In the

United States Court of Appeals

For the Seventh Circuit

No. 07-2999

DARRYL SIMMS,

Petitioner-Appellant,

v.

GERARDO ACEVEDO,

Respondent-Appellee.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 07 C 28—Robert W. Gettleman, Judge.

ARGUED APRIL 13, 2009—DECIDED FEBRUARY 19, 2010

Before CUDAHY, POSNER, and TINDER, Circuit Judges.

TINDER, Circuit Judge. Before us is Darryl Simms’s

petition for a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254. Like so many habeas cases, this one turns not

on principles of constitutional or criminal law, but on

state procedural requirements. At issue are two petitions that Simms filed in Illinois state court. If either was

properly filed when Simms contends it was, his

federal petition for habeas corpus is timely and should
2 No. 07-2999

be addressed on the merits. But if not, Simms’s federal

petition is barred by the Antiterrorism and Effective

Death Penalty Act (AEDPA), 28 U.S.C. § 2244(d)(1), unless

his circumstances merit equitable tolling of the limitations period.

Simms was convicted in 1985 of murder, aggravated

criminal sexual assault, robbery, home invasion, and

residential burglary. After a bench trial, he was sentenced to death. On appeal, his conviction was affirmed,

but his sentence was vacated and the case was remanded

to the trial court. On remand, he was again sentenced to

death, this time by a jury. He appealed again and the

case was remanded again because of a bad jury instruction. On remand, he was again sentenced to death by a

jury. He appealed, the death sentence was affirmed, and

certiorari was denied.

In 1995, while his appeals were pending, Simms filed a

pro se petition for post-conviction relief in Illinois circuit

court. In May 1997, he amended his petition, this time

with the help of counsel. In August 1998, the petition was dismissed. Simms appealed to the Illinois Supreme Court and the court remanded the case, in

August 2000, to the circuit court with instructions to

hold an evidentiary hearing on Simms’s Brady v. Maryland

claims. In January 2003, Illinois’s then-governor, George

Ryan, commuted Simms’s death sentence (and those of

all Illinois’s capital offenders) to a term of life imprisonment without the possibility of parole. Simms withdrew

his Brady claims on June 22, 2004, before the evidentiary

hearing was held; Simms states that he withdrew his
No. 07-2999 3

petition because he did not want to jeopardize the commutation of his sentence. On July 7, 2004, the trial court

entered an order acknowledging the withdrawal of

Simms’s claims in Illinois state court.

Apparently his fears regarding the commutation of his

sentence were assuaged sometime around June 7, 2005,

because at that point (although the exact date is not

clear for reasons discussed below), Simms attempted to

file a pro se petition for habeas relief in the Randolph

County Circuit Court. Attached to the petition was an

application to proceed in forma pauperis. Around three

weeks later (once again, the time is indeterminate

because the petition was never file stamped by the clerk),

in a letter dated June 30, 2005, the Randolph County

Circuit Court clerk returned Simms’s petition because

he had not submitted a filing fee or the necessary copy

of his trust account balance to support his in forma

pauperis application.

On July 1, 2005, the same day Simms received his

rejected application, he resubmitted the pro se complaint for habeas relief. The court accepted the filing of

the petition on this date. But, the trial court later

dismissed the complaint on the merits; the dismissal was

affirmed by the Illinois Appellate Court, Simms v. Uchtman,

No. 5-05-0561 (Ill. App. Ct. June 5, 2006) (unpublished

order), and the Illinois Supreme Court denied leave

to appeal on November 29, 2006. Simms immediately

filed a petition for rehearing but it was rejected by the

clerk of the Illinois Supreme Court on December 29, 2006.

By this point, Simms had already filed his federal

habeas petition. He did so on December 7, 2006.
4 No. 07-2999

The federal petition was dismissed by the district court

on a finding that it was untimely under the one-year

statute of limitations established by AEDPA. 28 U.S.C.

§ 2244(d)(1). The court determined that Simms’s oneyear clock started on July 7, 2004, which was the day

the Illinois trial court issued an order acknowledging

that Simms had withdrawn his post-conviction claims.

