Evan Griffith v. DAVE REDNOUR, Warden, Menard Correctional Center

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2518
EVAN GRIFFITH,
Petitioner-Appellant,
v.
DAVE REDNOUR, Warden,
Menard Correctional Center,
Respondent-Appellee.
____________
On Petition for Rehearing and
Rehearing En Banc
____________
DECIDED OCTOBER 28, 2010
____________
Before EASTERBROOK, Chief Judge, and BAUER and WOOD,
Circuit Judges.
PER CURIAM. The panel has voted unanimously to deny
the petition for rehearing. A judge in active service called
for a vote on the suggestion for rehearing en banc. A
majority did not favor rehearing en banc, and the petition
therefore is denied.
Circuit Judges Rovner, Williams and Hamilton voted to
rehear the appeal en banc.

-- 1 of 12 --

2 No. 09-2518
HAMILTON, Circuit Judge, with whom ROVNER and
WILLIAMS, Circuit Judges, join, dissenting. Petitioner
Griffith presented his constitutional claims to the Illinois
courts, which rejected them without a majority opinion.
People v. Griffith, 634 N.E.2d 1069 (Ill. 1994). Griffith’s death
sentence for murder was later commuted to a life sentence
in prison. After exhausting his available remedies in post-
conviction proceedings in the state courts, Griffith sought
federal habeas relief. The district court denied relief on the
ground that Griffith had filed his federal petition about
two weeks too late under the federal habeas statute of
limitations, 28 U.S.C. § 2244(d). The panel has affirmed,
Griffith v. Rednour, 614 F.3d 328 (7th Cir. 2010), and a
majority of the court has voted to deny rehearing en banc.
I respectfully dissent from the denial of rehearing en
banc. The Illinois Supreme Court granted Griffith permis-
sion to file an otherwise-untimely petition for leave to
appeal a denial of post-conviction relief because Griffith’s
lawyer was too ill to come to work. The panel held that the
Illinois Supreme Court’s decision to allow the filing did
not toll the statute of limitations for filing a federal habeas
corpus petition for the two weeks between the expiration
of the filing deadline and the filing of Griffith’s motion for
leave to file the late petition.
Based on the Supreme Court’s interpretation of the
tolling provision in 28 U.S.C. § 2244(d)(2), I believe that this
conclusion was wrong. The federal courts should give the
state court’s decision on timeliness the same effect the state
courts did. Correcting this error deserves en banc consider-
ation because the general problem—the proper calculation

-- 2 of 12 --

No. 09-2518 3
of the federal limitations period when a petitioner has
missed a deadline in the state courts, but the state courts
have excused the delay—is a recurring issue in the district
courts and for us.
The problem is one of the intricate details arising from
Congress’s decision in 1996 to establish a one-year statute
of limitations for seeking habeas corpus relief in federal
court. See 28 U.S.C. § 2244(d)(1). That time is tolled
for the “time during which a properly filed application
for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending.”
28 U.S.C. § 2244(d)(2). In this case, petitioner Griffith
sought post-conviction relief in the Illinois state courts.
As the panel opinion explains, the Illinois Appellate Court
affirmed the denial of that relief on July 13, 2005.
Griffith actually filed on August 1st a “notice of intent to
file petition for leave to appeal,” and under the rules
then in effect, he then had until August 17th to file his
petition for leave to appeal with the Illinois Supreme
Court. Griffith missed that deadline. On September 1st,
though, Griffith filed a petition for leave to appeal, along
with a motion for leave to file that petition instanter. The
motion explained that his lawyer in the state appellate
public defender’s office had been ill.
Over the state’s objection, the Illinois Supreme Court
granted Griffith’s motion on September 13th. The court
then considered Griffith’s petition on the merits and
denied it on December 1, 2005. Griffith filed his federal
petition 364 days later, on November 30, 2006. Application
of the one-year deadline in section 2244(d)(1) therefore

