Richard Graham v. Thomas G. Borgen

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-4103
R ICHARD G RAHAM ,
Petitioner-Appellant,
v.
T HOMAS G. B ORGEN ,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04-C-0630—Lynn Adelman, Judge.
____________
A RGUED A PRIL 10, 2006—D ECIDED A PRIL 13, 2007
____________
Before E ASTERBROOK , Chief Judge, and R IPPLE and
R OVNER , Circuit Judges.
R OVNER , 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

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2 No. 04-4103
to the offenses of felony murder and attempted armed
robbery. The written judgment of conviction, dated Febru-
ary 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 Wiscon-
sin 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 Amend-
ment. 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 con-
victed 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

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No. 04-4103 3
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 col-
lateral review with respect to the pertinent judgment or

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4 No. 04-4103
1 The government, citing Wis. Stat. § 808.04(1), claims that
Graham had forty-five days within which to file a notice of ap-
peal in the Wisconsin Court of Appeals. Under our reading, Wis.
Stat. § 808.04(1) governs appeals in civil matters, and § 808.04(3)
of that same statute governs criminal appeals and then refer-
ences the time periods specified in § 809.30. In any event, it does
not matter whether Graham had twenty or forty-five or even
sixty days to file a notice of appeal, as he waited almost twelve
years. Moreover, in cases such as this where the conviction
preceded the effective date of AEDPA, our case law grants a
grace period of one year from the effective date of the
AEDPA—or until April 24, 1997—to apply for habeas relief. See
Araujo v. Chandler, 435 F.3d 678, 680 (7th Cir. 2005).
2 The state actually argues that the conviction became final
forty-five days after his sentence was imposed. See footnote 1,
supra.
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, No. 05-1118, 2007
WL 437937, at *3 (7th Cir. Feb. 12, 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,

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No. 04-4103 5
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 jurisdict-
ion to impose such sentence, or that the sentence was
in excess of the maximum authorized by law or is other-
wise 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

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6 No. 04-4103
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 re-
view is a question of state law generally left for the
Wisconsin courts to determine. Mullaney v. Wilbur, 421
U.S. 684, 691 (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 (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 undeni-
able evidence that § 974.06 is, in fact, a statute ad-
dressing collateral relief. As a preliminary matter, the

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No. 04-4103 7
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, 682 N.W.2d 784,
795 (Wis. 2004) (“An appeal under § 974.06 is a civil
proceeding . . . and it is essentially the statutory sub-
stitute for a petition for writ of habeas corpus.”); State ex.
rel. Warren v. Schwarz, 579 N.W.2d 698, 713 (Wis. 1998);
State v. Jackson, 688 N.W.2d 688, 689 (Wis. Ct. App.
2004); State v. Lagundoye, 659 N.W.2d 501, 505 (Wis. Ct.
App. 2003). In addition to referring to § 974.06 as collat-
eral review, the Wisconsin courts have noted particularly
that it cannot be used as a substitute for direct appeal.
Sass v. State, 216 N.W.2d 22, 24 (Wis. 1974), Vara v. State,
202 N.W.2d 10, 11 (Wis. 1972), State v. Horton, 536
N.W.2d 155, 158 (Wis. Ct. App. 1995).
Of course the title and labels, although helpful, are
far from dispositive, as “[o]rdinarily, for purposes of
applying a federal statute that interacts with state proce-
dural rules, we look to how a state procedure functions,
rather than the particular name that it bears.” Carey v.
Saffold, 536 U.S. 214, 223 (2002). See also Frasch, 414
F.3d at 522 (“The nature of the review is the key to
determining whether it was collateral or direct review.”).
Direct appeal statutes afford defendants the opportunity
to challenge the merits of a judgment and allege errors
of law or fact. U. S. v. Addonizio, 442 U.S. 178, 185 (1979).
Post-conviction appeals, on the other hand, provide an
independent and civil inquiry into the validity of a con-
viction and sentence, and as such are generally limited to
challenges to constitutional, jurisdictional, or other
fundamental violations that occurred at trial. Id. Wiscon-
sin’s § 974.06 allows a prisoner to challenge her sentence
on only four grounds: “that the sentence was imposed in
violation of the U.S. constitution or the constitution or

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8 No. 04-4103
3 Compare the language of Wis. Stat. § 974.06(1):
the right to be released upon the ground that 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.
with the federal habeas corpus statute, 28 U.S.C. § 2255:
the right to be released upon the ground that the sentence
was imposed in violation of the Constitution or laws of the
United States, or 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.
laws of this state, that the court was without jurisdic-
tion to impose such sentence, or that the sentence was
in excess of the maximum authorized by law or is other-
wise subject to collateral attack.” Wis. Stat. § 974.06(1).
The first three of these grounds are the typical grounds of
collateral attack—through this process a prisoner is not
attacking the judgment on the merits, but rather lodging
a secondary or collateral attack on the manner in which
the judgment was obtained. The fourth catch-all seals
the deal; Wisconsin statute § 974.06 allows a prisoner to
lodge the three most common forms of collateral attack or
make any other argument that the sentence imposed
is “otherwise subject to collateral attack.” Wis. Stat.
§ 974.06(1). In sum, the nature of the permissible attack
under § 974.06 is that of a collateral review. Indeed, it is
identical to the archetypical collateral review—that set
forth by the federal habeas corpus statute, 28 U.S.C.
§ 2255. 3
If the language of the statute itself does not make its
purpose clear, the cases interpreting it surely do. Two
years after § 974.06 went into effect, the Wisconsin

