              United States Court of Appeals
                                      For the Seventh Circuit
                                      Chicago, Illinois 60604

                                              December 9, 2011

                                                Before

                                JOEL M. FLAUM, Circuit Judge

                                DANIEL A. MANION, Circuit Judge

                                ANN CLAIRE WILLIAMS, Circuit Judge




No. 10‐2712                                              Appeal from the 
                                                         United  States  District  Court  for  the
MARC E. THOMPSON,                                        Northern District of Illinois, 
    Petitioner‐Appellant,                                Eastern Division.

        v.                                               No. 09 C 7685

UNITED STATES OF AMERICA,                                Suzanne B. Conlon,
     Respondent‐Appellee.                                Judge.

                                              O R D E R

       On consideration of the petition for rehearing and rehearing en banc filed by Petitioner-Appellant
on October 3, 2011, no judge in regular active service requested a vote on the petition for rehearing en
banc.

        The order of this court issued on August 19, 2011, is amended as follows:

                Page 8 is amended by replacing the last full paragraph (beginning “Additionally, we
        note that . . .”) with the following:
No. 10‐2712                                                                                        Page 2


                          Additionally, we note that while an expert may have testified that the cause
                of the fire was “undetermined,” meaning that causes other than arson could not be
                ruled out, we do not find a “reasonable probability that, but for counsel’s
                unprofessional errors, the result of the proceeding would have been different.”
                Strickland, 466 U.S. at 694. As we noted on direct appeal, there was “plenty of
                other evidence from which a rational jury could find that Thompson caused the
                fire,” Thompson, 523 F.3d at 810, even a fire with an “undetermined” origin. To
                be sure, the relevant inquiry in this habeas matter does not concern the sufficiency
                of the evidence, rather, it is whether counsel’s performance was constitutionally
                deficient, and if so, whether Thompson was prejudiced. See, e.g., Richey, 498 F.3d
                at 364 (“Although circumstantial evidence alone might have led to a conviction, the
                question before us is not one of the sufficiency of the evidence, but of undermining
                our confidence in the reliability of the result.”). We, however, find that under these
                facts, the evidence in this case prevents a finding of prejudice. See United States v.
                Reyes, 270 F.3d 1158, 1169 (7th Cir. 2001) (“Circumstantial evidence is of equal
                probative value to direct evidence and in some cases is even more reliable.”)
                (internal citations omitted).

        In all other respects, all members of the original panel have voted to deny the petition
for rehearing.

        Accordingly, the petition is DENIED.
