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Gordon E. Sussman v. Jenkins, 7th Cir No. 09-3940, 4/28/11

in-chambers opinion on motion to stay mandate

Habeas – Stay of Mandate

The State’s request to stay the mandate in the court’s grant of relief is denied by Judge Ripple’s in chambers opinion. The standard for granting a stay is set forth in Books v. City of Elkhart, 239 F.3d 826, 828 (7th Cir. 2001):

When a party asks this court to stay its mandate pending the filing of a petition for a writ of certiorari, that party must show that the petition will present a substantial question and that there is good cause for a stay. See Fed.R.App.P. 41(d)(2)(A). The grant of a motion to stay the mandate “is far from a foregone conclusion.” 16A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3987.1 (3d ed.1999). Instead, the inquiry must focus on whether the applicant has a reasonable probability of succeeding on the merits and whether the applicant will suffer irreparable injury. See Williams v. Chrans, 50 F.3d 1358, 1360 (7th Cir.1995) (per curiam); United States v. Holland, 1 F.3d  454, 456 (7th Cir.1993) (Ripple, J., in chambers).

The State argues that, because of various claimed infirmities in the panel’s application of AEDPA, a reasonable probability exists that 4 Justices will vote to grant cert., and 5 will ultimately vote to reverse the panel decision. The State first argues lack of deference to the state court by the panel, citing the recently decided Harrington v. Richter (AEDPA deference required where state court denial of relief “is unaccompanied by an explanation”). Judge Ripple rules that that principle doesn’t apply to this case – the state court’s IAC decision assumed without deciding that counsel’s performance was deficient, something different from “a holding devoid of explanation.” The panel’s reliance on Wiggins v. Smith, 539 U.S. 510, 534 (2003) (prejudice aspect of IAC claim reviewed de novo where state court resolved claim on performance without reaching prejudice) was appropriate; Harrington left Wiggins intact. Judge Ripple rejects the separate claim that the panel misapplied Harrington by  seeking to undermine rather than support the state court decision:

This is not a fair comment on our decision.  As noted earlier, our main problem with the state court’s analysis of the prejudice prong was that it was based on a misapprehension of the injury done to the Confrontation Clause rights of Mr. Sussman.  With respect to this issue, we considered whether the state court reasonably could have read the Court’s Confrontation Clause jurisprudence so as to disallow the testimony that Mr. Sussman sought to elicit.    See Sussman, 2011 WL1206187, at *23‐24.   We went further, however, and assessed whether, assuming a correct estimation of Mr. Sussman’s federal right, the result reached by the Wisconsin court nevertheless could be sustained.  A fair reading of our opinion demonstrates that we simply examined at length the possible arguments that might support the state court’s decision and concluded that those arguments were unconvincing.  See id. at *24‐27.

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