The district court did not stop the clock until July 1, 2005,

which the court found was the date Simms properly

filed his complaint for state habeas relief. This was 358

days after the clock started—so at this point he had

seven days left. The district court tolled the clock until

November 29, 2006, which is when the Illinois Supreme

Court denied Simms’s petition for leave to appeal. The

district court refused to toll Simms’s limitations period

for the petition for rehearing that Simms filed immediately after his petition for leave to appeal was denied by

the Illinois Supreme Court.

Thus, on November 30, according to the district court,

the clock started again and Simms filed his habeas appeal

on December 7, 2006—eight days later. The district court

therefore found that Simms had missed the deadline by one day. The court then considered whether

the statute should be equitably tolled and found that

it should not because Simms had not pursued his

rights diligently. The court thus dismissed the petition

as untimely and did not reach the merits. Simms appeals.

We review the decision to dismiss a habeas corpus

petition as untimely de novo. Moore v. Knight, 368 F.3d 936,

938 (7th Cir. 2004). Simms claims that the AEDPA limita-
No. 07-2999 5

tions period should have been tolled during two periods—

when his state habeas petition was sent to the Illinois

circuit court clerk on June 7, 2005, and when his petition

for rehearing was sent to the Illinois Supreme Court clerk

on November 29, 2006. Both of these petitions, he argues,

were properly filed; thus, under the terms of AEDPA,

his federal petition is timely. See 28 U.S.C. § 2244(d)(2)

(tolling the statute of limitations when “a properly filed

application for State post-conviction or other collateral

review . . . is pending”). In the alternative, Simms

argues that the district court abused its discretion in not

applying the doctrine of equitable tolling to his petition.

I. Was the June 7, 2005 Petition Properly Filed?

Simms contends that he mailed his state habeas petition

on June 7, 2005, and it should be deemed filed on that date

under Illinois’s mailbox rule. See People v. Saunders, 633

N.E.2d 1340, 1341-42 (Ill. App. Ct. 1994). Simms argues

that despite his failure to attach a copy of his trust fund

ledger, the circuit court was required to accept his

petition under Illinois law, and therefore it was properly

filed. The rejection of the application, he argues, was

in error.

Under Illinois law, the court clerk was required to

“accept and file any complaint, appearance, or other

paper presented by the applicant if accompanied by an

application to sue or defend in forma pauperis, and

those papers shall be considered filed on the date the

application is presented.” 735 Ill. Comp. Stat. 5/5-105(e).

The “application” to sue is required to “be in writing and
6 No. 07-2999

supported by the affidavit of the applicant.” Id. 5/5-105(c).

The court clerk relied on Administrative Order 90-7 of

the Circuit Court of Randolph County, which requires

inmates seeking to proceed in forma pauperis to submit

a copy of their trust fund ledger as part of their affidavit.

Because Simms did not include the trust fund ledger,

the clerk rejected the application.

 The Supreme Court has held that failure to comply

with certain state law requirements does indeed render a

petition improperly filed. Pace v. DiGuglielmo, 544 U.S. 408,

413 (2005) (holding that untimely state postconviction

motions are not considered “properly filed” for purposes

of AEDPA). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000)

(holding that petitions for state relief that contain

claims that are procedurally barred may still be properly

filed). In Pace, the Supreme Court noted specifically that

the formal requirements for most petitions are not entrusted to the clerk’s discretion, but must be later determined by the judge. Pace, 544 U.S. at 415 & n.5. The petitioner’s argument in that case was that only petitions

rejected by the clerk could be declared improperly

filed under AEDPA.

Simms’s argument is somewhat the inverse of the

losing one in Pace. The clerk, he says, was required to

file his petition whether or not it met the required

form and therefore the petition should be considered

filed when submitted to the clerk. To the extent that

Simms argues that the period between the time the

clerk received the petition and rejected it as improperly

filed should be tolled, we can reject that out of hand. In
No. 07-2999 7

Pace, the Supreme Court foreclosed such a contention. See

Pace, 544 U.S. at 414 (rejecting the notion that the

“proper filing” of a petition is determined based on its

acceptance by a clerk).

