Fernandez v. Warden et al

• Decision Date: 21 September 2000
• Docket Number: No. 99-2887,99-2887
• Citation: 227 F.3d 977
• Parties: (7th Cir. 2000) Angel Fernandez, Petitioner-Appellant, v. Jerry Sternes, Warden, Dixon Correctional Center, Respondent-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 977

227 F.3d 977 (7th Cir. 2000)

Angel Fernandez, Petitioner-Appellant, v. Jerry Sternes, Warden, Dixon Correctional Center, Respondent-Appellee.

No. 99-2887

In the United States Court of Appeals For the Seventh Circuit

Submitted July 31, 2000

Decided September 21, 2000

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

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...