Habeas – Filing Deadline – SVP
Martin’s habeas challenge to denial of his ch. 980 petition for discharge isn’t time-barred by the fact he could have raised the same challenge to his original commitment. Discharge typically requires a new determination of whether the SVP’s condition has “changed,” but Martin’s discharge litigation instead turned on an “exceptional” circumstance: a “redetermination” of the original commitment. Therefore, his habeas petition, challenging discharge on an issue directly related o the basis for original commitment, is reviewable on the merits.
Interest is probably limited, in the first instance, to 28 U.S.C. § 2254 practitioners, and in the second, to SVP attorneys. The federal habeas regime imposes a 1-year statute of limitations, dated from finality of the state direct appeal process, with certain qualifications irrelevant here. Martin was civilly committed under ch. 980 in 1996, and lost his direct appeal (97AP668) in 1998. If he were challenging his original commitment, the limitation period would clearly doom federal litigation. But someone can be detained civilly only so long, and no longer, as he is both mentally ill and dangerous, Foucha v. Louisiana, 504 U.S. 71, 80 (1992). Wisconsin therefore provides the right to periodic “reexaminations,” and a correlative right to petition for discharge, § 980.09.
Martin’s habeas challenges a 2005 discharge denial (his 4th, if you’re keeping score at home), the rub being that it does so with an argument that could have been, but was not, raised as an attack on the original commitment (the right to challenge which, remember, has long-since expired). His challenge, more particularly, is that the State’s experts had no business basing their opinions of his continued propensity for sexual violence on conduct embodied by sexual assault charges that were plea-bargained down to “non-sexual” crimes. He argues that “the State’s reliance on his earlier convictions violated his plea agreements and his constitutional rights.” In other words, he “challenge(s) the State’s repeated use of his earlier convictions in its annual reevaluations.” Bartow doesn’t dispute the idea that each order denying discharge starts a new habeas limitation period in reference to that order, but says that allowing review here would allow repetitive claims on the same ground. Bartow’s claim, apparently, is that Martin isn’t entitled to discharge without some “change” in his “condition”; and that his argument relates if anything to a procedural objection to the original commitment, not some change in condition. The 7th Circuit opinion more or less adopts the State’s argument in the abstract, but holds that “Martin’s case is exceptional” – the original ground remains the basis for continued commitment:
A second problem with the argument is one that runs throughout Respondent’s brief—he ignores the fact that 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. …
Long and short of it: For 2254 purposes, denial of discharge is a “new” order; and, even though you’re not automatically barred from challenging this denial on the basis of an argument that could have been mounted against the original commitment, your right to do so is limited to the exceptional circumstance exemplified by this case.
Looking to extract a larger principle that might be ported to different contexts? You’re on your own with that one, but you’ll want to take into account the idea that given the right circumstance, you “can challenge a later judgment on grounds that applied to an earlier judgment.” The opinion analogically invokes Magwood v. Patterson, 130 S. Ct. 2788, 177 L. Ed. 2d 592 (2010), which allowed challenge to resentencing on grounds that could have been, but were not, arrayed against the original sentencing. “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.” But keep in mind the limits the court itself perceives to its own holding:
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.