The Honorable William J. Hibbler, of the Northern District



of Illinois, sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2947

STANLEY E. MARTIN, JR., 

Petitioner-Appellant,

v.

BYRAN BARTOW,

Respondent-Appellee.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 08-C-518-C—Barbara B. Crabb, Judge.

ARGUED APRIL 23, 2010—DECIDED DECEMBER 9, 2010

Before MANION and ROVNER, Circuit Judges, and

HIBBLER, District Judge.

HIBBLER, District Judge. This is an appeal from the

district court’s order dismissing Petitioner-Appellant

Martin’s application for a writ of habeas corpus. The

court dismissed Martin’s application as untimely upon
2 No. 09-2947

Respondent Bartow’s motion. Martin contends that the

court miscalculated the date upon which the applicable

statute of limitations began to run because of an

improper interpretation of the relevant sections of the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), 28 U.S.C. § 2244(d)(1). We agree that the

district court erred in its calculation and therefore

reverse and remand for further proceedings.

I. Background

In 1996, the State of Wisconsin successfully petitioned

a state court to have Martin civilly committed as a “sexually violent person” pursuant to a Wisconsin statute

allowing commitment, Wis. Stat. § 980.06, of any person

who: (1) “has been convicted of a sexually violent offense”;

and (2) “is dangerous because he or she suffers from

a mental disorder that makes it likely that the person

will engage in one or more acts of sexual violence,” id.

§ 980.01(7). The predicate offense for Martin’s commitment was a 1988 conviction for second degree sexual

assault.

The Wisconsin civil commitment statute only allows for

a person to be held in state custody “until such time as

the person is no longer a sexually violent person.” Id.

§ 980.06. Thus, the State must reexamine each person

committed pursuant to the statute at least once a year,

id. § 980.07, and a committed person may petition for

discharge at any time, id. § 980.09. The State decided

anew that Martin was a sexually violent person each

year since his original commitment. Then, in 2005, after
No. 09-2947 3

a number of ill-fated challenges to his commitment in

both federal and state court, Martin filed his fourth petition for discharge, challenging the State’s reliance on

two earlier convictions in justifying his commitment. The

experts that testified at his original commitment trial

based their testimony concerning the likelihood of recidivism in part on the fact that Martin previously faced

charges for sexual assault in 1976 and 1979. However, in

each of those cases, Martin pleaded guilty to lesser, nonsexual crimes and the State dropped the charges of

sexual assault. The State continued to rely on those convictions in its annual reevaluations. The state circuit

court summarily denied Martin’s petition because it

found “no change in the respondent’s condition to

warrant a hearing.” The state appellate court affirmed

that denial, but addressed Martin’s petition on the

merits, rather than relying on Martin’s failure to allege

a change in the facts of his case, as the lower court had.

Finally, the Wisconsin Supreme Court denied his petition

for leave to appeal. Thus, the State’s decision to continue

Martin’s confinement became final on August 18, 2008.

Martin then filed a pro se federal habeas petition on

September 2, 2008, pursuant to 28 U.S.C. § 2254, arguing

that the State’s reliance on his earlier convictions violated his plea agreements and his constitutional rights.

The district court issued a sua sponte show cause

order suggesting that his petition was untimely because

he was originally committed in 1996 and AEDPA provides for a one-year statute of limitations. See 28 U.S.C.

§ 2244(d)(1). Martin then moved to amend his petition,

and in his proposed amended petition he purported to
4 No. 09-2947

challenge the State’s repeated use of his earlier convictions in its annual reevaluations.

Upon Respondent’s motion, the district court dismissed Martin’s petition as untimely. The court concluded that the AEDPA statute of limitations began

running on the date of Martin’s initial commitment order

because Martin was essentially challenging that decision.

On appeal, Martin argues that the applicable statute

of limitations period actually began to run on the date

of the most recent order continuing his commitment.

