The opinion
In the
United States Court of Appeals
For the Seventh Circuit
_________________
No. 09‐3940
GORDON E. SUSSMAN,
Petitioner‐Appellant,
v.
LARRY JENKINS,
Respondent‐Appellee.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 3:09‐cv‐00035–bbc‐‐Barbara B. Crabb, Judge.
ON MOTION TO STAY THE MANDATE
APRIL 28, 2011*
*
This opinion is being released initially in typescript form.
No. 09‐3940 Page 2
RIPPLE, Circuit Judge (in chambers). The State of Wisconsin has
filed a motion to stay this court’s mandate so that it may file a petition for
writ of certiorari in the Supreme Court of the United States. The State
argues that there is a reasonable probability that four justices will vote to
grant certiorari and a reasonable possibility that five justices will vote to
reverse this court’s judgment. See Books v. City of Elkhart, 239 F.3d 826,
828 (7th Cir. 2001) (Ripple, J., in chambers). Moreover, the State believes
that the balance of equities favors granting the stay in this case. For the
reasons set forth in this chambers opinion, I deny the motion to stay the
mandate.
I
The State submits that it meets the requirement for likelihood of
success on the merits‐‐in this context, of obtaining a grant of certiorari
and reversal of this court’s decision‐‐based on our failure to apply
correctly, or at all, recent holdings of the Supreme Court. I conclude that
the State misapprehends both the holdings of the Supreme Court and our
opinion in this case.
A.
The State first maintains that, because the panel did not apply
AEDPA deference with respect to the performance prong of Strickland v.
Washington, 466 U.S. 668 (1984), our decision is at odds with Harrington
v. Richter, 131 S. Ct. 770 (2011). In Harrington, the Supreme Court first
addressed whether AEDPA deference “applies when state‐court relief is
denied without an accompanying statement of reasons.” Id. at 780. The
Court held:
No. 09‐3940 Page 3
Where a state court’s decision is unaccompanied by an
explanation, the habeas petitioner’s burden still must be
met by showing there was no reasonable basis for the state
court to deny relief. This is so whether or not the state
reveals which of the elements in a multipart claim it found
insufficient, for § 2254 applies when a “claim,” not a
component of one, has been adjudicated.
Id. at 784.
There are several reasons why this passage from Harrington is
inapplicable to the present case. First, Harrington addresses the situation
in which a state‐court decision “is unaccompanied by an explanation.”
Here, the state appellate court issued an opinion and wrote: “We do not
address whether counsel’s performance was deficient because we
conclude that, even assuming deficient performance, Sussman cannot
show prejudice.” R.5, Ex. B at 2. Seeking to invoke Harrington, the State
asks that we treat this statement as a holding devoid of explanation that
Mr. Sussman had failed to establish substandard performance. Clearly,
however, the state court cannot both assume deficient performance and
hold that counsel’s performance was not deficient. Second, the Supreme
Court in Harrington did not disturb its approach in Wiggins v. Smith, 539
U.S. 510 (2003). In Wiggins, the Court reviewed a state‐court’s
determination of a Strickland issue. The state court had resolved the
performance prong of the Strickland test against the petitioner and,
therefore, had not addressed the prejudice prong. In evaluating the
prejudice prong (after concluding that the state court’s performance
analysis was unreasonable), the Court stated: “In this case, our review
is not circumscribed by a state court conclusion with respect to prejudice,
as neither of the state courts below reached this prong of the Strickland
analysis.” Id. at 534. As I have noted earlier, Harrington did not address
such a situation and, therefore, left Wiggins intact. We certainly cannot
No. 09‐3940 Page 4
assume that the Court overruled sub silentio its holding in Wiggins‐‐a
precedent so important to the daily work of the lower federal courts.
Finally, even if Harrington somehow signaled the Court’s
willingness to revisit Wiggins, the present case does not present it with a
clear opportunity to do so. In Sussman, although the panel stated that it
would not apply AEDPA deference to the performance prong, it also
observed that, in this context, “[c]onsideration of [the performance
prong] necessarily overlaps with our consideration of the prejudice prong
of the Strickland analysis,” Sussman v. Jenkins, No. 09‐3940, 2011 WL
1206187, at *18 (7th Cir. Apr. 1, 2011), and, with respect to the prejudice
prong, this court did apply AEDPA deference.
