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

No. 01-3914
JAMES A. FARMER,
                                       Petitioner-Appellant,
                             v.

JON E. LITSCHER, SECRETARY,
WISCONSIN DEPARTMENT OF CORRECTIONS,
                                       Respondent-Appellee.
                       ____________
           Appeal from the United States District Court
               for the Eastern District of Wisconsin.
     No. 99-C-1119—Aaron E. Goodstein, Magistrate Judge.
                       ____________
No. 01-4036
EMMETT WHITE,
                                       Petitioner-Appellant,
                             v.

PHILLIP KINGSTON, WARDEN,
COLUMBIA CORRECTIONAL INSTITUTION,
                                       Respondent-Appellee.
                       ____________
          Appeal from the United States District Court
              for the Eastern District of Wisconsin.
     No. 98-C-901—Aaron E. Goodstein, Magistrate Judge.
                       ____________
  SUBMITTED JUNE 3, 2002—DECIDED SEPTEMBER 18, 2002
                     ____________
2                                      Nos. 01-3914 & 01-4036

    Before BAUER, EVANS, and WILLIAMS, Circuit Judges.
  BAUER, Circuit Judge. The appellants are state pris-
oners who petitioned the district court pro se for writs
of habeas corpus under 28 U.S.C. § 2254. By consent of
the parties, see 28 U.S.C. § 636(c), the district court re-
ferred both cases for all proceedings to Magistrate Judge
Goodstein, who denied the petitions and refused to issue
certificates of appealability. 28 U.S.C. § 2253(c)(1). The
appellants now seek certificates from us. We consolidated
the cases and directed counsel to brief the following ques-
tion: does a magistrate judge acting with the parties’ con-
sent have the authority under § 636(c) to issue a final
judgment in a § 2254 proceeding?1


                                I.
  Answering this question requires us to consider whether
Congress intended to vest magistrate judges with the
questioned authority and, if so, whether that delegation of
authority runs afoul of Article III of the United States
Constitution. We must tackle the statutory question first.
See ISI Int’l, Inc. v. Borden Ladner Gervais LLP, 256 F.3d
548, 552 (7th Cir. 2001) (“[F]ederal courts are supposed
to do what they can to avoid making constitutional deci-
sions, and strive doubly to avoid making unnecessary con-
stitutional decisions.”).
  Section 636 of the Federal Magistrate Act governs the
jurisdiction and powers of magistrate judges and provides
in relevant part:


1
  We appointed Howard B. Eisenberg for the limited purpose of
briefing this question on behalf of the appellants. We are in-
debted to Mr. Eisenberg, who passed away shortly after filing
the appellants’ brief, for his assistance in elucidating the issue
before us.
Nos. 01-3914 & 01-4036                                     3

    Upon the consent of the parties, a full-time United
    States magistrate or a part-time United States magis-
    trate who serves as a full-time judicial officer may
    conduct any or all proceedings in a jury or nonjury civil
    matter and order the entry of judgment in the case,
    when specially designated to exercise such jurisdiction
    by the district court or courts he serves . . . .
28 U.S.C. § 636(c)(1).
  Because the parties consented and the district court
referred the cases to Magistrate Judge Goodstein, the only
relevant question is whether a habeas corpus proceeding
is a “civil matter” under § 636(c). A number of our sister
circuits have answered in the affirmative, see United States
v. Johnston, 258 F.3d 361, 366 (5th Cir. 2001) (28 U.S.C.
§ 2255); Norris v. Schotten, 146 F.3d 314, 324 (6th Cir.
1998) (§ 2254); Orsini v. Wallace, 913 F.2d 474, 476 (8th
Cir. 1990) (§ 2254), and we agree. The appellants rightly
observe that § 2254 petitions differ from other civil ac-
tions because they arise from criminal cases. See Harris v.
Nelson, 394 U.S. 286, 294 (1969) (“Essentially, the [habeas
corpus] proceeding is unique.”); Walker v. O’Brien, 216 F.3d
626, 636 (7th Cir. 2000) (“[H]abeas corpus petitions are
a group unto themselves.”). Nevertheless, a § 2254 peti-
tion is a “civil matter” in the larger sense—in the sense
that it is not a criminal matter. See Walker, 216 F.3d
at 636. Habeas corpus cases had been characterized as
civil actions since long before Congress passed the Fed-
eral Magistrate Act. See, e.g., Fisher v. Baker, 203 U.S.
174, 181 (1906). We must presume that Congress knew
when it passed the Federal Magistrate Act that habeas
corpus cases are commonly understood to be civil actions,
and that Congress therefore would have drafted § 636(c)
to exclude habeas corpus proceedings expressly if that
were the intention. See Faragher v. City of Boca Raton,
524 U.S. 775, 792 (1998) (Congress is presumed to be
aware of relevant legal precedents when it legislates).
4                                    Nos. 01-3914 & 01-4036

