Williams v. Chrans

• Decision Date: 24 February 1995
• Docket Number: No. 95-1140,95-1140
• Citation: 50 F.3d 1358
• Parties: Hernando WILLIAMS, Petitioner-Appellant, v. James CHRANS and Neil F. Hartigan, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1358

50 F.3d 1358

Hernando WILLIAMS, Petitioner-Appellant, v. James CHRANS and Neil F. Hartigan, Respondents-Appellees.

No. 95-1140.

United States Court of Appeals, Seventh Circuit.

Feb. 24, 1995. ^*

Barry Levenstam (submitted), Michael T. Brody, Jerold S. Solovy, Jenner & Block, Chicago, IL, Sheldon Nagelberg, Chicago, IL, for petitioner-appellant.

Arleen C. Anderson, Asst. Atty. Gen., Chicago, IL, for respondents-appellees.

Before CUDAHY, RIPPLE, and MANION, Circuit Judges.

PER CURIAM.

This is a death case. It is before the court on the motion of Hernando Williams for a stay of execution. At the time that this motion was filed, Mr. Williams had pending before the court a petition for rehearing and suggestion for rehearing en banc. The petition for rehearing was denied on February 22, 1995. The court also noted on that date that no judge in active service had requested a vote on the suggestion for rehearing en banc. This motion is not moot, however, because Mr. Williams has also asked that we grant a stay of execution pending his petition to the Supreme Court of the United States for a writ of certiorari. In the following discussion, we shall assume familiarity with our earlier decisions in this matter as well as with the decisions of the Illinois courts. ¹

The general standards for granting a stay pending a petition to the Supreme Court are set forth in Rule 41(b) of the Federal Rules of Appellate Procedure and in our Circuit Rule 41(a)(3). The granting of a stay is a form of temporary injunction and, in general, is governed by the same principles, modified to some extent because there have already been proceedings in the lower courts and the party making the application has not prevailed in the court of appeals. Therefore, the inquiry must center on whether the applicant will suffer irreparable injury and whether the applicant has a reasonable probability of succeeding on the merits in the higher court. See United States v. Holland, 1 F.3d 454, 456 (7th Cir.1993) (Ripple, J., in chambers). In the context of a petition for a writ of certiorari, the second inquiry must focus on whether there is a probability that four Justices will vote to grant a writ of certiorari and a reasonable possibility that five Justices will vote to reverse the judgment of this court. Id. Various Justices of the Supreme Court of the United States have articulated this standard in formulations that, although varying stylistically, reveal no real deviation in substance. Id. (collecting cases).

The law governing stays of death sentences is, in general, the same as that employed in other situations. The inquiry with respect to irreparable injury is, however, different. There can be no doubt that a defendant facing the death penalty at the hands of the state faces irreparable injury. See Wainwright v. Booker, 473 U.S. 935, 935 n. 1, 106 S.Ct. 3343, 3343 n. 1, 87 L.Ed.2d 706 (1985) (Powell, J., concurring). Nevertheless, as Justice White, writing for the Court in Barefoot v. Estelle, 463 U.S. 880, 895, 103 S.Ct. 3383, 3395, 77 L.Ed.2d 1090 (1983), made clear, "[s]tays of execution are not automatic pending the filing and consideration of a petition for a writ of certiorari." It is necessary that the applicant establish that there is a reasonable probability that four members of the Court will vote to grant certiorari and that five members of the Court will vote to reverse the judgment of the Court of Appeals. Id. In a second or successive habeas appeal, we must be especially circumspect in assessing the merits of the applicant's case. We must determine that there are "substantial grounds" upon which relief may be granted. Delo v. Stokes, 495 U.S. 320, 321, 110 S.Ct. 1880, 1881, 109 L.Ed.2d 325 (1990). Accord Delo v. Blair, --- U.S. ----, ----, 113 S.Ct. 2922, 2923, 125 L.Ed.2d 751 (1993); Barefoot, 463 U.S. at 895, 103 S.Ct. at 3395. With these standards in mind, we now turn to the case before us.

We turn first to the factor of irreparable injury. As Justice Powell noted in Booker, the issue of irreparable injury is taken as established in a capital case. Here, the Illinois Supreme Court has set an execution date of March 22, 1995. The State's suggestion that its preparations for the execution, including the charges for month-long rental of telephone lines, somehow dilute that potential harm is frivolous and unworthy of further comment. This court is well aware of its responsibilities not to interfere unduly with the sovereign power of the state to enforce criminal laws that pass constitutional muster. It is also aware of its own right and responsibility to conduct its judicial work in a manner that reflects the seriousness of inflicting the death penalty upon a human being. Human life is not measured in the costs of telephone lines.

The inquiry of probability of success on the merits requires, as we have noted earlier, that we assess the probability that four Justices of the Supreme Court would grant a petition for a writ of certiorari and the possibility that five Justices might reverse our judgment. This inquiry requires that we dispassionately assess the merits of the case in light of the available evidence and determine, as best we can, how the Justices will assess the judgment that we have rendered. See Robert L. Stern et al., Supreme Court Practice Sec. 17.12 at 675 (7th ed. 1993). In this regard, our task is somewhat akin to that of the individual Circuit Justice; we must rule not according to our own view of the merits but according to how we believe the Supreme Court will deal with the case. See Board of Educ. v. Superior Court, 448 U.S. 1343, 1347, 101 S.Ct. 21, 23, 65 L.Ed.2d 1166 (1980) (Rehnquist, J., in chambers) (noting that an individual Justice ought not determine his own vote on the merits, but how the Court would vote); Rostker v. Goldberg, 448 U.S. 1306, 1308, 101 S.Ct. 1, 2, 65 L.Ed.2d 1098 (1980) (Brennan, J., in chambers) (same). In reaching this determination, we must assess the issues that the applicant plans to include in the petition for certiorari in light of the earlier history of the case, the Supreme Court's treatment of other cases presenting the same or analogous issues, and the general considerations that guide the Supreme Court in determining whether to issue a writ of certiorari to a court of appeals.

Mr. Williams states that his petition for a writ of certiorari will raise two issues. First, he will ask that the Justices review the law of this circuit with respect to the application of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), to his contentions about the jury instructions at sentencing. This panel believed that it was bound by the earlier decisions of this court in Free v. Peters, 12 F.3d 700 (7th Cir.1993), cert. denied, --- U.S. ----, 115 S.Ct. 433, 130 L.Ed.2d 345 (1994) and Gacy v. Welborn, 994 F.2d 305 (7th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 269, 126 L.Ed.2d 220 (1993). Our colleagues have left our judgment undisturbed in considering the...