Joseph Nara v. Frederick Frank

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 05-4779
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JOSEPH NARA
v.
FREDERICK FRANK,
Appellant
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 99-cv-00005)
District Judge: The Honorable Terrence F. McVerry
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BEFORE: SMITH, WEIS, and NYGAARD, Circuit Judges.
(Filed July 17, 2007)
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Christopher D. Carusone, Esq.
Office of the Attorney General of Pennsylvania
Appeals and Legal Services
Strawberry Square
Harrisburg, PA 17120
Counsel for Appellant
Lisa B. Freeland, Esq.
Office of the Federal Public Defender
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, PA 15222
Counsel for Appellee
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OPINION SUR MOTION TO STAY THE MANDATE
AND ORDER OF THE COURT
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NYGAARD, Circuit Judge.
Presently before the Court is a motion by the
Commonwealth of Pennsylvania to stay the mandate of our
decision in Nara v. Frank, No. 05-4779, pending its filing of a
petition for writ of certiorari. Familiarity with this Court’s
opinion in the underlying litigation is presumed. Nara v. Frank,
– F.3d – 2007 WL 1321929 (3d Cir. May 8, 2007).

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.
In exceptional cases, a party may obtain a stay of our
mandate if it can demonstrate that its petition presents a
“substantial question and that there is good cause for a stay.”
F ED. R. A PP . P. 41(d)(2)(A) (2007). This standard requires the
movant to show: (1) a reasonable probability that the Supreme
Court will grant certiorari; (2) a reasonable possibility that at
least five Justices would vote to reverse this Court’s judgment;
and (3) a likelihood of irreparable injury absent a stay. In a close
case, the movant should make a showing that, on balance, the
interests of the parties and the public favor a stay. Rostker v.
Goldberg, 448 U.S. 1306, 1308 (1980) (Brennan, J., in
chambers); Bricklayers Local 21 v. Banner Restoration, Inc.,
384 F.3d 911, 912 (7th Cir. 2004) (Ripple, J., in chambers); Doe
v. Miller, 418 F.3d 950, 951 (8th Cir. 2005); F ED. R. A PP . P.
41(d) advisory committee’s note.
The Commonwealth has failed to meet these
requirements. First, the Commonwealth contends that the
Supreme Court’s holding in Baldwin v. Reese, 541 U.S. 27, 32
(2004), limited the viability of the analysis we set forth in
McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999), but
it has not demonstrated that the state courts were required to
look beyond Mr. Nara’s petitions or briefs for a federal claim.
Second, the Commonwealth argues that we gave insufficient
deference to the state courts’ rulings and erred in concluding
that Nara’s competency claim was not procedurally defaulted.
The Commonwealth, however, does not develop these
arguments in any way, much less cite authority to suggest that
at least five Justices would disagree with our analysis.

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Finally, the Commonwealth has failed to show that an
“irreparable injury” is likely absent a stay. Nothing prevents the
Commonwealth from preparing to commence trial within 120
days while simultaneously filing a petition for certiorari.
For the foregoing reasons, it is ORDERED that the
motion to stay the mandate is DENIED. This is without
prejudice to the applicant’s right to file a timely petition for writ
of certiorari.

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