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No. 04-4103 9
Supreme Court set forth its purpose as a collateral re-
view statute:
The postconviction motion under sec. 974.06, Stats., is
not a substitute for a motion for a new trial. A sec.
974.06 motion can be made only after the defendant
has exhausted his direct remedies which consist of a
motion for a new trial and appeal. A sec. 974.06 motion
is limited in scope to matters of jurisdiction or of
constitutional dimensions. The motion must not be
used to raise issues disposed of by a previous appeal.
Fundamentally, the motion was authorized as a
substantial replacement for the petition for habeas
corpus in this court. . . . Such issues as sufficiency
of the evidence, jury instructions, error in admission
of evidence, and other procedural errors cannot be
reached by a sec. 974.06 motion.
Peterson v. State, 195 N.W.2d 837, 845 (1972).
Most importantly, § 974.06 functions and is treated as
a collateral review statute in other critical ways. Claims
that could have been brought on direct appeal, for exam-
ple, are barred from consideration in a § 974.06 motion,
just as they would be in any other form of collateral
review. Lo v. State, 665 N.W.2d 756, 760 (Wis. 2003); State
v. Escalano-Naranjo, 517 N.W.2d 157, 159 (Wis. 1994).
Oddly, Graham relies heavily on this latter case, Escalano-
Naranjo, to support his claim that a § 974.06 motion is
the equivalent of a direct appeal. He does so because of
a single sentence from the opinion which states, “no-
where in the statute is it stated that a sec. 974.06 motion
should be treated differently from a direct appeal.” See
Graham’s Reply Brief at 4 (citing Escalano-Naranjo, 517
N.W.2d at 163). The sentence in its entirety actually
states, “nowhere in the statute is it stated that a sec.
974.06 motion should be treated differently from a direct
appeal or a sec. 974.02 motion [a motion for

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10 No. 04-4103
postconviction relief].” Escalano-Naranjo, 517 N.W.2d at
163 (emphasis added). Although truncated and isolated
from its context, that sentence appears to support Gra-
ham’s position that a § 974.06 motion is the same as a
direct appeal. In its full iteration and in context, however,
the sentence demonstrates just the opposite.
The issue in Escalano-Naranjo, was the proper inter-
pretation of section 4 of § 974.06 which states, in relevant
part,
[a]ll grounds for relief available to a person under this
section must be raised in his or her original, supple-
mental or amended motion. Any ground finally ad-
judicated or not so raised, or knowingly, voluntarily
and intelligently waived in the proceeding that re-
sulted in the conviction or sentence or in any other
proceeding the person has taken to secure relief may
not be the basis for a subsequent motion.
§ 974.06(4). Escalano-Naranjo wished to make an ineffec-
tive assistance of counsel claim in a § 974.06 motion.
Although he had filed earlier post-conviction motions,
those motions had not contained an ineffective assist-
ance claim. Id. at 161. The government claimed that the
phrase “must be raised in his or her original, supplemental
or amended motion” meant that any grounds for relief
that could have been addressed in a previous appeal or
motion for post-conviction relief, but were not, were
waived. Escalano-Naranjo, on the other hand, argued
that the phrase “original, supplemental or amended
motion” referred only to an original, supplemental, or
amended § 974.06 motion, and that therefore he was
only precluded from raising an ineffective assistance of
counsel claim if that claim had been waived in a previous
§ 974.06 motion—not if he had failed to raise it in a
previous appeal or a previous motion for post-conviction
relief. Id. at 161. The Wisconsin Supreme Court agreed

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No. 04-4103 11
with the government and concluded that a prisoner
could not bring a claim for § 974.06 relief if the grounds
for that relief could have been raised, but were not, in a
prior appeal or in a prior post-conviction motion. Id. at
162. It is in this context that the court held that, for
purposes of determining waiver, a previous § 974.06
motion should be treated the same as a direct appeal or
other forms of post-conviction relief—that is, failure to
raise a claim in any of these fora where the claim could
have been raised waives the availability of the claim in a
future § 974.06 motion. Id. at 163. Indeed, Escalona-
Naranjo further demonstrates the function of § 974.06
as a collateral relief statute. Like other forms of collateral
relief, § 974.06 was not drafted to give prisoners multiple
bites at the direct appeal apple, but to address issues of
a constitutional dimension that could not have been
addressed on direct appeal.
Wisconsin case law treats § 974.06 as collateral review
in other contexts as well. For example, although Wisconsin
courts, like federal courts, apply new rules of criminal
procedure retroactively to cases on direct review, they
do not apply such rules to cases on collateral review,
including cases brought under § 974.06. Lagundoye, 674
N.W.2d at 532 (specifically noting that the rule of non-
retroactive application of rules of criminal procedure to
cases on collateral review applies to all § 974.06 motions);
Horton, 536 N.W.2d at 159. In a final example, a criminal
defendant in Wisconsin has no right to counsel for a
collateral attack under § 974.06 as he would on direct
appeal. See State v. Evans, 682 N.W.2d at 795 (Wis. 2004).
Although the evidence that § 974.06 constitutes collat-
eral review is exceedingly clear, section 2 of the statute
muddies the water just a bit. That section declares that
a motion filed under § 974.06 “is part of the original
criminal action, [and] is not a separate proceeding.” Wis.
Stat. § 974.06(2). Graham argues that this is key evidence