II. Standard of Review

We review a district court’s dismissal of a habeas petition de novo. Moore v. Battaglia, 476 F.3d 504, 506 (7th

Cir. 2007).

III. Analysis

AEDPA provides a one-year statute of limitations

for an application brought by “a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1).

The statute states that the limitations period begins to

run from the latest of four enumerated events, but in

this case the parties agree that the triggering event was

the issuance of a judgment and that the period began

to run on “the date on which the judgment became final

by the conclusion of direct review or the expiration of

the time for seeking such review.” Id. § 2244(d)(1)(A).

What the parties dispute is which judgment Martin is

challenging.
No. 09-2947 5

Martin’s constitutional right to due process limits his

civil commitment to the period during which he is “both

mentally ill and dangerous, but no longer.” Foucha

v. Louisiana, 504 U.S. 71, 77, 112 S. Ct. 1780, 1784, 118

L. Ed. 2d 437 (1992). As soon as the State lacks “clear and

convincing evidence” that Martin meets both conditions,

it must release Martin from custody. Id. at 80, 112 S. Ct. at

1786. It is likely for this reason that the Wisconsin statute

provides for annual reevaluation and allows Martin to

challenge his commitment at any time. See Wis. Stat.

§§ 980.07, 980.09. Recognizing that Martin’s commitment

is dependent on a finding that he is currently both

mentally ill and dangerous, the district court accepted

the parties’ conclusion that each state court order continuing Martin’s commitment or denying his challenge

to such commitment constitutes a new judgment for

purposes of AEDPA, and therefore starts a new statute

of limitations period. We agree, as this seems to be the

only logical conclusion. To hold otherwise would lead

to one of two absurd results; either Martin could never

challenge an order continuing his commitment that was

entered more than a year after his initial commitment

order or the statute of limitations applicable to his

initial commitment order would never expire.

Thus, the parties in this case dispute only whether

the district court correctly interpreted Martin’s habeas

petition to be a challenge to the original commitment

order, rather than to the 2005 order continuing commitment. Martin argues that because his commitment in 2005

was only constitutional if it was based on a finding that

he met the conditions for commitment at that time, he
6 No. 09-2947

was in custody pursuant only to the most recent order

extending his commitment for another year. Thus, he

contends that the limitations period began to run on

the date of that order in 2005.

Respondent argues that if we were to accept Martin’s

interpretation, we would effectively allow persons adjudged to be sexually violent to repeatedly challenge

their civil commitment on the same grounds. Thus, Respondent suggests that in order to determine what judgment Martin is challenging, we must look to the substance of the claims he made in his application. Respondent believes that an analysis of those claims leads to

the inevitable conclusion that Martin is challenging his

initial commitment. In support of its arguments on this

point, Respondent looks to the language of AEDPA, to the

statute’s purposes, and to case law they believe to be

relevant. After addressing each of these legal sources

in succession below, we accept the principle espoused

by the Respondent, but find that it does not apply in

Martin’s unique case.

A. Plain Language of the Statute

Respondent argues that Martin’s interpretation of

§ 2244(d)(1) does not square with a reading of § 2244(d)

as a coherent whole. First, Respondent points out that

§ 2244(d)(2) tolls the limitations period while an applicant seeks State post-conviction relief “with respect to

the pertinent judgment or claim.” Respondent argues

that, given this language, it is not logical to conclude

that a petitioner in Martin’s position always challenges
No. 09-2947 7

the most recent judgment. Respondent argues that such

a conclusion would render the term “pertinent” in

§ 2244(d)(2) a nullity.

Second, Respondent argues that Martin’s interpretation would nullify §§ 2244(d)(1)(B)-(D), which lay out

the other circumstances that might delay the start date

for the limitations period. As an example, Respondent

posits a situation where Martin discovered new evidence

related to claims he made in his original commitment

trial after the issuance of a new judgment for continued

commitment. In that instance, section 2244(d)(1)(D)

would seem to set the statute of limitations for challenging the original judgment running after Martin was

already in custody pursuant to a new judgment.

