United States District Court, E.D. Wisconsin
Stadtmueller, US. District Judge.
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.
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
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).
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.
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).
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.
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)).
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 ...