United States District Court, E.D. Wisconsin
STALLMUELLER, U.S. DISTRICT JUDGE
February 23, 2017, the petitioner Ali Garba
(“Garba”) filed this petition pursuant to 28
U.S.C. § 2254, asserting that his state court conviction
and sentence were imposed in violation of the Constitution.
(Docket #1 at 1-12). After proceeding to trial in Waukesha
County Circuit Court, Garba was convicted of operating a
motor vehicle while intoxicated. On April 1, 2015, he
sentenced to six months imprisonment. Id. at 2. The
trial judge stayed execution of Garba's sentence pending
completion of his appeal. Id. at 1.
of the Rules Governing § 2254 Cases in the United States
District Courts authorizes a district court to conduct an
initial screening of habeas corpus petitions and to dismiss a
petition summarily where “it plainly appears from the
face of the petition…that the petitioner is not
entitled to relief.” This rule provides the district
court the power to dismiss both those petitions that do not
state a claim upon which relief may be granted and those
petitions that are factually frivolous. See Small v.
Endicott, 998 F.2d 411, 414 (7th Cir. 1993). Upon an
initial Rule 4 review of habeas petitions, the court will
analyze whether the petitioner has avoided statute of
limitations bars, exhausted available state remedies, avoided
procedural default, and set forth cognizable constitutional
or federal law claims.
court begins its Rule 4 review by examining the timeliness of
Garba's petition. A state prisoner in custody pursuant to
a state court judgment has one year from the date “the
judgment became final” to seek federal habeas relief.
28 U.S.C. § 2244(d)(1)(A). A judgment becomes final
within the meaning of § 2244(d)(1)(A) when all direct
appeals in the state courts are concluded followed by either
the completion or denial of certiorari proceedings in the
U.S. Supreme Court, or, if certiorari is not sought, at the
expiration of the 90 days allowed for filing for certiorari.
See Ray v. Clements, 700 F.3d 993, 1003 (2012)
(citing Anderson v. Litscher, 281 F.3d 672, 675 (7th
it appears Garba's petition is timely. From the face of
the petition, it appears that Garba's direct appeal
concluded on February 13, 2017. (Docket #1 at
He did not file a petition for certiorari to the United
States Supreme Court. Id. at 4. Because the petition
in this case was filed on February 23, 2017, just ten days
after the end of Garba's state-level appeals process, it
satisfies the time constraints of Section 2244(d).
court continues its Rule 4 review by examining Garba's
petition to determine whether he has exhausted his state
remedies. The district court may not address the merits of
the constitutional claims raised in a federal habeas petition
“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). Accordingly, a state
prisoner is required to exhaust the remedies available in
state court before a district court will consider the merits
of a federal habeas petition. 28 U.S.C. § 2254(b)(1)(A);
Dressler v. McCaughtry, 238 F.3d 908, 912 (7th Cir.
2001) (if petitioner “either failed to exhaust all
available state remedies or raise all claims before the state
courts, his petition must be denied without considering its
federal habeas petition has even a single unexhausted claim,
the district court may be required to dismiss the entire
petition and leave the petitioner with the choice of either
returning to state court to exhaust the claim or amending or
resubmitting the petition to present only exhausted claims.
See Rose v. Lundy, 455 U.S. 509, 510 (1982). Under
Rhines v. Weber, 544 U.S. 269, 278 (2005), the Court
should grant a stay to allow the petitioner to return to
state court to exhaust his claims when “the petitioner
had good cause for his failure to exhaust, his unexhausted
claims are potentially meritorious, and there is no
indication that the petitioner engaged in intentionally
dilatory litigation tactics.” See also Purvis v.
United States, 662 F.3d 939, 944 (7th Cir. 2011)
(applying Rhines to a mixed petition brought under
28 U.S.C. § 2255). The Court should also allow the
petitioner to amend his petition to remove any unexhausted
claims before dismissing the petition. Rhines, 544
U.S. at 278. A petitioner exhausts his constitutional claim
when he presents it to the highest state court for a ruling
on the merits. Lieberman v. Thomas, 505 F.3d 665,
669 (7th Cir. 2007) (citing Picard v. Connor, 404
U.S. 270, 275 (1971); Perruquet v. Briley, 390 F.3d
505, 513 (7th Cir. 2004)). Once the state's highest court
has had a full and fair opportunity to pass upon the merits
of the claim, a prisoner is not required to present it again
to the state courts. Humphrey v. Cady, 405 U.S. 504,
516 n.18 (1972).
Garba is challenging the constitutionality of the trial
court's actions related to his blood test underlying the
subject conviction. See (Docket #1 at 6-9).
According to the face of the petition, it appears that Garba
presented both of these claims to each level of Wisconsin
state court review. See Id. at 3. Accordingly, the
Court cannot conclude that it “plainly” appears
from the record that Garba did not exhaust his claims.
Therefore, it will not dismiss the petition on this basis.
court next reviews Garba's petition under Rule 4 to
determine whether he has procedurally defaulted on any of his
claims. Even though a constitutional claim in a federal
habeas petition has been exhausted, the court is still barred
from considering the claim if it has been procedurally
defaulted by the petitioner. See Mahaffey v.
Schomig, 294 F.3d 907, 915 (7th Cir. 2002) (citing
Boerckel v. O'Sullivan, 135 F.3d 1194, 1196-97
(7th Cir. 1998), rev'd on other grounds by
O'Sullivan v. Boerckel, 526 U.S. 838, 849 (1999)). A
state prisoner procedurally defaults on a constitutional
claim in a habeas petition when he fails to raise the claim
in the state's highest court in a timely fashion or in
the manner prescribed by state law. See
O'Sullivan, 526 U.S. at 848; Thomas v.
McCaughtry, 201 F.3d 995, 1000 (7th Cir. 2000). Here, on
the record before the Court, it appears that Garba has not
procedurally defaulted on his claims.
Court concludes its Rule 4 review by screening for patently
frivolous and speculative claims in Garba's federal
habeas petition. See Ray, 700 F.3d at 996 n.1
(citing Small, 998 F.2d at 414, for the proposition
that district courts may dismiss petitioners that fail to
state a claim or are factually frivolous). Garba's claims
are not patently frivolous and may state claims upon which
relief could be granted; if proven, Garba's claims will
show that his conviction was unconstitutional and that he is
therefore entitled to habeas relief. Thus, the claim is not
so plainly without merit as to warrant dismissal at this
it does not plainly appear that Garba's claims are
frivolous or speculative, the Court will direct the
respondent to file an answer to Garba's claims in the
IT IS ORDERED that the parties shall proceed in accordance
with the following schedule:
Within 30 days of entry of this order, the respondent shall
file either an appropriate motion seeking dismissal of this
action or answer the petition, complying with Rule 5 of the
Rules Governing § 2254 Cases, and showing cause, if any,
why the writ should not issue; and
the respondent files an answer, then the parties should abide