-- 3 of 12 --

4 No. 09-2518
depends on whether we treat Griffith’s petition for leave to
appeal as “pending” between the August 17th expiration
of the time to file the petition and either his September 1st
filing or the state court’s September 13th grant of leave to
file instanter.
The panel opinion concludes that there was nothing
actually “pending” during that interim period, see 614 F.3d
at 330, quoting and following Fernandez v. Sternes, 227 F.3d
977, 980 (7th Cir. 2000). The conclusion is certainly under-
standable. It is consistent with the reasoning that four
dissenting justices of the Supreme Court found persuasive
in Carey v. Saffold, 536 U.S. 214 (2002). But I believe the
panel conclusion is wrong for three reasons:
– First, the conclusion is inconsistent with the reason-
ing of the Supreme Court in Carey and its follow-up
case, Evans v. Chavis, 546 U.S. 189 (2006), and more
generally with the Supreme Court’s approach to a
closely-related question in Jimenez v. Quarterman,
129 S. Ct. 681 (2009).
– Second, the panel conclusion produces a confusing
solution that sets unnecessary traps for unwary
petitioners and their lawyers.
– Third, the panel conclusion winds up being
over-protective of a state’s interests when the state
court has found no need for such protection.
The better approach here would be to follow the reason-
ing of Carey and Evans to hold that when a state court
deems timely a request for further appellate review, the
federal courts should treat the relevant state court petition

-- 4 of 12 --

No. 09-2518 5
as having been pending throughout the entire period of
state court review, without having to go back and look for
potential “gaps” in the state courts’ process.
1. The Supreme Court’s Decisions in Carey v. Saffold and
Evans v. Chavis
The specific problems addressed in Carey and Evans
stemmed from an unusual feature of California’s
post-conviction procedure. Rather than taking an “appeal”
from a trial court’s denial, the petitioner files a new
original petition in the appellate court, and if that is
denied, files a new original petition in the state supreme
court. There are no specific deadlines, though; California
requires only that the later petition be filed within a
reasonable time after denial of the earlier. The question in
Carey was whether the federal clock was tolled in the
period between the appellate court’s denial of relief and
the filing of the later petition with the state supreme court.
The Court stated the general rule: “an application [for
post-conviction relief] is pending as long as the ordinary
state collateral review process is ‘in continuance’—i.e.,
‘until the completion of’ that process. In other words, until
the application has achieved final resolution through the
State’s post-conviction procedures, by definition it remains
‘pending.’ ” Carey, 536 U.S. 214, 220 (2002). In Carey, the
Court remanded to the Ninth Circuit to figure out whether
the state courts had treated the petition as timely: If the
California court had clearly ruled that the delay in filing
had been unreasonable, “that would be the end of the
matter.” 536 U.S. at 226. But if the state court had treated

-- 5 of 12 --

6 No. 09-2518
The panel tried to distinguish Carey as having dealt only with 1
whether the petition was “properly filed” under 28 U.S.C.
§ 2244(d)(2), and not with whether it was “pending.” Carey and
Evans themselves do not support the distinction. See Carey, 536
U.S. at 217 (“This case raises three questions related to the
statutory word ‘pending’. . . .”).
the filing as timely, then the federal claim would have been
timely as well. The Supreme Court remanded the case to
the Ninth Circuit to clarify what the state court had
actually decided. Id.
To the extent that Carey left any doubt as to whether state
law controls any pendency analysis under the habeas
tolling provision, Evans dispelled that doubt. “The time
that an application for state postconviction review is
‘pending’ includes the period between (1) a lower court’s
adverse determination, and (2) the prisoner’s filing of a
notice of appeal, provided that the filing of the notice of
appeal is timely under state law.” Evans v. Chavis, 546 U.S.
189, 191 (2006) (emphasis in original). “If the filing of the
appeal is timely, the period between the adverse lower
court decision and the filing . . . is not counted against the
1-year AEDPA time limit.” Id. at 192.1
Under Carey and Evans, then, the issue here is whether
Griffith’s appeal was actually timely under state law.
Evans, 546 U.S. at 197. At first blush, Griffith’s appeal
might seem untimely. Illinois Supreme Court Rule 315
then set a 35-day time limit to file a PLA, and Griffith
admittedly failed to file within that time. But the state
court “may extend the time for petitioning for leave to

