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.

Argued November 29, 2001--Decided February 1, 2002



  Before Coffey, Easterbrook, and Ripple,
Circuit Judges.

  Easterbrook, Circuit Judge. Our appeal
presents a single but important question:
whether the one-year period for filing
federal collateral attacks on state
criminal judgments, see 28 U.S.C.
sec. 2244(d), has any effect on prisoners
of Illinois. Section 2244(d)(2) excludes
from this year any 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". See Artuz
v. Bennett, 531 U.S. 4 (2000). A
collateral attack that is untimely under
state law is not "properly filed." See
Freeman v. Page, 208 F.3d 572 (7th Cir.
2000). But if the state decides not to
enforce its timeliness rules, and
considers on the merits a petition that
could have been dismissed as untimely,
then we treat that petition as "properly
filed" for purposes of sec. 2244(d)(2).
See Fernandez v. Sternes, 227 F.3d 977
(7th Cir. 2000); Jefferson v. Welborn,
222 F.3d 286 (7th Cir. 2000). The
complication is that Illinois permits,
and may require, trial judges to cast at
least a sidelong glance at the merits in
order to determine whether to
excusefailure to meet the deadline. See
725 ILCS 5/122-1; People v. Wright, 189
Ill. 2d 1, 723 N.E.2d 230 (1999); People
v. Coleman, 183 Ill. 2d 366, 701 N.E.2d
1063 (1998). Thus any state prisoner
whose delay was not caused by his own
"culpable negligence" (which forecloses
any consideration of an untimely filing)
receives either plenary review or a judi
cial response along the lines of "this
petition is late; and because it does not
demonstrate a miscarriage of justice, I
have decided not to excuse the
untimeliness."

  Lynn Brooks filed an untimely collateral
attack and received a reply of this kind.
The state’s appellate court affirmed,
holding expressly that Brooks’ filing was
untimely. Nonetheless, Brooks contends
that any consideration of the merits, no
matter how abbreviated, in order to
determine whether to enforce the
timeliness requirement, amounts to a
decision on the merits, which means that
the state judiciary considered the
petition to be "properly filed" even if
the state courts say that the filing was
untimely or procedurally irregular in
some other way. If this is so, then
almost every collateral attack in
Illinois is "properly filed" for purposes
of sec. 2244(d)(2), and the tolling rules
in sec. 2244(d) allow federal collateral
attacks to be commenced long after the
statutory year has expired. The district
court held that Illinois’ willingness to
accept untimely filings in some cases
does not imply that every filing is
timely, and it dismissed Brooks’ federal
petition as untimely--which Brooks
concedes it is, unless the time devoted
to his untimely state petition is
excluded by sec. 2244(d)(2). A judge of
this court issued a certificate of
appealability mentioning only the
statutory timeliness issue. This
certificate does not satisfy 28 U.S.C.
sec. 2253(c)(2). But Brooks contends that
his underlying theories of relief include
at least one substantial constitutional
claim, and as the state did not ask us
before briefing to vacate the certificate
we are entitled to address the antecedent
statutory question. See Slack v.
McDaniel, 529 U.S. 473, 483-85 (2000);
Ramunno v. United States, 264 F.3d 723
(7th Cir. 2001).

  Brooks starts from the major premise,
articulated in Freeman, that proper
filing is a matter of state law:
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.

208 F.3d at 576. He adds the minor
premise that, when deciding whether to
accept an untimely filing, a state court
in Illinois gives some consideration to
the merits. From this consideration of
the merits Brooks concludes that even an
untimely petition is "properly filed" in
Illinois--and even if the state court
holds expressly that it was not timely
and that the delay will not be excused.

