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Garba v. Waukesha County Circuit Court

United States District Court, E.D. Wisconsin

December 28, 2017

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

          ORDER

          J. P. Stadtmueller, US. District Judge.

         1. INTRODUCTION

         On April 1, 2015, Petitioner Ali Garba (“Garba”) was convicted by a Waukesha County jury of one count of driving while intoxicated (“OWI”) and one count of driving with a prohibited alcohol concentration (“PAC”). The PAC charge was dismissed on the state's motion and the trial court entered judgment on the OWI offense. That same day, the trial court imposed a sentence of six months' imprisonment. Garba pursued an unsuccessful appeal which concluded on February 13, 2017. Garba then filed the instant petition for a writ of habeas corpus on February 23, 2017. (Docket #1). In accordance with the Court's briefing schedule, Garba submitted a brief in support of his petition on May 28, 2017. (Docket #14). Respondent opposed the petition on August 2, 2017. (Docket #17). Garba offered a reply on September 1, 2017. (Docket #18). For the reasons explained below, Garba's petition must be denied.

         2. BACKGROUND

         In its opinion denying Garba's appeal, the Court of Appeals summarized the relevant facts:

Garba was pulled over for a traffic violation in the City of Waukesha. The officer administered, and Garba failed, a series of field sobriety tests. The officer arrested Garba and took him to a hospital whereupon Garba consented to a blood draw. The test results revealed Garba's blood alcohol concentration was .206g/100mL. The State charged Garba with [OWI] and [PAC]-both third offenses.
The Wisconsin State Laboratory of Hygiene tested Garba's blood using a method called headspace gas chromatography. The laboratory tests each blood sample twice in separate vials. To summarize, the test involves placing a blood sample in a long column where the blood is carried by pressurized gas and separated into its component substances. The individual substances then escape at different times and are measured by means of flame detection. A flame ignites any alcohol present in a blood sample as it escapes the column; the strength of the flame is recorded and provides a measurement. These results are then plotted on a graph-a chromatogram-and indicate the alcohol concentration in the sample.
The day Garba's blood was tested, several chromatograms from test vials of others indicated a series of so-called “jagged humps.” These jagged humps-visible as a series of peaks in some of the chromatograms-appear on the graph/chromatogram before any signal should be detected. In other words, the chromatograms showed readings before the carrier gas had time to carry the sample through the column. Blood samples for the same person would sometimes display jagged humps in one test vial but not in the other. The cause of these jagged humps remains unknown. However, the laboratory calibrated the testing equipment daily and monitored its performance throughout the testing day. Additionally, although jagged humps appeared in chromatograms before and after Garba's, his results contained none.
Seeking to undermine the accuracy and reliability of his results, Garba consulted two expert witnesses-Jimmie Valentine and Janine Arvizu-and sought to introduce their testimony at trial. Valentine is a pharmacology professor and Arvizu is a certified quality auditor. Both experts opined that the presence of the jagged humps on some chromatograms created reliability issues with all of the results. According to their testimony at the motion hearing, the jagged humps should not be in the results, and the lab should have conducted a thorough analysis to determine what caused the anomalies. In the absence of an explanation, the experts maintained that none of the results could be trusted even though individual tests may or may not have been accurate.
The experts did, however, candidly admit a level of uncertainty in their opinions. Arvizu admitted that the machines were calibrated daily to determine at what point in the test the ethanol was separated from the sample. Because the jagged humps appeared on the chromatograms before the results for alcohol, Arvizu granted “in that respect it would not directly interfere with an ethanol determination.” Arvizu conceded that she observed no inconsistencies in the alcohol readings between two test vials of the same blood sample even where one result showed a jagged hump and the other did not. She simply could not say whether the jagged humps produced a false positive or negative, or whether the humps had any effect whatsoever on the accuracy of the test. Valentine similarly admitted that the laboratory conducted controls and standards testing every ten samples, and the results were within the accepted tolerances on the day the laboratory tested Garba's blood. He too admitted he could not say to a reasonable degree of scientific certainty that Garba's test results were either accurate or inaccurate. Finally, both experts conceded that no jagged humps were present in Garba's blood test.
On the State's motion, the circuit court excluded the experts' testimony, reasoning it was not the product of reliable principles and methods, and any probative valued was outweighed by the danger of unfair prejudice. Garba also challenged part of Wis JI-Criminal 2663, arguing that it created an unconstitutional presumption that the blood test was reliable. The circuit court rejected this argument and gave the instruction as written. Garba's case proceeded to trial before a jury, and the jury found him guilty of the OWI charge and the PAC charge. On the State's motion, the PAC charge was later dismissed.