-- 6 of 12 --

No. 09-2518 7
appeal” on a party’s motion “in the most extreme and
compelling circumstances.” That’s what the Illinois court
did when it granted Griffith leave to file his PLA. See
Waucanda Fire Protection Dist. v. Stonewall Orchards, LLP,
828 N.E.2d 216, 220 (Ill. 2005) (“[A]n order was entered
granting the County’s motion [for leave to appeal
instanter], the effect of which was to extend the County’s
deadline for filing its petition for leave to appeal . . . .”); id.
at 223 (referring to the grant of the motion for leave to file
as an “extension”). (I agree with the panel’s observation
that, for federal habeas purposes, there is no difference
under Illinois law between acceptance “instanter” and an
extension of the time for filing the petition. 614 F.3d at 330.
I draw the opposite conclusion from that observation,
however.)
In other words, the state supreme court deemed Grif-
fith’s PLA timely for purposes of state law. Under Carey
and Evans, that action should have tolled the federal
limitations period for Griffith during the two-week gap, as
well as the rest of the time his case was pending in the state
courts. Under this reasoning, Griffith’s federal petition was
timely.
The panel in this case and the panel in Fernandez v.
Sternes, 227 F.3d 977 (7th Cir. 2000), rejected the idea that
a state court’s allowance of a late filing could have the
retroactive effect of making the state court case “pending”
(for federal purposes) during such gaps in the state court
proceedings. Yet the Supreme Court in Jimenez v.
Quarterman, 129 S. Ct. 681 (2009), authorized an even
greater retroactive “re-set” under section 2244(d). The

-- 7 of 12 --

8 No. 09-2518
question in Jimenez was when the state courts’ direct
review of a conviction became final for purposes of section
2244(d)(1). After the petitioner’s initial appeal had con-
cluded, he sought state post-conviction relief. The state
courts ordered that he be allowed to pursue a second
out-of-time appeal because he had not been kept informed
by his lawyer or the state courts about his first appeal. The
issue for the Supreme Court was whether the date of final
decision was the conclusion of the first appeal or the
second out-of-time appeal. The Court held that the second
appeal was the relevant one: “once the [state court] re-
opened the direct review of petitioner’s conviction on
September 25, 2002, petitioner’s conviction was no longer
final for purposes of § 2244(d)(1)(A). Rather, the order
‘granting an out-of-time appeal restore[d] the pendency of
the direct appeal.’ ” 129 S. Ct. at 686. In other words, the
state courts’ actions had the retroactive effect of making
what had once been a final decision by the state courts no
longer final for federal purposes.
From Jimenez, as well as Carey and Evans, I conclude that
when a state court decides to excuse a criminal defendant’s
failure to meet state court deadlines, the federal courts
should give the same retroactive effect to that state court
decision when calculating timeliness under section 2244.
It’s the fair thing to do, and it’s consistent with the lan-
guage and purpose of the statute.
2. Practical Considerations
The panel’s decision not to give federal effect to a state
court’s decision to grant a retroactive extension of time in

