                              In the

United States Court of Appeals
                 For the Seventh Circuit

No. 09-3940

G ORDON E. SUSSMAN,
                                              Petitioner-Appellant,
                                  v.

L ARRY 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.



               O N M OTION T O S TAY T HE M ANDATE


                          A PRIL 28, 2011 




  R IPPLE, Circuit Judge (in chambers). The State of Wis-
consin 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



    This opinion was released initially in typescript form.
2                                                No. 09-3940

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 con-
clude 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 defer-
ence “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
No. 09-3940                                               3

    still must be met by showing there was no reason-
    able 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 insuf-
    ficient, 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 Har-
rington is inapplicable to the present case. First, Harring-
ton addresses the situation in which a state-court deci-
sion “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 defi-
cient 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 ex-
planation 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 determina-
tion 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
4                                               No. 09-3940

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 im-
portant 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 em-
ployed 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
No. 09-3940                                                 5

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. (inter-
nal 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 inef-
fective assistance was an unreasonable application of
6                                             No. 09-3940

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 pur-
poses.” 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 incrim-
inating 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 bargain. At the very least, the state
court would not have been unreasonable to so con-
clude.” 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
No. 09-3940                                              7

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 uncer-
tainty 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 suf-
fered 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 reason-
ableness 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.
  The State believes that this is especially egregious
because “the Wisconsin Court of Appeals and the dis-
8                                                 No. 09-3940

trict court never squarely addressed the separate Con-
frontation 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 al-
legations 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 acknowl-
edges 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 Con-
frontation 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                                               9

                            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 ap-
proach 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 mis-
apprehension of the injury done to the Confrontation
Clause rights of Mr. Sussman. With respect to this
issue, we considered whether the state court rea-
sonably 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.
10                                            No. 09-3940

                            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 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 sen-
tences 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 com-
pleted 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 O RDERED.




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