Relist Watch: The final countdown

Relist Watch: The final countdownJohn Elwood provides his best guess about October Term 2017’s last relists. Every June, before the justices leave town, they have one last impromptu conference to consider – and usually dispose of – all the cases relisted after their last scheduled conference. In recent years, that has overwhelmingly happened on the last Monday of June, […]

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Relist Watch: The final countdown

John Elwood provides his best guess about October Term 2017’s last relists.

Every June, before the justices leave town, they have one last impromptu conference to consider – and usually dispose of – all the cases relisted after their last scheduled conference. In recent years, that has overwhelmingly happened on the last Monday of June, which is also typically when the court hands down the last opinions of the term; the resulting order list is usually released the following day.

They’re running a little behind this year, so it looks like the last opinions will come down Tuesday or possibly even Wednesday of this week. And so it appears that the mop-up conference will probably be held the afternoon of whatever day that is. Near as I can tell, that hasn’t happened since October Term 2012, when that conference occurred on the last Wednesday of the month, and everything came out on Thursday.

The court granted six of the last 11 new relists (plus a seventh case that it had relisted twice). The court has not yet relisted any cases this week, but based on the cases it has not yet taken action on, it seems on course to relist 16 this week. If it grants a similar proportion of those cases, it should go a long way toward filling the December argument calendar.

Because of the compressed schedule, I typically go light on “analysis” and mostly just list the questions presented. October Term 2017’s last group of relists includes a few cases whose stay on the Supreme Court’s docket has been especially puzzling for me, so I’ll just note what they are. The first head-scratcher is E.I. DuPont de Nemours and Co. v. Smiley, 16-1189, which sat on the court’s docket for 385 days without action. The case involves a Fair Labor Standards Act question and also a question of deference to an agency’s interpretation of a statute advanced for the first time in litigation. The next puzzlers are a pair of cases involving legislative prayer — Rowan County, North Carolina v. Lund, 17-565, which the court has rescheduled 15 times, and Bormuth v. Jackson County, Michigan, 17-7220, which it has rescheduled 13 times.

Next up are two cases that present the question whether the court should overrule Nevada v. Hall, which held that one state can open the doors of its courts to a private citizen’s lawsuit against another state without its consent: Franchise Tax Board of California v. Hyatt, 17-1299, and Nevada Department of Wildlife v. Smith, 17-1348. If that issue sounds familiar, it’s because the court granted review on one of those cases (Hyatt) a few terms back, but couldn’t resolve the issue because the court was equally divided. Since that time, a new and potentially tie-breaking vote has joined the court.

There are also three cases in which the court sought the views of the solicitor general. Merck Sharp & Dohme Corp v. Albrecht, 17-290 (pre-emption), Herrera v. Wyoming, 17-532 (a wacky jurisdictional dispute involving Wyoming’s admission to the Union and Indian treaty rights) and Fourth Estate Public Benefit Corp. v. Wall-Street.com, 17-571 (copyright). The SG recommended that the court grant cert in all three, although he took the view that whether to grant in Merck presented a “close question.”

There’s something for everyone here. There’s also yet another redistricting/gerrymandering case (Harris v. Cooper, 16-166); yet another Armed Career Criminal Act case (Khoury v. United States, 17-8160, apparently involving the same issue as the already granted United States v. Stitt, 17-765); a habeas issue (Sexton v. Beaudreaux, 17-1106); a habeas jurisdictional issue (Gray v. United States, 17-7769); two cases presenting the question whether the Fair Debt Collection Practices Act applies to nonjudicial foreclosure proceedings (Obduskey v. McCarthy & Holthus LLP, 17-1307, and Greer v. Green Tree Servicing LLC, 17-1351); and two criminal petitions that I can’t seem to get copies of: Solano-Hernandez v. United States, 16-9187, and Villareal-Garcia v. United States, 16-9587. In Villareal-Garcia, the Federal Public Defender’s office told me it has a policy that it “does not make available to the public documents that are not available through an electronic service.” I hate to break it to them, but if the court grants review, there’s a good chance that petition will be publicly distributed.

