Garba v. Waukesha County Circuit Court
ORDER signed by Judge J.P. Stadtmueller on 2/28/2017. Within 30 days, respondent to either file motion seeking dismissal of action or answer petition. IF RESPONDENT FILES ANSWER, briefing to proceed as follows: petitioner's brief in support of petition due within 60 days of filing of respondent's answer; respondent's opposition brief due within 60 days of service of petitioner's brief or 120 days of this Order if petitioner does not file a brief; petitioner's reply due within 30 days of filing of respondent's brief. IF RESPONDENT FILES MOTION, briefing to proceed as follows: petitioner's brief in opposition due within 30 days of filing of respondent's motion; respondent's reply due within 15 days of filing of petitioner's brief. Civil L. R. 7(f) governs page limitations. Wisconsin DOJ to inform Court within 21 days of NEF if it will not accept service on respondent's behalf. See Order for details. (cc: all counsel)(jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 17-CV-244-JPS
WAUKESHA COUNTY CIRCUIT
On February 23, 2017, the petitioner Ali Garba (“Garba”) filed this
petition pursuant to 28 U.S.C. § 2254, asserting that his state court conviction
and sentence were imposed in violation of the Constitution. (Docket #1 at 112). After proceeding to trial in Waukesha County Circuit Court, Garba was
convicted of operating a motor vehicle while intoxicated. On April 1, 2015,
he sentenced to six months imprisonment. Id. at 2. The trial judge stayed
execution of Garba’s sentence pending completion of his appeal. Id. at 1.
Rule 4 of the Rules Governing § 2254 Cases in the United States
District Courts authorizes a district court to conduct an initial screening of
habeas corpus petitions and to dismiss a petition summarily where “it plainly
appears from the face of the petition…that the petitioner is not entitled to
relief.” This rule provides the district court the power to dismiss both those
petitions that do not state a claim upon which relief may be granted and
those petitions that are factually frivolous. See Small v. Endicott, 998 F.2d 411,
414 (7th Cir. 1993). Upon an initial Rule 4 review of habeas petitions, the
court will analyze whether the petitioner has avoided statute of limitations
bars, exhausted available state remedies, avoided procedural default, and set
forth cognizable constitutional or federal law claims.
The court begins its Rule 4 review by examining the timeliness of
Garba’s petition. A state prisoner in custody pursuant to a state court
judgment has one year from the date “the judgment became final” to seek
federal habeas relief. 28 U.S.C. § 2244(d)(1)(A). A judgment becomes final
within the meaning of § 2244(d)(1)(A) when all direct appeals in the state
courts are concluded followed by either the completion or denial of certiorari
proceedings in the U.S. Supreme Court, or, if certiorari is not sought, at the
expiration of the 90 days allowed for filing for certiorari. See Ray v. Clements,
700 F.3d 993, 1003 (2012) (citing Anderson v. Litscher, 281 F.3d 672, 675 (7th
Here, it appears Garba’s petition is timely. From the face of the
petition, it appears that Garba’s direct appeal concluded on February 13,
2017. (Docket #1 at 3).1 He did not file a petition for certiorari to the United
States Supreme Court. Id. at 4. Because the petition in this case was filed on
February 23, 2017, just ten days after the end of Garba’s state-level appeals
process, it satisfies the time constraints of Section 2244(d).
The court continues its Rule 4 review by examining Garba’s petition
to determine whether he has exhausted his state remedies. The district court
may not address the merits of the constitutional claims raised in a federal
habeas petition “unless the state courts have had a full and fair opportunity
to review them.” Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991).
Accordingly, a state prisoner is required to exhaust the remedies available in
state court before a district court will consider the merits of a federal habeas
petition. 28 U.S.C. § 2254(b)(1)(A); Dressler v. McCaughtry, 238 F.3d 908, 912
(7th Cir. 2001) (if petitioner “either failed to exhaust all available state
remedies or raise all claims before the state courts, his petition must be
denied without considering its merits.”).
Garba’s petition says “February 13, 2016,” but this appears to be a typographical error;
the documents attached to the petition confirm as much. (Docket #1 at 57).
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If a federal habeas petition has even a single unexhausted claim, the
district court may be required to dismiss the entire petition and leave the
petitioner with the choice of either returning to state court to exhaust the
claim or amending or resubmitting the petition to present only exhausted
claims. See Rose v. Lundy, 455 U.S. 509, 510 (1982). Under Rhines v. Weber, 544
U.S. 269, 278 (2005), the Court should grant a stay to allow the petitioner to
return to state court to exhaust his claims when “the petitioner had good
cause for his failure to exhaust, his unexhausted claims are potentially
meritorious, and there is no indication that the petitioner engaged in
intentionally dilatory litigation tactics.” See also Purvis v. United States, 662
F.3d 939, 944 (7th Cir. 2011) (applying Rhines to a mixed petition brought
under 28 U.S.C. § 2255). The Court should also allow the petitioner to amend
his petition to remove any unexhausted claims before dismissing the petition.
Rhines, 544 U.S. at 278. A petitioner exhausts his constitutional claim when
he presents it to the highest state court for a ruling on the merits. Lieberman
v. Thomas, 505 F.3d 665, 669 (7th Cir. 2007) (citing Picard v. Connor, 404 U.S.