B.
Relying on the Supreme Court’s recent decision in Premo v. Moore,
131 S. Ct. 733 (2011), the State also submits that we exceeded the bounds
of our review by evaluating, and disagreeing with, the rationale
employed by the state court’s rejection of Mr. Sussman’s claim that he
was prejudiced by his counsel’s failure. According to the State, Premo
prohibits a federal habeas court from “go[ing] behind the state courts’ ‘no
prejudice’ determination.” Motion to Stay at 7‐8. I conclude that Premo
has little relevance to this case.
In Premo, the Supreme Court considered “the adequacy of
representation in providing an assessment of a plea bargain without first
seeking suppression of a confession assumed to have been improperly
obtained.” Premo, 131 S. Ct. at 738. Specifically, Moore had been
involved in a violent kidnapping; prior to the victim’s release, Moore
accidentally shot the victim. In addition to providing a confession to the
police, Moore confessed to his brother and to his accomplice’s girlfriend.
No. 09‐3940 Page 5
Prior to accepting a plea bargain, Moore’s counsel discussed the
possibility of filing a motion to suppress the confession to police, but
“concluded that it would be unavailing, because . . . he had previously
made a full confession to his brother and to [his accomplice’s girlfriend].”
Id. (internal quotation marks omitted) (alterations in original). Counsel
also was concerned with the possibility of Moore’s “being charged with
aggravated murder, which carried a potential death sentence, as well as
the possibility of a sentence of life imprisonment without parole.” Id.
Given these concerns, counsel advised Moore to accept a plea. “In light
of these facts the Oregon court concluded Moore had not established
ineffective assistance of counsel under Strickland.” Id. A federal district
court later denied Moore habeas relief, but a divided panel of the Court
of Appeals for the Ninth Circuit reversed; it believed that “the state
court’s conclusion that counsel’s action did not constitute ineffective
assistance was an unreasonable application of clearly established law in
light of Strickland and was contrary to Arizona v. Fulminante, 499 U.S. 279
(1991).” Id. at 739 (parallel citations omitted).
The Supreme Court concluded that “[t]he Court of Appeals was
wrong to accord scant deference to counsel’s judgment, and doubly
wrong to conclude it would have been unreasonable to find that the
defense attorney qualified as counsel for Sixth Amendment purposes.”
Id. at 740. It noted that, although the Strickland standard is the same
whether counsel’s alleged missteps occurred “before, during, or after
trial,” “at different stages of the case that deference may be measured in
different ways.” Id. at 742. When evaluating counsel’s actions in seeking
an early plea bargain, the Court noted that habeas courts must consider
the potential risks to the defendant in delaying a bargain, including
“giv[ing] the State time to uncover additional incriminating evidence that
could have formed the basis of a capital prosecution.” Id. The Court then
concluded, “In these circumstances, and with a potential capital charge
lurking, Moore’s counsel made a reasonable choice to opt for a quick plea
No. 09‐3940 Page 6
bargain. At the very least, the state court would not have been
unreasonable to so conclude.” Id. at 742‐43. The Court then went on to
observe that the Ninth Circuit had erred in holding that the Oregon state
court’s conclusion on the reasonableness of counsel’s actions was
“contrary to” Fulminante, which did not concern the Strickland standard
at all, but involved “the admission of an involuntary confession in
violation of the Fifth Amendment,” id. at 743 (internal quotation marks
omitted); indeed, the Court believed that the Ninth Circuit had
misconstrued Fulminante itself, see id. at 744.
This case does not concern, of course, a plea bargain, and,
therefore, neither counsel’s actions nor the state court’s ruling must be
evaluated “in light of the uncertainty inherent in plea negotiations.” Id.
at 743. More fundamentally, here there was a clear relationship, on the
record, between the Strickland standard and the state court’s ruling on
“futility.” The state court held, and indeed, explained, that Mr. Sussman
had not suffered any prejudice under Strickland because his motion to
admit evidence would not have been successful. This estimation was
based on a misapprehension of federal law, namely the Supreme Court’s
Confrontation Clause jurisprudence. Nothing in Premo suggests that,
when a state court makes an error of federal constitutional law that
necessarily affects its Strickland calculus, a federal court should ignore
that error in evaluating the reasonableness of the state‐court action.
