In the
United States Court of Appeals
For the Seventh Circuit

No. 00-4034

Kevin Rice,

Petitioner-Appellant,

v.

Edwin R. Bowen,

Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 3997--Suzanne B. Conlon, Judge.

Submitted May 18, 2001--Decided June 28, 2001/*



  Before Bauer, Diane P. Wood, and Evans,
Circuit Judges.

  Per Curiam. Inmate Kevin Rice, who is
serving a state sentence for drug
offenses, brought a petition for a writ
of habeas corpus under 28 U.S.C. sec.
2254. The district court dismissed, and
Rice filed this appeal. Before us now is
the State of Illinois’s motion to strike
Rice’s brief because Rice allegedly has
referred to a transcript that is not part
of the record on appeal. As we explain in
this opinion, we deny the motion as moot
because under the circumstances we must
vacate the judgment and remand this case
to the district court for further
proceedings.

  A summary of the complex procedural
history of this case is essential to
understand why this step is the
appropriate one. Chicago police
discovered Rice and co-defendant Raymond
Pugh in possession of 103 grams of heroin
after a traffic stop. The two men were
charged with possession of narcotics with
intent to distribute and tried together
in 1992. The arresting officer testified
that he observed Rice hand Pugh a paper
bag containing the drugs. Yet at an
earlier suppression hearing Pugh had
testified that he placed the bag in his
underwear two hours before the traffic
stop and that he kept it there at all
times until the police discovered it. At
trial, Rice denied possessing the drugs
and called Pugh as a witness. When Pugh
asserted his Fifth Amendment privilege,
Rice sought to admit Pugh’s testimony
from the suppression hearing. The trial
court, however, refused to do so on the
ground that it was hearsay and not
sufficiently trustworthy. Rice was
convicted and sentenced to a 20-year
prison term. Rice appealed, but after an
initial victory in the Illinois appellate
court, a divided Illinois Supreme Court
reinstated his conviction. It concluded
that the testimony was properly excluded
under the state’s evidentiary rules, and
that the exclusion of the evidence did
not violate Rice’s due process rights
under the rule announced in Chambers v.
Mississippi, 410 U.S. 284 (1973). See
People v. Rice, 651 N.E.2d 1083 (Ill.
1995). Rice’s conviction became final on
June 4, 1997, after the appellate court
rejected Rice’s remaining arguments and
the supreme court denied further review.

  In September 1996, Rice filed a petition
for post-conviction relief in the trial
court. Although his direct appeal was
still pending, Rice was not entitled to
wait until its conclusion because the
version of the Illinois Post-Conviction
Hearing Act that applied to him--enacted
after his conviction but made
retroactive, see People v. Bates, 529
N.E.2d 227 (Ill. 1988)--had shortened the
time period to file his petition,
requiring that he file his petition no
later than three years from the date of
conviction, or by April 12, 1995. See 725
ILCS 5/122-1 (West 1995); Freeman v.
Page, 208 F.3d 572, 575 (7th Cir. 2000).
Under the amendment’s terms, Rice’s
petition was due before the new law took
effect. To avoid placing people in an
impossible situation, the amendment
allowed courts to excuse the limitations
period if the delay in filing was not due
to "culpable negligence." See Bates, 529
N.E.2d at 229-30; Barksdale v. Lane, 957
F.2d 379, 382 n.9 (7th Cir. 1992).

  Rice filed his petition fourteen months
late and did not allege lack of culpable
negligence. Nevertheless, the trial
court, without directing the state to
respond, summarily dismissed it on its
merits in February 1997. On appeal, the
state asserted for the first time that
Rice’s petition was untimely. Rice argued
in reply that the court should not
entertain the state’s timeliness argument
in the first instance, or, in the
alternative, that it should remand for
the trial court to determine whether the
limitations period should be excused. The
court affirmed, holding that the trial
court properly dismissed the petition on
its merits and alternatively that it was
untimely.

  On June 30, 2000, Rice filed his federal
habeas corpus petition raising the
Chambers issue and several others. The
state immediately moved to dismiss it as
time-barred. State prisoners must file
their habeas corpus petitions within one
year after their convictions become
final, 28 U.S.C. sec. 2244(d)(1)(A), and
Rice’s conviction became final on June 4,
1997, when his direct appeal concluded.
The limitations period is tolled,
however, during the time in which
a"properly filed" application for state
post-conviction review is pending. 28
U.S.C. sec. 2244(d)(2). The Illinois
Supreme Court did not finally dispose of
Rice’s state post-conviction petition
until October 16, 1999, well less than a
year before Rice filed his sec. 2254
petition.

