Brooks v. Walls

• Decision Date: 23 August 2002
• Docket Number: No. 01-1584.,01-1584.
• Citation: 301 F.3d 839
• Parties: Lynn BROOKS, Petitioner-Appellant, v. Jonathan R. WALLS, Warden, Menard Correctional Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 839

301 F.3d 839

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

No. 01-1584.

United States Court of Appeals, Seventh Circuit.

August 23, 2002.

F. Neil MacDonald, Skadden, Arps, Slate, Meagher & Flom, Chicago, IL, for Petitioner-Appellant.

Colleen M. Griffin, Office of the Attorney General, Chicago, IL, for Respondent-Appellee.

Before COFFEY, EASTERBROOK, and RIPPLE, Circuit Judges.

EASTERBROOK, Circuit Judge.

Lynn Brooks' federal collateral attack on his state conviction is untimely unless his prior collateral attack in state court satisfies 28 U.S.C. § 2244(d)(2): "The 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." Following Fernandez v. Sternes, 227 F.3d 977 (7th Cir.2000), and Jefferson v. Welborn, 222 F.3d 286 (7th Cir.2000), plus dictum in Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000), we held earlier this year that Brooks' federal proceeding is barred by the one-year period of limitations in § 2244(d)(1)(A). See 279 F.3d 518 (2002). We started from the premise that an untimely application for state collateral relief is not "properly filed" and therefore does not extend the time in which to file a federal petition. In this case, both trial and appellate courts in Illinois held that Brooks' petition had been filed too late under 725 ILCS 5/122-1(c), which gives a prisoner a maximum of six months from the conclusion of direct review to commence a collateral attack.

A proviso in § 5/122-1(c) gives extra time to a prisoner who "alleges facts showing that the delay was not due to his or her culpable negligence." Inquiry into "culpable negligence" may overlap the merits. If, for example, the prisoner contends that the prosecutor withheld material exculpatory evidence, see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the concealment also may explain why delay in filing the petition is not the prisoner's fault. A court must decide whether withholding occurred (and whether the defendant should have found the information on his own anyway) before coming to a conclusion about timeliness. Moreover, some appellate decisions have suggested that trial courts should be more willing to find a lack of "culpable negligence" when the prisoner's substantive claim involves ineffective assistance of counsel, for bad advice about filing deadlines may be one aspect of substandard assistance, and many ingredients of an ineffective-assistance claim take time to discover. See, e.g., People v. Whitford, 314 Ill.App.3d 335, 247 Ill.Dec. 594, 732 N.E.2d 649 (2000). Cf. People v. Rissley, 2001 WL 263090, 2001 ILL. LEXIS 241 (Mar. 15, 2001) (bad legal advice rendered after the conclusion of the direct appeal does not show lack of culpable negligence, because the entitlement to appointed counsel ends with the appellate process). Thus Illinois courts sometimes examine the merits, at least in a preliminary way, before deciding whether a petition is timely. Brooks, who received the benefit of a joint inquiry into timeliness and the merits, contended that his application therefore must have been "properly filed" for purposes of § 2244(d)(2) as Artuz understood that phrase. We disagreed and held by parallel to Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), that a dual-ground decision — one that rests on both the merits and a finding of untimeliness — means that the petition was not "properly filed". Federal courts must respect both aspects of a dual-ground holding, we concluded.

Brooks' petition for rehearing and rehearing en banc contends that under Artuz every petition that induces a state court to address the merits of the claim must have been "properly filed" and that Rice v. Bowen, 264 F.3d 698 (7th Cir.2001), commits the circuit to that reading of § 2244(d)(2). The petition also contends that our holding conflicts with Smith v. Walls, 276 F.3d 340 (7th Cir.2002), a decision of another panel released contemporaneously and not discussed in our opinion. (Rice, by contrast, was discussed at length.) We deferred consideration of the petition until the Supreme Court released its decisions in Carey v. Saffold, ___ U.S. ___, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002), and Stewart v. Smith, ___ U.S. ___, 122 S.Ct. 2578, 153 L.Ed.2d 762 (2002). The first of these presented a question about the relation between timeliness and § 2244(d)(2), and the second arose from a decision of the ninth circuit that our opinion had declined to follow. Both of these decisions had the potential to affect the outcome here.

Saffold shows that our decision was correct. The question in Saffold was whether an original petition for collateral relief, filed in the Supreme Court of California, counted as a "properly filed" application given California's unusual system of collateral review. The Court's conditionally affirmative answer — yes, if the application is timely under state practice — refutes Brooks' principal submission. For Saffold tells us (ending any ambiguity left by Artuz) that to be "properly filed" an application for collateral review in state court must satisfy the state's timeliness requirements. This means that decisions such as Nara v. Frank, 264 F.3d 310 (3d Cir.2001); Smith v. Ward, 209 F.3d 383 (5th Cir. 2000); Emerson v. Johnson, 243 F.3d 931 (5th Cir.2001); and Dictado v. Ducharme, 244 F.3d 724 (9th Cir.2001), to the extent they hold that petitions untimely under state rules nonetheless may be deemed "properly filed," were wrongly decided. Saffold added (___ U.S. at ___, 122 S.Ct. at 2141):

If the California Supreme Court had clearly ruled that Saffold's 4½-month delay was "unreasonable," [California's word for "untimely"] that would be the end of the matter, regardless of whether it also addressed the merits of the claim, or whether its timeliness ruling was "entangled" with the merits.

This addresses Brooks' remaining contentions. Saffold tells us that both aspects of a dual-ground decision (substance and procedure) must be respected, so that an untimely petition is not "properly filed" even if the court also addresses the merits — whether or not the "timeliness ruling was `entangled' with the merits." So even when the decision about timeliness depends in part on some aspect of the merits, a conclusion that the petition had been filed too late for purposes of state practice means that it was not "properly filed" for purposes of § 2244(d)(2).

Stewart v. Smith, read in conjunction with Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), suggests that the word "entangled" in Saffold must not be confused with "dependent." In the course of reversing a decision that our opinion had declined to follow, the Supreme Court wrote that a state's consideration of the nature of the constitutional claim being presented does not prevent its decision from representing an independent and adequate state ground. Only if the nominally procedural decision actually "rested primarily on a ruling on the merits" (___ U.S. at ___, 122 S.Ct. at 2581) would independence be compromised. It is easy to see how a timeliness inquiry (or any other aspect of the decision whether a collateral attack was "properly filed") could be so dependent on the merits that it really represented nothing but a decision on the merits. Suppose Illinois had a rule (like California's) requiring a collateral attack to be commenced within a "reasonable" time and added that any meritorious filing would be deemed to satisfy that rule. Then a conclusion that a particular application was late would represent nothing except disagreement with the petitioner's constitutional argument. In such a system the only sensible understanding would be that every collateral attack was timely for purposes of state law, because every one was enough to precipitate a decision on the merits.

Illinois, however, does not have such a system. Its timeliness rule is quantitative (six months from the end of the direct appeal or three years from the conviction, whichever is sooner), and the exception for delay that is not attributable to "culpable neglect" is stated in terms that are neutral with respect to the substantive theory of relief. The main function of the exception is to handle contentions that depend on facts that belatedly come to light. And although these facts may give rise to constitutional theories, the justification for delay is in the normal case independent of their merit. A belated Brady contention, for example, could be justified on the ground that the defendant learned the information outside the six-month period, but the claim still would fail if the information were not material or any error were harmless. Unless the Supreme Court of Illinois tells us otherwise, therefore, we shall treat untimeliness decisions under 725 ILCS 5/122-1(c) as independent of the merits, even if...