In the

United States Court of Appeals

For the Seventh Circuit

No. 00-4034

Kevin Rice,

Petitioner-Appellant,

v.

Edwin R. Bowen,

Respondent-Appellee.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 00 C 3997--Suzanne B. Conlon, Judge. 

Submitted May 18, 2001--Decided June 28, 2001/*

 Before Bauer, Diane P. Wood, and Evans,

Circuit Judges.

 Per Curiam. Inmate Kevin Rice, who is

serving a state sentence for drug

offenses, brought a petition for a writ

of habeas corpus under 28 U.S.C. sec.

2254. The district court dismissed, and

Rice filed this appeal. Before us now is

the State of Illinois’s motion to strike

Rice’s brief because Rice allegedly has

referred to a transcript that is not part

of the record on appeal. As we explain in

this opinion, we deny the motion as moot

because under the circumstances we must

vacate the judgment and remand this case

to the district court for further

proceedings.

 A summary of the complex procedural

history of this case is essential to

understand why this step is the

appropriate one. Chicago police

discovered Rice and co-defendant Raymond

Pugh in possession of 103 grams of heroin

after a traffic stop. The two men were

charged with possession of narcotics with

intent to distribute and tried together

in 1992. The arresting officer testified

that he observed Rice hand Pugh a paper

bag containing the drugs. Yet at an

earlier suppression hearing Pugh had

testified that he placed the bag in his

underwear two hours before the traffic

stop and that he kept it there at all
times until the police discovered it. At

trial, Rice denied possessing the drugs

and called Pugh as a witness. When Pugh

asserted his Fifth Amendment privilege,

Rice sought to admit Pugh’s testimony

from the suppression hearing. The trial

court, however, refused to do so on the

ground that it was hearsay and not

sufficiently trustworthy. Rice was

convicted and sentenced to a 20-year

prison term. Rice appealed, but after an

initial victory in the Illinois appellate

court, a divided Illinois Supreme Court

reinstated his conviction. It concluded

that the testimony was properly excluded

under the state’s evidentiary rules, and

that the exclusion of the evidence did

not violate Rice’s due process rights

under the rule announced in Chambers v.

Mississippi, 410 U.S. 284 (1973). See

People v. Rice, 651 N.E.2d 1083 (Ill.

1995). Rice’s conviction became final on

June 4, 1997, after the appellate court

rejected Rice’s remaining arguments and

the supreme court denied further review.

 In September 1996, Rice filed a petition

for post-conviction relief in the trial

court. Although his direct appeal was

still pending, Rice was not entitled to

wait until its conclusion because the

version of the Illinois Post-Conviction

Hearing Act that applied to him--enacted

after his conviction but made

retroactive, see People v. Bates, 529

N.E.2d 227 (Ill. 1988)--had shortened the

time period to file his petition,

requiring that he file his petition no

later than three years from the date of

conviction, or by April 12, 1995. See 725

ILCS 5/122-1 (West 1995); Freeman v.

Page, 208 F.3d 572, 575 (7th Cir. 2000).

Under the amendment’s terms, Rice’s

petition was due before the new law took

effect. To avoid placing people in an

impossible situation, the amendment

allowed courts to excuse the limitations

period if the delay in filing was not due

to "culpable negligence." See Bates, 529

N.E.2d at 229-30; Barksdale v. Lane, 957

F.2d 379, 382 n.9 (7th Cir. 1992).

 Rice filed his petition fourteen months

late and did not allege lack of culpable

negligence. Nevertheless, the trial

court, without directing the state to

respond, summarily dismissed it on its

merits in February 1997. On appeal, the

state asserted for the first time that

Rice’s petition was untimely. Rice argued
in reply that the court should not

entertain the state’s timeliness argument

in the first instance, or, in the

alternative, that it should remand for

the trial court to determine whether the

limitations period should be excused. The

court affirmed, holding that the trial

court properly dismissed the petition on

its merits and alternatively that it was

untimely.

 On June 30, 2000, Rice filed his federal

habeas corpus petition raising the

Chambers issue and several others. The

state immediately moved to dismiss it as

time-barred. State prisoners must file

their habeas corpus petitions within one

year after their convictions become

final, 28 U.S.C. sec. 2244(d)(1)(A), and

Rice’s conviction became final on June 4,

1997, when his direct appeal concluded.

The limitations period is tolled,

however, during the time in which

a"properly filed" application for state

post-conviction review is pending. 28

U.S.C. sec. 2244(d)(2). The Illinois

Supreme Court did not finally dispose of

Rice’s state post-conviction petition

until October 16, 1999, well less than a

year before Rice filed his sec. 2254

petition.

 The state argued that it was improper to

rely on the October 16, 1999, date

because the Illinois appellate court had

found that Rice’s post-conviction

petition was untimely and thus not

"properly filed." The district court

agreed, dismissed Rice’s petition, and

declined to issue a certificate of

appealability. But there is more to the

story than that. This court granted a

certificate of appealability, indicating

that the district court had erred with

respect to the timeliness issue and

directing the parties to address whether

the exclusion of Pugh’s testimony

conflicted with Chambers v. Mississippi.

