                           In the
United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 01-1584
LYNN BROOKS,
                                          Petitioner-Appellant,
                               v.

JONATHAN R. WALLS, Warden,
Menard Correctional Center,
                                         Respondent-Appellee.
                        ____________
           Appeal from the United States District Court
                 for the Central District of Illinois.
          No. 00-4049—Joe Billy McDade, Chief Judge.
                        ____________
                    On Petition for Rehearing
                        ____________
                 DECIDED AUGUST 23, 2002
                      ____________


 Before COFFEY, EASTERBROOK, and RIPPLE, Circuit
Judges.
  EASTERBROOK, Circuit Judge. Lynn Brooks’ federal col-
lateral attack on his state conviction is untimely unless his
prior collateral attack in state court satisfies 28 U.S.C.
§2244(d)(2): “The time during which a properly filed ap-
plication 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.” Following Fernandez v. Sternes, 227 F.3d
2                                                 No. 01-1584

977 (7th Cir. 2000), and Jefferson v. Welborn, 222 F.3d 286
(7th Cir. 2000), plus dictum in Artuz v. Bennett, 531 U.S. 4,
8 (2000), we held earlier this year that Brooks’ federal
proceeding is barred by the one-year period of limitations in
§2244(d)(1)(A). See 279 F.3d 518 (2002). We started from
the premise that an untimely application for state collateral
relief is not “properly filed” and therefore does not extend
the time in which to file a federal petition. In this case, both
trial and appellate courts in Illinois held that Brooks’
petition had been filed too late under 725 ILCS 5/122-1(c),
which gives a prisoner a maximum of six months from the
conclusion of direct review to commence a collateral attack.
  A proviso in §5/122-1(c) gives extra time to a prisoner who
“alleges facts showing that the delay was not due to his or
her culpable negligence.” Inquiry into “culpable negligence”
may overlap the merits. If, for example, the prisoner con-
tends that the prosecutor withheld material exculpatory
evidence, see Brady v. Maryland, 373 U.S. 83 (1963), the
concealment also may explain why delay in filing the
petition is not the prisoner’s fault. A court must decide
whether withholding occurred (and whether the defendant
should have found the information on his own anyway)
before coming to a conclusion about timeliness. Moreover,
some appellate decisions have suggested that trial courts
should be more willing to find a lack of “culpable negli-
gence” when the prisoner’s substantive claim involves
ineffective assistance of counsel, for bad advice about filing
deadlines may be one aspect of substandard assistance, and
many ingredients of an ineffective-assistance claim take
time to discover. See, e.g., People v. Whitford, 314 Ill. App.
3d 335, 732 N.E.2d 649 (5th Dist. 2000). Cf. People v.
Rissley, 2001 Ill. LEXIS 241 (Mar. 15, 2001) (bad legal ad-
vice rendered after the conclusion of the direct appeal does
not show lack of culpable negligence, because the entitle-
ment to appointed counsel ends with the appellate process).
Thus Illinois courts sometimes examine the merits, at least
No. 01-1584                                               3

in a preliminary way, before deciding whether a petition is
timely. Brooks, who received the benefit of a joint inquiry
into timeliness and the merits, contended that his applica-
tion therefore must have been “properly filed” for purposes
of §2244(d)(2) as Artuz understood that phrase. We dis-
agreed and held by parallel to Harris v. Reed, 489 U.S. 255,
264 n.10 (1989), that a dual-ground decision—one that rests
on both the merits and a finding of untimeliness—means
that the petition was not “properly filed”. Federal courts
must respect both aspects of a dual-ground holding, we
concluded.
  Brooks’ petition for rehearing and rehearing en banc
contends that under Artuz every petition that induces a
state court to address the merits of the claim must have
been “properly filed” and that Rice v. Bowen, 264 F.3d 698
(7th Cir. 2001), commits the circuit to that reading of
§2244(d)(2). The petition also contends that our holding
conflicts with Smith v. Walls, 276 F.3d 340 (7th Cir. 2002),
a decision of another panel released contemporaneously and
not discussed in our opinion. (Rice, by contrast, was dis-
cussed at length.) We deferred consideration of the petition
until the Supreme Court released its decisions in Carey v.
Saffold, 122 S. Ct. 2134 (2002), and Stewart v. Smith, 122
S. Ct. 2578 (2002). The first of these presented a question
about the relation between timeliness and §2244(d)(2), and
the second arose from a decision of the ninth circuit that
our opinion had declined to follow. Both of these decisions
had the potential to affect the outcome here.
   Saffold shows that our decision was correct. The question
in Saffold was whether an original petition for collateral
relief, filed in the Supreme Court of California, counted as
a “properly filed” application given California’s unusual
system of collateral review. The Court’s conditionally af-
firmative answer—yes, if the application is timely under
state practice—refutes Brooks’ principal submission. For
4                                                No. 01-1584

