James P. Free, Jr. v. Howard Peters, III and Neil Hartigan

44 F.3d 435 James P. FREE, Jr., Petitioner-Appellant, v. Howard PETERS, III and Neil Hartigan, Respondents-Appellees. No. 94-3810. United States Court of Appeals, Seventh Circuit. Submitted Dec. 8, 1994. Decided Dec. 28, 1994*. Publication Ordered Jan. 12, 1995. Order Denying Rehearing and Suggestion for Rehearing En Banc Jan. 27, 1995. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 89 C 3765; Marvin E. Aspen, Judge. Kimball R. Anderson (submitted) and Bruce R. Braun, Winston & Strawn, Chicago, IL, for petitioner-appellant. Arleen C. Anderson, Paula Giroux, Asst. Attys. Gen., Vincenzo Chimera, Richard Schwind, Office of the Atty. Gen., and Jack Donatelli, Asst. Atty. Gen., Office of the U.S. Atty., Civ. Div., Appellate Section, Chicago, IL, for respondents-appellees. Before POSNER, Chief Judge, and BAUER and CUDAHY, Circuit Judges. PER CURIAM. — 1 — Upon consideration of petitioner's "EMERGENCY MOTION FOR STAY OF EXECUTION", respondents' "MOTION FOR SUMMARY AFFIRMANCE OF DISTRICT COURT'S DENIAL OF RULE 60(b) RELIEF AND OBJECTION TO EMERGENCY MOTION FOR STAY OF EXECUTION", petitioner's "OPPOSITION OF JAMES P. FREE, JR. TO THE STATE'S EMERGENCY MOTION FOR SUMMARY AFFIRMANCE OF DISTRICT COURT'S DENIAL OF RULE 60(b) RELIEF", and petitioner's "SUPPLEMENTAL SUPPORT FOR STAY OF EXECUTION AND SUPPLEMENTAL OPPOSITION TO THE STATES'S EMERGENCY MOTION FOR SUMMARY AFFIRMANCE", — 2 — IT IS ORDERED that the district court's order of December 2, 1994 is SUMMARILY AFFIRMED. See Williams v. Chrans, 42 F.3d 1137 (7th Cir.1994). The motion for a stay of execution is MOOT. CUDAHY, Circuit Judge, concurring: — 3 — I note that in the appeal of Judge Aspen's decision granting Mr. Free's petition for writ of habeas corpus, United States ex rel. Free v. Peters, 806 F.Supp. 705 (N.D.Ill.1992), the present panel of this court reversed Judge Aspen's grant of the writ. Free v. Peters, 12 F.3d 700 (7th Cir.1993). I dissented from that panel opinion, expressing the view that the case should be remanded to the district court "to take further evidence involving a control group or such other matters as may now seem germane." Free v. Peters, 12 F.3d at 709. I also expressed the view that habeas relief was not precluded by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). See Free v. Peters, 12 F.3d at 708 n. 2. Of course, these views were expressed in dissent and the panel opinion holding to the contrary became the law of the case.1 — 4 — At the present procedural stage, this case is very similar to Williams v. Chrans, 42 F.3d 1137 (7th Cir.1994) (appeal of the denial by the district court of Williams' Rule 60(b) motion seeking to present a jury study to establish the unconstitutionality of the Illinois capital sentencing statute and capital jury instructions). The course here, therefore, seems appropriately guided by the per curiam affirmance of the denial of relief under Rule 60(b) in Williams. ORDER — 5 — On January 11, 1995, petitioner-appellant filed a petition for rehearing with suggestion for rehearing en banc. All of the judges on the original panel have voted to deny the petition, and none of the active judges* has requested a vote on the suggestion for rehearing en banc. The petition is therefore DENIED. Footnotes [-s] * This opinion was originally released in typescript [1] See also Free v. Peters, 19 F.3d 389 (7th Cir.1994) (Rovner, J., with whom Cudahy, J., joins, dissenting from denial of rehearing en banc) [-s-1] * Hon. Joel M. Flaum did not participate in consideration of the rehearing en banc