And that’s it for October Term 2017. Thanks once again to Kevin Brooks for compiling the cases in this post one last time. And thanks to both Kevin and Kent Piacenti for performing that hideous task week-in and week-out all term. We’ve been on retirement watch for months. Tune in this October to see whether the Relist Watch team can muster the energy to do this one last time, or if Justice Anthony Kennedy will outlast us.

 

New Relists

Harris v. Cooper, 16-166

Issues: (1) Whether the district court erred in holding that a lack of discernible standards prevented it from striking down as a partisan gerrymander a districting plan when the plan’s architect freely admitted it was a partisan gerrymander designed to elect as many Republicans as mathematically possible; (2) whether the district court erred in holding that it could not, on the record before it, strike down a districting plan under the 14th Amendment when the plan was designed to secure “partisan advantage” for Republicans; and (3) whether the district court erred in holding that it could not, on the record before it, strike down a districting plan under the First Amendment when the plan was designed to impose burdens on Democratic voters because of their political beliefs. In addition, on May 26, the Supreme Court ordered the parties to brief the following issues: (1) Do the appellants have standing to challenge the remedial map as a partisan gerrymander? (2) Is the district court’s order denying the appellants’ objections to the remedial map appealable under 28 U. S. C. § 1253?

(likely relisted after June 21 conference)

 

E.I. DuPont de Nemours and Co. v. Smiley, 16-1189

Issues: (1) Whether the Fair Labor Standards Act prohibits an employer from using compensation paid to employees for non-compensable, bona fide meal breaks that it included in their regular rate of pay as a credit against compensation owed for work time; and (2) whether an agency’s interpretation of a statute advanced for the first time in litigation is entitled to Skidmore v. Swift & Co. deference.

(likely relisted after June 21 conference)

 

Solano-Hernandez v. United States, 16-9187

Issues: [Petitioner is a pro se prisoner. I am attempting to obtain a copy from the office of the solicitor general.]

(likely relisted after June 21 conference)

 

Villareal-Garcia v. United States, 16-9587

Issues: [The Federal Public Defender told me that “The FPD does not make available to the public documents that are not available through an electronic service.” I am attempting to obtain a copy from the office of the solicitor general.]

(likely relisted after June 21 conference)

 

Merck Sharp & Dohme Corp v. Albrecht, 17-290

Issue: Whether a state-law failure-to-warn claim is pre-empted when the Food and Drug Administration rejected the drug manufacturer’s proposal to warn about the risk after being provided with the relevant scientific data, or whether such a case must go to a jury for conjecture as to why the FDA rejected the proposed warning. CVSG: 05/22/2018.

(likely relisted after June 21 conference)

 

Herrera v. Wyoming, 17-532

Issue: Whether Wyoming’s admission to the Union or the establishment of the Bighorn National Forest abrogated the Crow Tribe of Indians’ 1868 federal treaty right to hunt on the “unoccupied lands of the United States,” thereby permitting the present-day criminal conviction of a Crow member who engaged in subsistence hunting for his family. CVSG: 05/22/2018.

(likely relisted after June 21 conference)

 

Rowan County, North Carolina v. Lund, 17-565

Issue: Whether legislative prayer delivered by legislators comports with the Supreme Court’s decisions in Town of Greece v. Galloway and Marsh v. Chambers, as the en banc U.S. Court of Appeals for the 6th Circuit has held, or does not, as the en banc U.S. Court of Appeals for the 4th Circuit has held.

(likely relisted after June 21 conference)

 

Fourth Estate Public Benefit Corp. v. Wall-Street.com, 17-571

Issue: Whether the “registration of [a] copyright claim has been made” within the meaning of 17 U.S.C. § 411(a) when the copyright holder delivers the required application, deposit and fee to the Copyright Office, as the U.S. Courts of Appeal for the 5th and 9th Circuits have held, or only once the Copyright Office acts on that application, as the U.S. Courts of Appeals for the 10th and, in the decision below, the 11th Circuits have held. CVSG: 05/16/2018.

(likely relisted after June 21 conference)

 

Sexton v. Beaudreaux, 17-1106

Issue: Whether the U.S. Court of Appeals for the 9th Circuit violated the deferential review requirements of 28 U.S.C. § 2254(d) by setting aside a state conviction based on its de novo analysis of an ineffective-assistance claim, without fulfilling its obligation to consider whether fair-minded jurists could agree with the state court’s contrary conclusion.