Saffold tells us (ending any ambiguity left by Artuz) that to
be “properly filed” an application for collateral review in
state court must satisfy the state’s timeliness requirements.
This means that decisions such as Nara v. Frank, 264 F.3d
310 (3d Cir. 2001); Smith v. Ward, 209 F.3d 383 (5th Cir.
2000); Emerson v. Johnson, 243 F.3d 931 (5th Cir. 2001);
and Dictado v. Ducharme, 244 F.3d 724 (9th Cir. 2001), to
the extent they hold that petitions untimely under state
rules nonetheless may be deemed “properly filed,” were
wrongly decided. Saffold added (122 S. Ct. at 2141):
    If the California Supreme Court had clearly ruled
    that Saffold’s 4½-month delay was “unreasonable,”
    [California’s word for “untimely”] that would be the
    end of the matter, regardless of whether it also
    addressed the merits of the claim, or whether its
    timeliness ruling was “entangled” with the merits.
This addresses Brooks’ remaining contentions. Saffold tells
us that both aspects of a dual-ground decision (substance
and procedure) must be respected, so that an untimely
petition is not “properly filed” even if the court also ad-
dresses the merits—whether or not the “timeliness ruling
was ‘entangled’ with the merits.” So even when the decision
about timeliness depends in part on some aspect of the
merits, a conclusion that the petition had been filed too late
for purposes of state practice means that it was not “prop-
erly filed” for purposes of §2244(d)(2).
  Stewart v. Smith, read in conjunction with Ake v. Okla-
homa, 470 U.S. 68 (1985), suggests that the word “entan-
gled” in Saffold must not be confused with “dependent.” In
the course of reversing a decision that our opinion had
declined to follow, the Supreme Court wrote that a state’s
consideration of the nature of the constitutional claim being
presented does not prevent its decision from representing
an independent and adequate state ground. Only if the
nominally procedural decision actually “rested primarily on
No. 01-1584                                                 5

a ruling on the merits” (122 S. Ct. at 2581) would independ-
ence be compromised. It is easy to see how a timeliness
inquiry (or any other aspect of the decision whether a
collateral attack was “properly filed”) could be so dependent
on the merits that it really represented nothing but a
decision on the merits. Suppose Illinois had a rule (like
California’s) requiring a collateral attack to be commenced
within a “reasonable” time and added that any meritorious
filing would be deemed to satisfy that rule. Then a conclu-
sion that a particular application was late would represent
nothing except disagreement with the petitioner’s consti-
tutional argument. In such a system the only sensible
understanding would be that every collateral attack was
timely for purposes of state law, because every one was
enough to precipitate a decision on the merits.
  Illinois, however, does not have such a system. Its time-
liness rule is quantitative (six months from the end of the
direct appeal or three years from the conviction, whichever
is sooner), and the exception for delay that is not attribut-
able to “culpable neglect” is stated in terms that are neutral
with respect to the substantive theory of relief. The main
function of the exception is to handle contentions that de-
pend on facts that belatedly come to light. And although
these facts may give rise to constitutional theories, the
justification for delay is in the normal case independent of
their merit. A belated Brady contention, for example, could
be justified on the ground that the defendant learned the
information outside the six-month period, but the claim still
would fail if the information were not material or any error
were harmless. Unless the Supreme Court of Illinois tells
us otherwise, therefore, we shall treat untimeliness de-
cisions under 725 ILCS 5/122-1(c) as independent of the
merits, even if potentially “entangled” with them. Dual-
ground decisions in Illinois, as in most other states, there-
fore mean (as Saffold said) that the state application was
not “properly filed”.
6                                                No. 01-1584