Simms, then, must be contending that the clerk erred

by misinterpreting state law, which he says commanded

the clerk to accept the petition, and that the petition was

therefore properly filed as mailed on June 7. Notably,

Simms does not offer evidence that he complied with

the local rule on in forma pauperis petitions, and that the

clerk overlooked his compliance. Instead, he argues

that the clerk was required to accept the petition despite

the deficiency and cites to Illinois law for the uncontroversial proposition that a local rule cannot trump state

law. Vision Point of Sale, Inc. v. Haas, 875 N.E.2d 1065, 1080

(Ill. 2007) (Circuit courts in Illinois are vested with the

power “to adopt local rules governing civil and criminal

cases so long as . . . they do not conflict with supreme

court rules or statutes . . . .”).

On behalf of the warden, Illinois argues that we must

defer to the clerk’s interpretation of the Illinois statute

and its relationship with the circuit court’s filing requirements. But the clerk’s determination of whether or not

the petition was improperly filed is immaterial; had the

clerk accepted the petition, any infirmity of the type

described in Pace would have rendered it improperly

filed. In fact, the case Illinois relies on, Artuz, 531 U.S. at 8,

makes clear that petitions are properly filed when their

“delivery and acceptance are in compliance with the

applicable laws and rules governing filings.” Furthermore,
8 No. 07-2999

a filing that is “erroneously accepted by the clerk” is “not

properly filed.” Id. at 9. Therefore, the clerk’s view of the

petition is not dispositive. Illinois asks us to compare

this case to Powell v. Davis, 415 F.3d 722, 726-27 (7th Cir.

2005), but Powell involved our deference to a state

supreme court’s determination of whether a petition

was properly filed, not deference to the court’s administrative personnel. A clerk is not the expositor of

Illinois’s rules, but the administrator of those rules.

Illinois also argues that there is no proof in the record

that the petition was mailed on June 7, just proof that

Simms signed and had the petition notarized on that date.

This argument can also be disregarded. If we accept the

district court’s conclusion that the petition was only one

day late, then any petition properly filed before July 1

would allow Simms to avoid the AEDPA time bar.

Additionally, Illinois claims that Simms was actually

28 days late in filing his federal petition because it

was not mailed from the jail but from a different zip

code. Since the petition was not sent from jail, it was not

entitled to the mailbox rule established by Rule 3(d) of the

Rules Governing Section 2254 Cases in the United States

District Courts, which provides for filing via the institution’s internal mailing system on or before the last day

for filing. Since, Illinois argues, the petition was filed

from outside the prison, it therefore must be considered

filed on January 3, 2007 when it was received by the

district court. See United States v. Craig, 368 F.3d 738, 740-

41 (7th Cir. 2004).

Illinois did not raise this issue below and therefore it is

forfeited. AEDPA’s statute of limitations is not a juris-
No. 07-2999 9

dictional bar to the court’s power, see Day v. McDonough,

547 U.S. 198, 205 (2006), although a district court could

raise the issue sua sponte if it caught a calculation error. Id.

at 210. Here, however, the argument relies on actual

physical evidence (the postmarked letter) not in the

record presented to the district court; we have no ability

to gauge the argument’s merits.

So there is but one question—whether Illinois law

considered Simms’s petition properly filed, even if the

clerk didn’t. We note that Simms’s argument that the

clerk was required to accept the petition is unavailing;

an improperly filed petition does not toll the statute

even if it is in the state court’s hands—that is what Pace

teaches us. And this is the real problem for Simms—even

if the clerk did accept the petition on June 7, it was improperly filed for purposes of AEDPA if it did not

comply with “the applicable laws and rules governing

filings.” Artuz, 531 U.S. at 8.

Despite Simms’s protests, the Illinois statute on which

Simms relies does not conflict with the Randolph County

court’s filing requirements. Simms argues that relevant

Illinois law, 735 ILCS 5/5-105(e), would only require the

clerk to hang onto the petition, file it, and “[a]t most . . .

require the clerk to contact the inmate and seek the required information.” Pet. Br. at 21. But, regardless of

whether the statute commands the clerk in a situation

like Simms’s to file the petition and then ask for the

required trust fund information, or whether the statute

allows the clerk to return the petition without filing it

and then file it when the proper trust fund information
10 No. 07-2999

is included, Simms’s petition was not properly filed,

for purposes of AEDPA, until it complied with “the

applicable laws and rules governing filings.” In either

scenario, therefore, the petition was not properly filed

until the trust fund information was included.

