Melky L. Terry v. DONALD GAETZ, Acting Warden

The Honorable William T. Lawrence of the United States District Court for the Southern*
District of Indiana, sitting by designation.
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 5, 2009
Decided August 3, 2009
Before
KENNETH F. RIPPLE, Circuit Judge
DIANE S. SYKES, Circuit Judge
WILLIAM T. LAWRENCE, District Judge*
No. 08-1183
MELKY L. TERRY,
Petitioner-Appellant,
v.
DONALD GAETZ, Acting Warden,
Respondent-Appellee.
Appeal from the
United States District Court
for the Northern District of Illinois,
Eastern Division.
No. 92 C 8215
Blanche M. Manning,
Judge.
O R D E R
Melky Terry is serving a life sentence in Illinois for first-degree murder. After a series
of appeals and requests for postconviction relief, Terry filed a federal petition for a writ of
habeas corpus in 2006. The district court dismissed Terry’s habeas petition as untimely.
We conclude that the district court used an incorrect date in calculating whether the one-
year statute of limitations under the Antiterroism and Effective Death Penalty Act
(“AEDPA”) had run by the time Terry filed his petition. Using the correct date, Terry’s
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 08-1183 Page 2
As discussed infra, the district court incorrectly believed that Terry filed his second state1
postconviction petition on September 2, 1999.
habeas petition was timely. We therefore reverse the district court’s dismissal of Terry’s
petition and remand for further proceedings consistent with this order.
I. Background
In 1987 an Illinois jury convicted Melky Terry of first-degree murder, and he was
sentenced to life imprisonment. The Illinois Appellate Court affirmed his conviction, and
the Illinois Supreme Court denied his petition for leave to appeal (“PLA”) in February 1991.
Terry’s direct appeal became final on May 7, 1991—90 days after the Illinois Supreme Court
denied his PLA (the time period during which Terry could have filed a petition for a writ of
certiorari to the United States Supreme Court). Terry spent the next 15 years filing
petitions for postconviction relief in both state and federal court. Because the dates of
Terry’s filings and the corresponding court decisions are important to this appeal, we set
forth the complex postconviction history of Terry’s case in some detail.
In December 1992 Terry filed his first petition for a writ of habeas corpus in the district
court. On October 12, 1993, while his federal habeas petition was pending, Terry filed his
first petition for postconviction relief in Illinois state court. In June 1995 the district court
dismissed Terry’s federal habeas petition without prejudice for failing to exhaust his state-
court remedies. A month later, the Illinois trial court dismissed Terry’s state postconviction
petition as untimely. Terry’s appeal of this order was unsuccessful; the Illinois Appellate
Court upheld the dismissal, and the Illinois Supreme Court affirmed on June 18, 1998. On
October 5, 1998, the Illinois Supreme Court denied Terry’s request for a rehearing.
Undaunted, Terry filed a second petition for postconviction relief in state court on July 11,
1999. The trial judge eventually dismissed Terry’s second petition. On appeal, the Illinois1
Appellate Court affirmed the dismissal, and the Illinois Supreme Court affirmed again on
December 1, 2005.
On February 23, 2006, Terry filed a second federal petition for a writ of habeas corpus.
At this point the district court reviewing his petition faced a problem. It had dismissed
Terry’s first habeas petition without prejudice in 1995 because Terry had failed to exhaust
his state-court remedies. At the time there was no statute of limitations for habeas claims,
so the court assumed that Terry could refile his habeas petition at any time. In 1996
Congress passed the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which
imposed a one-year statute of limitations for all habeas petitions. 28 U.S.C. § 2244(d).

