Graham v. Borgen

• Decision Date: 13 April 2007
• Docket Number: No. 04-4103.,04-4103.
• Citation: 483 F.3d 475
• Parties: Richard GRAHAM, Petitioner-Appellant, v. Thomas G. BORGEN, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

483 F.3d 475

Richard GRAHAM, Petitioner-Appellant, v. Thomas G. BORGEN, Respondent-Appellee.

No. 04-4103.

United States Court of Appeals, Seventh Circuit.

Argued April 10, 2006.

Decided April 13, 2007.

Matthew A. Zapf, Steven Henley Locher (argued), Goldberg, Kohn, Bell, Black, Rosenbloom & Moritz, Chicago, IL, for Petitioner-Appellant.

Katherine L. Tripp (argued), Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.

Before EASTERBROOK, Chief Judge, and RIPPLE and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Richard Graham contends that a Wisconsin Court violated the double jeopardy clause of the Fifth Amendment by imposing consecutive sentences for felony murder and the lesser included felony of armed robbery, a question to which we cannot turn, as Graham failed to file his petition for a writ of habeas corpus within the applicable limitations period.

I.

On December 3, 1990, Graham signed a "Guilty Plea Questionnaire, and Waiver of Rights Form" pleading guilty to the offenses of felony murder and attempted armed robbery. The written judgment of conviction, dated February 11, 1991, states that Graham was sentenced to twenty years imprisonment for felony murder, with a penalty enhancement of ten years for the underlying felony, to be served consecutively. Graham did not file a direct appeal or motion for post-conviction review within twenty days of sentencing as required by Wis. Stat. §§ 808.04, 809.30. Almost twelve years later, on January 20, 2003, however, Graham employed an alternate post-conviction review procedure under Wis. Stat. § 974.06, to move the Wisconsin Circuit Court to modify his sentence on the grounds that the imposition of consecutive sentences for felony murder and the lesser-included felony of armed robbery violated the Double Jeopardy Clause of the Fifth Amendment. The Wisconsin Circuit Court denied Graham's motion to modify his sentence on January 24, 2003, concluding that Graham had been sentenced for but one crime—a decision with which the Wisconsin Court of Appeals agreed. The Wisconsin Supreme Court denied Graham's petition for review on April 20, 2004, prompting his petition for a writ of habeas corpus in the district court below, which he filed on June 30, 2004. On October 22, 2004, the district court denied his petition on the same ground as had the State court—that Graham was convicted of only one crime and therefore his sentence could not implicate the Double Jeopardy Clause. On November 19, 2004, Graham filed a timely notice of appeal to this court.

Graham argues to this court, as he did to the State courts and the district court below, that Wisconsin law forbids its courts from sentencing criminals to consecutive sentences for the greater and lesser-included offenses of felony murder, and that his sentence, therefore, violates the Double Jeopardy Clause. The government argues first, that Graham's petition for a writ of habeas corpus was not timely filed and, that even if it were, the State court sentenced Graham for only one crime. Because we agree with the government that Graham's petition for habeas corpus was not timely filed, we have no cause to comment on the question of double jeopardy.

II.

The Antiterrorism and Effective Death Penalty Act (AEDPA) provides the applicable statute of limitations for Graham's federal habeas corpus claim. Enacted in 1996, the AEDPA imposes a one-year statute of limitations for filing a federal habeas petition which runs from the latest of several dates specified as follows:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1).

The statute is tolled during the time in 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). It can also be tolled in extraordinary circumstances outside of the petitioner's control. Moore v. Battaglia, 476 F.3d 504, 506 (7th Cir.2007).

There is no dispute that section (d)(1)(A) provides the applicable statute of limitations in this case. Under this section, Graham's petition for writ of habeas corpus was timely if it was filed within one year of the date on which his judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A).

