2007 Decisions

Opinions of the United

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Precedential or Non-Precedential: Precedential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.

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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)

__________
2

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 – 2007 WL 1321929 (3d Cir. May 8, 2007).
3

.

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, 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); 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, 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. 
4

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.