*fn1,The opinion of the court was delivered by: Ripple, Circuit Judge (in chambers).,GORDON E. SUSSMAN, PETITIONER-APPELLANT, v. LARRY JENKINS, RESPONDENT-APPELLEE." />

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Gordon E. Sussman v. Larry Jenkins

April 28, 2011 *fn1


Appeal from the United States District Court for the Western District of Wisconsin. No. 3:09-cv-00035-bbc-Barbara B. Crabb, Judge.

The opinion of the court was delivered by: 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 a 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.


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.


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:

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 sub-standard 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 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.


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. Prior to accepting a plea bargain, Moore's counsel discussed the possibility of filing a motion to suppress the confession to the 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 ...

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