Furthermore, the statute that Simms relies on is easily

harmonized with the Randolph County Circuit Court

rules. The statute requires the clerk to “accept and file

any complaint, appearance, or other paper presented by

the applicant if accompanied by an application to sue

or defend in forma pauperis, and those papers shall be

considered filed on the date the application is presented.” 735 ILCS 5/5-105(e). The statute requires that the

application to sue “be in writing and supported by the

affidavit of the applicant.” Id. 5/5-105(c). The “contents

of the affidavit shall be established by Supreme Court

Rule.” Id.

Randolph County Circuit Court requires that in all

civil cases brought by poor persons (that is, indigents

seeking to prosecute an action without paying filing

fees), “the petition for leave to sue or defend as a poor

person shall be accompanied by a copy of the inmate’s

trust fund ledger indicating all deposits and withdrawals made to the inmate’s trust fund account for the

six months immediately preceding the submission of

the petition.” Randolph County Cir. Ct. Admin. Order

No. 90-7. Given that Illinois law specifically delegates

the authority to establish “the contents” of the in forma

pauperis affidavit to the state supreme court and that the

state supreme court in turn delegates rule-making author-
No. 07-2999 11

ity to the circuit courts, and that Simms doesn’t challenge that this rule was validly enacted (at least as a

procedural matter), we find it well within the Randolph

County Circuit Court’s purview under Illinois law to

require that all petitions include a copy of the trust fund

ledger. Given that the local rule the clerk relied on to

reject the petition did not conflict with state law and that

the petition was indisputably deficient (in that it did not

meet the in forma pauperis requirements), it was not

properly filed until July 1, 2005. Accordingly, the AEDPA

limitations period was not tolled between June 7 and

that date.

II. Was the Petition for Rehearing Properly Filed?

Simms also seeks to toll the AEDPA limitations period

for the period during which his petition for rehearing was

pending at the Illinois Supreme Court. Of course, his

petition was never really pending; it was returned three

weeks later by the clerk’s office, which informed Simms

that it was “unable to file” the petition. Remember that

Simms needs only one day of tolling to save his case; if

we toll the period for the three weeks the clerk had the

petition, his federal habeas corpus claim is timely.

Remember also that we explained above that the clerk’s

acceptance of a petition is not sufficient to render the

petition properly filed. To prevail, Simms must succeed

where he failed regarding his initial Illinois habeas

petition discussed above; he must show that the clerk of

the Illinois Supreme Court erred when she returned

his petition. Both parties assume that the clerk was
12 No. 07-2999

unable to file the petition because it was mislabeled a

“petition for rehearing.” (The clerk’s actual letter to

Simms is more ambiguous, but since neither party

teased out an alternative ground for rejection of the

petition from the letter, neither will we).

Simms argues that the clerk misinterpreted Illinois law

which, Simms claims, allows for petitions for rehearing

after the denial of a petition for leave to appeal. Simms

argues that the denial of the petition for leave to appeal

(PLA) is a judgment and as such, is a proper subject for a

petition for rehearing. See Illinois Supreme Court Rule

367(a) (“A petition for rehearing may be filed within 21

days after the filing of the judgment . . . .”). The respondent

disagrees.

In a case like Simms’s where there is no appeal as of

right to the Illinois Supreme Court, leave to appeal to

that court is entrusted to the “sound judicial discretion” of

the court. Illinois Supreme Court Rule 315(a). Because

of this discretion, the Illinois Supreme Court has refused

to invoke res judicata based on its previous denial of a

PLA at an earlier stage in the proceeding. “For res judicata

to apply, there must have been a final judgment on the

merits of the case. Denials of petitions for leave to

appeal are not decisions on the merits.” In re Leona W.,

888 N.E.2d 72, 81 (Ill. 2008); see also People v. Ortiz, 752

N.E.2d 410, 424 (Ill. 2001) (“It is well settled that our

denials of leave to appeal are not decisions on the merits

of the case. They carry no connotation of approval or

disapproval of the appellate court action, and signify only

that four members of this court, for reasons satisfactory
No. 07-2999 13

to them, have not voted to grant leave.” (quotation omitted)).

