10-C-0163 Bilgrien v. Pugh

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Criminal Procedure
Habeas corpus; timeliness

When a state prisoner does not seek review of his conviction in the state court of last resort, he is not entitled to 90 extra days in which to file a federal habeas corpus petition.

"[C]ase law in the Seventh Circuit is somewhat unsettled on this point. The Seventh Circuit has not explicitly analyzed the issue, and in two cases the court reached implicitly disparate results. In Farmer v. Litscher, the court did not give a petitioner who failed to initiate his direct appeal the benefit of the ninety-day period for seeking certiorari. 303 F.3d 840, 845-46 (7th Cir. 2002) (concluding that time for seeking direct review expired when time for filing notice of intent to pursue postconviction relief expired). But in Balsewicz v. Kingston, the court added the ninety-day period even though the petitioner did not seek review in the Wisconsin Supreme Court. 425 F.3d 1029, 1032 (7th Cir. 2005). In neither case did the court discuss whether it was appropriate to add the ninety-day period. Further, in neither case would it have mattered whether the court added the ninety days, since the petitions would have been untimely whether or not the ninety days were included in the time for seeking direct review."

"Because Farmer and Balsewicz do not explicitly discuss the issue, and because their implications are dicta and in any event contradictory, I conclude that neither case is controlling. Further, I conclude that if the court were presented with a case in which the addition of the ninety day period was dispositive, it would follow the reasoning of the circuits cited above and find that the 'time for seeking [direct] review' does not include the ninety days for seeking certiorari in cases in which the petitioner fails to seek review in the state's highest court. Accordingly, I conclude that Bilgrien's conviction became final when he failed to file either a notice of appeal or a post-conviction motion (or a request for a third extension) on December 3, 2008. It follows that Bilgrien's petition was already time-barred when he filed it along with his request for stay and abeyance on February 26, 2010. Therefore, I will dismiss the petition on the merits and deny petitioner's request for stay and abeyance as moot."

10-C-0163 Bilgrien v. Pugh

E.D.Wis., Adelman, J.