  The hidden premise of this syllogism is
that when a state court decides a case on
two grounds--one procedural, the other
related to the merits--then the federal
court ignores the procedural ground and
treats the state’s disposition as if it
had been based wholly on the merits. Yet
Harris v. Reed, 489 U.S. 255, 264 n.10
(1989), held otherwise for purposes of
the independent-and-adequate-state-
grounds doctrine. When a state ground
(such as failure to make a
contemporaneous objection, or to raise an
issue on appeal) supports a state court’s
rejection of an argument based on federal
law, that federal issue cannot be raised
on collateral attack unless the prisoner
shows cause for, and prejudice from, that
default. E.g., Coleman v. Thompson, 501
U.S. 722, 729-35 (1991). We explained in
Fernandez and Jefferson that a decision
with respect to proper filing, as a
state-law procedural ground, should be
treated the way Harris specifies for
other state grounds. This means two
things of particular relevance: first,
that when a state court decides the
merits and asserts a procedural bar, the
federal court must respect both rulings;
second, that when state courts disagree
about the right ground of decision, the
ruling of the last state court to
articulate a reason governs. Ylst v.
Nunnemaker, 501 U.S. 797 (1991); Coleman,
supra. Thus if, for example, a state
trial court accepts an untimely petition,
but the court of appeals rules that the
petition should not have been accepted
and considered, it is the appellate
ruling that controls. And when the last
state court relies on dual grounds, the
procedural ground means that the petition
was not "properly filed."

  Brooks recognizes that under the
approach of Harris (adopted for
sec. 2244(d) cases by Fernandez and
Jefferson) his state collateral attack
was not "properly filed." The state’s
court of first instance relied on both a
procedural ground (untimeliness) and the
merits (to the extent the judge thought
Brooks’ substantive claim too weak to
justify accepting an untimely petition).
The state’s court of appeals relied on
the procedural ground exclusively.
Nonetheless, Brooks contends, we
implicitly overruled Fernandez and
Jefferson (and departed from Harris) when
holding in Rice v. Bowen, 264 F.3d 698
(7th Cir. 2001), that an untimely
petition is "properly filed" for purposes
of state law when the initial state court
treats it as frivolous. A declaration of
frivolousness is "on the merits," the
panel noted in Rice. Our panel observed
in Rice that "[o]ther circuits have . . .
held that if a state’s rule governing the
timely commencement of post-conviction
proceedings contains exceptions requiring
courts to examine the merits of the
petition before dismissing it, the
petition, even if ultimately held to be
time-barred, should be regarded as
properly filed." 264 F.3d at 701-02,
citing Dictado v. Ducharme, 244 F.3d 724,
727-28 (9th Cir. 2001), and Emerson v.
Johnson, 243 F.3d 931, 935 (5th Cir.
2001). Dictado, which states its position
most clearly, held that when a state
court gives two grounds-- one procedural
and resting on state-law conditions for
filing, the other related to the merits
of the federal claim--the procedural
ground is disregarded and the petition
treated as "properly filed" for purposes
of sec. 2244(d). Dictado did not mention
Harris, Fernandez, or Jefferson, nor did
our panel in Rice.

  One panel of this court cannot overrule
another implicitly. Overruling requires
recognition of the decision to be undone
and circulation to the full court under
Circuit Rule 40(e). Rice did not propose
to overrule any decision, and the panel
did not circulate its opinion to the full
court before release. So Fernandez and
Jefferson remain the law of the circuit--
and they are incompatible with Dictado,
at least if that opinion is read broadly.
A narrow reading is possible. The
independent-and-adequate-state-grounds
doctrine, which Fernandez and Jefferson
take sec. 2244(d)(2) to instantiate,
operates only if the state ground is
independent of the federal ground. So if,
for example, a state were to provide
something like "all meritorious
collateral attacks are timely, but no
unmeritorious collateral attack is
timely," then timeliness would not be
independent of the federal constitutional
claim. A declaration that a given
petition had been filed "too late" would
represent no more than the state court’s
decision on the merits; and a state may
not use procedural window dressing to
avoid later federal collateral review.
Perhaps this is what actually happened in
Rice. But we do not think that Illinois
systematically attempts to disguise
resolution of the merits as a disposition
of timeliness. The limit in 725 ILCS
5/122-1 is stated in terms of days, not
in terms of the merits. It lacks the
merits-related exceptions that the aedpa
applies to federal courts. The year for a
federal prisoner to file may be restarted
if, for example, the Supreme Court
renders a novel and retroactive constitu
tional decision. See 28 U.S.C. sec. 2255
para.6(3); Ashley v. United States, 266
F.3d 671 (7th Cir. 2001). Yet it would be
fanciful to say that similar exceptions,
if adopted at the state level, make all
collateral attacks "properly filed"--even
those collateral attacks that are not
based on novel, retroactive developments
in federal law. What Illinois has done
makes even less use of federal law. The
state’s system seems to be modeled after
the doctrine, used by state and federal
courts alike, that untimely filings and
other non-jurisdictional blunders in
criminal cases may be disregarded in
order to correct plain error. Deciding
whether an error is "plain" often entails
at least limited review of the merits.
See Johnson v. United States, 520 U.S.
461 (1997); United States v. Olano, 507
U.S. 725 (1993). And it is settled (at
least in this circuit) that a plain-error
exception to a procedural rule does not
compromise that rule’s quality as an
independent ground of decision.

