7th Circuit rules Wis. Stats. sec. 974.06 relief is not direct review under AEDPA.

Byline: David Ziemer

A prisoner's motion for relief under Wis. Stats. sec. 974.06 is not "direct review" within the meaning of the Antiterrorism and Effective Death Penalty Act's one-year time limit for seeking federal habeas relief, the Seventh Circuit held on April 13. In 1990, Richard Graham was convicted in Wisconsin state court of felony murder and attempted armed robbery. He did not appeal or seek any post-conviction relief. In 2003, he sought relief pursuant to sec. 974.06, arguing that his consecutive sentences violated the Double Jeopardy Clause. The circuit court denied the motion, the court of appeals affirmed, and, on April 20, 2004, the Wisconsin Supreme Court denied review. On June 30, 2004, Graham filed a petition for habeas corpus in federal district court, but Judge Lynn Adelman denied the petition. Graham appealed, but the Seventh Circuit affirmed, in a decision by Judge Ilana D. Rovner. Pursuant to 28 U.S.C. 2244(d)(1)(A), a writ of habeas corpus must be filed within one year of the date on which the judgment became final by the conclusion of direct review. Because Graham was convicted before the AEDPA became effective, he had until April 24, 1997 -- one year after the effective date. The court rejected Graham's argument that his sec. 974.06 motion constituted "direct review" and thus, gave him until April 20, 2005 to file his federal petition. The court noted that Wisconsin case law consistently treats the form of relief as collateral, rather than direct. In addition, the relief afforded by the statute is very limited. The statute allows a prisoner to challenge his sentence on several grounds: the sentence was imposed in violation of the U.S. Constitution or the constitution or laws of Wisconsin; the...

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