01-3623 Pozo v. McCaughtry, et al.

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“To exhaust administrative remedies, a person must follow the rules governing filing and prosecution of a claim. As Artuz v. Bennett, 531 U.S. 4, 9-10 & n.2 (2000), observes, these include time limits. Consider once more the analogy to collateral attack: if a state court accepts a belated filing, and considers it on the merits, that step makes the filing ‘proper’ for purposes of state law and avoids exhaustion, default, and timeliness hurdles in federal court. See Jefferson v. Welborn, 222 F.3d 286 (7th Cir. 2000). But if the state stands on its time limits and rejects the filing as too late, then state remedies have not been properly invoked. See Freeman v. Page, 208 F.3d 572 (7th Cir. 2000). Cases look both ways on the question whether a document that is rejected as both late and unmeritorious counts as properly filed. Compare Brooks v. Walls, 279 F.3d 518 (7th Cir. 2002), with Rice v. Bowen, 264 F.3d 698 (7th Cir. 2001). But Pozo’s application was not dismissed on dual grounds. It was rejected as dilatory, with no other ground given or even hinted at. What is more, discretion to extend the time under sec. DOC 310.13(3) is not linked to the merits. Cf. Ake v. Oklahoma, 470 U.S. 68 (1985). That is to say, the Examiner’s decision not to entertain Pozo’s untimely appeal does not imply any view about the merits of his grievance. So no matter how the Supreme Court resolves the question whether plain-error review or other merits-linked doctrines that may relax procedural rules can relieve a defendant of a default in the state’s process, see Smith v. Stewart, 241 F.3d 1191 (9th Cir. 2001), cert. granted and question certified under the name Stewart v. Smith, 122 S. Ct. 1143 (2001), there is no doubt about the right treatment when the one and only ground for rejecting a claim or appeal is untimeliness. An unseasonable claim is a defaulted claim, as Coleman holds; and under Boerckel a defaulted claim has not been exhausted either.

“To exhaust remedies, a prisoner must file complaints and appeals in the place, and at the time, the prison’s administrative rules require. Pozo filed a timely and sufficient complaint but did not file a timely appeal.

He therefore failed to exhaust his administrative remedies, and his federal suit must be dismissed.”

Reversed.

Appeal from the United States District Court for the Eastern District of Wisconsin, Goodstein, Mag. J., Easterbrook, J.