There are two major flaws in Respondent’s arguments.

The first is Respondent’s assumption that we cannot

accept an interpretation of § 2244(d) that, given a particular set of facts, nullifies a provision of the statute. Of

course, we always endeavor to construe statutes so as to

give effect to each provision. Duncan v. Walker, 533 U.S.

167, 174, 121 S. Ct. 2120, 2125, 150 L. Ed. 2d 251 (2001)

(internal quotation omitted). But, we do not render a

provision a nullity simply by deciding that it has no

effect in a specific factual context. In other words, even

assuming for the sake of argument that § 2244(d)(1)(D)

would not have much meaning in the rare context of a

case involving civil commitment, like Martin’s, it could

still have meaning in the vast majority of habeas litigation.

A second problem with the argument is one that runs

throughout Respondent’s brief—he ignores the fact that
8 No. 09-2947

Martin bases his challenge on issues that could have

been raised in his original commitment trial, but that

are also relevant to the 2005 judgment because the

State continues to rely on the same convictions to justify

Martin’s commitment. The Wisconsin Court of Appeals

did not, as the lower court had, rest its decision on

Martin’s failure to allege any changes in his condition.

Rather, it decided to treat the lower court’s denial of

Martin’s petition for discharge as a full redetermination

on the merits of all the issues that he raised in the petition.

In this respect, Martin’s case is exceptional because,

despite what the Wisconsin Court of Appeals did in this

case, Wisconsin’s civil commitment scheme for sexually

violent persons does not require an annual reevaluation

by the state court of the original grounds of commitment. Instead, it presumes that the original judgment

continues to justify confinement and asks whether anything has changed that should cause the court to

reevaluate the confinement. Wis. Stat. § 980.09(1). And

while Foucha, 504 U.S. at 77, 112 S. Ct. at 1784, prohibits

Wisconsin from confining a person civilly committed

unless it has “clear and convincing” evidence, neither

Foucha nor subsequent precedent call Wisconsin’s procedures into constitutional doubt or require the State to

reexamine its initial justifications for confinement on

some periodic basis.

An examination of Wisconsin law regarding petitions

for discharge, which Martin is challenging in his habeas

petition, verifies that in many cases the state court

will not consider the evidence originally justifying con-
No. 09-2947 9

At the time of Martin’s 2005 petition, he had to demonstrate 1

probable cause—rather than merely allege—that his condition

had changed. See Act of May 26, 1994, Wisc. Legis. Serv. Act

479 (relating to civil commitment of sexually violent persons)

(portion to be codified at Wis. Stat. § 980.09(2)(a)). But the

essential fact remains that absent the necessary showing on

the petitioner’s part, the court does not reconsider whether

he was a sexually violent person in the first place.

finement. The initial burden lies with the petitioner, not

the State. The petitioner must allege facts in his petition

that would allow a court or jury to conclude that his

condition has changed since the date of initial commitment. Wis. Stat. § 980.09(1); see also In re Commitment of

Kruse, 296 Wis. 2d 130, 150, 722 N.W.2d 742, 752 (2006).

If the petitioner meets this pleading burden, the court

will hold a hearing to determine whether a jury could

conclude that the petitioner is no longer a sexually

violent person. Wis. Stat. § 980.09(2). It is only 1

after the petitioner meets his burden that the State

must demonstrate by clear and convincing evidence

that the petitioner’s confinement remains justified. Id.

§ 980.09(3).

