In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2825

Willie Freeman,

Petitioner-Appellant,

v.

James H. Page, Warden,
Stateville Correctional Center,

Respondent-Appellee.



Appeal from the United States District Court
for the Central District of Illinois.
No. 98-CV-2247--Michael P. McCuskey, Judge.


Argued January 14, 2000--Decided March 28, 2000



  Before Flaum, Easterbrook, and Ripple, Circuit Judges.

  Easterbrook, Circuit Judge. Statutes of
limitations for collateral relief in federal
court are part of the Antiterrorism and Effective
Death Penalty Act. A one-year period for most
state prisoners begins on "the date on which the
judgment became final by the conclusion of direct
review or the expiration of the time for seeking
such review". 28 U.S.C. sec.2244(d)(1)(A). For
Willie Freeman, that means either October 6,
1994, when the Supreme Court of Illinois denied
his petition for leave to appeal, or January 4,
1995, ninety days later (and the last day on
which he could have filed a petition asking the
Supreme Court of the United States to issue a
writ of certiorari). Which of these is "the
conclusion of direct review" is a question left
open in Gendron v. United States, 154 F.3d 672,
674 n.2 (7th Cir. 1998), and one we shall not
have to tackle here. Freeman did not commence his
federal collateral attack until October 22, 1998,
about four years later. The district court
dismissed his petition as untimely, relying on
McClain v. Page, 36 F. Supp. 2d 819 (C.D. Ill.
1999). But Freeman contends that much of the
intervening period should not be counted toward
his year to file.

  The AEDPA took effect on April 24, 1996, and we
stated in Lindh v. Murphy, 96 F.3d 856, 865-66
(7th Cir. 1996), reversed on other grounds, 521
U.S. 320 (1997), that no petition filed by April
23, 1997, may be dismissed as untimely. Gendron
took this liberality one step further by holding
that all delay prior to April 24, 1996, is
excluded from the calculation. Thus although by
his own calculation Freeman accumulated more than
a year of countable time before April 24, 1996,
and did not file by April 23, 1997, Gendron
requires us to ignore all of the pre-AEDPA time. It
is as if "the date on which the judgment became
final" were April 24, 1996. Freeman took two and
a half years more to file under 28 U.S.C.
sec.2254, but he insists that most of that time
is excludable under 28 U.S.C. sec.2244(d)(2):

  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.

Freeman commenced a collateral attack in Illinois
court on November 22, 1995, and it remained
pending until October 31, 1997, when the state’s
court of appeals affirmed the order denying his
petition. People v. Freeman, No. 4-96-0484 (Ill.
App. 4th Dist. Oct. 31, 1997). Freeman then
waited almost an entire additional year to file
his federal collateral attack, but given Lindh
and Gendron he acted in time--if, and only if,
the application for collateral relief in state
court was "properly filed." The district judge
held that it was not "properly filed" because the
state judges did not address Freeman’s petition
on the merits, but instead dismissed it as
untimely under Illinois law. Freeman does not
contest the district court’s major premise that
an untimely petition is not "properly filed" for
the purpose of sec.2244(d)(2). Accord, Bennett v.
Artuz, 199 F.3d 116, 121-23 (2d Cir. 1999)
("properly filed" means "an application for state
post-conviction relief recognized as such under
governing state procedures"); Lovasz v. Vaughn,
134 F.3d 146, 148 (3d Cir. 1998) (a "properly
filed application" is "one submitted according to
the state’s procedural requirements, such as the
rules governing notice and the time and place of
filing"); Holloway v. Corcoran, 980 F. Supp. 160
(D. Md. 1997) (an application is "properly filed"
only if timely), appeal dismissed, 1998 U.S. App.
Lexis 19174 (4th Cir. Aug. 14, 1998) (adopting the
district court’s reasoning); Villegas v. Johnson,
184 F.3d 467, 469 (5th Cir. 1999) (a "properly
filed application" is "one submitted according to
the state’s procedural requirements, such as the
rules governing notice and the time and place of
filing"); Austin v. Mitchell, 200 F.3d 391, 395
n.2 (6th Cir. 1999) (an application is "properly
filed" only if timely); Dictado v. Ducharme, 189
F.3d 889, 892 (9th Cir. 1999) ("properly filed
application" means "an application submitted in
compliance with the procedural laws of the state
in which the application was filed"); Hoggro v.
Boone, 150 F.3d 1223, 1226 & n.4 (10th Cir. 1998)
(a "properly filed" petition must be "timely");
Webster v. Moore, 199 F.3d 1256, 1258 (11th Cir.
2000) (an application is "properly filed" only if
timely). Still, Freeman insists, we should treat
his petition as timely despite the state courts’
resolution of the state-law dispute.

  In the fall of 1995, when Freeman filed his
petition in state court, Illinois law contained
this timeliness rule:

No proceedings under this Article shall be
commenced more than 6 months after the
denial of a petition for leave to appeal
or the date for filing such a petition if
none is filed or issuance of the opinion
from the Illinois Supreme Court or 6
months after the date of the order denying
certiorari by the United States Supreme
Court or the date for filing such a
petition if none is filed or 3 years from
the date of conviction, whichever is
sooner, unless the petitioner alleges
facts showing that the delay was not due
to his culpable negligence.

