Brooks v. Walls, 01-1584.

• Decision Date: 01 February 2002
• Docket Number: No. 01-1584.,01-1584.
• Parties: Lynn BROOKS, Petitioner-Appellant, v. Jonathan R. WALLS, Warden, Menard Correctional Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

279 F.3d 518

Lynn BROOKS, Petitioner-Appellant, v. Jonathan R. WALLS, Warden, Menard Correctional Center, Respondent-Appellee.

No. 01-1584.

United States Court of Appeals, Seventh Circuit.

Argued November 29, 2001.

Decided February 1, 2002.

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Christopher J. Ammerman-Gerke (argued), Skadden, Arps, Slate, Meagher & Flom, Chicago, IL, for petitioner-appellant.

Colleen M. Griffin (argued), Office of the Attorney General, Chicago, IL, for respondent-appellee.

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. § 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, 121 S.Ct. 361, 148 L.Ed.2d 213 (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 § 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 excuse failure to meet the deadline. See 725 ILCS 5/122-1; People v. Wright, 189 Ill.2d 1, 243 Ill.Dec. 198, 723 N.E.2d 230 (1999); People v. Coleman, 183 Ill.2d 366, 233 Ill. Dec. 789, 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 judicial 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 § 2244(d)(2), and the tolling rules in § 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 § 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. § 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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (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 straight-forward 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, 109 S.Ct. 1038, 103 L.Ed.2d 308 (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, 111 S.Ct. 2546, 115 L.Ed.2d 640 (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, 111 S.Ct. 2590, 115 L.Ed.2d 706 (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 § 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 § 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 § 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 constitutional decision. See 28 U.S.C. § 2255 ¶ 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,...