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

No. 03-2996
JESSE SMITH,
                                              Petitioner-Appellant,
                                  v.

DEIRDRE BATTAGLIA,*
                                             Respondent-Appellee,
                           ____________
           Appeal from the United States District Court for
          the Northern District of Illinois, Eastern Division.
              No. 98 C 5450—John W. Darrah, Judge.
                           ____________
      ARGUED OCTOBER 5, 2004—DECIDED JULY 13, 2005
                     ____________




    Before POSNER, KANNE, and WOOD, Circuit Judges.
  WOOD, Circuit Judge. Illinois inmate Jesse Smith has
been pursuing a petition for a writ of habeas corpus under
28 U.S.C. § 2254, in the belief that his trial and appellate
lawyers were ineffective in several ways. The district court
dismissed the petition, however, on the ground that it was


*
  In accordance with FED. R. APP. P. 43(c), we have substituted
the current warden of Stateville Correctional Center, Deirdre
Battaglia, for her predecessors in office.
2                                                No. 03-2996

not filed within the one-year period provided by 28 U.S.C.
§ 2244(d). This conclusion followed from a statement by the
Illinois Appellate Court that Smith’s state post-conviction
petition “may be considered untimely.” This language falls
short of being a clear and express ruling on the timeliness
issue. We conclude, for this reason, that his federal habeas
corpus petition was filed in time and that Smith is entitled
to pursue it in the district court.


                              I
  Smith found himself in Illinois’s Stateville Correctional
Center for his part in a shooting incident in February 1991.
Three assailants, including Smith, fatally shot Charlotte
Wilson and wounded Jerome Wilson and two onlookers.
Smith and a co-defendant went to trial in a joint bench trial
in August 1992. Smith was represented by Attorney
Lawrence Vance. Vance began by telling the judge that the
evidence would show that Smith was home on the evening
in question with his female partner, who would be a witness
in the case. This was the only defense Vance ever men-
tioned, but mysteriously, at the trial he did not call Smith’s
partner, Carol Brown, as an alibi witness, even though she
was in the courtroom and ready to testify that Smith had
been with her at all relevant times. Jerome Wilson did
testify, and he identified Smith as one of the shooters.
(Years later, in April 1999, Wilson recanted this testimony
in a sworn affidavit, in which he averred that he “did see
the person who shot Charlotte Wilson and myself on the
night of February 1, 1991, and it absolutely was not Jesse
Smith.” Later, it seems, Wilson recanted the recantation,
and so it is hard to say what story Wilson would give now.)
   The court found Smith guilty of one count of first-degree
murder, for which it sentenced him to an extended term of
80 years’ imprisonment, and three counts of attempted
first-degree murder, for which it imposed concurrent terms
No. 03-2996                                                  3

of 30 years each. The judgment of conviction was entered on
December 14, 1992. Smith appealed, arguing only that the
evidence did not show beyond a reasonable doubt that he
was guilty and that his sentence was excessive. He was
unsuccessful; the state appellate court rejected his ar-
guments, see People v. Barnes and Smith, No. 1-93-1190 &
1-93-1714, cons. (1994), and on October 4, 1995, the Illinois
Supreme Court denied his petition for leave to appeal. He
had until January 2, 1996, to file a petition for certiorari in
the United States Supreme Court, but it appears that he
did not do so.
  Smith filed his pro se petition for state post-conviction
relief, see 725 ILCS 5/122-1, on January 12, 1996, ten days
after the time for seeking certiorari had expired. In it, he
claimed, among other things, that he had been denied his
Sixth Amendment right to the effective assistance of both
trial and appellate counsel (different lawyers) with regard
to his alibi defense. In March 1996, the state circuit court
dismissed the petition. It first found that the petition was
untimely under 725 ILCS 5/122-1(c). At that time, the
statute read as follows:
    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 culpable negligence.
(Emphasis added.)
In Smith’s case, the earliest relevant date was three years
from the date of his conviction, or December 14, 1995.
4                                                No. 03-2996

