Garba v. Waukesha County Circuit Court

Filing 20

ORDER signed by Judge J.P. Stadtmueller on 12/28/2017: DENYING 1 Petitioner's Petition for Writ of Habeas Corpus; DENYING certificate of appealability; and DISMISSING CASE with prejudice. (cc: all counsel)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ALI GARBA,

v.

Petitioner,

WAUKESHA COUNTY CIRCUIT
COURT,

Case No. 17-CV-244-JPS

ORDER

Respondent.
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

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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
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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,

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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]

As noted above, Garba’s grounds for relief are directed at the trial court.
The proper focus is, however, on the decision of the Court of Appeals, which was
the final Wisconsin court to issue a reasoned opinion in his case.
1

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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 extreme malfunctions in the state criminal justice
systems,’ not a substitute for ordinary error correction through appeal.” Id.
at 102–103 (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens,
J., concurring)).
4.

ANALYSIS
Garba makes little attempt to distinguish between any of his grounds

for relief. Further, his briefing lacks organization which would help clarify
his arguments. Without guidance from him, the Court will begin by
addressing his first three grounds for relief together, as each relates to the
admissibility of his experts’ testimony. The Court will then turn to the
instructional issue.
4.1

Exclusion of Expert Testimony

The Sixth and Fourteenth Amendments afford Garba the right to “‘a
meaningful opportunity to present a complete defense.’” Caffey v. Butler,
802 F.3d 884, 895 (7th Cir. 2015) (quoting Crane v. Kentucky, 476 U.S. 683, 690
(1986)). This right permits Garba to present relevant testimony and
evidence, including expert testimony. Id. (citing United States v. Scheffer, 523
U.S. 303, 308 (1998)); Johnson v. Bett, 349 F.3d 1030, 1035 (7th Cir. 2003). The
right is not absolute, however. It must “‘bow to accommodate other
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legitimate interests in the criminal trial process[,]’ . . . [including] ‘fairness
and reliability in the ascertainment of guilt and innocence.’” Simonson v.
Hepp, 549 F.3d 1101, 1106 (7th Cir. 2008) (quoting Chambers v. Mississippi,
410 U.S. 284, 295, 302 (1973)).
These interests are made manifest in, inter alia, evidentiary rules.
States have “broad latitude to establish rules excluding evidence so long as
the rules are not arbitrary or disproportionate to the purpose they are
designed to serve.” Johnson, 349 F.3d at 1035; Scheffer, 523 U.S. at 308. Such
a rule is “unconstitutionally arbitrary or disproportionate only where it has
infringed upon a weighty interest of the accused.” Scheffer, 523 U.S. at 308.
In those instances, “strict application of a state evidentiary rule must yield
to the defendant’s constitutional rights.” Caffey, 802 F.3d at 895. The Seventh
Circuit notes that “[r]ules that prohibit irrelevant or speculative evidence
are kosher.” Simonson, 549 F.3d at 1106.
The Court turns to the decision of the Court of Appeals applying
these principles. The court held that exclusion of the experts’ testimony was
a proper exercise of the trial court’s discretion. Garba, 2016 WL 5794346 at
*3. In excluding the testimony, the trial court applied two evidentiary rules.
The first is Wisconsin’s equivalent of the Daubert standard. Id. The trial
court determined that “[a]lthough the experts concluded the jagged humps
rendered Garba’s test results unreliable, . . . this conclusion was backed, not
by evidence, but speculation in the absence of evidence.” Id. at *4. In other
words, “[n]either one of Mr. Garba’s experts . . . could opine to a reasonable
degree of scientific certainty that the results were inaccurate, or that the
jagged hump phenomenon—which was not even present on Mr. Garba’s
test results—in any way impacted the test results on Mr. Garba’s sample.”
Id. The trial court also found the evidence inadmissible under Wisconsin’s
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equivalent of Federal Rule of Evidence 403, which permits exclusion of
evidence “if the court determines that its probative value is substantially
outweighed by the danger of unfair prejudice or the risk that it will mislead
or confuse the jury.” Id. at *3 (citing Wis. Stat. § 904.03). In the trial court’s
view, “the testimony would invite the jury to speculate that Garba’s test
was unreliable despite the experts’ inability to say whether the jagged
humps had any effect at all on the test results.” Id. at *4.
The Court of Appeals concluded that this was an appropriate
exercise of the trial court’s discretion. Id. The court explained:
Garba complains that the trial court should not have
substituted its judgment regarding the significance of the
jagged humps for that of the experts. Quite the contrary, the
gatekeeper function—ensuring the expert opinion testimony
is sufficiently reliable—is precisely what the circuit court
should be doing. Despite Garba’s insistence otherwise, the
court did not misunderstand the difference between accuracy
and reliability. It concluded that the expert testimony was not
sufficiently probative on the issues of accuracy and reliability.
Id. The Court of Appeals also dismissed Garba’s concern about the
presumption of reliability for the blood testing method used in his case,
noting that “who bears the burden to prove the accuracy of test results has
nothing to do with whether the expert testimony here ought to have been
admitted.” Id.
The Court of Appeals then arrived at the federal constitutional
question: whether exclusion of the expert testimony violated Garba’s right
to present a defense. Id. at *5. The court applied a multi-factor test
announced by the Wisconsin Supreme Court to address this very issue. Id.;
see State of Wisconsin v. St. George, 643 N.W.2d 777, 789 (Wis. 2002). The
dispositive factor in this instance was the danger of unfair prejudice which