  But what of the language in § 636(b)(1)(B)? That sec-
tion provides that a district judge may “designate a magis-
trate to . . . submit to a judge of the court proposed findings
of fact and recommendations for the disposition, by a judge
of the court, . . . of applications for posttrial relief made
by individuals convicted of criminal offenses,” see 28 U.S.C.
§ 636(b)(1)(B)—in other words, habeas corpus petitions.
See Porter v. Nussle, 122 S. Ct. 983, 989 (2002). Sec-
tion 636(c) does not include such language; it says noth-
ing about applications for postconviction relief. The ap-
pellants argue that if Congress had intended to include
§ 2254 petitions in § 636(c) it would have parroted the
“posttrial relief” language in § 636(b). Therefore, the appel-
lants argue, § 2254 petitions cannot be “civil matters” under
§ 636(c). We disagree. Section 636(b)(1)(B) does not limit
§ 636(c); instead they are independent provisions that
address different circumstances. Section 636(b) defines a
magistrate judge’s authority when a district judge refers
a matter to the magistrate judge without the parties’
consent. Section 636(c), on the other hand, defines the mag-
istrate judge’s authority when both designation and con-
sent are present. See Members v. Paige, 140 F.3d 699, 701
(7th Cir. 1998); Alpern v. Lieb, 38 F.3d 933, 935 (7th Cir.
1994). Thus, with consent, a magistrate judge can enter
a final judgment in a habeas corpus proceeding under
§ 636(c); without it, a magistrate judge’s authority is lim-
ited to making a recommendation to the district judge
under § 636(b). See Orsini, 913 F.2d at 476 (“[T]he plain
language of section 636(c)—even in light of the specific
inclusion of habeas petitions in section 636(b)(1)(B)—
indicates that magistrates . . . have jurisdiction to order
entry of judgment in a habeas case.”).
  Moreover, the appellants’ construction ignores that
§ 636(b)(1)(B) also expressly includes “prisoner petitions
challenging conditions of confinement.” Like applications
for postconviction relief, § 636(c) says nothing about chal-
Nos. 01-3914 & 01-4036                                      5

lenges to conditions of confinement. Following the appel-
lants’ logic, then, Congress did not intend to include ac-
tions challenging conditions of confinement under 42
U.S.C. § 1983 as “civil matters” under § 636(c). But that
interpretation cannot be right. Section 1983 cases are
indisputably civil matters. And we note that magistrate
judges have entered final judgments in § 1983 cases
in a number of circuits without raising any jurisdic-
tional eyebrows. See Hains v. Washington, 131 F.3d 1248
(7th Cir. 1997); Brown v. Harris, 240 F.3d 383 (4th Cir.
2001); Berry v. Brady, 192 F.3d 504 (5th Cir. 1999); Lake
v. Arnold, 112 F.3d 682 (3d Cir. 1997); Porter v. Fox, 99
F.3d 271 (8th Cir. 1999). We see no reason to treat habeas
corpus petitions differently. Accordingly, we join the
other courts of appeals that have considered the question
in concluding that, based on the parties’ consent, § 636(c)
confers on magistrate judges the authority to enter final
judgments in § 2254 proceedings.


