[LaggyLou]

[ QUOTE ]
I submit that the standard you suggest should be applied, based upon "precedent," could never be met - neither in the Schiavo case nor in my hypothetical. The basis for the court's determination in Schiavo that there was not a substantial likelihood of prevailing on the merits was based upon the fact that other Florida state courts had passed on the law. Such would always be the case in my hypothetical, as otherwise federal intervention would not be necessitated in the first instance. For that reason I think the federal law was rendered meaningless by the courts refusal to allow injunctive relief (i.e. the de novo standard itself had no meaning based upon the court's analysis - it was a moot portion of the new law by the court's application of the standard they applied).

I think we both see where the other is coming from, though, so let's just agree to disagree.

I would be curious whether there were any cases comparable to my hypothetical in a capital case, though. My guess is the answer is no, but just curious if you were aware of any.

[/ QUOTE ]

Nonsense. From Robinson v. Crosby, 358 F.3d 1281: " For these reasons, the district court properly dismissed Robinson's § 1983 complaint for lack of jurisdiction. Accordingly, this Court concludes that Plaintiff Robinson has not shown a substantial likelihood of success in his appeal of the district court's dismissal of his § 1983 lawsuit for lack of jurisdiction. Therefore, we deny Robinson's Motion for a stay of execution pending appeal and pending Nelson."

See also In re Holliday: "We consider four factors in determining whether a stay of execution is appropriate under 28 U.S.C. § 2251: '{W}hether the movant has made a showing of likelihood of success on the merits and of irreparable injury if the stay is not granted, whether the stay would substantially harm other parties, and whether granting the stay would serve the public interest.' Bundy v. Wainwright, 808 F.2d 1410, 1421 (11th Cir.1987)"

Note that in Holliday the standard was met, so it is hardly "impossible".

More to the point: Exactly what "de novo" review do you think did not happen? What claim should the federal courts have considered "de novo" that they did not so consider?