In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2887

Angel Fernandez,

Petitioner-Appellant,

v.

Jerry Sternes, Warden,
Dixon Correctional Center,

Respondent-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 1332--Charles R. Norgle, Sr., Judge.


Submitted July 31, 2000--Decided September 21, 2000



  Before Coffey, Easterbrook, and Evans, Circuit Judges.

  Easterbrook, Circuit Judge. This appeal presents
another variation on the question whether time
spent pursuing state collateral remedies is
excluded from the year provided by 28 U.S.C.
sec.2244(d) for commencing a federal collateral
attack. Section 2244(d)(2) says that "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 shall not be counted toward any period of
limitation under this subsection." We held in
Freeman v. Page, 208 F.3d 572 (7th Cir. 2000),
that whether a petition is "properly filed"
depends on state law, so that if a state court
accepts and entertains it on the merits it has
been "properly filed" but that if the state court
rejects it as procedurally irregular it has not
been "properly filed." Accord, Webster v. Moore,
199 F.3d 1256 (11th Cir. 2000); Tinker v. Hanks,
172 F.3d 990 (7th Cir. 1999). See also Bennett v.
Artuz, 199 F.3d 116, 121-23 (2d Cir. 1999), cert.
granted, 120 S. Ct. 1669 (2000). A corollary,
recognized in Jefferson v. Welborn, No. 99-2337
(7th Cir. June 29, 2000), is that a petition that
fails to comply with state procedural
requirements is still "properly filed" if the
state accepts it and issues a decision on the
merits. Jefferson applies to sec.2244(d) the
approach that Harris v. Reed, 489 U.S. 255
(1989), announces for determining when a
procedural default under state law forecloses
federal relief on collateral attack: if the state
enforces its procedural rules and deems the claim
forfeited, then federal review is barred; if the
state excuses a default, then federal review is
proper. Harris added that, if the state’s
decision rests on both a procedural default and
a lack of merit, then federal review is
foreclosed, provided the finding of default is
clear. Id. at 264 n.10. Freeman and Jefferson, in
conjunction with Harris, provide a
straightforward rule for identifying "properly
filed" petitions. Today’s case presents the
question: what is the period "during which" a
petition was pending, when it became "properly
filed" because the state court excused a delay?

  Angel Fernandez was convicted before sec.2244(d)
came into being as part of the Antiterrorism and
Effective Death Penalty Act. We therefore treat
April 24, 1996, as the beginning of his year to
seek federal collateral review. Gendron v. United
States, 154 F.3d 672 (7th Cir. 1998). Fernandez
filed his federal petition on February 27, 1998,
so unless more than 10 months after the AEDPA’s
effectiveness is excluded by sec.2244(d)(2), the
petition is too late and must be dismissed. When
the AEDPA was enacted, Fernandez was pursuing
collateral relief in state court. On July 19,
1996, the Appellate Court of Illinois affirmed an
order denying his petition. Under Illinois
Supreme Court Rule 315(b), Fernandez had 21 days
to file a petition for leave to appeal. He missed
that deadline but on June 12, 1997, filed a
motion for permission to file a late petition for
leave to appeal. On September 24, 1997, the
Supreme Court of Illinois issued this order:

The motion by petitioner for leave to file a late
petition for leave to appeal is allowed and is
treated as a petition for leave to appeal.

Although it accepted Fernandez’s petition--a step
that rendered it "properly filed" under the
rationale of Jefferson--by order of December 3,
1997, the Supreme Court of Illinois denied the
petition for leave to appeal. About three months
later Fernandez turned to federal court, where
the district judge dismissed his petition as
untimely.

  Jefferson and Freeman do not decide how much
time is excluded when a state court permits an
untimely filing. There are four possibilities, in
order of increasing amounts excluded:

Time between the order allowing the untimely
filing and the final decision on the merits.
Time between the application for leave to file
out of time and the final decision on the merits.

Time between the application for leave to file
out of time and the final decision on the merits,
plus the time originally available (but not used)
to file a timely application.

Time between the previous adjudication of
petitioner’s claim and the final decision on the
merits.

The first possibility (which the district court
adopted) treats the petition as on file "during"
September 24, 1997, to December 3, 1997, or 70
days; the second treats the petition as on file
from June 12, 1997, to December 3, 1997, or 174
days; the third adds 21 days, for a total of 195;
the fourth treats the petition as on file from
July 19, 1996, the date of the appellate
decision, to December 3, 1997, or 502 days.

  Section 2244(d) does not address this subject
directly, but the phrase "during which a properly
filed application for State . . . collateral
review . . . is pending" is incompatible with two
of the four possibilities. The first does not
fit, because it concentrates on the period while
the court is considering the application, rather
than the entire period "during which [the
application] is pending". Fernandez filed his
motion on June 12, 1997, and it was pending
between then and December 3, 1997. In this
respect a motion for leave to pursue an untimely
application works like a motion for leave to
commence a second collateral attack under state
law. We held in Tinker that if the state court
declines to allow a second collateral attack,
then none of the period following the application
counts as time "during which a properly filed
[application] is pending"; but if the state court
allows the second collateral attack to proceed,
then the whole period from filing to conclusion
logically is excluded under sec.2244(d)(2). Just
so with motions to file untimely appeals and
applications for discretionary review. 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.

