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Wall v. Kholi, USSC No. 09-868, cert grant 5/17/10

Question Presented:

Whether a state court sentence-reduction motion consisting of a plea for leniency constitutes an “application for State post-conviction or other collateral review,” 28 U.S.C. § 2244(d)(2), thus tolling the Anti-Terrorism and Effective Death Penalty Act’s one-year limitations period for a state prisoner to file a federal habeas corpus petition.

Principal impetus for review seems to be (per usual) a split of authority, 3-2 according to the cert petition. The QP should be self-explanatory: it’s a 2254 tolling case, whether as the 1st Circuit put it, “a state-court post-conviction motion to reduce an imposed sentence, in the nature of a plea for discretionary leniency, [fell] within the scope of the tolling provision.” At first blush, Wisconsin practice wouldn’t appear affected, with a qualification. The equivalent motion would be § 973.19, but going that route works an explicit waiver of the right to appeal, subsec. (5), which would create a separate potential bar to 2254 review.

Now, the qualification. The 1-year deadline for a 2254 habeas begins running after an unsuccessful direct (§ 809.30) appeal, but “is tolled during the time in which a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending. 28 U.S.C. § 2244(d)(2),” Richard Graham v. Borgen, 7th Cir. 2007. The deadline is tolled if you file a § 974.06 motion within the 1-year deadline (but not beyond it, of course). What, though, if you file a new-factor based sentence modification within that post-appeal window? This cert grant might well have something to say about that. And see, for that matter, David Lozano, Jr. v. Frank, 7th Cir. 2005 (new factor sentence modification didn’t reset the 2254 clock: “The Milwaukee County Circuit Court was not affirming or reversing his conviction—it was deciding whether the new factor of his cooperation merited a sentence adjustment. … Accepting Lozano’s argument would require the elevation of form over substance; he cannot backdoor his way into timely federal habeas review by characterizing his sentence modification as a result of the direct review process.”) In other words, there’s a risk with respect to sentence modification motions and the 2254 deadline, one the habeas practitioner must be aware of whether or not Wall v. Kholi provides clarity.

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