Martin v. Bartow, No. 09-2947 (7th Cir. Dec. 9, 2010) (via The 28 U.S.C. § 2254 Blog):
(This case comes to us from outside of the Fourth Circuit.)
The Seventh Circuit reversed the dismissal as untimely of a Wisconsin state prisoner’s § 2254 petition. The petitioner in this case is a "sexually violent person" civilly committed in 1996 and subject to annual review of that decision by virtue of a requirement of state law. As a result of that annual review, "the State decided anew that Martin was a sexually violent person each year since his original commitment." After unsuccessfully seeking state-court review of the 2005 renewal of the commitment order, the petitioner challenged the state courts' action in federal court by filing a habeas petition. The district court dismissed the petition as untimely because it had not been filed within one year of the petitioner's initial commitment order. But the court's characterization of Wisconsin law, coupled with an analogy to Magwood v. Patterson, 130 S. Ct. 2788 (2010), led it to reverse the district court's dismissal. Because each year the commitment order is issued anew, each year any erroneous determination remediable by federal habeas occurs again, and the petitioner may challenge the new error even if he failed to challenge the old. Cf. Magwood, 130 S. Ct. at 2801 ("An error made a second time is still a new error.").