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.

____________

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 00 C 5277—James F. Holderman, Judge.

____________

ARGUED JANUARY 30, 2002 —DECIDED SEPTEMBER 27, 2002

____________

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 convictions for first-degree murder and armed robbery. The district 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 concurrent 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 postconviction 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 withdraw 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,” explaining 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 Illinois 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 unconstitutional 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 “properly 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-conviction 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 respected. 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) (collecting cases). Thus, if the only reason the Illinois courts had

cited for dismissing Gray’s state post-conviction application was untimeliness, those proceedings would not qualify 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 decision: 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 filing 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 petition 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 decision 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 presented, 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