Thus, given Wisconsin’s decision to revisit its initial

justifications for confining Martin in response to his

2005 petition, we need not worry whether Martin could

still challenge his original commitment order, or what

the effect of such a challenge would be. In this respect,

Martin attempts to prove too much. In order to succeed,

Martin does not need to show that a petitioner always

challenges the most recent judgment continuing his or
10 No. 09-2947

her civil commitment. Instead, he only needs to show

that he is challenging the most recent judgment in this

case. In fact, there is no dispute that when he filed

his petition, Martin was in custody pursuant to the

2005 judgment, and that he challenged one of the

grounds upon which the Wisconsin courts upheld that

judgment. Thus, there is nothing in the language of the

statute that leads us to believe he is challenging any

judgment other than the one which he claims to be challenging.

B. AEDPA’s Purposes

This same point resonates in our analysis of Respondent’s claim that a ruling in favor of Martin conflicts

with the purposes behind AEDPA. Respondent essentially

argues that allowing Martin to challenge his commitment

now on grounds that he could have raised years ago

conflicts with Congress’s goals of promoting comity,

finality, and federalism while avoiding piecemeal litigation. See Williams v. Taylor, 529 U.S. 420, 436, 120 S. Ct.

1479, 1490, 146 L. Ed. 2d 435 (2000); Duncan v. Walker, 533

U.S. 167, 180, 121 S. Ct. 2120, 2128-29, 150 L. Ed. 2d 251

(2001). However, as noted above, Martin is in a unique

situation because the State put the question of whether

his previous convictions are legal grounds for his commitment at issue again following his 2005 petition. Thus,

despite the fact that Martin could have challenged the

State’s reliance on his convictions at his initial commitment hearing, his failure to do so has not caused the

question to grow stale. Instead, the State has preserved
No. 09-2947 11

it by resting its decision to continue Martin’s commitment on those same grounds now. Given that fact,

the application of AEDPA’s goals is somewhat more

complicated in this case.

In addition to the fact that the states may introduce

procedures that reduce duplicative litigation, as Wisconsin

has done here, a couple of other factors make Martin’s

situation unique when it comes to application of

AEDPA’s principles. First, he is a civil detainee, and thus

part of a population that makes up a small portion of

habeas petitioners. Second, his circumstance arises only

after exhaustion of state remedies, further narrowing the

field. In short, allowing Martin’s case to go forward will

not exactly open the floodgates to excessive and repetitive federal habeas litigation.

Lastly, while achieving finality is one of the goals of

AEDPA, we must interpret that goal in a different light

within the context of civil commitment. Finality is of

course a great concern when it comes to the resolution

of a particular claim or argument, but overall finality

will depend in large part on the structure of a particular

state’s civil commitment scheme—as designed and implemented. After all, unlike a conviction and sentence

for a discrete criminal offense, a person’s current status

as a sexually violent person is a determination that is

constantly and forever disputable as a matter of constitutional law, see Foucha, 504 U.S. at 77, 112 S. Ct. at

1784, and Wisconsin statutory law, Wis. Stat. § 980.07.
12 No. 09-2947

C. Case Law

Respondent does not gain any additional support by

referring to case law. In fact, while case law applicable

to this distinctive case is scarce, the cases that are relevant

undercut his position further.

The only case either party cites that considers the limitations provisions’ application to a petition challenging

civil commitment is Revels v. Sanders, 519 F.3d 734 (8th

Cir. 2008). In that case, the Missouri courts denied the

petitioner’s application for unconditional release from

civil commitment under a statute analogous to the Wisconsin statute at issue here. Id. at 740; see also Mo. Rev.

Stat. § 552.040.13. The Eighth Circuit held that the

AEDPA statute of limitations began to run on the date

that the State denied his application, rather than on the

date of his original conviction and commitment. Revels,

519 F.3d at 740. The court noted that the petitioner

was not challenging his initial commitment, but his

continued commitment. Id. Respondent attempts to

distinguish Revels by focusing on the fact that the petitioner in that case acknowledged that he did meet the

criteria for confinement when he was originally committed and was claiming that his mental health had

improved to the point where he was no longer eligible

for civil commitment. See id. However, the Revels court

only makes note of that acknowledgement to illustrate

that the petitioner was in fact challenging the later judgment. Id. The court never indicates that a petitioner