In support of his case, Rice quoted

extensively from the suppression hearing

transcript in his brief; this is the

material to which the state’s present

motion objects.

 Now that we have had a better

opportunity to examine this case, it is

apparent that the root of the problem

with Rice’s brief lies in the fact that

the early ruling based on timeliness

prevented proper development of the
record on the constitutional issue. It is

true that it is improper to cite evidence

outside of the appellate record in a

brief, and that such an action may

justify striking the brief. Henn v.

National Geographic Soc’y, 819 F.2d 824,

831 (7th Cir. 1987). But this case is

unusual, and we believe that further

explanation of our conclusion with

respect to timeliness is in order.

Questions of timeliness are statutory,

and so errors in treating a collateral

attack as untimely cannot by themselves

support a certificate of appealability,

which can issue only if the petitioner

makes "a substantial showing of the

denial of a constitutional right." 28

U.S.C. sec. 2253(c)(2); Owens v. Boyd,

235 F.3d 356, 357-58 (7th Cir. 2001). To

review statutory errors, a judge must

conclude that at least one of the

prisoner’s underlying constitutional

claims is itself substantial, grant a

certificate of appealability on that

claim, and append the statutory claim as

an antecedent issue to be resolved on

appeal, even if the petition was denied

without reaching the constitutional

claim. Owens, 235 F.3d at 358. That is

what happened here.

 Addressing that antecedent question

first, we concluded that Rice’s habeas

corpus petition was not time-barred. A

petition for state post-conviction relief

is properly filed for tolling purposes

under 28 U.S.C. sec. 2244(d)(2) if it is

delivered to, and accepted by, the

appropriate court officer for placement

in the official record, and its delivery

and acceptance are in compliance with the

applicable state laws and rules governing

filings. Artuz v. Bennett, 121 S. Ct.

361, 363-64 (2000). Applicable state law

and rules governing filings include time

limits for delivery. Id. at 364; see also

Freeman, 208 F.3d at 574 (collecting

cases). We determine whether a postconviction petition is properly filed by

looking at how the state courts treated

it. If the courts considered the claim on

the merits, it was properly filed; if

they dismissed it for procedural flaws

such as untimeliness, then it was not

properly filed. Freeman, 208 F.3d at 576.

Here, the state trial court dismissed

Rice’s petition wholly on its merits. The

appellate court likewise reviewed and

affirmed the trial court’s decision on

the merits, holding only in the
alternative that Rice’s petition was not

timely. Cf. Jenkins v. Nelson, 157 F.3d

485, 491 (7th Cir. 1998) (state

procedural default cannot bar

consideration of a federal claim on

habeas corpus review unless the last

state court rendering a judgment clearly

and expressly states that its judgment

rests on the procedural bar). Rice’s

post-conviction petition was therefore

properly filed for tolling purposes.

 Other circuits have also held that if a

state’s rule governing the timely

commencement of post-conviction

proceedings contains exceptions requiring

courts to examine the merits of the

petition before dismissing it, the

petition, even if ultimately held to be

time-barred, should be regarded as

properly filed. See Dictado v. Ducharme,

244 F.3d 724, 727-28 (9th Cir. 2001);

Emerson v. Johnson, 243 F.3d 931, 935

(5th Cir. 2001); Smith v. Ward, 209 F.3d

383, 385 (5th Cir. 2000). Illinois

provides a statutory exception to its

post-conviction time limitation if "the

petitioner alleges facts showing that the

delay was not due to his or her culpable

negligence." 725 ILCS 5/122-1(c). Under

the circumstances, the state courts had

to consider the merits of Rice’s petition

before determining whether it was timely.

In addition, Illinois has directed its

courts summarily to dismiss frivolous or

patently meritless post-conviction

petitions. 725 ILCS 2/112-2.1(a)(2).

Frivolousness was the reason the state

court gave for dismissing Rice’s

petition, and this, too, is a merits

determination.

 Because the district court’s conclusion

with respect to timeliness had the effect

of cutting off further development of the

record and issues there, we have decided

that the proper step is to remand the

case to that court for further

proceedings. This will give us the

benefit of both the district court’s

views on the issue and a proper record on

which to base our review of Rice’s

Chambers claim. We note in this

connection that the district court’s

statement that the Chambers claim was not

cognizable on habeas corpus review

because it was an error involving the

application of state law was not

necessarily correct. In some cases--

though we express no view about whether
this is one-- mechanistic application of

state evidentiary rules may deprive

criminal defendants of a fair trial.

Chambers, 410 U.S. at 302-03. 

 Accordingly, the judgment of the

district court is Vacated, and this case

is Remanded to the district court for

further proceedings consistent with this

order. The motion to strike Rice’s brief

is Denied as moot.

FOOTNOTE

/* This decision was initially decided per

unpublished order (Circuit Rule 53).