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Brar v. Mahoney

United States District Court, W.D. Wisconsin

January 5, 2018

NAVDEEP BRAR, Petitioner,
v.
DAVID MAHONEY, Respondent. NAVDEEP BRAR, Petitioner,
v.
CHIP MEISTER, Respondent.

          ORDER

          WILLIAM M. CONLEY, District Judge

         Petitioner Navdeep Brar has filed two petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging two criminal convictions for Operating While Intoxicated (“OWI”). He is represented by counsel in both proceedings. Along with his petitions, Brar filed motions to stay the penalties for each conviction. (No. 3:17-cv-790 (dkt. #5); No. 3:17-cv-819 (dkt. #3).) After conducting a preliminary review, Magistrate Judge Stephen Crocker ordered a response to both petitions, including whether respondents oppose Brar's request for a stay. The respondents subsequently indicated that they did not object to the stay of Brar's penalties pending the outcome of his petitions, although Meister questioned whether he was properly named a respondent to Brar's petition. This order grants Brar's motions for a stay and addresses the question of the proper respondent to both petitions.

         I. Motions for Stay

         Under 28 U.S.C. § 2251(a)(1), this court may “stay any proceeding against the person detained in any State court or by or under the authority of any State for any matter involved in the habeas corpus proceeding.” The United States Supreme Court has explained that this statute “does not mandate the entry of a stay, but dedicates the exercise of stay jurisdiction to the sound discretion of a federal court.” McFarland v. Scott, 512 U.S. 849, 858 (1994). Generally, courts consider the following factors in deciding whether to grant a motion to stay under § 2251 in non-capital cases:

(1) Are substantial claims set forth in the petition?
(2) Is there a demonstrated likelihood the petition will prevail?
(3) Are there extraordinary circumstances attending the petitioner's situation which would require the grant in order to make the writ of habeas corpus effective.

Gorak v. Tatum, No. 14-cv-1411, 2015 WL 1167610, at *2 (E.D. Wis. Mar. 13, 2015). In considering these factors, the court also bears in mind the principles of equity, comity and federalism. Ewell v. Toney, 853 F.3d 911, 916 (7th Cir. 2017).

         Brar has argued none of these factors, and a stay of penalties associated with each criminal conviction is rarely granted. On balance, however, the court concludes that the applicable factors favor the entry of a stay here.

         Judge Crocker outlined the issues that Brar is pursuing in his petitions:

Brar repeats his Fourth Amendment claim for relief that were addressed by the Wisconsin courts and adds a Fourteenth Amendment due process claim. Specifically, in No. 17-cv-790-wmc, he challenges the constitutionality of his conviction in State v. Brar, No. 2014CT776 (Dane Cty. Cir. Ct. Apr. 3, 2015), on two grounds: (1) the Wisconsin Supreme Court violated his Fourth Amendment rights and failed to give him a full and fair hearing in state court by failing to adopt a clear standard for voluntary consent to a blood draw pursuant to an OWI arrest; and (2) his Fourteenth Amendment rights to due process were violated by the Wisconsin Supreme Court's failure to give fair notice as to what constitutes consent to a blood draw upon arrest for OWI. Similarly, in No. 17-cv-819-wmc, Brar argues that his OWI conviction in State v. Brar, 2014CT273 (Sauk Cty. Cir. Ct. Sept. 28, 2015), violated his Fourth Amendment right to a constitutionally reasonable manner and place of a blood test to have an EMT conduct the blood draw in a jail, and that the state violated Brar's Fourteenth Amendment due process rights in failing to require a physician who supervised blood draws to appear at the motion to suppress hearing pursuant to a subpoena.
….
Although Brar's Fourth Amendment claims appear to run squarely into the bar imposed by Stone v. Powell, 428 U.S. 465, 494 (1976) (federal court is barred on habeas review from reaching merits of petitioner's Fourth Amendment claim so long as state court granted him a full and fair hearing on the claim), Brar argues that the bar does not apply to him because the state courts denied him a full and fair hearing on his claims. Although this is a high bar [for] Brar to clear, I cannot say that it is plain from the petition that Brar will be unable to do so or that he cannot obtain relief on his underlying Fourth Amendment claims. Accordingly, the state shall be ordered to respond to Brar's Fourth Amendment claim, and because it ...

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