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outweighed the probative value of the testimony. Garba, 2016 WL 5794346
at *5. Like the trial court, the Court of Appeals found that
the experts based their conclusions not on evidence, but on a
lack of evidence. Neither could say whether the jagged humps
had any effect whatsoever on the results. Despite regular
testing showing the results were within tolerances, the
experts nevertheless concluded the results could not be
trusted for reasons they could not explain. The testimony
would have encouraged the jury to improperly speculate that
the results were somehow suspect, despite a lack of evidence
so indicating.
Id.
Combining the relevant constitutional considerations, the Court of
Appeals’ ruling, and the standards outlined in the previous section, this
Court is presented with a narrow question: did the Court of Appeals
unreasonably apply clearly established United States Supreme Court
precedent in affirming the exclusion of Garba’s expert testimony?2 Or, put

In both his opening brief and the brief attached to his petition, Garba
argues only that the Court of Appeals misapplied Supreme Court precedent
pursuant to Section 2254(d)(1). See (Docket #1-2 at 4, 8-9, 11-12; Docket #14 at 8, 22,
25-27 (citing Section 2254(d)(1)). Nowhere in either document does Garba even
mention the other ground for habeas relief: Section 2254(d)(2). Section 2254(d)(2)
allows a federal court to grant habeas relief if the state court’s adjudication of a
constitutional claim was based upon an unreasonable determination of the facts in
light of the evidence presented. Garba mentions Section 2254(d)(2) for the first time
in his reply. (Docket #18 at 7-8). By failing to argue the point in his opening brief,
Garba has waived it. TAS Distrib. Co., Inc. v. Cummins Engine Co., Inc., 491 F.3d 625,
630 (7th Cir. 2007) (“[I]t is well-settled that arguments first made in the reply brief
are waived.”).
2

Further, even if Garba had properly invoked Section 2254(d)(2), his
position is woefully underdeveloped. The underlying state court findings of fact
and credibility determinations against the petitioner are presumed correct.
Newman v. Harrington, 726 F.3d 921, 928 (7th Cir. 2013). A petitioner overcomes
that presumption only if he proves by clear and convincing evidence that those
findings are wrong. 28 U.S.C. § 2254(e)(1); Campbell, 770 F.3d at 546. Garba’s reply

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differently, would all fairminded jurists agree that the Court of Appeals’
decision conflicted with Supreme Court precedent? Garba makes almost no
effort to grapple with this question. Instead, he begins his argument by
briefly recounting the facts and holdings of a list of Supreme Court cases.
(Docket #14 at 25-27) (citing, inter alia, Chambers, Crane, and Scheffer). He
then analogizes his case to district and circuit court opinions which do not
supply controlling authority for purposes of a Section 2254 petition. Id. at
27-29; Lockhart v. Chandler, 446 F.3d 721, 724 (7th Cir. 2006). Finally, the
remaining bulk of Garba’s arguments are presented without meaningfully
relating them to the Supreme Court decisions previously listed. (Docket #14
at 30-37).
In fact, throughout the entirety of his briefing, Garba never once
accuses the Court of Appeals of unreasonably applying a specific rule
stated by the Supreme Court. Garba also fails to identify any of its
conclusions as contrary to that reached by the Supreme Court on materially
indistinguishable facts. Rather, he simply accuses the state court of wrongly
applying general standards announced in Supreme Court precedents.
Garba’s strategic choice means that this Court must afford even more
deference to the Court of Appeals:
[T]he range of reasonable judgment can depend in part
on the nature of the relevant rule. If a legal rule is specific, the

gestures towards Section 2254(d)(2), then continues on to repeat many of the
arguments contained in his opening brief. (Docket #18 at 7-15). His only attempt
to prove that the Court of Appeals made erroneous findings of fact is to quote the
very same expert testimony considered and accepted by that court. Garba’s true
complaint is not with the court’s factfinding, but rather how the court fit those
facts into its analysis. See Garba, 2016 WL 5794346, at *5 (acknowledging the
experts’ testimony, but concluding that the testimony failed to address the
material issue: whether Garba’s results were inaccurate).

