Aris Etherly v. Randy Davis

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3535
A RIS E THERLY,
Petitioner-Appellee,
v.
G REGORY S CHWARTZ,
Respondent-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:07-cv-00057—Elaine E. Bucklo, Judge.
A RGUED D ECEMBER 11, 2009—D ECIDED D ECEMBER 31, 2009
Before B AUER, R IPPLE, and K ANNE, Circuit Judges.
P ER C URIAM. In 1997, fifteen-year-old Aris Etherly
was convicted by a jury in Illinois state court of murder
arising from the shooting death of Jeremy Rush. The
court sentenced Etherly to a forty-year term of imprison-
ment. On appeal, Etherly argued, inter alia, that his
inculpatory statement was involuntary. His conviction was
affirmed by the Illinois Appellate Court, and the Illinois
Supreme Court denied leave to appeal. Etherly then filed
a petition for a writ of habeas corpus in federal district
court.
2 No. 09-3535
On August 28, 2009, addressing only Etherly’s involun-
tary statement claim, the district court granted the peti-
tion. Subsequently, the district court denied the state’s
motion for the court to stay its judgment pending appeal,
and concurrently granted the state’s motion to alter the
judgment, ordering that Etherly be retried or released
within 120 days. The state then filed a timely notice of
appeal to this court.
On December 11, this court heard oral arguments
pursuant to 28 U.S.C. §§ 1291 and 2253. We now address
the motion to stay, and an opinion regarding the district
court’s grant of Etherly’s petition for a writ of habeas
corpus is forthcoming.
When a district court has granted habeas relief, the
petitioner is granted a presumption in favor of release
pending appeal. O’Brien v. O’Laughlin, 130 S. Ct. 5, 6 (2009);
Hilton v. Braunskill, 481 U.S. 770, 777 (1987). But the
state can overcome this presumption “if the traditional
factors regulating the issuance of a stay weigh in favor of
granting a stay.” O’Brien, 130 S. Ct. at 6. The factors we
review are (1) whether the state has made a strong
showing that it is likely to succeed on the merits of its
appeal; (2) whether the state will be irreparably harmed
absent a stay; (3) whether the issuance of a stay will
substantially injure the other parties to the proceeding;
and (4) where the public interest lies. Id.; Hilton, 481 U.S.
at 776.
As to the first factor, under the Antiterrorism and
Effective Death Penalty Act (“AEDPA”), habeas relief
may only be granted when a state court decision is “con-
No. 09-3535 3
trary to, or involved an unreasonable application of,
clearly established Federal law” or “was based on an
unreasonable determination of the facts in light of the
evidence presented.” 28 U.S.C. § 2254(d); Williams v.
Taylor, 529 U.S. 362, 404-05 (2000). In light of the highly
deferential standard and after having an opportunity
to review the arguments, contrary to the district court,
we are not persuaded that the state has failed to show
a substantial likelihood of success on the merits.
The other factors balance Etherly’s interest in release
against the state’s interest in continuing custody pending
appeal, and preventing unnecessary danger to the pub-
lic. A petitioner’s interest in release is unquestionably
important, especially when there is a likelihood that the
court will rule in favor of the petitioner. The state’s
interest in continuing custody, however, is also strong
due to the fact that Etherly was convicted by a jury for
first-degree murder and he has apparently had several
incidents of threatened or actual violence according to
his Department of Corrections record. Because it is not
reasonably likely that this court will affirm the district
court’s grant of habeas relief, we find that the tradi-
tional factors for a stay overcome the petitioner’s pre-
sumption in favor of release.
We therefore grant the state’s motion for a stay of release.
12-31-09