United States District Court, W.D. Wisconsin
WILLIAM M. CONLEY, District Judge
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.
Motions for Stay
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
(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).
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.
Crocker outlined the issues that Brar is pursuing in his
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 ...