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No. 08-1183 Page 3
AEDPA also granted a one-year grace period to petitioners, like Terry, whose convictions
became final before AEDPA’s enactment; those petitioners had until April 23, 1997, to file
their habeas petitions. The district court, worried about statute-of-limitations problems
due to the intervening passage of AEDPA, decided to circumvent any potential problems
with Terry’s second habeas petition by converting its 1995 dismissal of Terry’s first habeas
petition into a stay. It drew support for this course of action from our intervening decision
in Newell v. Hanks, 283 F.3d 827 (7th Cir. 2002), in which we held that a district court may
stay, rather than dismiss, a federal habeas petition while the petitioner exhausts his state
remedies. Id. at 834. The district court then construed Terry’s second habeas petition as an
amended petition and reopened his case under the first docket number.
Three months later, on October 19, 2006, the district court changed course. This time, it
determined that its original 1995 order dismissing Terry’s first habeas petition rather than
issuing a stay had been correct under then-controlling precedent. Terry’s one-year
limitations period theoretically began to run on April 24, 1996, with the passage of AEDPA.
However, AEDPA tolls the limitations period during the time that any properly filed
petition for postconviction relief is pending in state court. 28 U.S.C. § 2244(d)(2). Noting
that Terry had a properly filed petition pending in state court on April 24, 1996, the district
court held that Terry’s statute of limitations actually began to run on October 5, 1998, when
the Illinois Supreme Court denied his petition for rehearing. He had one year from this
date to file his habeas petition, unless he tolled the statute of limitations period by initiating
another state postconviction proceeding.
At this point in the analysis, the district court made its mistake about the date Terry
filed his second petition for postconviction relief; the district court said it was on
September 2, 1999, but the correct date was July 11, 1999. That second petition tolled
Terry’s AEDPA limitations period a second time. His AEDPA clock started again on
December 1, 2005, when the Illinois Supreme Court denied his petition for leave to appeal.
Terry filed his second habeas petition three months later on February 23, 2006. According
to the district court’s calculations, that filing occurred approximately one month after
Terry’s AEDPA limitations period had expired. The court therefore dismissed Terry’s
habeas petition as untimely.
On appeal, Terry argues that the district court miscalculated the relevant limitations
period and that he filed his petition within AEDPA’s one-year statute of limitations.
Alternatively, he argues that he is entitled to relief under Rule 60(b) of the Federal Rules of
Civil Procedure.

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No. 08-1183 Page 4
The Illinois Appellate Court recited the incorrect September 2 date in the background2
section of a summary order in which the filing date had no relevance to the disposition, and it did
so without any citation to shed light on the source of the September 2 date.
II. Discussion
AEDPA’s one-year statute of limitations on federal habeas petitions commences when
the petitioner’s conviction becomes final. 28 U.S.C. § 2244(d)(1). For petitioners whose
convictions became final before AEDPA’s enactment, however, AEDPA also grants a one-
year grace period. These petitioners have until April 23, 1997, to file their habeas petitions.
Because Terry’s conviction became final in 1991, Terry was entitled to take advantage of
AEDPA’s one-year grace period. In addition, AEDPA tolls the limitations period during
the pendency of a properly filed petition for state postconviction relief. 28 U.S.C. §
2244(d)(2).
The timeliness of Terry’s habeas petition depends on when he filed his second state-
court proceeding. The district court thought that Terry filed his second petition for
postconviction relief on September 2, 1999. This was a mistake, as we have noted; there is
no evidence in the record to support the September 2 date, and it is unclear where the
court’s misinformation originated. Instead, the record shows that Terry actually filed his2
petition on July 11, 1999. Terry submitted two documents establishing the accuracy of the
July 11 date: a receipt from the prison mail system showing that he mailed the petition on
July 11 and a copy of the Illinois state-court docket showing that the petition was docketed
on July 15. Illinois uses the “prison mail rule,” which states that pleadings are filed the day
they are provided to prison officials for mailing. Jones v. Bertrand, 171 F.3d 499, 502 (7th Cir.
1999). Therefore, the record reflects that Terry’s AEDPA limitations period should have
been tolled from July 11, the date he filed his second state postconviction proceeding—not
September 2, the date the district court used.
There is a further complication, however. Four days before oral argument in this case,
the Illinois assistant attorney general submitted a letter under Circuit Rule 28(j) making a
different argument on behalf of the respondent warden. He argued that Terry’s first
postconviction proceeding ended on June 18, 1998, when the Illinois Appellate Court
affirmed the dismissal of the petition, rather than October 5, 1998, when the Illinois
Supreme Court denied the petition for rehearing. If correct, this would reduce the time
that Terry’s AEDPA limitations period was tolled by almost four months and render
Terry’s petition untimely.
The issue of whether a petition for postconviction relief is “pending” for purposes of
AEDPA is a question of state law. Wilson v. Battles, 302 F.3d 745, 747 (7th Cir. 2002). The