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12 No. 04-4103
that § 974.06 is direct rather than collateral review. This
section applies to all § 974.06 motions, however, and even
under Graham’s theory some (indeed most) motions
under § 974.06 are collateral, that is, they follow an
earlier direct appeal and challenge constitutional, juris-
dictional, or other violations that occurred at trial. Yet
§ 974.06(2) applies to all motions under this section and
not just to those filed in lieu of a direct appeal. The
language of § 974.06(2) describing the motion as “part of
the original criminal action, [and] not a separate pro-
ceeding,” therefore, must mean something other than that
§ 974.06 constitutes direct review. In the very few cases
which employ § 974.06(2) it appears to convey, not a
distinction between direct and collateral review, but
rather the proper route for appellate review. Specifically,
in State v. Brice, 212 N.W.2d 596 (Wis. 1973), the Wiscon-
sin Supreme Court concluded that § 974.06 was meant
to indicate the path of appeal. At the time, certain civil
appeals in Wisconsin could proceed directly to the Wiscon-
sin Supreme Court. Since a motion under § 974.06 was
a civil matter, the defendant, Brice, argued that he could
file his § 974.06 motion directly in the Supreme Court. The
Brice court concluded that because a motion for post-
conviction relief under § 974.06 was “part of the original
criminal action, [and was] not a separate proceeding,”
motions made under § 974.06 follow the path of the
underlying criminal matter. Brice, 212 N.W.2d at 597. In
other words, if the defendant was convicted of a misde-
meanor, his § 974.06 appeal would have to follow the
route of a misdemeanor appeal. Id. It is in this sense that
a motion under § 974.06 is part of the original proceeding.
We need not make too much of this particular slice of
language of § 974.06(2) as we have already emphasized
that it is the nature of the review provided and not the
name or language describing it that determines whether
the review is direct or collateral. For the reasons de-

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No. 04-4103 13
scribed at length above, there can be no dispute that the
review granted in § 974.06 is prototypical collateral review.
Our consideration of the inevitable fallout from Gra-
ham’s proposed interpretation allows us to hammer the
last nail into this coffin. If indeed § 974.06 constitutes
direct review (at least, as Graham argues, in the case
where a prisoner has filed no other direct appeal), and a
motion under § 974.06 can be filed at any time, then
Graham’s interpretation would effectively eradicate the
AEDPA’s one-year statute of limitations for an entire
class of convictions in Wisconsin State court. Prisoners
could make an end-run around the federal limitations
period by choosing to forgo an immediate direct appeal
in contemplation of bringing a “direct” appeal under
§ 974.06 at some future time when the law or the court
seemed more favorable. This is not to say that every
prisoner would choose such a long shot; undoubtedly
most would still prefer to challenge a sentence on direct
appeal than to bank on some unknown constitutional
defect coming to light in the future. Nevertheless, the
fact that Graham’s reading would eviscerate the AEDPA
statute of limitations for a whole class of prisoners is
surely something that the federal legislation did not
contemplate. After all, the purpose of enacting the limita-
tions period was “to curb the abuse of the statutory writ of
habeas corpus, and to address the acute problems of
unnecessary delay and abuse in capital cases. It sets a
one year limitation on an application for a habeas writ
and revises the procedures for consideration of a writ
in federal court. ” H.R. Conf. Rep. No. 104-518, at 111
(1996), reprinted in 1996 U.S.C.C.A.N. 944, 944. This
court has previously held in a similar context that the
federal courts cannot tolerate an interpretation of Wis-
consin law that “would render the AEDPA limitations
period ineffective as to all habeas petitioners who were
convicted in Wisconsin state court.” Balsewicz v. Kingston,

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14 No. 04-4103
425 F.3d 1029, 1034 (7th Cir. 2005), cert. denied, 126 S. Ct.
1160 (2006).
For the sake of thoroughness, we will cut one final
argument off at the pass. Although we have concluded that
§ 974.06 review constitutes collateral review, Graham’s
§ 974.06 petition did nothing to toll the federal habeas
statute of limitations under 28 U.S.C. § 2244(2) (“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 shall not be
counted toward any period of limitation under this sub-
section.”). As we noted above, 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. Graham
did not have a properly filed application for collateral
review pending at any time between the time when his
judgment became final and April 24, 1997. Consequently
his § 974.06 motion had no tolling effect whatsoever on
the AEDPA statute of limitations. Graham’s habeas
petition is untimely and cannot be considered by this court.
III.
For the foregoing reasons, the decision of the district
court is A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-13-07

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