                             II.
  We turn then to the question whether application of
§ 636(c) to § 2254 cases is an unconstitutional delegation of
the judicial power in violation of Article III. Preliminarily,
we reject the State’s contention that the appellants waived
any constitutional challenge to Magistrate Judge Good-
stein’s authority because they consented to it. When the
question is whether Congress has legitimately transferred
jurisdiction to non-Article III tribunals “the parties can-
not by consent cure the constitutional difficulty for the
same reason that the parties by consent cannot confer on
federal courts subject-matter jurisdiction beyond the lim-
itations imposed by Article III.” Commodity Futures Trad-
ing Comm’n v. Schor, 478 U.S. 833, 850-51 (1986).
  As to the merits, although the Supreme Court has yet
to weigh in, we and the other circuits have concluded
6                                   Nos. 01-3914 & 01-4036

uniformly that § 636(c) does not run afoul of Article III.
See Geras v. Lafayette Display Fixtures, Inc., 742 F.2d 1037
(7th Cir. 1984); Johnston, 258 F.3d at 367-68 (collect-
ing authorities). But the appellants maintain that we
should carve out an exception—that § 2254 proceedings
are not like other civil matters because (1) Article III
“judicial power” includes the power to issue writs of ha-
beas corpus so that delegating the adjudication of § 2254
petitions to magistrate judges constitutes an impermis-
sible suspension of the writ under Article I, Section 9,
Clause 2, (2) allowing a magistrate judge to review the
decisions of state courts creates comity concerns, and (3)
§ 2254 petitions raise constitutional questions that are
too significant for review by a magistrate judge. We are
unpersuaded.
  As to the Suspension Clause, we have held that “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.” Freeman v.
Page, 208 F.3d 572, 576 (7th Cir. 2000). Regardless, we
note that § 2254 petitioners do not lose their right to
§ 2254 relief simply by consenting to a magistrate judge.
The only right any person relinquishes in consenting to
a magistrate judge is the right to have the case heard by
an Article III judge—a waiver that is perfectly permis-
sible under the Constitution. See Peretz v. United States,
501 U.S. 923, 936 (1991) (“[L]itigants may waive their per-
sonal right to have an Article III judge preside over a civil
trial.”); Geras, 742 F.2d at 1041 (same).
  As to the appellants’ comity argument, it does not present
an Article III delegation question. The comity concerns
underlying habeas corpus involve relationships between
sovereigns, that is, state and federal governments. See
Kurzawa v. Jordan, 146 F.3d 435, 441 (7th Cir. 1998). The
Article III delegation question, on the other hand, is wheth-
Nos. 01-3914 & 01-4036                                    7

er allowing magistrate judges to adjudicate § 2254 peti-
tions impermissibly alters the constitutionally mandated
balance of power between the co-equal branches of the
federal government. See Schor, 478 U.S. at 848; see also
City of Los Angeles v. Lyons, 461 U.S. 95 (1983) (treat-
ing Article III questions as separate and distinct from
questions of comity and federalism); Johnston, 258 F.3d
at 368-69 (same). That said, we perceive no infringement
on the province of state courts arising from a magistrate
judge’s adjudication of § 2254 petitions. To the contrary,
the federal government has a paramount interest in the
interpretation and enforcement of the Constitution. It
is precisely because state courts must not be permitted
to have the “last say” on federal constitutional questions
that the Supreme Court has held that state prisoners
must be allowed to raise such questions in federal habeas
corpus proceedings even though they already have been
litigated at the state level. See Kaufman v. United States,
394 U.S. 217, 225 (1969), overruled on other grounds by
Stone v. Powell, 428 U.S. 465 (1976). And § 2254 directs
deference to state courts where necessary to prevent po-
tential conflict. For example, petitioners must first ex-
haust their state-court remedies so that the state has
the first opportunity to correct constitutional defects. 28
U.S.C. § 2254(b); O’Sullivan v. Boerckel, 526 U.S. 838, 848
(1999). Additionally, state-court factual determinations
are presumed correct, and state-court legal determina-
tions on federal constitutional questions generally must
stand unless they constitute an unreasonable application
of federal law, even if incorrect. 28 U.S.C. § 2254(d), (e);
Boss v. Pierce, 263 F.3d 734, 739 (7th Cir. 2001), cert.
denied, 122 S. Ct. 1961 (2002). Magistrate judges are no
less bound by these deferential standards than Article III
judges.
  Neither do we think that Article III precludes magistrate
judges from adjudicating habeas corpus proceedings be-
cause the constitutional issues implicated are sometimes
8                                  Nos. 01-3914 & 01-4036

