Brar, Navdeep v. Mahoney, David

Filing 11

ORDER granting petitioner Brar's motions to stay the penalties of each conviction (No. 3:17-cv-790, dkt. #5; No. 3:17-cv-819, dkt. #3). The sentences in Brar's two criminal cases (2014CT273 and 2014CT776) are hereby STAYED during the pendency of these proceedings, or until further order of this court. Signed by District Judge William M. Conley on 1/5/2018. (jef)(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
NAVDEEP BRAR,
Petitioner,

ORDER

v.

3:17-cv-790-wmc

DAVID MAHONEY,
Respondent.

NAVDEEP BRAR,
Petitioner,

ORDER

v.
3:17-cv-819-wmc
CHIP MEISTER,
Respondent.

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
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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.

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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 Case No. 17-cv-790-wmc, he challenges the constitutionality
of his conviction in State v. Brar, Case 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 Case 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
appears that Brar’s Fourteenth Amendment arguments are tied into the
Wisconsin courts’ analyses of his Fourth Amendment claims, I will order a
response as to that claim as well.
(Dkt. #4, at 2-4.)
As to the first factor, this court is unable to find the constitutional claims Brar raises
are substantial.

On the contrary, given the bar under Stone v. Powell the petitioner’s
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dubious claims of denial of a full and fair hearing are colorable at most.
As to the second factor, it is not apparent that Brar will succeed on his claims for
the same reasons as Judge Crocker already observed. However, Judge Crocker also rightly
concluded that Brar had submitted enough information and argument to create a legitimate
question as to whether his convictions violated his Fourteenth and Fourth Amendment
rights, or at least one that is non-frivolous. While at this stage it is not apparent at all
that Brar will actually succeed on his claims in his petitions, his theories present sufficient
legal questions that this factor tends to militate slightly in favor of a stay or is neutral.
In contrast, the third and final factor militate’s strongly for a stay. Brar was only
sentenced to 110 days in jail in the Dane County case, and 45 days in jail in the Sauk
County case, to run consecutive to his previous sentence. If Brar were required to begin
serving his sentences during the pendency of his petitions in this court, he would likely end
up serving the entirety of both sentences before the court resolves them. This is no doubt
why neither respondent objected to the proposed stay, and the publicly available docket
sheets of both criminal proceedings suggest that both presiding judges have also agreed to
a stay of further state proceedings while Brar pursues federal habeas relief in this court.
See State v. Brar, Case No. 2014CT776 (Dane Cty. Cir. Ct. Apr. 3, 2015), and State v. Brar,
Case

No.

2014CT273

(Sauk

Cty.

Cir.

Ct.

Sept.

28,

2015),

available

at

https://wcca.wicourts.gov (last visited Jan. 5, 2018). Therefore, the court will exercise its
discretion and stay Brar’s penalties in his criminal cases pending resolution of the petitions
here. See Puchner v. Kruzicki, 918 F. Supp. 1271, 1273 (E.D. Wis. 1996) (granting stay of
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60-day contempt of court sentence pending resolution of petition brought in federal court
pursuant to § 2254).

II.

Proper Respondents
While not framed as a motion, the other issue before the court at this point is

respondent Meister’s status as the named respondent in Case No. 17-cv-819. Because
Brar is not in custody, Meister argues that under either of the challenged criminal
convictions, the court should add the Wisconsin Attorney General as a respondent to both
petitions. See Rule 2(b) of the Rules Governing Section 2254 Cases (“If the petitioner is
not yet in custody – but may be subject to future custody – under the state-court judgment
being contested, the petition must name as respondents both the officer who has current
custody and the attorney general of the state where the judgment was entered.”).
However, Rule 2(a) provides that “[i]f the petitioner is currently in custody under a statecourt judgment, the petition must name as respondent the state officer who has custody.”
Rule 2(a) applies here.
While Brar is not currently being held in jail, he is nevertheless technically “in
custody” within the meaning of the habeas corpus statute, 28 U.S.C. § 2241(c)(3), because
he is currently subject to the terms of his state court bond that limits his freedom of action.
See Hensley v. Municipal Court, 411 U.S. 345 (1973). As such, Brar correctly named as
respondents the two sheriffs charged with overseeing the two jails in which Brar has been
sentenced to serve his time, since as sheriffs, they are the officers with the ultimate
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authority to order Brar into (or out of) custody. See Murillo v. Dep’t of Homeland Sec., No.
15-cv-5082015 WL 777791, at *2 (E.D. Wis. Dec. 2, 2015) (proper respondent in habeas
proceeding is the person who can exercise legal control over the challenged “custody”)
(citing Rumsfeld v. Padilla, 542 U.S. 426, 438 (2004)); Reimnitz v. State’s Attorney of Cook
Cty., 761 F.2d 405, 408 (7th Cir. 1986) (“Whoever operates the local jail (the Sheriff []
in this instance) has potential custody, which would ripen into actual custody if the accused
violated the terms of bail and was recommitted.”). Because Brar is ultimately subject to
Meister and Mahoney’s authority, they are the proper respondents to Brar’s habeas
petitions, and the court is declining to add the Wisconsin Attorney General as another
respondent to either petition.

ORDER
IT IS ORDERED that Brar’s motions to stay the penalties of each conviction (No.
3:17-cv-790, dkt. #5; No. 3:17-cv-819, dkt. #3) are GRANTED, and the sentences in
Brar’s two criminal cases (2014CT273 and 2014CT776) are hereby STAYED during the
pendency of these proceedings, or until further order of this court.
Entered this 5th day of January, 2018.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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