Opinion
No. 14-5835
07-28-2014
TABATHA WHITE, Petitioner-Appellee, v. JEWEL STEELE, Warden, Respondent-Appellant.
Mr. Sumter L. Camp Federal Public Defender's Office 810 Broadway Suite 200 Nashville, TN 37203 Mr. Andrew H. Smith Office of the Tennessee Attorney General P.O. Box 20207 Nashville, TN 37202
ORDER
Before: COOK, GRIFFIN, and STRANCH, Circuit Judges.
The State of Tennessee appeals a district court order granting Tabatha White's petition for a writ of habeas corpus under 28 U.S.C. § 2254 and ordering her release or retrial within 120 days. The State moves to stay the order's July 29, 2014 deadline for White's retrial or release. White asserts that it is premature for this court to issue a stay, given that the State has motions to alter or amend the judgment and to stay its judgment pending in the district court. She does not challenge the merits of the State's motion to stay.
Ordinarily, a party must move the district court for a stay before filing such a request in this court. Fed. R. App. P. 8(a)(1)(A). If such a motion has been filed in the district court, the party must state that the district court either denied the motion or failed to afford the relief requested. Fed. R. App. P. 8(a)(2)(A)(ii). Here, the State has moved the district court for a stay, but the district court has not yet ruled on the motion. The 120-day period for retrying or releasing White expires tomorrow. The State has not yet been afforded the relief it requests-a stay of the 120-day period. Having fulfilled the requirements of Rule 8(a), the State's motion for a stay is not premature.
We consider four factors in determining whether to grant a stay in an appeal from a habeas proceeding: (1) whether the movant has made a strong showing that he has a likelihood of success on appeal; (2) whether the movant will be irreparably harmed absent a stay; (3) whether a stay would substantially injure other interested parties; and (4) where the public interest lies. Hilton v. Braunskill, 481 U.S. 770, 776 (1987). This balance largely depends on the State's prospects of success. Id. at 778. Here the State makes a strong showing that it is likely to prevail.
To be constitutionally ineffective, an attorney must have delivered a deficient performance that prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel's errors must be "so serious as to deprive the defendant of a fair trial, a trial whose result is unreliable." Id. at 687. More simply put, "the standard for judging counsel's representation is a most deferential one." Harrington v. Richter, 131 S. Ct. 770, 788 (2011). This high bar, never easily met, is even more difficult to meet under § 2254(d) because the "standards created by Strickland and § 2254(d) are both 'highly deferential,' and when the two apply in tandem, review is 'doubly' so." Id. (citations omitted). Thus, "[w]hen § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.
Under this doubly-deferential standard, the state court's conclusion that a circumstantial-evidence instruction was unnecessary appears reasonable. As the state court found, there was significant direct evidence of White's participation in the offense: she was in an ongoing altercation with the victim over a drug deal gone bad, she had asked others to keep a lookout for the victim, one witness thought White intended to harm the victim, several witnesses observed White and Robins approach the victim and heard White ask the victim for her money, Robins shot the victim, and Robins and White fled together. See White v. State, No. M2004-0279-CCA-R3-PC, 2005 WL 2662571, at *9 (Tenn. Ct. Crim. App. Oct. 19, 2005). We also previously concluded that the state court's determination that there was sufficient evidence to convict White was reasonable. If the direct evidence was sufficient for the jury to conclude that White was criminally responsible for Simmons's murder, the State has a strong argument that the circumstantial evidence instruction was not required, and counsel's failure to request such an instruction cannot be deemed deficient. White v. Steele, 602 F.3d 707, 711 (6th Cir. 2009)
The remaining factors also support a stay. In particular, the State has compelling interest in the finality of its judgments. Hilton, 481 U.S at 778.
The motion to stay is GRANTED.
ENTERED BY ORDER OF THE COURT
/s/_________
Deborah S. Hunt, Clerk
Deborah S. Hunt Clerk Mr. Sumter L. Camp
Federal Public Defender's Office
810 Broadway Suite
200 Nashville, TN 37203
Mr. Andrew H. Smith
Office of the Tennessee Attorney General
P.O. Box 20207
Nashville, TN 37202
Re: Case No. 14-5835, Tabatha White v. Jewel Steele
Originating Case No. : 3:06-cv-00428
Dear Counsel,
The Court issued the enclosed Order today in this case.
Sincerely yours,
s/Michelle M. Davis
Case Manager
Direct Dial No. 513-564-7025
cc: Mr. Keith Throckmorton Enclosure