Illinois law is, therefore, clear that the denial of the PLA

is not a final judgment. And, accordingly, a petition for

rehearing is not a proper vehicle to challenge the denial

of a PLA. The fact that, as Simms points out, we have

mistakenly assumed, in dicta, that a petition for

rehearing is the proper vehicle to challenge the denial of

a PLA, see Jones v. Hulick, 449 F.3d 784, 789 (7th Cir.

2006); Wilson v. Battles, 302 F.3d 745, 747 (7th Cir. 2002),

does not alter our responsibility to interpret the law of

Illinois as the Illinois courts have.

As the clerk noted when it rejected Simms’s petition for

rehearing, a motion for reconsideration is available to a

petitioner whose PLA was denied. See, e.g., People v.

Thivel, 916 N.E.2d 545 (Ill. 2009). Simms filed no such

petition here, and we have repeatedly held that in

Illinois, the time period during which a petition for reconsideration can be filed after the denial of a petition for

leave to appeal is not tolled for purposes of AEDPA. See

Jones, 449 F.3d at 789; Wilson, 302 F.3d at 747-48. At

least one Illinois court of appeals has also made the

same error of nomenclature that we made in Jones and

Wilson, see Butts v. City of Peoria, 504 N.E.2d 544, 545 (Ill.

App. Ct. 1987), but Simms does not argue that Illinois

courts ordinarily treat the two separate motions

identically and that he was prejudiced by the clerk’s

decision to choose not to in his case. Instead, he rests his

claim on the fact that the denial of a PLA is a judgment. As

noted above, it is not, and the Illinois statute is clear—
14 No. 07-2999

rehearing is only available when there has been a judgment. Therefore, a petition for rehearing was an

improper filing after the denial of Simms’s leave to

appeal. Accordingly, AEDPA’s limitations period was

not tolled by the filing. 

III. Should the Limitations Period have been Equitably

Tolled?

“Equitable tolling is rarely granted.” Tucker v. Kingston,

538 F.3d 732, 734 (7th Cir. 2008). “Equitable tolling is

granted sparingly only when extraordinary circumstances far beyond the litigant’s control prevented timely

filing.” Wilson, 302 F.3d at 749 (internal quotations and

alterations omitted); see also Tucker, 538 F.3d at 734 (noting

the paucity of cases where we found it warranted). We

review the decision to deny equitable tolling for an

abuse of discretion. Tucker, 538 F.3d at 735.

In deciding that the AEDPA limitations period should

be equitably tolled, the district court must determine

that the petitioner has pursued his rights diligently and

extraordinary circumstances beyond his control stood

in the way of the timely filing of his petition. Pace, 544

U.S. at 418. The district court found that Simms failed to

act diligently in pursuing his federal rights, because he

waited nearly a year from the withdrawal of his

previous state court petition to begin his final attempts

at state court review.

The district court’s reasoning is sound. Simms’s last

two cracks at habeas relief in Illinois were fraught with
No. 07-2999 15

difficulties—the misfiled in forma pauperis petition cost

him three weeks and the misfiled petition for rehearing

cost him another three. But, given that he waited almost

a year to file the claim, his later errors were magnified

by his initial delay. See Pace, 544 U.S. at 419 (“Had petitioner advanced his claims within a reasonable time of

their availability, he would not now be facing any time

problem. . . .”). Despite the fact that Simms missed the

deadline by one day, there was no extraordinary

reason requiring the grant of equitable tolling. See United

States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)

(declining to apply equitable tolling when petitioner

missed a deadline by one day due to the death of the

attorney’s father several weeks before the deadline).

IV. Conclusion

Accordingly, we AFFIRM the decision of the district court.

CUDAHY, Circuit Judge, concurring. I concur in the

judgment.

2-19-10