State of Wisconsin v. Ali Garba, 888 N.W.2d 246, 2016 WL 5794346, at *1-2 (Wis. Ct. App. Oct. 5, 2016). As detailed below, the Court of Appeals affirmed the trial court in all respects. Id. at *2-7. The Wisconsin Supreme Court summarily denied Garba's petition for review. (Docket #1 at 57).

         Garba's petition offers four grounds for relief based on alleged errors by the trial court. The first three relate to his desire to proffer expert testimony. First, he claims that the expert testimony was exculpatory and its exclusion violated his Sixth Amendment right to present a defense. Id. at 6-7. Second, in deciding to exclude that evidence, the court improperly imposed a burden on Garba to prove that his blood test was unreliable. Id. at 7. Third, Garba claims that exclusion of his experts' testimony violated his due process rights under the Fifth and Fourteenth Amendments. Id. at 8. The final ground for relief asserts that the jury was improperly instructed that the blood test was reliable. Id. at 9.

         3. LEGAL STANDARD

         State criminal convictions are generally considered final. Review may be had in federal court only on limited grounds. To obtain habeas relief from a state conviction, 28 U.S.C. § 2254(d)(1) (as amended by the Antiterrorism and Effective Death Penalty Act (“AEDPA”)) requires the petitioner to show that the state court's decision on the merits of his constitutional claim was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1); Brown v. Payton, 544 U.S. 133, 141 (2005). The burden of proof rests with the petitioner. Cullen v. Pinholster, 563 U.S. 170, 181 (2011). The relevant decision for this Court to review is that of the last state court to rule on the merits of the petitioner's claim. Charlton v. Davis, 439 F.3d 369, 374 (7th Cir. 2006).[1]

         A state-court decision runs contrary to clearly established Supreme Court precedent “if it applies a rule that contradicts the governing law set forth in [those] cases, or if it confronts a set of facts that is materially indistinguishable from a decision of [the Supreme] Court but reaches a different result.” Brown, 544 U.S. at 141. Similarly, a state court unreasonably applies clearly established Supreme Court precedent when it applies that precedent to the facts in an objectively unreasonable manner. Id.; Bailey v. Lemke, 735 F.3d 945, 949 (7th Cir. 2013).

         The AEDPA undoubtedly mandates a deferential standard of review. The Supreme Court has “emphasized with rather unexpected vigor” the strict limits imposed by Congress on the authority of federal habeas courts to overturn state criminal convictions. Price v. Thurmer, 637 F.3d 831, 839 (7th Cir. 2011). It is not enough for the petitioner to prove the state courts were wrong; he must also prove they acted unreasonably. Harrington v. Richter, 562 U.S. 86, 101 (2005); Campbell v. Smith, 770 F.3d 540, 546 (7th Cir. 2014) (“An ‘unreasonable application of federal law means ‘objectively unreasonable, not merely wrong; even ‘clear error' will not suffice.'”) (quoting White v. Woodall, 134 S.Ct. 1697, 1702 (2014)).

         Indeed, the habeas petitioner must demonstrate that the state court decision is “so erroneous that ‘there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents.'” Nevada v. Jackson, 569 U.S. 505, 508-09 (2013) (quoting Harrington, 562 U.S. at 102). The state court decisions must “be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002); Hartjes v. Endicott, 456 F.3d 786, 792 (7th Cir. 2006). As the Supreme Court has explained, “[i]f this standard is difficult to meet, that is because it was meant to be.” Harrington, 562 U.S. at 102. Indeed, Section 2254(d) stops just short of “imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings.” See Id. This is so because “habeas corpus is a ‘guard against ...


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