01-2627 Anderson v. Litscher

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“Without question, review of a state criminal conviction by the United States Supreme Court is considered ‘direct review’ of that conviction. See Bell v. Maryland, 378 U.S. 226, 232 (1964). Because the plain terms of section 2244 include the period for seeking direct review, regardless of whether or not a petitioner chooses to avail himself or herself of that opportunity, we believe that the ninety day period during which a petition for certiorari may be filed by a state prisoner falls within the meaning of section 2244(d)(1)(A).”

“Accordingly, the statute of limitations imposed by section 2244(d)(1)(A) begins to run (i) when all direct criminal appeals in the state system are concluded, followed by either completion or denial of certiorari proceedings before the United States Supreme Court; or (ii) when, if certiorari was not sought, all direct criminal appeals in the state system are concluded, followed by the expiration of the time allotted for filing a petition for writ.”

“[However,] because the appellant has waived his constitutional claims by way of omission, this Court is without grounds to grant habeas relief. Thus, although the petition for writ was timely filed, its dismissal is affirmed because the appellant has forfeited the constitutional claims on which his certificate of appealability was predicated and which would entitle him to habeas relief.

Affirmed.

Appeal from the United States District Court for the Eastern District of Wisconsin, Goodstein, Mag. J., Bauer, J.