State must respond to petition

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The State needs to respond promptly to habeas corpus petitions in federal court if it wants make substantive arguments defending the state court convictions.

It cannot just file a boilerplate response, and then raise arguments in a motion for reconsideration after a petition is granted.

On Jan. 7, Magistrate Judge Aaron E. Goodstein held that the State forfeited its opportunity to defend the conviction of Richard M. Fischer for operating under the influence.

Notwithstanding the forfeiture, however, Goodstein did address the merits, and reaffirmed his earlier holding — that Fischer’s right to present a defense was violated when he was barred from presenting expert testimony based on his preliminary breath test.

Fischer was stopped in January 2005 in Thiensville for suspected driving while intoxicated. Some time later, a PBT was administered and registered a breath alcohol content of .11 percent. He was arrested and a later blood test registered .147 percent.

At trial for operating while intoxicated, Fischer sought to introduce expert testimony that, using both tests and extrapolating the results, Fischer had a BAC of only .04 to .067 percent at the time he was stopped.

The circuit court excluded the testimony, holding that PBTs are unreliable, and the Wisconsin Court of Appeals affirmed. State v. Fischer, 2008 WI App 152, 314 Wis.2d 324, 761 N.W.2d 7.

The Supreme Court granted review and affirmed but on other grounds. State v. Fischer, 2010 WI 6, 322 Wis.2d 265, 778 N.W.2d 629. Four justices concluded that the tests are not unreliable, but that the State’s compelling interest in investigating and prosecuting the operating of motor vehicles while intoxicated outweighed Fischer’s right to present a defense.

Three justices concurred, agreeing with the lower courts that PBT results are unreliable.

Fischer filed a petition for a writ of habeas corpus in federal court, and Judge Goodstein granted the petition.

Denying the State’s motion for reconsideration, Goodstein held that it forfeited its arguments against the petition.

Goodstein wrote, “The respondent in this case, like in most petitions for a writ of habeas corpus, chose to offer no substantive opposition to the petition other than reciting the statutory standard and baldly claiming that the petitioner had not met it. … [I]n the rare case where the petition is granted, by failing to make any argument initially, the respondent forfeits any argument that he could have raised earlier, but failed to raise.”

Goodstein set forth the entirety of the State’s response to the petition: “Answering section IV. of the petition, respondent DENIES that the exclusion of the expert testimony proffered by Fischer, which the Wisconsin Supreme Court found was barred by state statute, violated Fischer’s right to present a defense under U.S. Const. amends. V, VI and XIV. The state supreme court’s decision rejecting Fischer’s federal constitutional claim was neither contrary to, nor an unreasonable application of, clearly established federal law as determined by the United States Supreme Court. Nor was the state Supreme Court’s decision based on an unreasonable determination of the facts in light of the evidence presented in state court.”

Goodstein concluded that “merely reciting the legal standard,” as the State did, is insufficient to preserve specific arguments in opposition to the petition.

Nevertheless, he addressed the State’s two arguments, rejecting both.

First, he rejected the argument that the Supreme Court’s holding could be defended based on the reasoning of the lower state courts and the Supreme Court’s three concurring justices – that PBTs are unreliable.

Goodstein wrote, “The fact that the Wisconsin Supreme Court’s factual finding was the product of a divided court and contrary to the factual findings of the inferior courts that had previously considered the matter does not somehow relegate the court’s finding to second-class status. … It is a factual finding this court cannot upset by pretending it is a swing vote on the Wisconsin Supreme Court.”

Goodstein also rejected the State’s second argument – that, even if admission of evidence based on the PBT could have undermined the conviction for operating with a prohibited blood alcohol concentration, it would not have undermined the conviction for operating under the influence.

Goodstein explained, “as a practical matter, BAC evidence is the coup de grâce of a drunk driving case. A jury that concludes that an individual’s BAC is below the legal limit is exceptionally unlikely to convict the defendant of any drunk driving crime.”

What the Court Held

Case: Fischer v. Van Hollen, No. 10-C-553

Issue: Must the state respond to a habeas corpus petition to preserve substantive arguments?

Holding: Yes. A boilerplate response does not preserve substantive arguments.

David Ziemer can be reached at [email protected].