  Ever since Wainwright v. Sykes, 433 U.S.
72 (1977), federal courts have held that
a defendant’s failure to assert his
constitutional contentions at the time,
and in the manner, required by state law
forfeits any entitlement to federal
collateral review of those contentions,
unless the defendant can show cause for
and prejudice from the omission, or a
miscarriage of justice. Stating the rule
this way builds in a sort of plain-error
exception, on top of the plain-error doc
trine that states apply themselves, yet
the Supreme Court does not view it as
demolishing the rule by eliminating the
"independence" of the procedural ground.
We pointed out in Prihoda v. McCaughtry,
910 F.2d 1379, 1383-84 (7th Cir. 1990),
that the dual-grounds rule of Harris is
designed for these situations. A state
court may say something like: "this
argument has been forfeited because not
raised in the proper way (such as by an
objection to the jury instructions); and
the defendant has not established plain
error because there was no error at all."
When it does this, it has not abandoned
the procedural ground but has instead
added a substantive failing to the
procedural one. The independent-and-
adequate-state-ground doctrine is one of
long lineage, founded not only in respect
for state tribunals but also in
recognition that litigants should be
given incentives to present their
contentions as soon as possible, when
errors can be avoided, rather than to
save them up for presentation after the
error has been committed. Sykes is based
on pragmatism as well as comity. A state
does not abandon the benefits of this
doctrine by allowing plain-error review--
or by accepting untimely collateral
attacks when the standards of plain error
have been met. To the extent that Dictado
holds that any merits-related exceptions
to state timeliness rules make all state
collateral attacks timely (and thus
"properly filed") it is incompatible with
the law established by the Supreme Court
(in opinions such as Sykes and Harris)
and by this circuit (in opinions such as
Prihoda, Fernandez, and Jefferson).

  The ninth circuit may well think that
the broad reading of Dictado is the
correct one, because it held in Smith v.
Stewart, 241 F.3d 1191 (9th Cir. 2001),
again without discussing Harris, that
availability of plain-error review
destroys the independence of a state’s
procedural ground of decision. The
defendant in Smith failed to make a
timely argument that his prior lawyer had
furnished ineffective assistance of
counsel, and on collateral attack the
state court deemed the contention
forfeited. Nonetheless, the ninth circuit
held, a federal court is entitled to
disregard the forfeiture and resolve the
ineffective-assistance claim on the
merits, because Arizona (the state in
question) can consider the merits when
deciding whether to enforce its
forfeiture rules. This is the same
approach that the ninth circuit used in
Dictado to determine proper filing under
sec. 2244(d)(2).

  Certiorari has been granted in Smith and
a question certified to the Supreme Court
of Arizona, so that it may decide whether
forfeiture and the merits are bound
together as the ninth circuit believed.
See Stewart v. Smith, No. 01-339 (U.S.
Dec. 12, 2001). If the state court gives
an affirmative answer, the Supreme Court
will need to decide whether the
availability of a plain-error exception
to a state procedural rule means that
federal courts may ignore a litigant’s
failure to satisfy that procedural rule.
In this circuit, at least for the time
being, Prihoda and other cases give
anegative answer. Thus we cannot accept
the broad reading of Dictado. And it
follows that we do not treat Rice as
adopting that broad reading either, for
if Rice had done so it would have needed
to overrule Fernandez and Jefferson,
which it did not.