(likely relisted after June 21 conference)

 

Franchise Tax Board of California v. Hyatt, 17-1299

Issue: Whether Nevada v. Hall, which permits a sovereign state to be haled into another state’s courts without its consent, should be overruled.

(likely relisted after June 21 conference)

 

Obduskey v. McCarthy & Holthus LLP, 17-1307

Issue: Whether the Fair Debt Collection Practices Act applies to nonjudicial foreclosure proceedings.

(likely relisted after June 21 conference)

 

Nevada Department of Wildlife v. Smith, 17-1348

Issue: Whether Nevada v. Hall, which permits a sovereign state to be haled into another state’s courts without its consent, should be overruled.

(likely relisted after June 21 conference)

 

Greer v. Green Tree Servicing LLC, 17-1351

Issue: Whether the Fair Debt Collection Practices Act applies to nonjudicial foreclosure proceedings.

(likely relisted after June 21 conference)

 

Bormuth v. Jackson County, Michigan, 17-7220

Issues: (1) Whether legislative prayer delivered by legislators comports with the Supreme Court’s decision in Town of Greece v. Galloway or whether it constitutes government speech that violates the establishment clause and the historical understanding of our founders as expressed in their statements and practices and the Treaty of Tripoli; (2) whether the command, “All rise and assume a reverent position” given by a government official before a prayer opportunity constitutes coercion under the standard created by the plurality opinion in Town of Greece v. Galloway; and (3) whether Federal Rule of Evidence 201 requires an appellate court to take judicial notice of evidence that is not subject to reasonable dispute when a party requests it.

(likely relisted after June 21 conference)

 

Gray v. United States, 17-7769

Issues: (1) Whether the Article I military or Article III court system appropriately exercises

jurisdiction in final military cases to conduct initial review of constitutional claims that arise after or in conjunction with direct appeal; (2) whether 28 U.S.C. § 1259(1) confers certiorari jurisdiction over a decision of the Court of Appeals for the Armed Forces dismissing a coram nobis petition in a military death penalty case.

(likely relisted after June 21 conference)

 

Khoury v. United States, 17-8160

Issues: (1) Whether burglary of a vehicle or trailer being used as a dwelling place qualifies as generic burglary under the Armed Career Criminal Act; and (2) whether, where the language of the state statute is plainly broader than the generic offense, a litigant must demonstrate that the state previously applied the statute in a nongeneric way, in order to show the statute is overbroad.

(likely relisted after June 21 conference)

 

Returning Relists

Sause v. Bauer, 17-742

Issue: Whether the U.S. Court of Appeals for the 10th Circuit’s holding that law-enforcement officers who stopped the petitioner from praying silently in her own home were entitled to qualified immunity because there was no prior case law involving similar facts conflicts with Hope v. Pelzer, which “expressly rejected a requirement that previous cases be ‘fundamentally similar’” or involve “‘materially similar’” facts.

(relisted after the February 23, March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences; likely relisted after the June 21 conference)

 

Evans v. Mississippi, 17-7245

Issue: Whether the death penalty in and of itself violates the Eighth Amendment in light of contemporary standards of decency and the geographic arbitrariness of its imposition.

(relisted after the February 23, March 2, April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences; rescheduled after the March 16 conference; likely relisted after the June 21 conference; rescheduled before the March 23, March 29 and April 13 conferences)

 

Gamble v. United States, 17-646

Issue: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences; likely relisted after the June 21 conference)

 

Tyler v. United States, 17-5410

Issue: Whether the Supreme Court should overrule the dual sovereignty exception, which permits a successive federal prosecution after a defendant has been prosecuted for the same offense in state court.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences; likely relisted after the June 21 conference)

 

Ochoa v. United States, 17-5503

Issues: (1) Whether the double jeopardy clause of the Fifth Amendment prohibits the federal government from charging, convicting and sentencing a person who has already been charged, convicted and sentenced in the court of a state for much of the same conduct; and (2) whether the seriousness of the offense conduct is an appropriate consideration for a district court when fashioning a sentence on revocation of supervised release.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences; likely relisted after the June 21 conference)

 

Gordillo-Escandon v. United States, 17-7177

Issue: Whether, when a criminal defendant has already been convicted of an offense in a state criminal proceeding, the United States may thereafter prosecute the defendant for the same offense without violating the Fifth Amendment’s prohibition on double jeopardy.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences; likely relisted after the June 21 conference)

 

Eaton v. United States, 17-6680

Issue(s): [Petitioner is a pro se prisoner and the government waived its right to respond, so we have been unable to obtain a copy of the petition.]

