In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1384

AUGUSTINE GUTIERREZ,

Petitioner-Appellant,

v.

JAMES M. SCHOMIG,

Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 5392--Blanche M. Manning, Judge.

Submitted September 28, 2000--Decided November 30, 2000



      Before Coffey, Kanne, and Diane P. Wood, Circuit
Judges.

      KANNE, Circuit Judge. Augustine Gutierrez seeks
review of the district court’s judgment
dismissing his petition for a writ of habeas
corpus as untimely under 28 U.S.C. sec. 2244(d).
This appeal presents a statute of limitations
issue that this court has yet to address: whether
the time during which a state prisoner can, but
does not, file a petition for a writ of
certiorari from the denial of his state post-
conviction petition tolls the one-year statute of
limitation under sec. 2244(d)(2). See Fernandez
v. Sternes, 227 F.3d 977, 980 (7th Cir. 2000)
(reserving "the question whether time provided
for filing a petition or appeal to a higher court
is treated as time during which an application is
pending, if the time expires without a filing").
We grant Gutierrez’s request for a certificate of
appealability to address this question. For the
reasons that follow, however, we conclude that
the one-year limitations period is not tolled
during the time a state post-conviction
petitioner could have filed, but did not file, a
petition for certiorari review in the United
States Supreme Court, and thus we affirm the
district court judgment.
      In August 1993, Gutierrez was convicted on two
counts of first degree murder and sentenced to
natural life in prison. On January 27, 1995, the
Illinois Appellate Court affirmed his conviction.
Gutierrez did not file a timely petition for
leave to appeal to the Illinois Supreme Court.
Instead, three and a half years later he sought
leave to file a late appeal; his motion was
denied. Thus, Gutierrez’s conviction became final
on January 27, 1995--before the Antiterrorism and
Effective Death Penalty Act of 1996 injected a
statute of limitations provision into the
statutes governing collateral attacks.

       Gutierrez filed a petition for state post-
conviction review in October 1997. His petition
was denied, the appellate court affirmed the
denial of post-conviction relief, and, on
December 2, 1998, the Illinois Supreme Court
denied his timely petition for leave to appeal.
Gutierrez had ninety days to appeal the Illinois
Supreme Court’s decision to the United States
Supreme Court, but he did not do so. Instead, on
August 12, 1999, Gutierrez filed a petition for
a writ of habeas corpus in the federal district
court.

      Judge Manning dismissed Gutierrez’s petition,
concluding that it was untimely under 28 U.S.C.
sec. 2244(d). She reasoned that Gutierrez’s one-
year clock began ticking on April 24, 1997, the
day after the filing grace period for petitioners
whose conviction became final pre-AEDPA,/1 see
Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir.
1996), rev’d on other grounds, 521 U.S. 320
(1997); the clock stopped 188 days later, on
October 29, 1997, when Gutierrez filed his state
post-conviction petition; and it remained stopped
while his state petition was pending in the state
courts. After an extensive analysis, Judge
Manning concluded that the statute of limitations
was not tolled during the time Gutierrez could
have filed a petition for certiorari review and,
thus, the clock resumed ticking on December 2,
1999, when the state supreme court denied his
petition for leave to appeal. Accordingly, Judge
Manning found that Gutierrez had 441 days of
"countable" time and that his petition was
therefore untimely under sec. 2244(d).

      Gutierrez argues that the ninety days during
which he could have filed a certiorari petition
to the United States Supreme Court from the
denial of his state post-conviction petition
tolled the limitations period and, thus, that his
petition is timely. This court has not yet
decided whether the limitations period for habeas
corpus actions is tolled under such
circumstances, but several of our sister circuits
have answered the question in the negative. See
Isham v. Randle, 226 F.3d 691 (6th Cir. 2000);
Coates v. Byrd, 211 F.3d 1225 (11th Cir. 2000);
Ott v. Johnson, 192 F.3d 510 (5th Cir. 1999); cf.
Rhine v. Boone, 182 F.3d 1153 (10th Cir. 1999)
(holding that the time during which a properly
filed certiorari petition from the denial of
state post-conviction relief is pending does not
toll the statute of limitations). We now join the
Sixth, Eleventh, and Fifth Circuit Courts in
their conclusion, but, as explained below, on a
somewhat narrower basis.

     Section 2244(d)(1) imposes a one-year statute of
limitations on state prisoners seeking habeas
corpus relief. Section 2244(d)(2), however,
provides that the limitations period is tolled
during time that "a properly filed application
for State post-conviction or other collateral
review with respect to the pertinent judgment or
claim is pending." Thus, we must determine
whether the 90 days during which a certiorari
petition could be filed falls within the language
of sec. 2244(d)(2), whether that time period by
itself constitutes "a properly filed application
. . . [that] is pending."

      Put this way the answer is clearly no. Because
Gutierrez never filed a petition for certiorari
review in the Supreme Court, his potential
certiorari petition was never "properly filed."
When Congress intended to exclude from the
limitations period time during which a pleading
could have been filed, it did so explicitly. See,
e.g., sec. 2244(d) (1)(A) (The limitations period
runs 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."). Here, instead of excluding time a
pleading could have been filed, Congress
explicitly required a "properly filed" pleading
to toll the statute of limitations. Gutierrez did
not properly file a petition for certiorari and,
thus, the one-year limitations period was not
tolled during the time which he could have filed
such a petition. Likewise, a petition for
certiorari that is not actually filed cannot
reasonably be considered "pending." Cf.
Fernandez, 227 F.3d at 979 ("But no one would
suppose, if a state allows a second collateral
attack, that this excludes all time since the
prisoner began his first collateral attack, even
though nothing at all was ’pending’ during the
intervening months. Just so, again, with motions
to file untimely appeals and applications for
discretionary review.").

      In general, the courts that have previously
addressed this issue reason that state post-
conviction review is complete once the state’s
highest court has ruled. In other words,
according to these courts, a petition for
certiorari, filed or not, simply does not
constitute an "application for State post-
conviction or other collateral review." See
Isham, 226 F.3d at 695 ("A petition for
certiorari to the United States Supreme Court is
not ’post-conviction relief.’"); Coates, 211 F.3d
at 1227 ("[A]n application ’for State post-
conviction or other review . . . is pending,’ 28
U.S.C. sec. 2244(d)(2), only so long as the case
is in the state courts."); Rhine, 182 F.3d at
1155 ("The time after which the Oklahoma Court of
Criminal Appeals finally denied his post-
conviction application until the United States
Supreme Court denied his petition for certiorari
was not ’time during which a properly filed
application for State post-conviction . . .
review . . . [was] pending.’"). We need not go so
far to resolve the issue, however, and emphasize
that we do not address the impact of a properly
filed petition for certiorari from the denial of
state post-conviction relief on the statute of
limitations in habeas corpus actions.

CONCLUSION

      For the reasons stated above, we GRANT
Gutierrez’s request for a certificate of
appealability and AFFIRM the district court
judgment that his petition for a writ of habeas
corpus is untimely.

FOOTNOTES

/1 We express no opinion on the propriety of using
the day after the Lindh grace period expired as
the first countable day for purposes of the
statute of limitations. But see Fernandez, 227
F.3d at 978 ("Fernandez was convicted before sec.
2244(d) came into being . . . . We therefore
treat April 24, 1996, as the beginning of his
year to seek federal collateral review."). The
government did not argue the issue in the
district court and, therefore, waived it on
appeal.