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range may be narrow. Applications of the rule may be plainly
correct or incorrect. Other rules are more general, and their
meaning must emerge in application over the course of time.
Applying a general standard to a specific case can demand a
substantial element of judgment. As a result, evaluating
whether a rule application was unreasonable requires
considering the rule’s specificity. The more general the rule,
the more leeway courts have in reaching outcomes in case-bycase determinations.
Yarborough v. Alvarado, 541 U.S. 652, 663-64 (2004) (citations and quotations
omitted); see also Knowles v. Mirzayance, 556 U.S. 111, 122-23 (2009).
The Court thus continues on to the question presented: whether the
Court of Appeals unreasonably applied the general rules announced in the
cases Garba cites. See Gilbert v. McCulloch, 776 F.3d 487, 491 (7th Cir. 2015).
The Court cannot say that it did. Garba was entitled to present nonspeculative evidence in his defense. The Court of Appeals determined that
his experts’ testimony was just that—speculation. Though both experts
questioned the general reliability of the testing machines, neither could say
that the jagged humps made Garba’s test inaccurate, which was the only
material issue. If the experts had testified at trial, and the jury had agreed
with them, their agreement would have been based only on speculation,
not evidence, that Garba’s test results were inaccurate. In the Court’s view,
this determination is not an incorrect application of the cited precedent,
much less an unreasonable one. Chambers, 410 U.S. at 295, 302; Simonson,
549 F.3d at 1106.
It appears that Garba simply wants to pose his arguments afresh to
this Court, hoping that it will be the first to agree with him. The Court
cannot consider such a position. Woodford, 537 U.S. at 25 (federal habeas
court cannot simply “substitute[] its own judgment for that of the state

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court”). As the Seventh Circuit recently explained in the context of
exclusion of expert testimony:
Keith invokes the generic “right to present a defense”
rather than a concrete rule about expert testimony. Yet the
Supreme Court has concluded that § 2254(d)(1) forbids
framing the theory at such a high level of generality. Nevada
v. Jackson, [569] U.S. [at 512] . . ., is particularly instructive,
because a court of appeals proceeded exactly as Keith asks us
to. A state court had excluded some evidence; the court of
appeals issued a writ of habeas corpus after concluding that
the state judiciary violated the right to present a defense; the
Supreme Court reversed, observing that “[b]y framing our
precedents at such a high level of generality, a lower federal
court could transform even the most imaginative extension of
existing case law into ‘clearly established Federal law, as
determined by the Supreme Court.’” [Id. (quoting 28 U.S.C. §
2254(d)(1)).] The right question, Jackson held, is whether
decisions of the Supreme Court establish that the particular
decision the state judiciary reached is forbidden. The Justices
stated in Jackson that this meant decisions about the
admissibility of the sort of evidence the defense had
proffered.
...
That is equally so here. Keith does not identify any
decision by the Supreme Court establishing that judges in
non-capital criminal trials must admit expert evidence about
the defendant’s state of mind or history of being abused as a
child. Section 2254(d)(1) therefore has not been satisfied.
Keith v. Schaub, 772 F.3d 451, 453-54 (7th Cir. 2014). Garba has pointed to no
Supreme Court holding which forbids the Court of Appeals’ conclusions.
More precisely, Garba has not shown that fairminded jurists would
unanimously agree with him. Habeas relief is therefore unavailable.
4.2