weighty. The appellants maintain that it is incongruous
to allow magistrate judges to review state felony proceed-
ings by way of § 2254 when they are not permitted to
adjudicate federal felony charges. But this comparison
is unhelpful because the constitutional interests of a
§ 2254 petitioner differ markedly from those of an accused
facing felony charges. A § 2254 petitioner stands con-
victed beyond a reasonable doubt and has either exhausted
the full panoply of state appeals or foregone them. Thus,
a presumption of constitutional regularity attaches to
the conviction, and the § 2254 petitioner bears the bur-
den of overcoming this presumption. See Parke v. Raley,
506 U.S. 20, 29-30 (1992). Not so in a felony criminal
trial where the accused is presumed innocent and has
not yet been afforded all the process he is due. As a
result, in a § 2254 case the weight of constitutional inter-
ests shifts, and greater weight is properly accorded to the
underlying policy of the Federal Magistrate Act to “assist
federal judges in handling an ever-increasing caseload.”
McCarthy v. Bronson, 500 U.S. 136, 143 (1991) (quoting
S. Rep. No. 94-625 at p.2).
  Finally, the appellants also assert a number of argu-
ments about why they believe Article III should preclude
a magistrate judge from adjudicating petitions under 28
U.S.C. § 2241 and motions under § 2255. We leave these
arguments for another day. Section 2241 petitions and
§ 2255 motions differ in significant respects from § 2254
petitions. See Jacobs v. McCaughtry, 251 F.3d 596, 597
(7th Cir. 2001) (contrasting § 2254 and § 2241 petitions);
compare Johnston, 258 F.3d 361 (contrasting § 2254 peti-
tions with § 2255 motions and holding that delegating
authority to magistrate judges to adjudicate § 2255 mo-
tions violates Article III), with United States v. Bryson,
981 F.2d 720 (4th Cir. 1992) (magistrate judge who ac-
cepted guilty plea in felony case could enter final judg-
ment on § 2255 motion with defendant’s consent). We
Nos. 01-3914 & 01-4036                                       9

therefore decline to extend our analysis further than the
narrow question before us.
  For the reasons we have stated, we conclude that Article
III does not prohibit magistrate judges from entering
final judgments in § 2254 proceedings.


                             III.
  We now turn to the appellants’ respective requests for
a certificate of appelability. As to appellant Farmer, on
March 24, 1997, he was convicted in Wisconsin state court
of being a party to a cocaine delivery. He was sentenced
on March 29, 1997. Farmer never appealed, so his con-
viction became final on June 18, 1997, when his time
to seek direct review expired. See Wis. Stat. § 809.30(2)(b)
(1996). Farmer filed his § 2254 petition more than a
year later on September 20, 1999. Thus, Magistrate Judge
Goodstein correctly concluded that the petition is time-
barred and dismissed it. See 28 U.S.C. § 2244(d)(1).2 As
a result, Farmer fails to make “a substantial showing
of the denial of a constitutional right,” see 28 U.S.C.
§ 2253(c)(2), and we must deny his request for a certificate
of appealability.
  Appellant White fairs better. In 1993 a Wisconsin jury
convicted him of four counts of intentional homicide and
one count of attempted intentional homicide. The state
trial court sentenced him to four life terms of imprison-
ment and one term of 25 years’ imprisonment, all to run
consecutively. The state appellate court affirmed on Sep-
tember 16, 1997. White sought review in the state su-
preme court, but his counsel failed to file a timely petition


