10-C-553 Fischer v. Van Hollen

Listen to this article

Habeas Corpus
Waiver

If the state does not respond to a habeas corpus petition in federal court, it waives its opportunity to make specific arguments to the petition.

“While the court rejects the suggestion that the expert’s testimony was relevant only to the charge of operating with a prohibited alcohol concentration, the foregoing observation emphasizes that if respondent had prevailed on this argument, it would have acted as a complete bar upon the consideration of the merits of Fischer’s petition. The court makes this observation to underscores why the respondent should have raised this pre-existing argument in response to the petition.”

“The respondent similarly could and should have raised his present argument that this court was permitted to rely upon the reasoning of a minority of the Wisconsin Supreme Court expressed in concurrence, rather than only that expressed by the majority of the court. The concurrence’s conclusion that a preliminary breath test (‘PBT’) result could reasonably be excluded because it was unreliable was the basis for the decisions by the circuit court and court of appeals and the main thrust of the state’s argument throughout the state court proceedings. Thus, this argument also would have been readily apparent to the respondent prior to this court’s decision. If the respondent believed it was appropriate for this court to consider that argument, he was obligated to raise that argument before this court entered judgment.”

Motion denied.

10-C-553 Fischer v. Van Hollen

E.D.Wis., Goodstein, Mag. J.