The State of Wisconsin’s motion to stay the mandate is denied.
“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 substandard 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.”
09-3940 Sussman v. Jenkins
On Motion to Stay the Mandate, Ripple, J.