2
  We note that Farmer also has another conviction, entered
on June 25, 1999, but he does not attack that conviction in his
§ 2254 petition.
10                                  Nos. 01-3914 & 01-4036

for review, and the court rejected the petition as untimely.
White then petitioned the state supreme court to permit
him to file a late petition. White’s proposed petition for
review challenged his conviction on grounds that (1) the
State knowingly presented perjured testimony, (2) the
State violated Brady v. Maryland, 373 U.S. 83 (1963), in
failing to disclose to White that his co-defendant was
testifying for the prosecution pursuant to a plea bargain,
(3) police coerced White’s confession with physical abuse,
(4) White’s trial counsel was ineffective because he failed
to adequately investigate White’s case, call favorable wit-
nesses, present an alibi defense, or impeach the State’s
witnesses, and (5) pretrial publicity deprived White of
a fair and impartial jury. In July 1998 the state supreme
court denied White’s request to file his petition. The court’s
order stated that “[a]fter consideration of . . . the untimely
petition for review itself, this court concludes that al-
though appellate counsel’s failure to timely file the peti-
tion for review constituted deficient performance, White
suffered no prejudice because this court would not have
granted the petition for review in any event.”
  In September 1998 White filed his § 2254 petition reas-
serting the claims he had presented to the state supreme
court in his petition for review. The district court dis-
missed the petition without reaching the merits, conclud-
ing that the state supreme court’s rejection of White’s
petition as untimely constitutes an independent and ade-
quate state procedural ground that bars federal review of
his claims.
  A federal court will not review a question of federal law
decided by a state court if the state-court decision rests
on a state procedural ground that is independent of the
federal question and adequate to support the judgment.
Stewart v. Smith, 122 S. Ct. 2578, 2580-81 (2002); Coleman
v. Thompson, 501 U.S. 722, 729 (1991). But this doctrine
does not apply unless the state court actually relied on
Nos. 01-3914 & 01-4036                                      11

the procedural default as an independent basis for its
decision. Harris v. Reed, 489 U.S. 255, 261-62 (1989); Braun
v. Powell, 227 F.3d 908, 912 (7th Cir. 2000), cert. denied,
531 U.S. 1182 (2001). Thus, if the state-court decision ap-
pears to rest primarily on a merits determination of the
petitioner’s claims, or to be interwoven with those claims,
and does not clearly and expressly rely on the procedural
default, there is no independent and adequate state ground.
Harris, 489 U.S. at 263-65; Coleman, 501 U.S. at 735.
  Here, it is apparent that the state court’s rejection of
White’s petition is interwoven with its merits determina-
tion of his claims. The court stated that it had considered
the petition and determined that White was not prej-
udiced by his counsel’s failure to timely file it “because this
court would not have granted the petition for review in
any event.” As a result, the state supreme court’s rejec-
tion of White’s petition as untimely is not an indepen-
dent and adequate state ground precluding federal review
of his claims. However, we will not reach the merits of
those claims today; the district court should be the first
to make that assessment. See Moore v. Bryant, 295 F.3d
771, 777 (7th Cir. 2002).
  For the foregoing reasons, we DENY Farmer’s request
for a certificate of appealability, but we GRANT White’s
request and summarily VACATE the district court’s dis-
missal and REMAND White’s case for further proceedings
consistent with this opinion. We DENY White’s “Motion
For Substitution Of Appointed Counsel,” filed on August
23, 2002, as moot.
12                             Nos. 01-3914 & 01-4036

A true Copy:
      Teste:

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




               USCA-97-C-006—9-18-02
