Imani, Rashaad v. Pollard, William

Filing 50

ORDER granting in part and denying in part 49 Motion to Stay this court's August 9, 2016 order explained within this order. The state may have until October 30, 2016, to either: release petitioner; or turn him over to custody of the appropriate enforcement official for retrial. Signed by District Judge William M. Conley on 10/13/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
RASHAAD A. IMANI,
Petitioner,

ORDER

v.

11-cv-677-wmc

WILLIAM POLLARD, Warden,
Waupun Correctional Institution,
Respondent.

Petitioner Rashaad A. Imani filed a petition for a writ of habeas corpus under 28
U.S.C. § 2254, challenging the validity of his state court conviction for aggravated
robbery as a repeat offender and possession of a firearm as a felon, in State v. Imani,
Waukesha County Case No. 06CF677. While this court dismissed that petition with
prejudice on September 29, 2014, the Court of Appeals for the Seventh Circuit reversed
this court’s decision on June 22, 2016, remanding the case with instructions to grant the
petitioner’s petition for a writ of habeas corpus and order the state to either release Imani
or retry him “promptly.” Imani v. Pollard, 826 F.3d 939 (7th Cir. 2016). On August 9,
2016, having received the Seventh Circuit’s mandate, this court granted the petition and
ordered that petitioner was to be released within 60 days of the issuance of that order,
unless the state advised the court before then that it intends to provide petitioner a
prompt trial. (Dkt. #45.)
The 60-day deadline expired on Tuesday, October 11, 2016, but instead of
releasing petitioner or notifying the court of its intent to retry him, the state chose door

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number 3, filing a motion on October 11th itself for a stay of this court’s August 9th
order while the state files a petition for a writ of certiorari to the United States Supreme
Court, which is due no later than October 27, 2016. (Dkt. #49.)
The state’s request is flawed on a number of levels. First, it is unclear whether this
court even has the authority to enter a stay in light of the Seventh Circuit’s express
mandate that Imani be retried promptly or released. For the state to wait until the very
last day to seek what is extraordinary relief for the Seventh Circuit’s mandate without
having even filed its cert petition, is anything but prompt.
Second, even if this court had the authority to consider a stay, the state applicant
must show a “reasonable probability that four Justices will vote to grant certiorari and a
reasonable possibility that five Justices will vote to reverse the judgment of this court.”
Books v. City of Elkhard, 239 F.3d 826, 827 (7th Cir. 2001) (articulating good cause
standard for entry of stay pending consideration of cert petition). Here, the state only
argues that this case is a “strong candidate for certiorari review” because the Seventh
Circuit’s decision contradicts Supreme Court precedent, as well as authority from other
circuits. (See (dkt. #49) at 3.) Moreover, the state’s attempt to manufacture a conflict
between the Seventh Circuit’s decision and a 1934 Supreme Court decision is wholly
unpersuasive, as is its claim of a circuit split, which turns mainly on differences in the
facts of each case rather than a dispute of law.
Third and finally, this court disagrees that the Supreme Court is likely to grant
certiorari in this case, even if an arguable circuit split existed, since the Seventh Circuit’s

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unanimous decision discusses and follows the applicable controlling Supreme Court
precedent in Faretta v. California, 422 U.S. 806 (1975), concluding that the Wisconsin
Supreme Court’s decision “was flatly contrary” to Faretta. Imani, 826 F.3d at 943. Nor
was this result surprising, as this court had noted in its original opinion.

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ultimately denying the petition based on the deferential standard of habeas review as to
the facts, petitioner had “made a substantial showing that his conviction may have been
obtained in violation of clearly established federal law.” (Dkt. #27 at 28.) Thus, despite
the state’s arguments to the contrary, this case is not a strong candidate for certiorari
review by the Supreme Court.
That being said, the court will extend its own, temporary stay until October 30,
2016, to allow the state to both: (1) file its certiorari petition; and (2) seek a stay of this
court’s denial of its stay motion from the Seventh Circuit. If the state has not obtained
such a stay by October 30, 2016, the respondent must either: (1) release petitioner; or
(2) turn him over to custody of the appropriate enforcement official for retrial. Absent
relief from the Seventh Circuit, a failure to do one of those two things (and only those
two things) will result in an order to show cause why respondent should not be held in
contempt.

ORDER
IT IS ORDERED that respondent’s motion to stay this court’s August 9, 2016
order (dkt. #49) is GRANTED IN PART and DENIED IN PART, as explained above.

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The state may have until October 30, 2016, to either: (1) release petitioner; or (2) turn
him over to custody of the appropriate enforcement official for retrial.
Entered this 13th day of October, 2016.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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