(relisted after the April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences; likely relisted after the June 21 conference)

 

Bearcomesout v. United States, 17-6856

Issue: Whether the “separate sovereign” concept actually exists when Congress’s plenary power over Indian tribes and the general erosion of any real tribal sovereignty is amplified by the Northern Cheyenne Tribe’s constitution in such a way that the petitioner’s prosecutions in both tribal and federal court violate the double jeopardy clause of the Fifth Amendment to the U. S. Constitution.

(relisted after the April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences; likely relisted after the June 21 conference)

 

Jordan v. Mississippi, 17-7153

Issue(s): (1) Whether incarcerating a prisoner over four decades awaiting execution, even after the state found at one point that a life without parole sentence was appropriate, violates the Eighth Amendment because it fails to serve any legitimate penological purpose; (2) Whether incarcerating a prisoner over four decades awaiting execution, with over half that time attributable to repeated constitutional violations in a succession of sentencing hearings, violates the Eighth Amendment because it fails to serve any legitimate penological purpose.

(relisted after the April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences; likely relisted after the June 21 conference)

 

Quality Systems, Inc. v. City of Miami Fire Fighters and Police Officers’ Retirement Trust, 17-1056

Issue: Whether, or in what circumstances, a defendant must admit that non-forward-looking statements are false or misleading, in order to be protected by the Private Securities Litigation Reform Act safe-harbor provision for forward-looking statements.

(relisted after the April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences; likely relisted after the June 21 conference)

 

Wood v. Oklahoma, 17-6891

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14 and June 21 conferences)

 

Jones v. Oklahoma, 17-6943

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14 and June 21 conferences)

 

North Carolina v. Covington, 17-1364

Issues: (1) Whether the district court had jurisdiction to consider challenges to the new districting plan the North Carolina General Assembly enacted after North Carolina’s previous state districting plan was invalidated as a racial gerrymander; (2) whether the district court erred by finding that four districts were racially gerrymandered even though the legislature did not consider race; (3) whether the district court erred by considering and substantiating a state-law challenge to five districts in which no plaintiff resides; (4) whether the district court erred by refusing to allow the legislature to enact its own remedial plan; and (5) whether the district court erred by imposing a map that improperly considered race.

(relisted after the May 31, June 7 and June 14 conferences; likely relisted after the June 21 conference)

 

Sanders v. United States, 17-8002

Issue: Whether the Supreme Court should overrule the “dual sovereignty” exception to the Double Jeopardy Clause of the Fifth Amendment for serial state and federal prosecutions for the same conduct.

(relisted after the June 7 and June 14 conferences; likely relisted after the June 21 conference)

 

Wass v. Idaho, 17-425

Issue: Whether, when an officer elicits an admission without first providing a Miranda warning, the admissibility of the suspect’s post-warning statement is governed by the objective, subject-focused test adopted by the plurality opinion in Missouri v. Seibert, or the subjective, officer-focused test adopted by Justice Anthony Kennedy’s separate opinion in that case.

(relisted after the June 14 conference; likely relisted after the June 21 conference)

 

Nieves v. Bartlett, 17-1174

Issue: Whether probable cause defeats a First Amendment retaliatory-arrest claim under 42 U.S.C. § 1983.

(relisted after the June 14 conference; likely relisted after the June 21 conference)

 

Kaushal v. Indiana, 17-1356

Issues: (1) Whether, when a resident alien pleads guilty after incorrect advice by counsel as to clear immigration consequences and discovers the error prior to sentencing, a defendant must prove that he would have opted for trial had he been correctly advised when the sole remedy he seeks is to proceed to trial; (2) whether, when a defendant learns the immigration consequences three weeks after his guilty plea and promptly demands to go to trial, that adequately proves he would have opted for trial had he known the immigration consequences of his plea before he pleaded guilty; (3) whether the instant case represents a pattern of Indiana cases in which alien defendants who plead guilty while ignorant of the immigration consequences of their respective plea are unfairly denied their Sixth Amendment rights to effective assistance of counsel and trial by jury.