cannot challenge a later judgment solely because his

reasons for challenging that judgment could have been

the basis for challenging an earlier judgment.
No. 09-2947 13

Respondent is unable to point to any precedent that

stands for that proposition. Instead, he once again falls

back on his argument that we should find that Martin

is challenging his original commitment by looking to

the claims he makes in his application. He cites to cases

that distinguish between claims challenging convictions

and those challenging post-conviction orders, including

resentencing orders. Those cases do distinguish between

judgments based on the content of the claims in the

petitions, but they say nothing about the question of

whether a petitioner can challenge a later judgment on

grounds that applied to an earlier judgment. See, e.g.,

Walker v. Roth, 133 F.3d 454, 455 (7th Cir. 1997); Bachman

v. Bagley, 487 F.3d 979, 982-84 (6th Cir. 2007) (citing

Linscott v. Rose, 436 F.3d 587, 591 (6th Cir. 2006) and

DiCenzi v. Rose, 452 F.3d 465, 469 (6th Cir. 2006)).

The Supreme Court’s recent opinion in Magwood v.

Patterson, 130 S. Ct. 2788, 177 L. Ed. 2d 592 (2010), indicates

that a petitioner can indeed do just that under some

circumstances. Like some of the cases mentioned above,

Magwood involves a challenge to a resentencing. Id. at

2795. However, what makes Magwood unique, and more

relevant to the case at bar, is that the petitioner in

Magwood challenged his resentencing on grounds that

he could have raised in his challenge to his original

sentencing, but did not. Id. Although the Magwood

Court was concerned with the ban on second or successive petitions in 28 U.S.C § 2244(b), the ruling includes

language that provides guidance on how we should

apply the statute of limitations in § 2244(d)(1). Specifically, the Court emphasized the effect of a new state
14 No. 09-2947

judgment, holding that “[a]n error made a second time

is still a new error.” Id. at 2801. Martin is not challenging

a resentencing, but he is challenging a decision made

repeatedly by the State. If that decision was made in

error, and it resulted in Martin’s continued commitment,

Magwood suggests that Martin may challenge that new

error separately from any previous error.

However, we note that Magwood will probably not be

particularly relevant in the run-of-the-mill challenge to

a denied petition for discharge. In Magwood, the petitioner raised a challenge to his death sentence after the

sentencing court conducted an entirely new sentencing

hearing and considered all the evidence and arguments

anew. The case left undisturbed precedent concerning the

scope of habeas review for challenges to parole decisions

or the loss of good time credits, id. at 2800 n.12, which are

more analogous to a petition for discharge than the

resentencing that was before the Magwood Court.

Unlike in this case, it will generally not be sufficient to

find that there are multiple judgments in a civil confinement case and begin the AEDPA statute of limitations

clock with the latest judgment because we will not know

which judgment a petitioner is challenging. We must

inquire further and then decide whether that judgment

amounts to a redetermination that a person civilly committed is mentally ill and dangerous or merely a determination that there are no changed circumstances warranting a reconsideration of the initial determination.

In light of Magwood, this distinction is critical to prevent

a flood of repetitive habeas litigation in this area.
No. 09-2947 15

In other words, we accept the State’s argument that we

must undertake a comparison of Martin’s claims with

the relevant judgments. But, in this case there are two

judgments that are based on Martin’s previous convictions. Given our duty to interpret pleadings liberally,

especially those filed by pro se litigants, see, e.g., Perruquet

v. Bailey, 390 F.3d 505, 512 (7th Cir. 2004), we accept Martin’s contention that he is in fact challenging the

State’s most recent decision. Thus, his petition is not

barred by the one-year statute of limitations in § 2244(d)(1),

and it was error for the district court to dismiss it on

that basis.

IV. Conclusion

For the foregoing reasons, we REVERSE and REMAND

for further proceedings.

12-9-10