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The assistant attorney general argues on appeal that AEDPA’s statute of limitations was3
not tolled during the pendency of Terry’s first postconviction petition because the state courts
denied it as untimely. Because this argument was not raised in the district court, however, it is
waived.
assistant attorney general cites Jones v. Hulick, 449 F.3d 784, 789 (7th Cir. 2006), as support
for the proposition that under Illinois law a petition for rehearing does not alter the
effective date of judgment unless the court grants the petition. We note initially that Jones
explains only when a judgment appealed to the state’s highest court takes effect; it does not
necessarily explain when a state petition is “pending” under AEDPA. As the Supreme
Court has noted, the two may not be interchangeable. Lawrence v. Florida, 549 U.S. 327, 333
(2007) (noting the differences between AEDPA’s finality provision and AEDPA’s provision
dealing with the pendency of state postconviction proceedings). We also observe that
Illinois appears to have conflicting decisions on the question of whether a case is still
“pending” when a petition for rehearing is filed in the Illinois Supreme Court. Compare
People v. Brown, 792 N.E.2d 788, 789 (Ill. 2002) (suggesting that a case does not become final
until a petition for rehearing is denied), with PSL Realty Co. v. Granite Inv. Co., 427 N.E.2d
563, 570 (Ill. 1981) (noting that the filing of a petition for rehearing does not alter the
effective date of judgment unless the petition is granted).
We need not address this apparent conflict in the Illinois caselaw. The failure to raise
this issue until four days before oral argument is a waiver. See Grigsby v. Cotton, 456 F.3d
727, 731 (7th Cir. 2006). The assistant attorney general neither presented this argument to
the district court nor included it in his brief on appeal. Accordingly, we hold that Terry’s
limitations period under AEDPA did not start until October 5, 1998, when the Illinois
Supreme Court denied his petition for rehearing.
Using October 5, 1998, and July 11, 1999, as the dates Terry’s limitations period started
and stopped again, we further hold that Terry filed his second habeas petition within
AEDPA’s limitations period. On April 24, 1996, the date of AEDPA’s enactment and the
date that Terry’s one-year statute of limitations began to run, Terry had a properly filed
petition for postconviction relief pending in state court. This immediately tolled Terry’s
limitations period until October 5, 1998, when the Illinois Supreme Court denied Terry’s
petition for rehearing. Terry’s one-year clock started on October 5, 1998, and ran for a total3
of 278 days until July 11, 1999, when Terry filed his second petition for state postconviction
relief. This second filing tolled the limitations period again while Illinois considered
Terry’s second postconviction petition. When the Illinois Supreme Court denied Terry’s
petition for leave to appeal on December 1, 2005, the clock started running again, and Terry
had 87 days remaining to file his habeas petition. Terry filed his second habeas petition on
February 23, 2006—83 days later and four days shy of the end of his AEDPA limitations

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period. Thus, Terry’s habeas petition was timely filed.
The assistant attorney general argues that we should affirm nonetheless because Terry
failed to brief the merits of his substantive constitutional habeas claims. We decline to find
waiver in this situation. Our certificate of appealability, while noting Terry’s meritorious
constitutional claims, only sought briefing on the procedural issues. We will not fault a
petitioner for following our instructions. This is not a case in which we requested briefing
on the merits and petitioner failed to brief those issues; that would constitute a waiver. See
Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir. 2002). Here, Terry’s counsel did exactly as
we asked and briefed only the procedural aspects of the case. Terry has not waived the
merits of his constitutional arguments, and the district court should proceed to address
them on remand.
For the foregoing reasons, we REVERSE the judgment of the district court and REMAND
for further proceedings consistent with this order.

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