Jury Instruction

The Fourteenth Amendment’s Due Process Clause “protects the
accused against conviction except upon proof beyond a reasonable doubt
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of every fact necessary to constitute the crime with which he is charged.” In
re Winship, 397 U.S. 358, 364 (1970). Conversely, this principle “prohibits the
State from using evidentiary presumptions in a jury charge that have the
effect of relieving the State of its burden of persuasion beyond a reasonable
doubt of every essential element of a crime.” Francis v. Franklin, 471 U.S.
307, 313 (1985). A jury instruction violates due process when it creates a
mandatory presumption, namely where a jury must infer that the
presumed fact is true if certain predicate facts are proven, as to a fact
necessary to constitute the charged offense. Id. at 314.
The Court of Appeals identified this rule and applied it to Garba’s
case. Garba, 2016 WL 5794346 at *6. Garba was convicted of OWI, which
requires proof that “(1) the defendant operated a motor vehicle on the
highway, and (2) the defendant was under the influence of an intoxicant.”
Id. at *7 (citing Wis. Stat. § 346.63). The instruction in question provides, in
pertinent part:
The law recognizes that the testing device used in this
case uses a scientifically sound method of measuring the
alcohol concentration of an individual. The State is not
required to prove the underlying scientific reliability of the
method used by the testing device. However, the state is
required to prove that the testing device was in proper
working order and that it was correctly operated by a
qualified person.
WIS JI—Criminal 2669.3 Garba argued that the instruction creates a
presumption that the blood test results are accurate. Id. at *6. The court

Before the Wisconsin trial court and Court of Appeals, Garba leveled his
challenge at WIS JI—Criminal 2663. Garba, 2016 WL 5794346 at *2, 6-7. For reasons
he does not explain, Garba’s petition for review before the Wisconsin Supreme
Court changed the target to WIS JI—Criminal 2669. (Docket #13-4 at 22-26). He
cites only to WIS JI—Criminal 2669 in his instant petition. (Docket #1 at 9). Both
3

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disagreed, finding that “[t]he instruction only informs the jury that the
method used for testing is recognized to be reliable. It contains no
presumption as to the accuracy or reliability of a particular test or machine.”
Id. (emphasis in original).
The court further noted that Garba made no attempt to contest the
reliability of the testing method, headspace gas chromatography. Id. at *7.
The instruction left intact the state’s burden to prove that the results were
reliable, for instance by “demonstrating the machines were in proper
working order and operated by a qualified technician.” Id. Finally, the court
held that any instructional error was harmless, given the nature of the
evidence presented:
Furthermore, the testing method is two steps removed
from the real issue in Garba’s case: impairment. The testing
method is simply a way to determine BAC, which in turn is
relevant evidence from which a jury may infer impairment.
Finally, in closing arguments on the OWI charge, the State
focused on Garba’s inability to complete the field sobriety
tests, not his BAC. The reliability of headspace gas
chromatography simply was not at issue.
Id.
It was Garba’s burden to prove that the Court of Appeals’
application of federal precedent was not just wrong, but entirely
unreasonable. He failed to do so. As before, Garba simply argues that the
court’s conclusion was wrong. The Court cannot agree with him even on
that point. This Court concurs with those before it that the challenged
language relates only to the testing method, not the test results. Garba says
this does not matter, because “the test method creates the result [only] if the

instructions contain the same relevant language, however, so the Court will not
hold this against him.

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machinery is in proper working order.” (Docket #18 at 21). This merely
rehashes his prior argument, and it may be dispensed with on the same
grounds; Garba cannot say that the machinery was malfunctioning in a
material way. The salient issue is whether the test results were accurate,
and neither his experts nor the jury instruction have anything meaningful
to say on that point. Again, Garba cites only to general propositions in
Supreme Court cases and does not analogize their facts to his. (Docket #14
at 22-24; Docket #18 at 20-21). The Court will not craft an appropriate habeas
argument on his behalf.
5.

CONCLUSION
Garba’s refusal to contend with the applicable standard of review

reveals his use of this habeas proceeding as merely seeking at a “do-over”
of the state court proceedings. This is not an appropriate basis upon which
to seek habeas relief. The Court must, therefore, deny Garba’s petition and
dismiss this action with prejudice.
Under Rule 11(a) of the Rules Governing Section 2254 Cases, “the
district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.” To obtain a certificate of
appealability under 28 U.S.C. § 2253(c)(2), Garba must make a “substantial
showing of the denial of a constitutional right” by establishing that
“reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal citations omitted). As
the Court discussed above, no reasonable jurists could debate whether
Garba’s motion has merit because he put forth so little effort to couch his
arguments within this Court’s limited posture for review. As a
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consequence, the Court is compelled to deny a certificate of appealability
as to Garba’s motion.
Accordingly,
IT IS ORDERED that Petitioner’s petition for a writ of habeas
corpus (Docket #1) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that a certificate of appealability as to
the Petitioner’s petition be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 28th day of December, 2017.
BY THE COURT:

__________________
J. P. Stadtmueller
U.S. District Judge

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