Although the state post-conviction court appears to have
relied on the version of 725 ILCS 5/122-1 that was in effect
prior to January 1, 1996, that version required the court to
choose the earliest of several dates, one of which was three
years from the date of conviction.
  Using the December 14, 1995, date, the court accordingly
concluded that Smith’s petition was filed almost a month
late. Smith argued that this minor delay should be excused,
because it was the result of a two-month lockdown at the
penitentiary where he was housed rather than his negli-
gence. The court was unpersuaded. It went on, however, to
hold in the alternative that Smith had waived his claim of
ineffective assistance of trial counsel because his appellate
counsel failed to raise the point on appeal. It said nothing
specific about appellate counsel’s possible ineffectiveness for
this oversight, but it finally examined the merits of the
Sixth Amendment claims and held that neither one of
Smith’s lawyers had performed inadequately.
  After Smith appealed the circuit court’s order, his ap-
pointed counsel moved to withdraw, citing Pennsylvania v.
Finley, 481 U.S. 551 (1987). Smith objected, arguing that
the circuit court had erred by finding that his lawyers were
not ineffective. The appellate court granted counsel’s mo-
tion, stating in relevant part:
    The scope of post-conviction review is limited by the
    doctrines of res judicata and waiver which affect all
    claims actually presented in the direct appeal as well as
    those which could have been, but were not. Defendant’s
    assertions of ineffective assistance of trial counsel and
    the trial court’s prejudice are foreclosed under these
    principles, and defendant’s remaining allegations were
    either refuted by the record or insufficient to require
    further proceedings under the Act. In addition,
    defendant’s petition may be considered untimely under
    the amended statute, and the shortcomings of his post-
No. 03-2996                                                  5

    conviction appellate counsel do not present a basis for
    granting the relief sought.
Illinois v. Smith, No. 91 CR 1754, slip op. at 3 (Ill. App. Ct.
Nov. 14, 1996) (unpublished decision) (internal citations
omitted). The Supreme Court of Illinois granted Smith’s
motion for leave to file a late appeal, but denied the petition
for leave to appeal on October 1, 1997.
  On August 28, 1998, Smith filed a pro se petition for
a writ of habeas corpus in the federal court under 28 U.S.C.
§ 2254, again arguing that his trial and appellate counsel
provided ineffective assistance. In an order dated
August 11, 1999, Judge Bucklo held that Smith had raised
these claims throughout his post-conviction proceedings and
appointed a lawyer to represent him. The case was then
administratively transferred to Judge Darrah, who granted
his request for an evidentiary hearing in August 2001. At
the hearing, Carol Brown (the partner) testified that Vance,
Smith’s trial attorney, told her that she did not need to
testify even though she was present at the trial. Vance did
not testify, but the parties stipulated that he would have
said that he could not remember why he did not call Brown
as a witness.
   After the hearing, the state moved to dismiss Smith’s pe-
tition as time-barred. The district court found that Smith’s
state post-conviction petition was indeed not properly filed
because it was late, and thus that his § 2254 petition also
came too late. It dismissed the petition in an order dated
September 28, 2002. The court later granted Smith’s re-
quest for a certificate of appealability, which included the
antecedent procedural question whether the state post-con-
viction proceeding was untimely and the constitutional
question whether Smith received effective assistance of trial
and appellate counsel. Slack v. McDaniel, 529 U.S. 473, 484
(2000).
6                                                No. 03-2996

                              II
   As we have noted already, a state prisoner who seeks
federal habeas corpus relief from a criminal conviction has
in the first instance one year from the date when the
conviction became final to file his petition. 28 U.S.C.
§ 2244(d)(1)(A). Smith’s conviction became final on January
2, 1996, which was the time when his opportunity to file a
petition for certiorari from the Illinois Supreme Court’s
decision denying leave to appeal expired. If Smith had
never filed any post-conviction proceeding, his time for
filing a § 2254 petition would have expired on April 24,
1997, one year after the effective date of the amendments
to the habeas corpus statute made by the Anti-terrorism
and Effective Death Penalty Act that added the one-year
statute of limitations. See Newell v. Hanks, 283 F.3d 827,
833 (7th Cir. 2002). Obviously, Smith’s federal petition was
filed long after 1997. This means that he is out of luck
unless his state post-conviction proceeding tolled the time
available to him for filing.
  Smith filed his pro se post-conviction proceeding soon af-
ter the end of his direct appeal proceedings, on January 12,
1996. The Illinois Supreme Court did not dispose of the
petition until October 1, 1997, about ten months before
Smith filed his federal action. Everything therefore turns on
the question whether Smith’s post-conviction petition was
“properly filed” as § 2244(d)(2) uses that term: if so, then
his § 2254 petition was timely and he is entitled to go
forward with it; if not, then the district court correctly dis-
missed it. See Pace v. DiGuglielmo, 125 S. Ct. 1807 (2005);
Newell, 283 F.3d at 832.
  The answer to this question lies in what the Illinois
Appellate Court meant in the paragraph we quoted earlier.
That court was the last state court to rule on Smith’s
petition, and so its reasoning is critical. See Ylst v.
Nunnemaker, 501 U.S. 797 (1991); Brooks v. Walls, 279 F.3d
No. 03-2996                                                 7

