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Garba v. Waukesha County Circuit Court

United States District Court, E.D. Wisconsin

February 28, 2017

ALI GARBA, Petitioner,
v.
WAUKESHA COUNTY CIRCUIT COURT, Respondent.

          ORDER

          J.P. STALLMUELLER, U.S. DISTRICT JUDGE

         On 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.

         Rule 4 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.

         The 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 Cir. 2002)).

         Here, 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 3).[1] 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).

         The 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 merits.”).

         If a 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).

         Here, 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.

         The 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.

         The 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 stage.

         Because 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 petition.

         Accordingly, IT IS ORDERED that the parties shall proceed in accordance with the following schedule:

         1. 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

         2. If the respondent files an answer, then the parties should abide by ...


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