Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-17-2007

Nara v. Frank
Precedential or Non-Precedential: Precedential

Docket No. 05-4779




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Recommended Citation
"Nara v. Frank" (2007). 2007 Decisions. Paper 660.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/660


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                                        PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                ___________

                    No. 05-4779
                    ___________

                  JOSEPH NARA

                         v.

               FREDERICK FRANK,

                      Appellant
                    ___________

    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
                      ___________

BEFORE: SMITH, WEIS, and NYGAARD, Circuit Judges.

                (Filed July 17, 2007)
                     __________
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

                        ___________

  OPINION SUR MOTION TO STAY THE MANDATE
           AND ORDER OF THE COURT
                 ___________

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 – 

(3d Cir. May 8, 2007).

                               2
.

        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.”
FED. R. APP. 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, 

, 1308 (1980) (Brennan, J., in
chambers); Bricklayers Local 21 v. Banner Restoration, Inc.,

, 912 (7th Cir. 2004) (Ripple, J., in chambers); Doe
v. Miller, 

, 951 (8th Cir. 2005); FED. R. APP. 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, 

, 32
(2004), limited the viability of the analysis we set forth in
McCandless v. Vaughn, 

, 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.

                                 3
       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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