Sussman v. Jenkins

United States Court of Appeals for the Seventh Circuit · 2011 · Evidence

636 F.3d 329 (7th Cir. 2011)

Updated August 22, 2026

EvidenceHabeas corpusIneffective assistance of counselConfrontation ClauseStay of mandateAEDPAStricklandHarrington v. Richter

Facts

The state appellate court rejected Sussman's Strickland claim by stating that it would not address deficient performance because, even assuming deficiency, Sussman could not show prejudice. In the habeas appeal, the Seventh Circuit concluded that the state court's prejudice analysis rested on a misunderstanding of Supreme Court Confrontation Clause law concerning excluded testimony about the complainant's alleged prior false accusations of sexual abuse. The State then argued that the Seventh Circuit's decision conflicted with Harrington v. Richter and Premo v. Moore and sought a stay of the mandate pending certiorari. The State also asserted public-safety and flight-risk concerns if the mandate were not stayed.

Issue

Whether the State satisfied the requirements for a stay of the Seventh Circuit's mandate pending a petition for certiorari by showing a reasonable probability of certiorari, a reasonable possibility of reversal, and irreparable injury absent a stay. More specifically, the court considered whether the panel's habeas decision likely conflicted with Harrington or Premo and whether the equities favored a stay.

Rule

A party seeking a stay of the mandate pending certiorari must show a reasonable probability that four Justices will vote to grant certiorari, a reasonable possibility that five Justices will vote to reverse, and that the balance of equities favors a stay; the burden is on the movant to establish irreparable injury. Harrington's rule for unexplained state-court decisions does not require AEDPA deference to a Strickland component the state court expressly declined to decide, and Wiggins remains applicable where the state court reached one Strickland prong but not the other.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a federal habeas case arising from a conviction in Ohio, the state appellate court wrote: "We need not decide whether attorney Lena Ortiz performed deficiently because, even assuming she did, Malik Turner suffered no prejudice." The warden argues that the federal court must still defer under AEDPA to an implied state-court determination that counsel's performance was adequate.

Which is the strongest response to the warden's argument?

Explanation. The controlling rule is that Harrington's framework for unexplained state-court decisions does not convert an expressly undecided Strickland component into an adjudicated merits ruling. When a state court says it is not deciding performance and instead assumes deficiency to reject the claim on prejudice, the omitted prong was not decided. The movant cannot recast that express assumption as a hidden holding that counsel performed adequately.