In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2518
E VAN G RIFFITH,
Petitioner-Appellant,
v.
D AVE R EDNOUR, Warden,
Menard Correctional Center,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 06-1306—Michael M. Mihm, Judge.
A RGUED A PRIL 5, 2010—D ECIDED JULY 22, 2010
Before E ASTERBROOK, Chief Judge, and B AUER and
W OOD , Circuit Judges.
E ASTERBROOK, Chief Judge. A state prisoner who wants
collateral review in federal court must file a petition for
a writ of habeas corpus within one year of “the date on
which the judgment became final by the conclusion of
direct review”. 28 U.S.C. §2244(d)(1)(A). (The statute
restarts the clock under certain circumstances, such as
the Supreme Court’s recognition of a new constitutional
2 No. 09-2518
right, but none of those possibilities matters here.) For
Evan Griffith, who is serving a term of life imprison-
ment for murder, the end of direct review came in 1994.
People v. Griffith, 158 Ill. 2d 476, 634 N.E.2d 1069 (1994),
cert. denied, 513 U.S. 952 (Oct. 17, 1994). Post-conviction
review in state court lasted until 2005. This entitles
Griffith to the benefit of §2244(d)(2), which reads:
The time during which a properly filed applica-
tion 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.
The principal dispute on this appeal concerns the
meaning of the word “pending”.
On July 13, 2005, the Illinois Appellate Court affirmed an
order denying Griffith’s petition for collateral review. He
had 35 days to ask the Supreme Court of Illinois for leave
to appeal. Ill. S. Ct. R. 315(b) (2005). (This rule has been
renumbered as 315(b)(1); we refer to the version in force
in 2005.) That time expired on August 17. Two weeks
later, Griffith filed a petition for leave to appeal, together
with a motion asking the court to accept his petition
instanter. That motion was granted on September 13. On
December 1, the Supreme Court of Illinois denied the
petition for leave to appeal. And on November 30, 2006,
Griffith filed his petition for a writ of habeas corpus
under 28 U.S.C. §2254. The federal petition is timely if
and only if the state proceeding is treated as “pending”
continuously through December 1, 2005. See Wilson v.
Battles, 302 F.3d 745 (7th Cir. 2002) (review by the
No. 09-2518 3
Supreme Court of Illinois ends on its decision date
rather than the date of mandate). The district court con-
cluded, however, that the proceeding stopped being
“pending” on August 17, 2005, when Griffith’s oppor-
tunity to file a (timely) petition for leave to appeal ex-
pired. That made the federal petition late, and the district
court dismissed it. 2009 U.S. Dist. L EXIS 25794 (C.D. Ill.
Mar. 30, 2009).
The district court relied on Fernandez v. Sternes, 227 F.3d
977 (7th Cir. 2000), which concluded that a state pro-
ceeding is no longer pending once the state court has
made its decision and the time to seek further review
has expired. Fernandez had contended that, if another
state court accepts an untimely filing, the federal court
should treat that decision as retroactively making the
proceeding “pending” during the gap between the end
of the authorized filing period and the acceptance of the
document. We concluded that a state court’s decision
to accept an untimely paper makes it “properly filed” but
held that this does not mean that the proceeding was
“pending” during the gap between the end of the autho-
rized filing period and the belated acceptance. We ex-
plained:
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
4 No. 09-2518
continue the litigation. That a request may be
resuscitated does not mean that it was “pending”
in the interim. [If that were so], 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 §2244(d)(2) as long as
the state court denied the belated request on
the merits. That implausible understanding of
§2244(d)(2) would sap the federal statute of li-
mitations of much of its effect.
227 F.3d at 980. Griffith asks us to distinguish the grant
of a motion for leave to file a petition instanter (his situa-
tion) from the grant of a motion for leave to file an un-
timely petition. According to Griffith, leave to file
instanter means that the petition is timely as a matter of
state law. That is not what the state court said, however. A
decision to accept a document instanter (law Latin for
“right now” or “immediately”) does not make it timely;
it just means that the document will be considered on the
merits. That’s exactly the effect of an order accepting
an untimely document.
