In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-1355
MARCOS GRAY,
Petitioner-Appellant,
v.
KENNETH R. BRILEY, WARDEN,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 5277—James F. Holderman, Judge.
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ARGUED JANUARY 30, 2002 —DECIDED SEPTEMBER 27, 2002
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Before MANION, DIANE P. WOOD, and EVANS, Circuit
Judges.
DIANE P. WOOD, Circuit Judge. Marcos Gray is trying to
obtain federal habeas corpus relief from his Illinois convic-
tions for first-degree murder and armed robbery. The dis-
trict court dismissed on the ground that his petition under
28 U.S.C. § 2254 had not been filed within the one-year
statute of limitations imposed by 28 U.S.C. § 2244(d)(1).
Because we conclude that an earlier state court application
was not timely filed, under the rules recently established in
Carey v. Saffold, 122 S. Ct. 2134 (2002), Stewart v. Smith,
122 S. Ct. 2578 (2002), and Brooks v. Walls, No. 01-1584,
2002 WL 1949693 (7th Cir. Aug. 23, 2002) (on petition for
2 No. 01-1355
rehearing), we agree that Gray’s § 2254 petition was indeed
untimely, and we affirm the judgment of the district court.
I
After a jury convicted him on murder and armed robbery
charges, Gray was sentenced on June 15, 1995, to concur-
rent terms of 55 and 30 years in prison. The Appellate
Court of Illinois affirmed, and on December 2, 1998, the
Supreme Court of Illinois denied his application for leave to
appeal. He did not seek a writ of certiorari from the U.S.
Supreme Court. Instead, Gray then resorted to state post-
conviction procedures, filing a petition in the Circuit Court
of Cook County on March 6, 1999. He presented two claims
in that petition: first, that his trial counsel was ineffective,
and second, that there were “constitutional infirmities” in
the identification procedures and the evidence. The circuit
court dismissed his petition on two grounds. First, the court
concluded that it was untimely under 725 ILCS 5/122-1(c),
which requires post-conviction applications to be filed
within three years of the date of sentencing, even if direct
appeals are still pending. See People v. Woods, 739 N.E.2d
493, 496 (Ill. 2000). Second, the court found his claims to be
“patently without merit.”
Gray appealed, but his appointed attorney moved to with-
draw under Pennsylvania v. Finley, 481 U.S. 551 (1987),
claiming that there were no meritorious arguments he
could pursue on Gray’s behalf. The appellate court agreed
with counsel that an appeal would be “frivolous,” explain-
ing that the petition was “clearly untimely” under § 5/122-
1(c) and that on the merits Gray’s allegations were either
barred by res judicata or waiver or they were otherwise
insufficient to state a claim. The Supreme Court of Illi-
nois rejected Gray’s efforts to obtain its review.
At that point, on August 11, 2000, Gray filed his § 2254
petition in the federal district court. He claimed that both
No. 01-1355 3
his trial and appellate lawyers had been ineffective, that
evidentiary rulings had deprived him of due process, and
that he had been sentenced on the basis of unconstitution-
al aggravating factors. The district court did not reach
the merits of Gray’s claims. Instead, it concluded that
Gray’s state post-conviction application had not been “prop-
erly filed” within the meaning of 28 U.S.C. § 2244(d)(2).
Because of the one-year statute of limitations imposed by
§ 2244(d)(1), Gray had to file his claim within one year of
the conclusion of direct review or the time for seeking such
review. That date occurred in March 1999, when the time
for seeking a writ of certiorari from the U.S. Supreme
Court passed. See Anderson v. Litscher, 281 F.3d 672, 675
(7th Cir. 2002). August 11, 2000, was obviously more than
one year later, and thus the district court dismissed Gray’s
petition.
This court granted a certificate of appealability on two of
the questions Gray wished to present: first, whether under
Harris v. Reed, 489 U.S. 255 (1989), the district court
should have excluded the time that Gray’s state post-con-
viction application was pending, and second, whether
Gray’s § 2254 petition set forth a constitutional violation to
the extent required by Slack v. McDaniel, 529 U.S. 473
(2000).
II
A state prisoner who seeks federal habeas corpus relief
from a criminal conviction has one year from the date
the conviction became final to file a petition. 28 U.S.C.
§ 2244(d)(1)(A). As the district court properly noted, that
one-year period is tolled while a “properly filed” application
for post-conviction review is pending in state court. Id.
§ 2244(d)(2). An application is “properly filed” if its delivery
and acceptance “are in compliance with the applicable laws
and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8
4 No. 01-1355
(2000). If the petitioner failed to comply with an adequate
and independent rule of state procedure, and he cannot
show cause and prejudice in connection with his failure to
do so, then federal habeas corpus relief is not available. See
Stewart, supra, 122 S. Ct. 2578.
It has been clear for some time that a state is entitled
to insist that its rules for timely filing of petitions be re-
spected. Artuz explained that
an application is “properly filed” when its delivery and
acceptance are in compliance with the applicable laws
and rules governing filings. These usually prescribe, for
example, the form of the document, the time limits upon
its delivery, the court and office in which it must be
lodged, and the requisite filing fee.
531 U.S. at 8 (footnote omitted; emphasis added). See also
Freeman v. Page, 208 F.3d 572, 574 (7th Cir. 2000) (collect-
ing cases). Thus, if the only reason the Illinois courts had
cited for dismissing Gray’s state post-conviction applica-
tion was untimeliness, those proceedings would not quali-
fy as “properly filed” for purposes of the tolling rule of
§ 2244(d)(2).
In this case, however, both the state trial court and the
Appellate Court of Illinois gave two reasons for their de-
cision: untimeliness and lack of merit. There was nothing
ambiguous about either ruling. The U.S. Supreme Court
addressed the question of dual grounds in Saffold, where
it held that a clear ruling from the state court that a fil-
ing was untimely would “be the end of the matter,” even
if the court also addressed the merits of the claim or if
“its timeliness ruling was ‘entangled’ with the merits.” 122
S. Ct. at 2141. Following this lead, we recognized in Brooks
that “both aspects of a dual-ground decision (substance
and procedure) must be respected, so that an untimely pe-
tition is not ‘properly filed’ even if the court also addresses
the merits . . . .” 2002 WL 1949693 at *2.
No. 01-1355 5
We recognized in Brooks that there are some situations,
such as the one the U.S. Supreme Court itself faced in
Saffold, or the one we faced in Rice v. Bowen, 264 F.3d 698
(7th Cir. 2001), in which it is unclear whether the state
court was really making separate rulings on timeliness
and the merits, or if its timeliness ruling was nothing more
than a merits ruling by another name. 2002 WL 1949693
at *4. Rice itself was a case in which the state court’s de-
cision with respect to timeliness may have been only a
decision that Illinois’s “culpable negligence” exception to
the state statute of limitations depended entirely on the
underlying merit of the petition. Gray’s case contains no
such ambiguity. It is simply a dual-ground rejection of his
state post-conviction application. As such, we are bound
to respect the state court’s ruling that it was filed too late,
and this fact dooms his current federal habeas corpus
petition.
III
Because we agree with the district court that the petition
was untimely, we do not address the second question pre-
sented, namely, the underlying merit of the issues Gray
wishes to present. The judgment of the district court is
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—9-27-02