Graham was sentenced on February 8, 1991. Under Wisconsin law, Graham had twenty days in which to seek post-conviction relief or to file a notice of appeal in the court of appeals. Wis. Stat. §§ 808.40(3), 809.30(2)(b)¹. The State argues that the judgment became final by the conclusion of the expiration of the time for seeking direct review, or twenty days later.² Because this date preceded the April 24, 1996 effective date of the AEDPA, however, Graham had one year from the date of the enactment of the AEDPA, or until April 24, 1997, to file his federal habeas corpus petition. Araujo v. Chandler, 435 F.3d at 680.

Graham, however, did not request post-conviction relief or an appeal under Wis. Stat. §§ 809.30 or 808.04 under the applicable time limitations. Instead, Graham waited almost twelve years and then filed a motion to modify his sentence pursuant to Wisconsin statute § 974.06 entitled "Postconviction procedure" which allows a prisoner to move to vacate, set aside, or correct a sentence, if the prisoner believes that the "the sentence was imposed in violation of the U.S. constitution or the constitution or laws of this state, that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack." Wis. Stat. § 974.06(1). Under Wisconsin law, such a motion may be made at any time. Id. at § 974.06(2).

Graham's theory is that his motion under § 974.06 constituted "direct review" of his case and consequently, under 28 U.S.C. § 2244(d)(1)(A), his time to file a federal habeas corpus petition did not expire until one year from the conclusion of this direct review, or on April 20, 2005—one year after the Wisconsin Supreme Court denied review of his motion to modify his sentence under Wis. Stat. § 974.06. Graham filed his federal habeas petition on June 30, 2004, well within one year of what he insists was the conclusion of his direct review. The government, on the other hand, argues that Graham's conviction became final by the expiration of the time for seeking a direct appeal under Wis. Stat. § 808.04. Because this date preceded the April 24, 1996 effective date of the AEDPA, however, Graham had one year from the date of the enactment of the act—until April 24, 1997, to timely file his federal habeas corpus petition. Consequently, under the government's view, when Graham filed his habeas petition on June 30, 2004, he was over eight years too late.

The sole question in this case boils down to whether Wisconsin Statute § 974.06 constitutes direct review for purposes of calculating "the date in which a judgment became final by the conclusion of direct review or the expiration of the time for seeking such review" under 28 U.S.C. § 2244(d)(1)(A). The question as to whether Wisconsin construes § 974.06 as collateral or direct review is a question of state law generally left for the Wisconsin courts to determine. Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) ("state courts are the ultimate expositors of state law" except in extreme circumstances). The federal courts, however, can determine the meaning of the words "conclusion of direct review or the expiration of time for seeking such review" in 28 U.S.C. § 2244(d)(1)(A), just as it can determine the meaning of other federal statutes that rely on state court procedures as trigger points. cf. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 477-87 & 479 n. 8, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975) (determining when a state court judgment was sufficiently final for Supreme Court review and noting that the state court's determination of finality was not controlling); Richardson v. Gramley, 998 F.2d 463, 465-66 (7th Cir.1993) (determining whether a state court judgment was sufficiently final for purposes of applying a new rule of criminal procedure); see also Richardson, 998 F.2d at 470-71 (Rovner, J., dissenting) ("[W]ith respect to finality: The designation given the judgment by state practice is not controlling.")

The Wisconsin courts' own interpretation of the statute is certainly a good place to begin to determine whether the review is direct or collateral. The Wisconsin courts have not directly answered that question, but both the statute itself and the case law interpreting it offer undeniable evidence that § 974.06 is, in fact, a statute addressing collateral relief. As a preliminary matter, the statute is entitled "[p]ostconviction procedure," and states that it is available to a prisoner after the time for appeal has expired. Wis. Stat. § 974.06. The Wisconsin courts repeatedly and persistently refer to § 974.06 review as collateral review. See, e.g., State v. Evans, 273 Wis.2d 192, 682 N.W.2d 784, 795 (2004) ("An appeal under § 974.06 is a civil proceeding ... and it is essentially the statutory substitute for a petition for writ of...