United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
December 9, 2011
Before
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 10‐2712 Appeal from the
United States District Court for the
MARC E. THOMPSON, Northern District of Illinois,
Petitioner‐Appellant, Eastern Division.
v. No. 09 C 7685
UNITED STATES OF AMERICA, Suzanne B. Conlon,
Respondent‐Appellee. Judge.
O R D E R
On consideration of the petition for rehearing and rehearing en banc filed by Petitioner-Appellant
on October 3, 2011, no judge in regular active service requested a vote on the petition for rehearing en
banc.
The order of this court issued on August 19, 2011, is amended as follows:
Page 8 is amended by replacing the last full paragraph (beginning “Additionally, we
note that . . .”) with the following:
No. 10‐2712 Page 2
Additionally, we note that while an expert may have testified that the cause
of the fire was “undetermined,” meaning that causes other than arson could not be
ruled out, we do not find a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. As we noted on direct appeal, there was “plenty of
other evidence from which a rational jury could find that Thompson caused the
fire,” Thompson, 523 F.3d at 810, even a fire with an “undetermined” origin. To
be sure, the relevant inquiry in this habeas matter does not concern the sufficiency
of the evidence, rather, it is whether counsel’s performance was constitutionally
deficient, and if so, whether Thompson was prejudiced. See, e.g., Richey, 498 F.3d
at 364 (“Although circumstantial evidence alone might have led to a conviction, the
question before us is not one of the sufficiency of the evidence, but of undermining
our confidence in the reliability of the result.”). We, however, find that under these
facts, the evidence in this case prevents a finding of prejudice. See United States v.
Reyes,
270 F.3d 1158, 1169 (7th Cir. 2001) (“Circumstantial evidence is of equal
probative value to direct evidence and in some cases is even more reliable.”)
(internal citations omitted).
In all other respects, all members of the original panel have voted to deny the petition
for rehearing.
Accordingly, the petition is DENIED.