  There is another possible reading of
Rice: as a proposal to replace (for
purposes of sec. 2244) the rule announced
in Harris, Coleman, and Ylst that the
ruling of the last state court is
dispositive (for purposes of locating an
independent and adequate state ground)
with a rule that the decision of the
first state court determines whether a
state collateral attack was "properly
filed." That would not do Brooks any
good, however, for in his case the
state’s court of first instance treated
his petition as untimely. We think it
best to leave to future litigation, when
the matter has been fully briefed, the
question whether federal courts should
disregard state appellate decisions (as
Rice seemingly did) when deciding whether
a state collateral attack has been "prop
erly filed." One could say in support of
such an approach that it avoids
mousetrapping the prisoner. If the
state’s court of first instance accepts a
collateral attack and resolves it on the
merits, the prisoner sensibly will assume
that time has been tolled under
sec. 2244(d)(2); by the time the state’s
court of appeals reverses, it may be too
late to file a federal petition. Yet in
many cases (of which Brooks’ is a good
example) counsel for the state argues
from the get-go that the petition is
untimely, and this puts the prisoner on
notice of the need to file a
precautionary federal petition (see
Tinker v. Hanks, 172 F.3d 990 (7th Cir.
1999); Freeman, 208 F.3d at 577) in case
the state judiciary, trial or appellate,
agrees with that view. Brooks was not
misled and knew, from the instant the
state court rejected his petition as
untimely, that the clock was ticking
under sec. 2244(d).

  These considerations also knock out
Brooks’ request for equitable estoppel,
beyond the circumstances detailed in
sec. 2244(d). The state did not mislead
him; to the contrary, it has asserted
throughout that the state collateral
attack was not properly filed, providing
Brooks with information that should have
led him to get the federal petition on
file earlier. We held in Taliani v.
Chrans, 189 F.3d 597 (7th Cir. 1999),
that equitable tolling or estoppel is not
absolutely negated by the list of tolling
circumstances in sec. 2244(d) but added
there--and have reiterated since, see
Owens v. Boyd, 235 F.3d 356 (7th Cir.
2000)--that because the aedpa has its own
list of tolling circumstances, only "some
impediment of a variety not covered in
sec. 2244(d)(1) [that] prevents the filing
of a federal collateral attack" (235 F.3d
at 360) could suffice. Otherwise
"estoppel" is hard to differentiate from
judicial disagreement with the statutory
list of circumstances that extend the
time. United States v. Brockamp, 519 U.S.
347, 351-52 (1997), holds that such lists
are presumptively closed-ended. Nothing
prevented Brooks from filing earlier, and
no deceit by the state has been alleged,
so he cannot take advantage of any extra-
statutory extension of time.

  One further argument requires only brief
attention. Brooks contends that his
appeal within the state system was itself
"a properly filed application for State
post-conviction or other collateral
review"; if the time devoted to the
appeal is excluded from the calculation,
then Brooks’ federal petition is timely.
This finds support in Villazana v. Page,
1999 U.S. Dist. Lexis 7927 *11-13 (N.D.
Ill. May 5, 1999), but the position is
unsound. A notice of appeal is not an
"application for . . . collateral
review." The "application" is the request
(here a petition for a writ of habeas
corpus), filed in the court of first
instance. Some states permit appellate
courts to be courts of first instance for
this purpose, and when an application’s
first stop is an appellate court, time
devoted to its consideration is excluded
under sec. 2244(d)(2). But Brooks began in
the state’s circuit court, not in its
appellate court, and his notice of appeal
was not a new "application." An appeal
marks the continuation of existing
litigation, not the initiation of new
litigation. This is why, for example, we
held in Fernandez that time after a trial
court’s decision, and before the filing
of a timely notice of appeal, is excluded
by sec. 2244(d)(2): there is just one
continuous case.

  Treating a notice of appeal as an
"application for . . . collateral review"
not only would require the time between
trial and appellate courts to count
against the statutory year (surprising
many petitioners who have been anticipat
ing its exclusion) but also would knock
out most appeals within the federal
system. For a prisoner needs appellate
approval to launch a second or successive
federal collateral attack. See 28 U.S.C.
sec. 2244(b), sec. 2255 para.8. If a notice
of appeal is itself an "application for .
. . collateral review" then any prisoner
who fails to obtain relief from the
district court needs permission under
sec. 2244(b) or sec. 2255 para.8 to appeal
(because the appeal would be the second
federal collateral attack)--and given the
limitations of those sections, which are
much more restrictive than the
certificate of appealability under
sec. 2253(c), that request would be denied
almost routinely. Brooks himself could
not obtain appellate review of the order
dismissing his petition, because he does
not meet the requirements for a second or
successive collateral attack. So we hold
that an appeal is not a new collateral
attack, a decision that is much to the
benefit of most prisoners seeking
collateral review, even though it means
that Brooks’ federal application is
untimely.

Affirmed