725 ILCS 5/122-1(c)./* Because leave to appeal
had been denied on October 6, 1994, Freeman had
six months, or until April 6, 1995, to get a
collateral attack under way unless he could show
that the delay (until November 22, 1995) "was not
due to his culpable negligence." He attempted to
do this by alleging that Stateville Correctional
Center, the prison where he has been held, "was
on lock-down for a substantial period of time
prior to and after July 1, 1995." Both the
state’s circuit court and its court of appeals
held this allegation too vague; because Freeman
did not provide particulars (for which days was
the prison locked down? how did the lockdown
prevent him from filing?), the state judges held
that they could not credit Freeman’s assertion
that prison officials are to blame for the
tardiness. That interpretation of what it means
to show "that the delay was not due to . . .
culpable negligence" is a matter of state law
only, and we must accept the state court’s
answer. Gilmore v. Taylor, 508 U.S. 333 (1993);
Estelle v. McGuire, 502 U.S. 62 (1991); Pulley v.
Harris, 465 U.S. 37 (1984); Smith v. Phillips,
455 U.S. 209 (1982); Henry v. Mississippi, 379
U.S. 443, 447 (1965); Garner v. Louisiana, 368
U.S. 157, 166 (1961); Gryger v. Burke, 334 U.S.
728, 731 (1948); Bute v. Illinois, 333 U.S. 640,
668 (1948); Herbert v. Louisiana, 272 U.S. 312,
316 (1926). The way in which "not due to . . .
culpable negligence" works under Illinois law is
not an abstraction declared in some other case,
of questionable application to Freeman’s. In
litigation between Freeman and the state, state
judges concluded that Freeman failed to prove
that delay was "not due to his culpable
negligence". Normal principles of issue
preclusion (collateral estoppel) prevent Freeman
from getting a second opinion.

  Freeman’s submission in state court placed
special emphasis on July 1, 1995, because
sec.5/122-1 changed dramatically that day. On and
after July 1, 1995, a state prisoner must act
within the shortest of the multiple periods
mentioned in the statute. Until then, the
prisoner could choose the longest period--which
for Freeman ended on December 1, 1995, three
years after his conviction. Freeman’s petition in
late November would have been timely under the
old version of the statute, and it may well be
that Freeman filed then because he did not
realize that the statute had been amended. But he
recognized in state court that the amendment
applies to him, just as the state’s appellate
court held. See also People v. Bates, 124 Ill. 2d
81, 124 Ill. Dec. 407, 529 N.E.2d 227 (1988)
(holding that an earlier amendment to sec.5/122-1
applies to all prior convictions). Bates
concluded that the statutory escape hatch (the
petitioner’s ability to show that "delay was not
due to . . . culpable negligence") justifies
immediate application. What is more, "immediate"
in law is not immediate in fact. Unlike the AEDPA,
which took effect as soon as the President signed
the enrolled bill, the amendment to sec.5/122-1
had a deferred effective date. See Illinois
Constitution Art. IV sec.10. The change was made
by sec.15 of Public Act 88-678, II Laws of
Illinois 2732 (1994), which was approved by the
legislature on November 15, 1994, and signed by
the Governor on December 15. Id. at 2735. Persons
affected by the law had six and a half months to
file under the old law--and, as the statute’s
main period of limitations is six months (from
the final appellate decision), this allowed ample
maneuvering room to all those who paid attention.
Most prisoners don’t keep up with the session
laws (though this one might have given rise to
scuttlebutt), but a state may decide the
effective dates of its laws, provided that they
are published--and Illinois publishes its session
laws, though they are not as widely available as
the compiled statutes. Freeman had almost nine
months between the denial of his petition for
leave to appeal and the effective date of the
amendment, three months more than prisoners since
have had to file collateral attacks.
  Freeman now contends that his collateral attack
was "properly filed" because the Constitution of
the United States required Illinois to accept it,
but no case of which we are aware holds that
states must give (say) a year’s notice of
impending statutory changes. As we have observed
already, Freeman had nine months to act, 6
months of which passed after the Governor signed
the amendment. States may abolish collateral
review of criminal judgments. Indeed, as we noted
in Lindh, 96 F.3d at 867-68, even the national
government, to which the Suspension Clause of the
Constitution applies, may eliminate collateral
review of final judgments; the writ that may not
be suspended is the pretrial writ to test the
Executive’s power to hold a suspect without
trial. No prisoner has a constitutional
entitlement to further review of the final
judgment in a criminal case. Illinois made
collateral review harder to obtain but did not
abolish it, and Freeman has no constitutional
complaint.

  Perhaps, however, the words "properly filed" in
sec.2244 (d)(2) do not take their meaning from
state practice. Freeman makes a feeble argument
along these lines, reminding us that the federal
law of forfeiture has a cause-and-prejudice
exception. See Wainwright v. Sykes, 433 U.S. 72
(1977). True enough, but sec.2244(d) creates a
free-standing statute of limitations; it is not
just a reprise of forfeiture principles that have
developed in common-law fashion. Whether the 1995
amendment to Illinois law would be "cause" to
relieve Freeman of a forfeiture under judge-made
law, cf. Liegakos v. Cooke, 106 F.3d 1381 (7th
Cir. 1997), is beside the point. Unless the state
petition was "properly filed," Freeman loses.

