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Richard M. Fischer v. Van Hollen, 741 F. Supp. 2d 944, 960 (E.D. Wis. 2011)

district court decision, denying respondent’s motion to amend judgment granting habeas relief (post on original grant, here).

Habeas – State’s Waiver

The State’s failure to raise certain arguments, prior to grant of 2254 relief, waived its right to press those points on a Rule 59 motion to amend the judgment granting relief.

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. Because the standard for a federal court granting a § 2254 case is so high and a court is obligated to apply this high standard regardless of the paucity of the respondent’s answer, the respondent nonetheless generally prevails. Whether it is a result of overwork and understaffing at the Wisconsin Department of Justice, reasons which are frequently cited as the explanations for the state’s all-too-common requests for extension of time in litigation before this court, or some other reason, scrimping on the amount of time and effort to be invested in a crucial court filing is a decision that may bear significant consequences. Thus, in 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. The respondent had the opportunity to present his arguments and chose not to do so. Thus, the respondent is bound by the consequences of that decision. Accordingly, the court now turns to the question of whether this failure amounts to a forfeiture of the arguments respondent seeks to raise now.

The court concludes that the respondent has waived both arguments he seeks to advance in his present motion by failing to raise them in his answer to the petition. …

The court rejects the notion that merely reciting the legal standard is sufficient to preserve every iteration of argument that might be spun in opposition to the petition. The time for raising specific arguments in opposition to a petition for a writ of habeas corpus is in response to the petition. This is particularly so when, as here, the respondent seeks to rely upon arguments that are unique to the habeas context and / or were not raised in the state court proceedings.

Habeas – Review of State Court Decision

Waiver notwithstanding, the court reviews the merits of the States’ argument, which it finds wanting. On 2254 review, the federal court focuses on the state court’s result rather than the reasoning it used to derive that result, Lopez v. Thurmer, 573 F.3d 484, 493 (7th Cir 2009) (“it is not the court’s methodology but its result that we review to determine whether its judgment was so infirm as to require the issuance of a federal writ of habeas corpus”).

The respondent contends that this general principle translates into a requirement that this court limit its review to only the result reached by the Wisconsin Supreme Court, i.e. that it was constitutional to preclude admission of PBTs for any purpose. Thus, in the view of the respondent, if there was any reasonable basis to reach this conclusion, i.e. the rationale relied upon by the trial court, the court of appeals, and a minority of the Wisconsin Supreme Court that the state’s interest in banning PBTs is because PBTs are unreliable, this court was required to deny to the petition.

When initially reviewing Fischer’s petition, the court considered and rejected this wholly results oriented approach precisely because it is inconsistent with the principles of comity and deference which underlie § 2254 law. Upon full consideration of the respondent’s present motion, the court holds to this conclusion.

The Wisconsin supreme court majority’s own finding – that the state interest in keeping drunk drivers off the road justified exclusion of PBT-based testimony – must be respected by the federal court, in preference to the minroity’s view that exclusion is premised on PBT unreliability.

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. Rather, the fact that the Wisconsin Supreme Court chose to accept this case and to substitute its factual finding despite an obviously strong and prevalent alternate view, and in fact, the court split 4 to 3 solely on this issue, speaks to the seriousness and deliberateness of the court’s view. It is a factual finding this court cannot upset by pretending it is a swing vote on the Wisconsin Supreme Court.

Because this court was unable to upset Wisconsin Supreme Court’s finding as to what should be placed on the state’s side of the balance, this court’s role was limited to assessing the weight of this interest and which way the balance ultimately tipped. Upon consideration of the relevant interests, it was this court’s conclusion that the balance so clearly tipped in favor of the defendant that the Wisconsin Supreme Court’s conclusion was unreasonable.

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