   Neither Rice nor Smith v. Walls is incompatible with this
conclusion. Smith v. Walls holds that a successive collateral
attack in Illinois is not automatically outside the domain
of “properly filed” collateral attacks. Nothing in Illinois
law permits such filings—but neither does any rule forbid
them or subject them to prior-approval requirements, as in
Indiana. See Tinker v. Hanks, 255 F.3d 444 (7th Cir. 2001).
An application is “properly filed” under Artuz when its “de-
livery and acceptance are in compliance with the applicable
laws and rules governing filings” (531 U.S. at 8). A succes-
sive application in Indiana is not in accord with procedural
rules, unless the state court has granted advance permis-
sion; a successive application in Illinois may be in confor-
mity with these rules. Brooks reads Smith v. Walls to say
that every successive application in Illinois is “properly
filed”, and as most successive applications will be outside
the six-month limit set by 725 ILCS 5/122-1(c) this must
mean that timeliness is not essential to proper filing. Yet
Smith v. Walls held no such thing. Illinois did not argue
that Smith’s successive application had been rejected as
untimely or was procedurally irregular in some other way.
Any given successive application may fit within the proviso
for delay that was not caused by the prisoner’s “culpable
negligence.” Smith v. Walls had nothing to say one way or
the other about delay; and we know from Saffold that if a
state court in the future dismisses a successive application
as untimely, that decision will establish that the application
was not “properly filed” (unless the timeliness decision was
so dependent on the merits that the interaction went
beyond “entanglement”).
  As for Rice: although our original opinion was critical of
that decision, we did not purport to overrule it. Although
language in Rice suggesting that an application necessarily
was “properly filed” if any state court addressed the merits
cannot be reconciled with Saffold, the Supreme Court’s de-
cision leaves open a second way to understand the outcome
No. 01-1584                                                 7

in Rice. In that case, the state’s trial court summarily dis-
missed the application as frivolous (a merits decision) with-
out mentioning timeliness; the appellate court affirmed in
a brief decision mentioning both timeliness and the merits
but not discussing the relation between them. This created
ambiguity because Rice had contended that the state for-
feited its timeliness argument by not presenting it to the
trial court. The appellate court’s failure to discuss this
problem, and the brevity of its order, did not rule out the
possibility that the court thought that any frivolous petition
must be untimely as well. A reader could not readily tell
whether the appellate court deemed the application untime-
ly because it was late or because timeliness and the merits
came to the same thing. If the former, then the application
was not “properly filed”; if the latter, then it was properly
filed, was decided on the merits (exclusively), and the time
to seek federal review was tolled by §2244(d)(2). In Saffold
itself the Supreme Court concluded that a decision of the
Supreme Court of California denying an original application
“on the merits” and for “lack of diligence” was ambiguous;
“lack of diligence” differs linguistically from “unreasonable
delay,” that court’s canonical phrase for “untimely,” and the
Justices concluded that perhaps in state practice the
phrases have a different meaning. They remanded so that
the district court or court of appeals could unravel the
ambiguity. Because it is possible for a timeliness decision
under 725 ILCS 5/122-1(c) to be entirely dependent on the
merits (as opposed to just “entangled” with the merits),
courts must pay careful attention to the reasons why
particular collateral attacks fail in Illinois and may have to
follow the example of Saffold. It seems best to us to treat
Rice as such a case, which today would be handled using
Saffold’s language but would not necessarily come out dif-
ferently. But it is not necessary to tie up all loose ends. It
is enough to hold, as Saffold instructed, that an unambigu-
ous dual-ground decision (untimeliness plus the merits)
8                                               No. 01-1584

shows that the state application was not “properly filed” for
purposes of §2244(d)(2) even if the issues were entangled.
  The petition for rehearing is denied. No judge called for
a vote on the petition for rehearing en banc, which there-
fore is denied.

A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                    USCA-97-C-006—8-23-02
