222 F.3d 286 (7th Cir. 2001)
Uluches Jefferson,    Petitioner-Appellant,v.George C. Welborn,    Respondent-Appellee.
No. 99-2337
In the  United States Court of Appeals  For the Seventh Circuit
Submitted May 4, 2000Decided June 29, 2000

Appeal from the United States District Court   for the Northern District of Illinois, Eastern Division.  No. 98 C 3342--James F. Holderman, Judge.
Before Posner, Chief Judge, and Easterbrook and Diane  P. Wood, Circuit Judges.
Diane P. Wood, Circuit Judge.


1
This proceeding  concerns the petition that Uluches Jefferson  filed for a writ of habeas corpus pursuant to 28  U.S.C. sec. 2254. The district court dismissed  the petition as untimely, see 28 U.S.C. sec.  2244(d), and declined to issue a certificate of  appealability. Jefferson now has filed a request  for a certificate of appealability, through which  he seeks an opportunity to have the district  court consider his claims on the merits. (The  Supreme Court's recent decision in Slack v.  McDaniel, 120 S. Ct. 1595 (2000), makes it clear  that a certificate of appealability may be  granted on this kind of procedural ground.)


2
While Jefferson's direct appeal was still  pending before the Illinois Appellate Court, he  filed his post-conviction petition, which the  trial court subsequently denied. Thereafter, in  orders entered on September 17, 1996 (direct  appeal) and November 6, 1996 (post-conviction  appeal), the Illinois Appellate Court affirmed  both his conviction, on direct appeal, and the  denial of his post-conviction petition. On July  17, 1997, Jefferson moved for leave to file a  late petition for leave to appeal both decisions  to the Illinois Supreme Court. On September 24,  1997, the Illinois Supreme Court issued an order  in which it granted Jefferson's motion for leave  to file a late petition for leave to appeal.  Several months later, in a routine order dated  December 3, 1997, the court denied his petition  for leave to appeal.


3
Whether Jefferson is entitled to his certificate  of appealability depends on whether the district  court correctly applied the rules governing the  limitations period for filing sec. 2254 petitions  that are found in 28 U.S.C. sec. 2244(d). Subpart  (1) of that section establishes a one-year period  of limitations that runs from various points--in  Jefferson's case, from the date on which the  judgment became final by the conclusion of direct  review or the expiration of the time for seeking  such review. See sec. 2244(d)(1)(A). Subpart (2)  of the same section provides that the time during  which a "properly filed" application for state  post-conviction relief is pending "shall not be  counted" toward the period of limitation.


4
In denying Jefferson's request for a certificate  of appealability, the district court concluded,  on the authority of Tinker v. Hanks, 172 F.3d 990  (7th Cir. 1999), that the time had to be  calculated from the actions of the Illinois  Appellate Court, because a mere petition for  permission to file a late appeal was insufficient  to toll the time under sec. 2244(d)(2). But in so  ruling, it did not have the benefit of our later  decision in Freeman v. Page, 208 F.3d 572 (7th  Cir. 2000), nor did it take into account the fact  that the application Tinker had filed in his case  was for a successive collateral attack and it was  eventually denied by the state court, while  Jefferson simply obtained an extension of time to  file his appeals in both his direct appeal and  his post-conviction appeal--something that  happens routinely in litigation.


5
The Illinois Supreme Court is, of course, the  master of its own procedural rules, including the  rules governing the time for appeal and any  exceptions to those rules it chooses to  recognize. Here, the court issued two separate  orders, one directed to the timeliness of  Jefferson's petition for leave to appeal and the  other directed to the petition itself. We can  therefore say with some confidence that the order  of December 3, 1997, denying leave to appeal, did  not rest on the procedural ground of  untimeliness, because that question had been  addressed and resolved in the July 24 order. As  such, we believe it is proper to treat the  December 3 order as a substantive rejection of  Jefferson's petition.


6
Sometimes, of course, we will not have the  benefit of the two separate orders that are  present in this case. In those instances, the  question is how to treat an order that says  nothing about its basis (which is the case with  most orders from supreme courts that are denying  discretionary review). We think that the Supreme  Court's decision in Harris v. Reed, 489 U.S. 255  (1989), points the way to the answer. In that  case, the Court held that "a procedural default  does not bar consideration of a federal claim on  either direct or habeas review unless the last  state court rendering a judgment in the case  clearly and expressly states that its judgment  rests on a state procedural bar." Id. at 263  (internal quotations omitted). Similarly here, if  the last word from the state supreme court does  not reveal whether a procedural bar or a  substantive lack of merit motivated its ruling,  we will presume it is the latter for purposes of  sec. 2244(d), unless "the last reasoned opinion  on the claim explicitly impose[d] a procedural  default," which the denial of review by the state  supreme court does not disturb. See Ylst v.  Nunnemaker, 501 U.S. 797, 803 (1991).


7
In this case, as of July 17, 1997, Jefferson  was still engaged in the process of pursuing his  state court remedies (both his direct appeal and  his post-conviction petition, in his case), as he  is required to do under O'Sullivan v. Boerckel,  526 U.S. 838 (1999). The Illinois Supreme Court  decided, as it was entitled to do, to accept the  July 17 petition for normal consideration, and it  later issued an order denying review. The  Illinois Appellate Court had not relied on procedural default from any action of  Jefferson's. The problem, to the extent there was  one, arose between the appellate court and the  supreme court, and the supreme court order of  July 24 indicates that it was not rejecting the  petition on timeliness grounds. This course of  events was enough to make his appeal in his state  proceeding one that was properly filed for  purposes of computing his time for filing a  petition for collateral relief in federal court.


8
We explained in Freeman that the words  "properly filed" in 28 U.S.C. sec. 2244(d)(2)  take their meaning from state practice:


9
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.


10
208 F.3d at 576. Here, in the sense that matters,  the Illinois Supreme Court considered Jefferson's  claims "on the merits"; hence, it was "properly  filed" for purposes of sec. 2244(d)(2). This  means in turn that the one-year statute of  limitations found in sec. 2244(d)(1) was tolled  from July 17 to December 3, 1997, the date that  the Illinois Supreme Court denied petitioner's  petition for leave to appeal. With that time  excluded, Jefferson's filing on March 12, 1998,  was within the permitted time, and the district  court should not have dismissed his sec. 2254  petition on that ground.


11
As the Supreme Court suggested in Slack, 120 S.  Ct. at 1604, we have also taken a quick look at  the claims Jefferson wants to raise in his  petition. If they were all utterly without merit,  we could affirm the dismissal on that alternative  ground. But we do not find them so thoroughly  lacking that such a step would be appropriate  right now. Jefferson raises five claims: (1)  ineffective assistance of counsel; (2) denial of  due process; (3) a Brady violation; (4)  sufficiency of the evidence; and (5) the trial  court erred in allowing a surprise witness at  sentencing. At least some of these claims,  facially allege the "denial of a constitutional  right."


12
We think it preferable for the district court  to make the first assessment of their underlying  merit. We therefore Grant the certificate of  appealability and Remand the case to the district  court for further proceedings consistent with  this order.