-- 8 of 12 --

No. 09-2518 9
state court will produce unnecessary confusion and lay
traps for unwary petitioners and their lawyers in an area
that is already complex enough and provides ample
protection against stale claims. When petitioners and their
lawyers try to figure out their federal filing deadline, rather
than focusing on the start and end of the entire state court
post-conviction proceedings, they will also need to review
every stage of the docket to look for “gaps” during which
the federal courts will conclude that nothing was actually
“pending” in the state courts.
That is a problem. Under the panel’s approach, the
decisive fact will not be whether the state court actually
granted an extension of time, but whether the petitioner
sought the extension before or after the relevant deadline
expired. And keep in mind that where the “prison mail-
box” rule applies, it may be difficult to figure out the
relevant filing date. Under Carey and Evans, though, when
the state courts have been willing to grant the extension of
time at all, that should be enough, without having to
determine exactly when the request was filed. Federal
courts often grant retroactive extensions of time (except in
those rare instances where they are prohibited). Once they
are granted, no one looks back later to determine whether
the motion was filed before or after the deadline expired.
Yet the panel’s approach here makes that date in state
court decisive in the federal case.
As a sign of just how technical this can become, note that
in Griffith’s own case, the state did not even raise the
timeliness issue until 22 months after he filed his federal
petition. In an ordinary civil case, such a late assertion of a

-- 9 of 12 --

10 No. 09-2518
statute of limitations defense would likely be deemed a
waiver. The district court can exercise its discretion to
allow such a late assertion, of course, as happened here.
Ironically, though, the federal court’s belated extension of
time had a fully retroactive effect, which allowed a new
defense based on not giving retroactive effect to the state
court’s decision to grant an earlier retroactive extension of
time.
The panel was concerned that a distinction between pre-
and post-deadline extensions of time is necessary to
prevent multi-year delays in the filing of appeals. 614 F.3d
at 330, quoting Fernandez v. Sternes, 227 F.3d 977, 980 (7th
Cir. 2000). This concern is exaggerated. Surely it would
be extremely rare for a state court to allow several years
to appeal. Realistically, the state courts will allow exten-
sions of time only after relatively short, justifiable delays
such as the one at issue in this case. And in the rare case
where a state court does allow a significant delay in
bringing an appeal, a federal court should respect its
reasons for doing so, in the interest of comity. See Carey,
536 U.S. at 223. (Recall that Illinois allows such extensions
only “in the most extreme and compelling circumstances.”)
Otherwise, a federal court will find itself in the position
of second-guessing the states’ decisions about how to
manage their own criminal justice systems.
3. Giving the State More Protection Than It Sought
By construing the tolling provision as it did, the panel
disregarded the very interests that the provision was
meant to protect. It is, after all, “the State’s interests that

-- 10 of 12 --

No. 09-2518 11
the tolling provision seeks to protect.” 536 U.S. at 223.
The state courts concluded that the right and fair thing to
do was to extend Griffith’s time to seek review on the
merits in this murder case with a life sentence. That
decision deserves federal respect, particularly when the
extension was needed not because of counsel’s negligence
but because of counsel’s illness.
But under the panel’s interpretation of the tolling
provision, it does not matter what the state’s interests
might be. No matter the state court’s reason for granting a
retroactive extension of time to appeal, the federal clock
continues to run. For example, if a prison riot or a natural
disaster prevented a prisoner from filing a petition for
leave to appeal or a request for an extension of time to
file within the time set by state rule, the federal clock
apparently would run at least until the state prisoner was
able to file a late petition for leave to appeal, if not
longer. I recognize that there might be some room to argue
for equitable tolling in such extreme cases. I also recognize
that Griffith’s lawyers took a chance by waiting until what
they thought was the last day to file his federal petition.
But federal law does not require the panel’s result, and
I believe the Supreme Court decisions discussed above
point in the direction of honoring the state court’s decision
to allow a retroactive extension of time.
Finally, I note that Griffith has also sought rehearing en
banc on the question whether a claim for actual innocence
provides an exception to the statute of limitations in
section 2244(d). Our circuit has said no, and there is
already a circuit split on this issue. See Araujo v. Chandler,

-- 11 of 12 --

12 No. 09-2518
435 F.3d 678, 681 (7th Cir. 2005) (reviewing split); see
also Lee v. Lampert, 610 F.3d 1125, 1128 (9th Cir. 2010)
(same). Regardless of the merits of that question, I agree
with my colleagues that we should not rehear this case
en banc to decide whether we should move from one
side of the split to the other; that issue is now ripe
for Supreme Court resolution.
10-28-10

-- 12 of 12 --