  A better argument--though one Freeman does not
make--might be that an action is "properly filed"
when the petitioner offers a colorable argument
for his position under state law, even if the
state eventually rejects the petition on
procedural grounds. But we are not authorized to
rewrite the statute so that "properly filed"
becomes "plausibly filed" or some equivalent
phrase ("filed in good faith," "filed with a bona
fide argument for the application or modification
of state law," etc.). Nor are we disposed to
create a conflict among the circuits (to adopt
this approach, we would have to disagree with the
many cases cited at page 3 above). As written,
sec.2244(d)(2) poses an objective question:
whether the filing in state court was "proper."
Changes of the sort we have mentioned would
convert an objective standard to a subjective
one, making the law much more difficult to apply.
Whether a collateral attack is "properly filed"
can be determined in a straightforward way by
looking at how the state courts treated it. If
they considered the claim on the merits, it was
properly filed; if they dismissed it for
procedural flaws such as untimeliness, then it
was not properly filed. The objective approach
not only facilitates decisionmaking but also
gives the parties a clear benchmark. Everyone
knows exactly when the federal petition is due.
A subjective approach, however, would leave these
essential questions unanswered until there had
been substantial litigation, for there is no
right answer to a question such as "how close to
being ’properly filed’ is close enough?". Cf.
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,
399-405 (1990); Pierce v. Underwood, 487 U.S. 552
(1988).

  Our cases to date follow the objective
approach. For example, Tinker v. Hanks, 172 F.3d
990 (7th Cir. 1999), holds that an unsuccessful
application in state court for leave to file a
second or successive collateral attack does not
toll the time to commence a collateral attack in
federal court. Tinker observed that, if the state
court had permitted the filing, then the
application would have been "properly filed" for
purposes of sec.2244(d)(2), but we held that when
the state court does not permit the filing, that
decision is conclusive under sec.2244(d)(2). We
did not ask whether Tinker had made a plausible
showing; we asked only whether the state court
deemed the filing proper under state law. A
prisoner who seeks but does not receive a
dispensation from state court--an authorization
to file another petition in Tinker, a finding of
"no culpable negligence" here--has not achieved
a "properly filed" state collateral challenge.

  Tinker added that a prisoner who wants to
pursue state relief while assuring an entitlement
to federal relief can protect himself by filing
in both courts. The federal action should be
stayed while the state court decides what to do.
172 F.3d at 991. That is equally true of Freeman.
Before the AEDPA took effect, a state judge told
Freeman that his application was late. That
judicial decision should have disabused Freeman
of any contrary belief; certainly it brought the
statutory amendment forcefully to his attention.
Armed with this knowledge, all Freeman had to do
in order to protect his interests was to file his
federal petition any time before April 24, 1997.
The federal judge likely would have stayed
proceedings until resolution of Freeman’s appeal
in state court. Had the district judge dismissed
the federal petition, we would have reversed;
cases such as Tinker and Post v. Gilmore, 111
F.3d 556 (7th Cir. 1997), show that dismissal is
not proper when that step could jeopardize the
timeliness of a collateral attack. See also,
e.g., Deakins v. Monaghan, 484 U.S. 193, 202-04
(1988).
  Our court has been generous to prisoners. Lindh
and Gendron together restarted every state
prisoner’s clock on April 24, 1996. We extended
the time a little more in Jones v. Bertrand, 171
F.3d 499 (7th Cir. 1999), by applying the "prison
mailbox rule" to collateral attacks. In Taliani
v. Chrans, 189 F.3d 597 (7th Cir. 1999), we held
out the possibility that some prisoners may
invoke equitable tolling or estoppel (neither of
which is applicable here) to justify untimely
petitions. Freeman himself has been using
borrowed time throughout: a strict application of
sec.2244(d) would have slammed the door on April
24, 1996, because more than a year of countable
time had expired by then. Lindh and Gendron gave
Freeman an extra year. It would not be
appropriate to bend the statute yet further on
Freeman’s behalf.

Affirmed


/* To be completely correct, we should say that this
language was at the time the fifth sentence of
sec.5/122-1; it did not become a separately
lettered subsection until 1996. The statute has
been further amended since and now reads: "No
proceedings under this Article shall be commenced
more than 6 months after the denial of a petition
for leave to appeal or the date for filing such
a petition if none is filed or more than 45 days
after the defendant files his or her brief in the
appeal of the sentence before the Illinois
Supreme Court (or more than 45 days after the
deadline for the filing of the defendant’s brief
with the Illinois Supreme Court if no brief is
filed) or 3 years from the date of conviction,
whichever is sooner, unless the petitioner
alleges facts showing that the delay was not due
to his or her culpable negligence." The further
amendments do not apply to Freeman’s petition and
would not affect the outcome even if they did.