518, 521 (7th Cir. 2002). If the appellate court’s decision
rested on at least two separate grounds for rejecting Smith’s
post-conviction petition—untimeliness and lack
of substantive merit—then Smith cannot prevail. This is
because the untimeliness ground alone would constitute
an adequate and independent state procedural reason for
rejecting his claim, and Smith cannot show cause and pre-
judice to excuse his procedural default. See Brooks, 279 F.3d
at 521 (citing Harris v. Reed, 489 U.S. 255, 264 n.10 (1989)).
We note in this connection that, although ineffective
assistance of counsel is often a legitimate way to overcome
procedural default, it does not apply here, because Smith’s
problem arose in his post-conviction proceeding, at a stage
when he had no Sixth Amendment right to counsel.
  In our view, the appellate court’s decision falls short of
the clear and express reliance on a state procedural bar
that we have called for in the past. See, e.g., Jefferson v.
Welborn, 222 F.3d 286, 288 (7th Cir. 2000). First, as one can
see, the court structured its comments so that it addressed
the merits of Smith’s claims first and only at the end, added
its ambiguous comment about timeliness. Its order of
treatment would not have mattered had it made a clear
alternative ruling, but that is not what it did. Second, we
have no way of knowing what the court meant when it said
that “defendant’s petition may be considered untimely.”
Perhaps it did mean to convey an alternative ruling against
Smith based on the state procedural rule. But it is equally
possible that it was saying that this was a mere possibility,
not a certainty, given the statutory exception for delay that
is not the result of culpable negligence. Had the appellate
court directed its full attention to the culpable negligence
issue, we assume that it would have considered the ques-
tion whether the lockdown (an event outside Smith’s control
as far as we can tell) was enough to excuse Smith’s delay.
  We recognize that Pace holds that a state post-convic-
tion petition that has been rejected by the state court as un-
8                                                 No. 03-2996

timely is not “properly filed” for purposes of § 2244(d)(2). 125
S. Ct. at 1812. Such a petition cannot serve to toll the one-
year period for filing a federal petition for habeas corpus. But
Pace does not change the rule that requires the state court
ruling to be a clear one. Here we do not have an unambigu-
ous holding from the last state court to address the
matter—the Illinois Appellate Court at the post-conviction
stage—to the effect that Smith’s state post-conviction
petition was late. The court’s treatment of the merits of his
claim is enough to make it “properly filed” for purposes of
the tolling rules of 28 U.S.C. § 2244(d)(2). See Brooks,
supra, 279 F.3d at 521.
  With the benefit of tolling during the pendency of his state
post-conviction proceeding, Smith’s federal habeas corpus
petition was filed within the time permitted. On remand,
Smith will have further problems to face. The state argues
that he faces a different procedural bar with respect to his
claim of ineffectiveness of trial counsel, because the ap-
pellate court found that he had waived that argument on
direct appeal. It is possible, however, that Smith may be
able to overcome this procedural default, because he has
also consistently argued that his appellate counsel was inef-
fective for failing to raise the ineffectiveness of trial coun-
sel. If appellate counsel was ineffective in this way, it may
provide cause for Smith’s failure to attack his trial counsel’s
performance on direct appeal. See Lee v. Davis, 328 F.3d
896, 900-01 (7th Cir. 2003). The appellate court said
nothing one way or the other about these points, which will
need to be explored further on remand.
  The judgment of the district court is REVERSED and the
case is REMANDED for further proceedings consistent with
this opinion.
No. 03-2996                                          9

A true Copy:
      Teste:

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




               USCA-02-C-0072—7-13-05
