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Givhan v. Kemper

United States District Court, E.D. Wisconsin

June 7, 2016

DAVID WADE GIVHAN, Petitioner,
v.
PAUL KEMPER, Respondent.

          ORDER SCREENING PETITION AND REQUIRING RESPONSE

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         On March 15, 2016, David Wade Givhan, representing himself, filed a petition pursuant to 28 U.S.C. §2254, asserting that his state conviction and sentence violated the Constitution. Dkt. No. 1. Because he did not include the filing fee, a motion to proceed without paying the fee, or his consent forms, the clerk’s office sent the petitioner a letter requesting those items. On March 28, 2016, he paid the $5.00 filing fee and filed his notice of consent to the magistrate judge. Dkt. No. 2. The court now will screen the petition.

         On March 26, 2014, the state charged the petitioner, in Rock County, with seventeen counts: five counts of manufacturing and delivering heroin, five counts of maintaining a drug trafficking place, one count of possession with intent to distribute heroin, one count of possession of a firearm by a felon, one count of possession of narcotic drugs, two counts of possessing THC, and two counts of possessing drug paraphernalia. See State v. Givhan, Case No. 2014CF00579, available at https://wcca.wicourts.gov. At trial, the jury found him guilty on all counts.

         The court sentenced the petitioner on September 10, 2014. On counts one through five, the court imposed a sentence of six years in prison, followed by six years of extended supervision. For counts six through ten, the court sentenced the defendant to four years in custody followed by two years of extended supervision, to run concurrently with the sentence in counts one through five. (all counts concurrent except count eleven). On count eleven- possession with intent to distribute a controlled substance near a school-the court sentenced the petitioner to serve nine years’ imprisonment and five years of extended supervision, to run consecutive to all other counts. For count twelve, the petitioner received a sentence of two years in prison followed by three years of extended supervision. For count thirteen, the court sentenced the petitioner to serve three years of imprisonment and two years of extended supervision. For counts fourteen and fifteen, the court sentenced him to serve one year in prison followed by two years of extended supervision. For counts sixteen and seventeen, the court ordered the petitioner to serve thirty days in the Rock County Jail and to pay $443 in costs. The sentences for counts twelve through seventeen were imposed to run concurrently to the sentences in counts one through ten. The court gave the petitioner 169 days of sentence credit on all counts but count eleven. On September 11, 2014, the court entered the judgment of conviction.

         On September 19, 2014, the petitioner filed a notice of intent to pursue post-conviction relief. The notice of appeal followed on November 24, 2014. On December 31, 2014, the petitioner filed two motions for post-conviction relief. That same day, the court of appeals dismissed the appeal as premature, and informed the petitioner that he could re-file his appeal once the court had ruled on his post-conviction motions. The court of appeals issued a similar order on February 6, 2015, and on February 13, 2015, the petitioner filed a third motion for post-conviction relief. He followed that motion with a writ of habeas corpus on February 16, 2015.

         On February 20, 2015, the Rock County Circuit Court held a hearing, and ruled on the motions for post-conviction relief. On March 6, 2015, the petitioner filed a new notice of appeal. On December 7, 2015, the District IV Court of Appeals affirmed the state court’s judgment of conviction. State v. David Wade Givhan, 2015AP000585, available at https://wscca.wicourts.gov. On January 11, 2016, the petitioner sought review from the Wisconsin Supreme Court, which denied his petition on March 9, 2016. Id.

         In his petition for federal habeas relief, the petitioner raises four claims. Dkt. No. 1 at 6-9. In ground one, he asserts that the prosecution violated his “6th Amend. rights (Confrontation), ” when the prosecution did not produce at trial a trash collector involved “in the trash pull investigation.” Id. at 6. The petitioner argues that he “did not have a prior opportunity to cross-examine the trash collector.” The court interprets this as a claim under the Sixth Amendment’s confrontation clause. Id.

         In ground two, the petitioner states that “[t]he police failed to preserve material evidence from the trash pull, ” and that this “violated the 14th Amendment Due Process Clause.” Id. at 7. According to the petitioner, the “[p]olice conducted a ‘trash pull’ allegedly from the curbside of the target residence.” Id. The officers took the evidence to their department to search the materials, and allegedly discovered contraband inside the petitioner’s trash. Id. The petitioner alleges that the officers did not photograph the trash bags and did not catalog the evidence obtained from the trash bags. Id. The court interprets this as a failure to preserve evidence claim arising under the Due Process Clause of the Fourteenth Amendment.

         In ground three, the petitioner combines the allegations raised in claims one and two and asserts that the destruction of the material evidence and the failure to produce the trash collector “denied [him] a complete and meaningful opportunity to present a defense guaranteed by the 14th amend. Due Process Clause.” Id. at 8.

         In ground four, he states that these same occurrences “denied [him] a fundamentally fair trial guaranteed by the 14th amend. Due Process Clause.” Id. at 9.

         While the petitioner presents his claims in four grounds, a review of those grounds demonstrates that he raises two main issues, both arising out of the same set of facts. He alleges that the state’s failure to present the trash collector as a witness violated his Sixth Amendment confrontation clause rights, and that both the failure to produce the trash collector and the state’s failure to preserve the evidence that resulted from the trash pull violated his Fourteenth Amendment due process rights.

         II. EXHAUSTION OF REMEDIES

         In order to decide whether to allow this case to move forward, the court first must determine whether the petitioner appears, on the face of his petition, to have exhausted his state remedies on these claims. Section 2254 states, “An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State . . . .” The United States Court of Appeals for the Seventh Circuit has held that a district court judge cannot consider the merits of a petitioner’s habeas argument “unless the state courts have had a full and fair opportunity to review them.” Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991). This means, basically, that before a person can get a federal judge to review his arguments on a habeas petition, that person first must appeal the issue all the way up to the highest court in the state for a ruling on the merits. Lieberman v. Thomas, 505 F.3d 665, 669 (7th Cir. 2007) (citations omitted). When a federal judge reviews a petition and realizes that the petitioner has not exhausted his state-court remedies, the judge may either dismiss the case entirely, stay the federal case ...


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