A court that decides to accept an untimely filing could
say any of three things: (1) we accept this filing despite
its belated submission; (2) we grant a retroactive exten-
sion of time; or (3) we accept this filing instanter. As far as
we can see, these are identical for the purpose of Illinois
law. See, e.g., Wauconda Fire Protection District v. Stonewall
Orchards, LLP, 214 Ill. 2d 417, 424–29, 828 N.E.2d 216,
220–23 (2005). More importantly, they are identical for the
purpose of federal law. (The meaning of “pending,” a term
No. 09-2518 5
in a federal statute, is a question of federal law.) The
point of Fernandez is that state courts’ decisions do not
have retroactive effect. Once a petition has stopped
being “pending,” nothing a state court does will make it
“pending” during the time after the federal clock began to
run and before another paper is filed in state court.
Fernandez holds that, if a state court accepts an untimely
filing, a proceeding is “pending” from the paper’s filing
date; thus Griffith had a “pending” proceeding from
September 1, 2005, when he tendered the motion for
leave to file instanter, through December 1, 2005, when
the state court denied the petition for leave to appeal. But
nothing was pending from August 18 through 31. This
meant that the year prescribed by §2244(d)(1) expired on
November 17, 2006, and Griffith’s federal petition was
13 days late.
Anticipating that we might agree with the district
court on this subject, Griffith contends that Fernandez is
inconsistent with post-2000 decisions of the Supreme
Court, which say that a document is “properly filed” for
the purpose of §2244(d)(2) if it meets the procedures
established by state law, and that if a state court accepts
a paper and decides on the merits then it was “prop-
erly filed.” See Carey v. Saffold, 536 U.S. 214 (2002). See also,
e.g., Jimenez v. Quarterman, 129 S. Ct. 681 (2009) (defining
the term “final” in §2244(d)(1)(A)). In de Jesus v. Acevedo,
567 F.3d 941 (7th Cir. 2009), we reaffirmed Fernandez,
which interprets the word “pending” rather than any of
the other language in §2244(d). We do not doubt that
Griffith’s petition for leave to appeal was “properly filed”
and that September 1 through December 1, 2005, is ex-
6 No. 09-2518
cluded for federal purposes. This does not imply that
anything was “pending” from August 18 through
August 31. Griffith does not make any argument that we
overlooked in de Jesus. We shall leave Fernandez undis-
turbed.
Griffith contends that he did not commit the murder of
which he stands convicted and maintains that the time
limits in §2244(d) do not apply to a person who claims
to be actually innocent. We held otherwise in Escamilla
v. Jungwirth, 426 F.3d 868 (7th Cir. 2005), and are no
more disposed to overrule that decision than we are to
overrule Fernandez.
This leaves a request for tolling. Holland v. Florida,
No. 09–5327 (U.S. June 14, 2010), holds that the deadline
in §2244(d) is subject to equitable tolling, which is appro-
priate when an “extraordinary circumstance stood in
[the] way” of a timely filing (slip op. 17, quoting from
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Holland
added that a lawyer’s “egregious behavior” (slip op. 18)
satisfies that standard, though neither “a garden variety
claim of excusable neglect” nor a “miscalculation” about
the time available for filing is an “extraordinary” circum-
stance (slip op. 19). Griffith blames the delay on his law-
yer’s illness, but the illness in question caused the delay
in seeking leave to appeal in state court. This is why the
state court accepted the untimely petition for leave to
appeal. Griffith does not contend that his lawyer’s
illness in August 2005 accounts for the decision to file
the federal petition after the time to do so (mid-Novem-
ber 2006) had expired. An illness that justifies a belated
No. 09-2518 7
state filing does not automatically justify an untimely
federal filing more than a year later.
The most one could say is that his lawyer misun-
derstood how to determine when a state petition is
“pending” for the purpose of §2244(d)(2). That sort of
error is not “extraordinary”; it is all too common. Holland
tells us that a simple legal mistake does not excuse an
untimely filing. It may be negligent to wait until what is
by a lawyer’s own calculation the last possible day,
because such a calculation could be wrong. But this kind
of negligence is not “extraordinary” by any means. Such
a blunder does not extend the time for filing a collateral
attack. See Lawrence v. Florida, 549 U.S. 327, 336 (2007).
A FFIRMED
7-22-10