Teas, William v. Endicott, Jeffrey

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3321
WILLIAM TEAS,
Petitioner-Appellant,
v.
JEFFREY P. ENDICOTT,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 06-C-759—William C. Griesbach, Judge.
____________
SUBMITTED JUNE 28, 2007—DECIDED JULY 13, 2007
____________
Before EASTERBROOK, Chief Judge, and COFFEY and
MANION, Circuit Judges.
EASTERBROOK, Chief Judge. William Teas was con-
victed in 2001 of arson and possessing a Molotov cocktail.
He did not file a timely appeal. During 2002 he asked
Wisconsin’s courts to allow an untimely appeal. They
declined. Teas commenced a collateral attack in state
court during 2005, arguing among other things that his
lawyer had furnished ineffective assistance by missing
the deadline for appeal. He also continued to demand the
privilege of a belated appeal. On June 1, 2005, the Su-
preme Court of Wisconsin granted his petition for a writ of
habeas corpus, but the only relief this afforded was to
allow the court to entertain Teas’s request for belated
2 No. 06-3321
review. The court added: “IT IS FURTHER ORDERED
that the petition for review in No. 2001XX15239 is denied.”
Proceeding No. 2001XX15239 was the request for review
as if on direct appeal.
Teas then turned to federal court under 28 U.S.C. §2254.
The district court denied his petition as untimely. As the
district judge saw things, the judgment became “final” as
soon as the time for direct appeal expired in 2002, when
the state’s appellate court declined to allow any further
extension. Teas had one year from “the date on which the
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), and took more than four, as his
federal petition was not filed until July 14, 2006.
Teas maintains that the decision of June 1, 2005, was
“the conclusion of direct review” in state court. Add one
year plus 90 days within which to seek review by the
Supreme Court of the United States, see Clay v. United
States, 537 U.S. 522 (2003); Anderson v. Litscher, 281 F.3d
672 (7th Cir. 2002), and you get August 30, 2006, making
his federal petition timely.
The problem with this line of argument is that it
implies that the “conclusion of direct review” in state
court can happen twice (or more often). Nothing in
§2244(d) implies that the time is reopened if the state
court engages in multiple rounds of review that it calls
“direct.” Section 2244(d)(1) provides several triggers to
restart the time, and §2244(d)(2) adds a tolling rule—time
spent on collateral review in state court is excluded—but
does not hint that there can be multiple layers of “direct”
review, each starting a fresh year for a federal collateral
attack.
Evans v. Chavis, 546 U.S. 189 (2006), and Carey v.
Saffold, 536 U.S. 214 (2002), considered the effect of
California’s system under which a prisoner’s petition to
No. 06-3321 3
the state’s highest court must be filed within a “reason-
able time.” The Court held in both of these decisions
that time between the end of review by the state’s inter-
mediate court, and the petition for review in the Su-
preme Court of California, is excluded from the one year
allowed by federal law only if the petition is filed promptly,
as federal courts understand that word, for otherwise no
proceeding is “pending” and the federal time limit is not
tolled. The Supreme Court of the United States thought
that a few months might go by without demonstrating
that no state proceeding was “pending”, but that delay of
a year or more in seeking review by the state’s highest
court means that nothing is pending in state court during
the interim and the federal time limit expires. Although
these decisions dealt with exclusion of time during post-
conviction review under §2244(d)(2), the Court’s basic
approach to §2244(d) is equally applicable if a state calls
what is effectively post-conviction review “direct” review.
As in Graham v. Borgen, 483 F.3d 475 (7th Cir. 2007),
it is unnecessary to decide under what circumstances (if
any) post-conviction review is “direct” for the purpose of
§2244(d)(1)(A). States doubtless have full control over the
meaning of their own law, but §2244(d)(1)(A) is federal
rather than state law, and the meaning of the phrase
“conclusion of direct review” thus also is a matter of
federal law to be resolved by federal courts. A state could
not rename all post-conviction review as “direct” and thus
nullify the time limits set by §2244(d); state terminology
may affect how states conduct their internal processes
but cannot be conclusive on a question of national law.
Several appellate decisions have asserted that a state’s
characterization of its own procedure determines wheth-
er review is “direct” or “collateral” for the purpose of
§2244(d)(1)(A). See Frasch v. Peguese, 414 F.3d 518, 522
(4th Cir. 2005); Orange v. Calbone, 318 F.3d 1167, 1170
(10th Cir. 2003); Bridges v. Johnson, 284 F.3d 1201, 1202
4 No. 06-3321
(11th Cir. 2002). None of these decisions explained how
the meaning of a federal statute could depend on state
law, however. And although Frasch and Orange post-date
Carey v. Saffold, neither decision addresses the Supreme
Court’s conclusion that the extent of states’ authority to
provide extra time for federal collateral review depends on
federal law—a conclusion reinforced by Evans v. Chavis,
which was issued after the most recent of the three
appellate decisions we have cited. Our own decision in
Graham recognizes the priority of federal law and is
incompatible with any idea that states may define the
meaning of the phrase “direct review” in a federal statute.
Not that it is necessary to reject a state’s classification
here. Wisconsin itself recognized the procedure as a form
of collateral review. In March 2005 counsel representing
Teas filed a petition for habeas corpus under Wis. Stat.
§782.01, relying on State ex rel. Schmelzer v. Murphy, 201
Wis. 2d 246, 548 N.W.2d 45 (1996). The Supreme Court of
Wisconsin granted this petition; the belated “direct” review
thus was a form of relief granted on collateral review.
This shows that the time under §2244(d)(1)(A) had ex-
pired long before Teas filed his federal petition—and,
because no application for collateral review was “pending”
in state court between January 2002 and March 2005, the
tolling rule of §2244(d)(2) does not make the federal
petition timely.
It is unnecessary for us to decide what would be the
proper characterization under federal law if, on collateral
review, the state judiciary vacates a prisoner’s conviction
or sentence, and a fresh conviction or sentence ensues. Cf.
Shepeck v. United States, 150 F.3d 800 (7th Cir. 1998).
Nothing of the kind happened to Teas, whose 2001 convic-
tion and sentence still stand.
AFFIRMED
No. 06-3321 5
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-13-07