  Fernandez did not have a collateral attack
under consideration by Illinois between July 19,
1996, and June 12, 1997, so none of that was time
"during which a properly filed application for
State . . . collateral review . . . is pending".
This 11-month gap, plus the 3 months between the
state Supreme Court’s final decision and
Fernandez’s federal petition, add to more than a
year of countable time, so the district court
correctly denied his petition as time-barred. Our
conclusion that the right period of exclusion is
all time between the filing of the request to
excuse the default and the state court’s decision
on the merits (if it elects to excuse the
default) matches the period we selected in
Jefferson, but the issue had not been raised by
the parties, and Jefferson did not explain why we
chose this period, rather than one of the other
possibilities. Now that the question has been
squarely presented, we convert Jefferson’s
assumption into a holding. It is unnecessary to
decide, and we therefore reserve, 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. See also Gendron
v. United States, 154 F.3d 672, 674 n.2 (7th Cir.
1998) (reserving a similar issue affecting the
starting date of the one-year period). Twenty-one
days more or less makes no difference to
Fernandez.

  Only one other court of appeals has dealt with
this subject. Saffold v. Newland, 2000 U.S. App.
Lexis 16489 (9th Cir. July 17, 2000), adopts the
fourth possibility we have enumerated, holding
that if a state’s supreme court entertains an
untimely request for discretionary review (or an
original writ of habeas corpus), then all time
from the commencement of the collateral attack in
state court is excluded under sec.2244(d)(2). The
ninth circuit did not explain how time during
which no collateral attack is pending in state
court may be deemed time "during which a properly
filed application for State . . . collateral
review . . . is pending"; Saffold does not
analyze the language of sec.2244(d)(2). Indeed,
the ninth circuit may not have appreciated the
existence of the other three possibilities and
does not indicate why it chose the fourth--and
this despite Judge O’Scannlain’s dissent, which
challenged the lack of a reason underpinning the
majority’s conclusion. All the majority said for
itself is that Nino v. Galaza, 183 F.3d 1003 (9th
Cir. 1999), supported its conclusion. But Nino
presents a different issue: is time following an
appellate court’s decision, and preceding a
timely application for discretionary review,
excluded from the calculation under
sec.2244(d)(2)? Nino’s affirmative answer, with
which we agree, see also Swartz v. Meyers, 204
F.3d 417, 424 (3d Cir. 2000); Taylor v. Lee, 186
F.3d 557 (4th Cir. 1999), does not establish that
an untimely request receives the same treatment.
It is sensible to say that a petition continues
to be "pending" during the period between one
court’s decision and a timely request for further
review by a higher court (provided that such a
request is filed); it is not sensible to say that
the petition continues to be "pending" after the
time for further review has expired without
action to continue the litigation. That a request
may be resuscitated does not mean that it was
"pending" in the interim. Under the majority’s
approach in Saffold, if a prisoner let ten years
pass before seeking a discretionary writ from the
state’s highest court, that entire period would
be excluded under sec.2244(d)(2) as long as the
state court denied the belated request on the
merits. That implausible understanding of
sec.2244(d)(2) would sap the federal statute of
limitations of much of its effect.

  Saffold’s approach also would give
sec.2244(d)(2) a Cheshire-cat like quality, both
there and not there at the same time. Suppose
Fernandez had applied for federal collateral
relief in February 1998 without seeking review by
the Supreme Court of Illinois. That application
unquestionably would have been out of time. Next
suppose that, after the federal court dismissed
his petition, he asked the Supreme Court of
Illinois for permission to file an untimely
petition for leave to appeal, and that court
accepted the petition but denied leave to appeal.
Under Saffold the clock would be reset; it would
be as if a proper state petition had been pending
the whole time, and Fernandez would be able to
file a timely federal petition. Retroactive
changes in timeliness are bad enough; if, as
Saffold tells us, the state petition really had
been pending the whole time, then Fernandez’s
first federal petition in this hypothetical
sequence should have been dismissed or stayed for
failure to exhaust state remedies--for a state
prisoner can’t obtain federal relief while "a
properly filed application for State . . .
collateral review . . . is pending" in state
court. But of course a federal court would not
dismiss a petition on exhaustion grounds after
the state process had come to an end and the time
for review had expired. The court would say,
correctly, that no state process was pending or
available. State processes ended when the time to
seek further review expired. They may be revived,
but the prospect of revival does not make a case
"pending" in the interim. Saffold implements a
make-believe approach, under which petitions were
continuously pending whenever a state court
allows an untimely filing. We prefer reality. An
untimely petition is just that; it is filed when
it is filed, and it was not "pending" long before
its filing. We decline to follow Saffold.
(Because this decision creates a conflict among
the circuits, it was circulated before release to
all judges in active service. See Circuit Rule
40(e). No judge requested a hearing en banc.)

  Saffold has two additional problems, each of
which would lead us to reject its conclusion even
if we agreed with its understanding of the "time
during which a properly filed application for
State . . . collateral review . . . is pending".
First, Saffold did not ask for leave to file an
untimely petition for discretionary review of the
appellate decision rejecting his claim. He filed
an original petition for a writ of habeas corpus.
It is not possible to call this a continuation of
the earlier petition that keeps the initial
petition "pending" for purposes of
sec.2244(d)(2). It is more like an application
for leave to commence a new collateral
proceeding. Second, the Supreme Court of
California did not deny Saffold’s petition
without comment. Instead it denied the petition
"on the merits and for lack of diligence." The
ninth circuit held that a dual-ground denial is
one on the merits, and that the additional
finding of procedural default must be ignored for
federal purposes. That conclusion cannot be
reconciled with Harris, 489 U.S. at 264 n.10, a
case that Saffold did not cite. Harris holds that
when a state court invokes a rule of forfeiture
under state law and resolves the merits as an
alternative ground, both rulings must be
respected when the petitioner applies to federal
court. Saffold should have disregarded all time
after the decision by the state’s court of
appeals. In our case, by contrast, the Supreme
Court of Illinois excused the untimeliness as a
matter of state law and ruled on the merits. So
174 days are excluded under sec.2244(d)(2). This
is not enough to make Fernandez’s petition
timely, so the judgment of the district court is

Affirmed.
