In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3535

ARIS ETHERLY,

Petitioner-Appellee,

v.

GREGORY SCHWARTZ,

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.

ARGUED DECEMBER 11, 2009—DECIDED DECEMBER 31, 2009

Before BAUER, RIPPLE, and KANNE, Circuit Judges.

PER CURIAM. 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 imprisonment. 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 involuntary statement claim, the district court granted the petition. 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 public. 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 traditional factors for a stay overcome the petitioner’s presumption in favor of release.

We therefore grant the state’s motion for a stay of release.

12-31-09