270, 275 (1971); Perruquet v. Briley, 390 F.3d 505, 513 (7th Cir. 2004)). Once the
state's highest court has had a full and fair opportunity to pass upon the
merits of the claim, a prisoner is not required to present it again to the state
courts. Humphrey v. Cady, 405 U.S. 504, 516 n.18 (1972).
Here, Garba is challenging the constitutionality of the trial court’s
actions related to his blood test underlying the subject conviction. See (Docket
#1 at 6–9). According to the face of the petition, it appears that Garba
presented both of these claims to each level of Wisconsin state court review.
See id. at 3. Accordingly, the Court cannot conclude that it “plainly” appears
from the record that Garba did not exhaust his claims. Therefore, it will not
dismiss the petition on this basis.
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The court next reviews Garba’s petition under Rule 4 to determine
whether he has procedurally defaulted on any of his claims. Even though a
constitutional claim in a federal habeas petition has been exhausted, the court
is still barred from considering the claim if it has been procedurally defaulted
by the petitioner. See Mahaffey v. Schomig, 294 F.3d 907, 915 (7th Cir. 2002)
(citing Boerckel v. O’Sullivan, 135 F.3d 1194, 1196–97 (7th Cir. 1998), rev’d on
other grounds by O’Sullivan v. Boerckel, 526 U.S. 838, 849 (1999)). A state
prisoner procedurally defaults on a constitutional claim in a habeas petition
when he fails to raise the claim in the state’s highest court in a timely fashion
or in the manner prescribed by state law. See O'Sullivan, 526 U.S. at 848;
Thomas v. McCaughtry, 201 F.3d 995, 1000 (7th Cir. 2000). Here, on the record
before the Court, it appears that Garba has not procedurally defaulted on his
The Court concludes its Rule 4 review by screening for patently
frivolous and speculative claims in Garba’s federal habeas petition. See Ray,
700 F.3d at 996 n.1 (citing Small, 998 F.2d at 414, for the proposition that
district courts may dismiss petitioners that fail to state a claim or are factually
frivolous). Garba’s claims are not patently frivolous and may state claims
upon which relief could be granted; if proven, Garba’s claims will show that
his conviction was unconstitutional and that he is therefore entitled to habeas
relief. Thus, the claim is not so plainly without merit as to warrant dismissal
at this stage.
Because it does not plainly appear that Garba’s claims are frivolous or
speculative, the Court will direct the respondent to file an answer to Garba’s
claims in the petition.
IT IS ORDERED that the parties shall proceed in accordance with the
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Within 30 days of entry of this order, the respondent shall file
either an appropriate motion seeking dismissal of this action or
answer the petition, complying with Rule 5 of the Rules
Governing § 2254 Cases, and showing cause, if any, why the
writ should not issue; and
If the respondent files an answer, then the parties should abide
by the following briefing schedule:
The respondent shall file an opposition brief, with
reasons why the writ of habeas corpus should not be
issued, within 60 days of service of petitioner’s brief, or
within 120 days from the date of this order if no brief is
filed by petitioner.
The petitioner shall have 60 days after the filing of the
respondent’s answer within which to file a brief in
support of his petition, providing reasons why the writ
of habeas corpus should be issued. The petitioner is
reminded that, in accordance with 28 U.S.C. § 2248,
unless he disputes allegations made by the respondent
in his answer or motion to dismiss, those allegations
“shall be accepted as true except to the extent that the
judge finds from the evidence that they are not true.”
The petitioner may then file a reply brief, if he wishes to
do so, within 30 days after the respondent has filed a
If the respondent files a motion in lieu of an answer, then the
parties should abide by the following briefing schedule:
The petitioner shall have 30 days following the filing of
respondent’s dispositive motion and accompanying
brief within which to file a brief in opposition to that
The respondent shall have 15 days following the filing
of petitioner’s opposition brief within which to file a
reply brief, if any.
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Pursuant to Civil L. R. 7(f), the following page limitations apply: briefs
in support of or in opposition to the habeas petition or a dispositive motion
filed by respondent must not exceed thirty pages and reply briefs must not
exceed fifteen pages, not counting any caption, cover page, table of contents,
table of authorities, and/or signature block.
Pursuant to Rule 4 of the Rules Governing § 2254 Cases, as well as a
Memorandum of Understanding entered into between the Wisconsin
Department of Justice and the U.S. District Clerk of Court for the Eastern
District of Wisconsin, a copy of the petition and this order have been sent via
a Notice of Electronic Filing (“NEF”) to State of Wisconsin respondent(s)
through the Attorney General for the State of Wisconsin through the Criminal
Appeals Unit Director and lead secretary. The Department of Justice will
inform the Court within twenty-one (21) days from the date of the NEF
whether the Department will not accept service of process on behalf of the
respondent, the reason for not accepting service for the respondent, and the
last known address of the respondent. The Department of Justice will provide
the pleadings to the respondent on whose behalf it has agreed to accept
service of process.
Dated at Milwaukee, Wisconsin, this 28th day of February, 2017.
BY THE COURT:
U.S. District Judge
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