presents a different issue: is time following an  appellate court's decision, and preceding a  timely application for discretionary review,  excluded from the calculation under  sec.2244(d)(2)? Nino's affirmative answer, with  which we agree, see also Swartz v. Meyers, 204  F.3d 417, 424 (3d Cir. 2000); Taylor v. Lee, 186  F.3d 557 (4th Cir. 1999), does not establish that  an untimely request receives the same treatment.  It is sensible to say that a petition continues  to be "pending" during the period between one  court's decision and a timely request for further  review by a higher court (provided that such a  request is filed); it is not sensible to say that  the petition continues to be "pending" after the  time for further review has expired without  action to continue the litigation. That a request  may be resuscitated does not mean that it was  "pending" in the interim. Under the majority's  approach in Saffold, if a prisoner let ten years  pass before seeking a discretionary writ from the  state's highest court, that entire period would  be excluded under sec.2244(d)(2) as long as the  state court denied the belated request on the  merits. That implausible understanding of  sec.2244(d)(2) would sap the federal statute of  limitations of much of its effect.


14
Saffold's approach also would give  sec.2244(d)(2) a Cheshire-cat like quality, both  there and not there at the same time. Suppose  Fernandez had applied for federal collateral  relief in February 1998 without seeking review by  the Supreme Court of Illinois. That application  unquestionably would have been out of time. Next  suppose that, after the federal court dismissed  his petition, he asked the Supreme Court of  Illinois for permission to file an untimely  petition for leave to appeal, and that court  accepted the petition but denied leave to appeal.  Under Saffold the clock would be reset; it would  be as if a proper state petition had been pending  the whole time, and Fernandez would be able to  file a timely federal petition. Retroactive  changes in timeliness are bad enough; if, as  Saffold tells us, the state petition really had  been pending the whole time, then Fernandez's  first federal petition in this hypothetical  sequence should have been dismissed or stayed for  failure to exhaust state remedies--for a state  prisoner can't obtain federal relief while "a  properly filed application for State . . .  collateral review . . . is pending" in state  court. But of course a federal court would not  dismiss a petition on exhaustion grounds after  the state process had come to an end and the time  for review had expired. The court would say,  correctly, that no state process was pending or  available. State processes ended when the time to  seek further review expired. They may be revived,  but the prospect of revival does not make a case  "pending" in the interim. Saffold implements a  make-believe approach, under which petitions were  continuously pending whenever a state court  allows an untimely filing. We prefer reality. An  untimely petition is just that; it is filed when  it is filed, and it was not "pending" long before  its filing. We decline to follow Saffold.  (Because this decision creates a conflict among  the circuits, it was circulated before release to  all judges in active service. See Circuit Rule  40(e). No judge requested a hearing en banc.)


15
Saffold has two additional problems, each of  which would lead us to reject its conclusion even  if we agreed with its understanding of the "time  during which a properly filed application for  State . . . collateral review . . . is pending".  First, Saffold did not ask for leave to file an  untimely petition for discretionary review of the  appellate decision rejecting his claim. He filed  an original petition for a writ of habeas corpus.  It is not possible to call this a continuation of  the earlier petition that keeps the initial  petition "pending" for purposes of  sec.2244(d)(2). It is more like an application  for leave to commence a new collateral  proceeding. Second, the Supreme Court of  California did not deny Saffold's petition  without comment. Instead it denied the petition  "on the merits and for lack of diligence." The  ninth circuit held that a dual-ground denial is  one on the merits, and that the additional  finding of procedural default must be ignored for  federal purposes. That conclusion cannot be  reconciled with Harris, 489 U.S. at 264 n.10, a  case that Saffold did not cite. Harris holds that  when a state court invokes a rule of forfeiture  under state law and resolves the merits as an  alternative ground, both rulings must be  respected when the petitioner applies to federal  court. Saffold should have disregarded all time  after the decision by the state's court of  appeals. In our case, by contrast, the Supreme  Court of Illinois excused the untimeliness as a  matter of state law and ruled on the merits. So  174 days are excluded under sec.2244(d)(2). This  is not enough to make Fernandez's petition  timely, so the judgment of the district court is

Affirmed