The State faults this aspect of our opinion on another ground. The
State maintains that, in assessing the state court’s actions, we looked to
our own case, United States v. Redmond, 240 F.3d 590 (7th Cir. 2001), rather
than to Supreme Court precedent. The state misreads the text of our
opinion. In the opinion, we rely‐‐explicitly‐‐not only on Redmond, but on
the Supreme Court cases cited by Redmond‐‐Davis v. Alaska, 415 U.S. 308
(1974), Delaware v. Van Arsdall, 475 U.S. 673 (1986) and Olden v. Kentucky,
475 U.S. 673 (1986). See Sussman, 2011 WL 1206187, at *24.
No. 09‐3940 Page 7
The State believes that this is especially egregious because “the
Wisconsin Court of Appeals and the district court never squarely
addressed the separate Confrontation Clause challenge because Sussman
chose only to present them with a Strickland challenge.” Motion to Stay
at 9. The State accuses this court of raising and writing the “winning
Confrontation Clause argument . . . without ever giving the respondent
a fair opportunity to address it.” Id. However, as we noted at several
points in our opinion, Mr. Sussman presented to the state courts the
potential Confrontation Clause problems raised by the trial court’s failure
to allow him to elicit testimony on the complainant’s alleged prior false
allegations of sexual abuse. See Sussman, 2011 WL 1206187, at *13 & n.15;
id. at *15 & n.16. Mr. Sussman did not fail to raise the issue; the state
courts failed to address it.
Moreover, in its brief to this court, the State acknowledges
Mr. Sussman’s efforts to raise the issue before the district court:
“Sussman relies heavily on this court’s decision in Redmond v. Kingston,
240 F.3d 590 (7th Cir. 2001).” Appellee’s Br. 45 n.5. Rather than
addressing Mr. Sussman’s contentions, however, the State merely
responded: “As Magistrate Judge Crocker aptly observed, that case has
almost nothing to do with this one. There are ‘profound differences’
between the Redmond Confrontation Clause case and this ineffective
assistance case.” Id. (internal citations omitted).
Finally, I note that, despite the State’s view of the alleged serious
overreaching by the panel, the State did not choose to bring this issue to
the panel by way of a petition for rehearing, or to the whole court by way
of a petition for rehearing en banc.
No. 09‐3940 Page 8
C.
The State also faults us for “scour[ing] the state court record for
‘arguments[’] . . . that undermined, rather than ‘supported’” the state
court’s decision. Motion to Stay at 10. The State believes that this
approach, which it attributes to us, is inconsistent with Harrington’s
approach that requires a habeas court to “determine what arguments or
theories supported . . . the state court’s decision . . . and then . . . ask
whether it is possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a prior
decision of this Court.” Id. (quoting Harrington, 131 S. Ct. at 786).
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 WL
1206187, 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.
II
The burden is on the party seeking a stay to establish that it will
suffer irreparable injury. Books, 239 F.3d at 827. The State submits that
Mr. Sussman is likely to reoffend and, therefore, continuing his
No. 09‐3940 Page 9
incarceration is necessary both to protect the citizens of Wisconsin and to
prevent his fleeing the jurisdiction. These are both very important
interests; however, the State stops short of showing how these interests
will be thwarted if the stay is not granted. Notably, the State has not
stated affirmatively that, during the pendency of the petition for
certiorari, Mr. Sussman will go free despite his sentences on sixteen child
pornography counts. Furthermore, should he be released from state
confinement on those counts, the State acknowledges that “[h]is chances
of convincing the state courts to release him on bail pending retrial
would be problematic at best.” Motion to Stay at 14. Even if Mr.
Sussman were to have completed his sentences for the child pornography
counts and, furthermore, were to convince a state‐court judge to release
him pending retrial, he still would be under the supervision of the State
of Wisconsin as a registered sex offender.
For these reasons, the motion to stay is DENIED.
It is so ordered.