  The state argued that it was improper to
rely on the October 16, 1999, date
because the Illinois appellate court had
found that Rice’s post-conviction
petition was untimely and thus not
"properly filed." The district court
agreed, dismissed Rice’s petition, and
declined to issue a certificate of
appealability. But there is more to the
story than that. This court granted a
certificate of appealability, indicating
that the district court had erred with
respect to the timeliness issue and
directing the parties to address whether
the exclusion of Pugh’s testimony
conflicted with Chambers v. Mississippi.
In support of his case, Rice quoted
extensively from the suppression hearing
transcript in his brief; this is the
material to which the state’s present
motion objects.

  Now that we have had a better
opportunity to examine this case, it is
apparent that the root of the problem
with Rice’s brief lies in the fact that
the early ruling based on timeliness
prevented proper development of the
record on the constitutional issue. It is
true that it is improper to cite evidence
outside of the appellate record in a
brief, and that such an action may
justify striking the brief. Henn v.
National Geographic Soc’y, 819 F.2d 824,
831 (7th Cir. 1987). But this case is
unusual, and we believe that further
explanation of our conclusion with
respect to timeliness is in order.
Questions of timeliness are statutory,
and so errors in treating a collateral
attack as untimely cannot by themselves
support a certificate of appealability,
which can issue only if the petitioner
makes "a substantial showing of the
denial of a constitutional right." 28
U.S.C. sec. 2253(c)(2); Owens v. Boyd,
235 F.3d 356, 357-58 (7th Cir. 2001). To
review statutory errors, a judge must
conclude that at least one of the
prisoner’s underlying constitutional
claims is itself substantial, grant a
certificate of appealability on that
claim, and append the statutory claim as
an antecedent issue to be resolved on
appeal, even if the petition was denied
without reaching the constitutional
claim. Owens, 235 F.3d at 358. That is
what happened here.

  Addressing that antecedent question
first, we concluded that Rice’s habeas
corpus petition was not time-barred. A
petition for state post-conviction relief
is properly filed for tolling purposes
under 28 U.S.C. sec. 2244(d)(2) if it is
delivered to, and accepted by, the
appropriate court officer for placement
in the official record, and its delivery
and acceptance are in compliance with the
applicable state laws and rules governing
filings. Artuz v. Bennett, 121 S. Ct.
361, 363-64 (2000). Applicable state law
and rules governing filings include time
limits for delivery. Id. at 364; see also
Freeman, 208 F.3d at 574 (collecting
cases). We determine whether a post-
conviction petition is properly filed by
looking at how the state courts treated
it. If the courts 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. Freeman, 208 F.3d at 576.
Here, the state trial court dismissed
Rice’s petition wholly on its merits. The
appellate court likewise reviewed and
affirmed the trial court’s decision on
the merits, holding only in the
alternative that Rice’s petition was not
timely. Cf. Jenkins v. Nelson, 157 F.3d
485, 491 (7th Cir. 1998) (state
procedural default cannot bar
consideration of a federal claim on
habeas corpus review unless the last
state court rendering a judgment clearly
and expressly states that its judgment
rests on the procedural bar). Rice’s
post-conviction petition was therefore
properly filed for tolling purposes.

  Other circuits have also 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. See Dictado v. Ducharme,
244 F.3d 724, 727-28 (9th Cir. 2001);
Emerson v. Johnson, 243 F.3d 931, 935
(5th Cir. 2001); Smith v. Ward, 209 F.3d
383, 385 (5th Cir. 2000). Illinois
provides a statutory exception to its
post-conviction time limitation if "the
petitioner alleges facts showing that the
delay was not due to his or her culpable
negligence." 725 ILCS 5/122-1(c). Under
the circumstances, the state courts had
to consider the merits of Rice’s petition
before determining whether it was timely.
In addition, Illinois has directed its
courts summarily to dismiss frivolous or
patently meritless post-conviction
petitions. 725 ILCS 2/112-2.1(a)(2).
Frivolousness was the reason the state
court gave for dismissing Rice’s
petition, and this, too, is a merits
determination.

  Because the district court’s conclusion
with respect to timeliness had the effect
of cutting off further development of the
record and issues there, we have decided
that the proper step is to remand the
case to that court for further
proceedings. This will give us the
benefit of both the district court’s
views on the issue and a proper record on
which to base our review of Rice’s
Chambers claim. We note in this
connection that the district court’s
statement that the Chambers claim was not
cognizable on habeas corpus review
because it was an error involving the
application of state law was not
necessarily correct. In some cases--
though we express no view about whether
this is one-- mechanistic application of
state evidentiary rules may deprive
criminal defendants of a fair trial.
Chambers, 410 U.S. at 302-03.

  Accordingly, the judgment of the
district court is Vacated, and this case
is Remanded to the district court for
further proceedings consistent with this
order. The motion to strike Rice’s brief
is Denied as moot.

FOOTNOTE

/* This decision was initially decided per
unpublished order (Circuit Rule 53).
