                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 03-2997
DAVID LOZANO, JR.,
                                         Petitioner-Appellant,

                              v.



MATTHEW J. FRANK,
                                        Respondent-Appellee.
                        ____________
            Appeal from the United States District Court
               for the Eastern District of Wisconsin.
    No. 02 C 775—William E. Callahan, Jr., Magistrate Judge.
                        ____________
ARGUED MARCH 30, 2005—DECIDED SEPTEMBER 13, 2005
                  ____________



 Before BAUER, RIPPLE, and KANNE, Circuit Judges.
  BAUER, Circuit Judge. David Lozano, Jr. shot and killed
a man during a botched robbery attempt. He was convicted
in 1991 of armed robbery and first-degree intentional
homicide. He petitions for a writ of habeas corpus on the
grounds of ineffective assistance of counsel and various
other violations of his constitutional rights. The district
court dismissed Lozano’s petition as untimely, and we
affirm.
2                                               No. 03-2997

Background
  Following a three-day jury trial, Lozano was convicted of
the robbery and murder of Mario Gonzalez and sentenced
to life imprisonment on the homicide conviction and a ten-
year consecutive sentence on the robbery charge. He
appealed his conviction for homicide to the Wisconsin Court
of Appeals, which affirmed the conviction in 1993. Lozano’s
attorney filed a no-merit petition for review with the
Wisconsin Supreme Court; Lozano followed this with a pro
se petition, listing additional grounds for review. On
November 15, 1993, the Wisconsin Supreme Court denied
Lozano’s petition for review.
  In 1997, Lozano filed for post-conviction relief under Wis.
Stat. § 974.06. The Milwaukee County Circuit Court denied
Lozano’s motion. The Wisconsin Court of Appeals affirmed,
and the Wisconsin Supreme Court denied Lozano’s petition
for review.
  On July 9, 2001, Lozano filed a “Motion to Modify Sen-
tence” purportedly under Wis. Stat. §§ 973.19 and 809.30,
Cresci v. State, 278 N.W.2d 850 (Wis. 1979), Klimas v. State,
249 N.W.2d 285 (Wis. 1977), State v. Franklin, 434 N.W.2d
609 (Wis. 1989), Rosado v. State, 234 N.W.2d 69 (Wis.
1975), and McCleary v. State, 182 N.W.2d 512 (Wis. 1971).
The state of Wisconsin supported Lozano’s motion, on the
basis of Lozano’s cooperation with state and federal authori-
ties in the investigation and prosecution of members of the
Latin Kings street gang. On March 9, 2002, the Milwaukee
County Circuit Court modified Lozano’s sentence, making
his ten-year sentence for armed robbery run concurrently
with his sentence for homicide. The court denied Lozano’s
request that his parole eligibility be accelerated from 2025
to 2012.
 Lozano filed his federal habeas corpus petition on
August 7, 2002, which the district court dismissed as
untimely.
No. 03-2997                                                  3

Discussion
  Under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), a state prisoner seeking a federal writ of habeas
corpus is required to file his petition within one year of the
date on which his state conviction became “final.” 28 U.S.C.
§ 2244(d)(1)(A). Specifically, Lozano’s habeas petition was
due one year from “the date of which the judgment became
final by the conclusion of direct review or the expiration of
the time for seeking such review.” Id. On direct appeal,
Lozano’s petition for review was denied by the Wisconsin
Supreme Court on November 15, 1993. He did not seek
review in the United States Supreme Court, so his convic-
tion became final on February 14, 1994, which was the date
on which his time for filing a petition for certiorari expired.
However, Lozano’s conviction became final before the
effective date of the AEDPA, so he had one year from the
date of enactment, April 24, 1996, to timely file his federal
habeas petition. So the one-year statute of limitations for
Lozano’s habeas claim expired on April 24, 1997. Newell v.
Hanks, 283 F.3d 827, 832-33 (7th Cir. 2002).
  Lozano did not file his federal habeas petition until
August 7, 2002, but he claims that his petition is timely
because his sentence modification in March 2002 somehow
“reset” the one-year limitations period. Specifically, he
contends that the sentence modification was a further stage
of direct review, and his conviction was therefore not final
until March 2002. Lozano insists that he styled his motion
for sentence modification pursuant to §§ 973.19 and 809.30,
and he exerts considerable time and energy discussing the
technicalities of those sections and why they must always
serve as vehicles of direct review under Wisconsin law.
However, the fact that his motion was purportedly brought
under these two particular sections does not mean that the
sentence was modified pursuant to those sections.
  Lozano’s motion cited several cases in addition to the two
4                                                No. 03-2997

statutory provisions; several of these cases are not consis-
tent with his set of facts. For example, in Klimas, Rosado,
and McCleary, the issue was whether the sentence imposed
by the trial judge was an abuse of discretion. Lozano makes
no such claim. Lozano’s sentence was modified based on a
new factor—his cooperation with authorities in the prosecu-
tion of Latin Kings gang members. This fact did not exist at
the time of Lozano’s trial and has no bearing on the consti-
tutionality or finality of his convictions for intentional
homicide and armed robbery. The notion that Lozano’s
sentence modification was a part of the direct review
process is a non-starter.
  Lozano also relies on Orange v. Calbone, 318 F.3d 1167
(10th Cir. 2003), for the proposition that his sentence
modification constituted direct review. Orange is distin-
guishable from the facts at bar. One critical distinction is
what relief the defendants were seeking. In Orange, the
defendant sought leave to file an “appeal out of time.” He
had failed to timely seek direct review of his conviction and
sought the chance to do so. Essentially, the defendant
wanted to be put back in the position of a defendant who
had timely filed his direct appeal. The Tenth Circuit held
that the “appeal out of time” procedure was considered part
of the direct review process under Oklahoma law. 318 F.3d
at 1170-71. Lozano, on the other hand, was seeking a
sentence adjustment based on his post-conviction coopera-
tion with authorities. He was not seeking to be restored to
a position in which to challenge the merits of his conviction.
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.
Unlike the defendant in Orange, Lozano had already
utilized the direct review process.
  Accepting Lozano’s argument would require the elevation
of form over substance; he cannot backdoor his way into
No. 03-2997                                              5

timely federal habeas review by characterizing his sentence
modification as a result of the direct review process.


Conclusion
  The decision of the district court dismissing Lozano’s
petition as untimely is AFFIRMED.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—9-13-05
