In the

United States Court of Appeals
              For the Seventh Circuit

No. 09-2947

S TANLEY E. M ARTIN , JR.,
                                             Petitioner-Appellant,
                                v.

B YRAN B ARTOW,
                                             Respondent-Appellee.


            Appeal from the United States District Court
              for the Western District of Wisconsin.
             No. 08-C-518-C—Barbara B. Crabb, Judge.



     A RGUED A PRIL 23, 2010—D ECIDED D ECEMBER 9, 2010




  Before M ANION and R OVNER, Circuit Judges, and
H IBBLER, District Judge. Œ
  H IBBLER, 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


Œ
  The Honorable William J. Hibbler, of the Northern District
of Illinois, sitting by designation.
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 “sexu-
ally 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,” 

The predicate offense for Martin’s commit-
ment 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.” 

Thus, the State must reexamine each person
committed pursuant to the statute at least once a year,

and a committed person may petition for
discharge at any time, 

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 peti-
tion 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 recidi-
vism 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, non-
sexual crimes and the State dropped the charges of
sexual assault. The State continued to rely on those con-
victions 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 vio-
lated 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 pro-
vides 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 convic-
tions in its annual reevaluations.
  Upon Respondent’s motion, the district court dis-
missed Martin’s petition as untimely. The court con-
cluded 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 peti-
tion de novo. Moore v. Battaglia, 

, 506 (7th
Cir. 2007).


                        III. Analysis
  AEDPA provides a one-year statute of limitations
for an application brought by “a person in custody pursu-
ant 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.” 

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, 

, 77, 

, 1784, 

(1992). As soon as the State lacks “clear and
convincing evidence” that Martin meets both conditions,
it must release Martin from custody. 

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 con-
tinuing 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 commit-
ment. 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 ad-
judged to be sexually violent to repeatedly challenge
their civil commitment on the same grounds. Thus, Re-
spondent suggests that in order to determine what judg-
ment Martin is challenging, we must look to the sub-
stance of the claims he made in his application. Respon-
dent 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 ap-
plicant 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 interpreta-
tion 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 chal-
lenging 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 par-
ticular 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, 

, 174, 

, 2125, 

(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 commit-
ment. Instead, it presumes that the original judgment
continues to justify confinement and asks whether any-
thing has changed that should cause the court to
reevaluate the confinement. Wis. Stat. § 980.09(1). And
while 

, 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 proce-
dures 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

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 commit-
ment. Wis. Stat. § 980.09(1); see also In re Commitment of
Kruse, 

, 150, 

, 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).1 It is only
after the petitioner meets his burden that the State
must demonstrate by clear and convincing evidence
that the petitioner’s confinement remains justified. 

  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


1
  At the time of Martin’s 2005 petition, he had to demonstrate
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.
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 chal-
lenging.


 B. AEDPA’s Purposes
  This same point resonates in our analysis of Respon-
dent’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 litiga-
tion. See Williams v. Taylor, 

, 436, 

, 1490, 

(2000); Duncan v. Walker, 

, 180, 

, 2128-29, 

(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 com-
mitment 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 commit-
ment 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 commit-
ment 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 repeti-
tive 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 im-
plemented. 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 con-
stitutional law, see 

, 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 limita-
tions provisions’ application to a petition challenging
civil commitment is Revels v. Sanders, 

(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 Wis-
consin statute at issue here. 

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. 

. The court noted that the petitioner
was not challenging his initial commitment, but his
continued commitment. 

to
distinguish Revels by focusing on the fact that the peti-
tioner in that case acknowledged that he did meet the
criteria for confinement when he was originally com-
mitted and was claiming that his mental health had
improved to the point where he was no longer eligible
for civil commitment. See 

Revels court
only makes note of that acknowledgement to illustrate
that the petitioner was in fact challenging the later judg-
ment. 

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, 

, 455 (7th Cir. 1997); Bachman
v. Bagley, 

, 982-84 (6th Cir. 2007) (citing
Linscott v. Rose, 

, 591 (6th Cir. 2006) and
DiCenzi v. Rose, 

, 469 (6th Cir. 2006)).
  The Supreme Court’s recent opinion in Magwood v.
Patterson, 

, 

(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. 

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. 

Magwood
Court was concerned with the ban on second or succes-
sive 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). Spe-
cifically, 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.” 

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 peti-
tioner 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, 

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 confine-
ment 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 com-
mitted is mentally ill and dangerous or merely a deter-
mination that there are no changed circumstances war-
ranting 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 convic-
tions. Given our duty to interpret pleadings liberally,
especially those filed by pro se litigants, see, e.g., Perruquet
v. Bailey, 

, 512 (7th Cir. 2004), we accept Mar-
tin’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 R EVERSE and R EMAND
for further proceedings.




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