(relisted after the June 14 conference; likely relisted after the June 21 conference)

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The Return of Relist Watch

The Return of Relist WatchJohn Elwood provides useless blather to accompany Monday’s relists. I apologize for slacking off last week, but I was in central Europe taking in the dulcet tones of the language of love while testing the effects of an all-meat diet on the body of a sedentary middle-aged lawyer. After about 10 days among people who […]

The post The Return of Relist Watch appeared first on SCOTUSblog.

The Return of Relist Watch

John Elwood provides useless blather to accompany Monday’s relists.

I apologize for slacking off last week, but I was in central Europe taking in the dulcet tones of the language of love while testing the effects of an all-meat diet on the body of a sedentary middle-aged lawyer. After about 10 days among people who see cuts of meat in the most unlikely places, packing myself full of schnitzel and something that I only belatedly discovered translates as “liver-cheese,” I can report that there are no adverse effects besides that “not so fresh” feeling and an inexplicable urge to wear Lederhosen.

I was relieved to return and learn that nothing happened while I was away. In an ordinary term, that would mean all that I have after today is just a mop-up Relist Watch on the last Monday of term, followed by an extended vacation. But this term is so funky, who knows what lies ahead?

If you’re worrying that the court’s grant rate is on the lowish side and it’s not going to have enough cases for next fall, take heart: There are 11 new relists, to say nothing of 18 returning relists that might provide some late-term excitement. We begin this week’s installment with the relists having the best odds of success – the cases in which the court called for the views of the solicitor general. A petition is over 37 times more likely to be granted after the court requests the solicitor general’s views, and the odds obviously favor a petition when the SG recommends review. The SG recommends review in three cases.

The solicitor general believes that Republic of Sudan v. Harrison, 16-1094 (in which the court requested the SG’s views) and Kumar v. Republic of Sudan, 17-1269 (in which the court didn’t) both involve an issue worth the court’s review, namely whether plaintiffs suing a foreign state under the Foreign Sovereign Immunities Act may serve the foreign state by mail sent to the head of its ministry of foreign affairs in care of the foreign state’s diplomatic mission in the United States. The SG agrees that there is a split and the issue is important, but the SG believes that Kumar is the “more suitable vehicle.” Both cases involve lawsuits by victims of the terrorist bombing of the USS Cole against the Republic of Sudan as a state sponsor of terrorism.

I was expecting the worst when I saw the caption Washington State Department of Licensing v. Cougar Den, Inc., 16-1498. What I found instead was perhaps the most arcane legal question of the term: whether Article III of the U.S. Constitution precludes application to Yakama Indian tribal members of a tax imposed by the state of Washington on imported fuel purchased out-of-state. If the answer seems obvious to you, that means you’re familiar with the Yakama Treaty of 1855, and whether it creates a right for tribal members to avoid state taxes on off-reservation commercial activities that make use of public highways. I’m sure I’m not the only person thrilled that the court is considering this subject because my student note, which was on this very subject, might finally get cited. Cougar Den, which is incorporated under Yakama Nation law, imported fuel from Oregon to the tribe’s reservation in Washington and sold it there. The SG says that whether review is warranted “is a close question,” but “[o]n balance” the case warrants review to resolve a conflict between the Washington Supreme Court and the U.S. Court of Appeals for the 9th Circuit.

That leaves Dawson v. Steager, 17-419, involving whether the doctrine of intergovernmental tax immunity bars states from exempting groups of state retirees from state income tax while not exempting similarly situated federal retirees. West Virginia exempts from state taxation the retirement benefits of former state law-enforcement officers but does not provide the same exemption for the retirement benefits of former employees of the U.S. Marshals Service. A retired deputy U.S. Marshal challenged the state’s failure to extend the exemption to him and lost. The SG argues that the West Virginia Supreme Court of Appeals misapplied the intergovernmental-tax-immunity doctrine. In the SG’s view, “[w]hether this court’s review is warranted presents a closer question” because such issues do not “arise[] with great frequency.” But “at bottom,” the SG “believe[s] that the issue has sufficient legal and practical importance to warrant the court’s review.”

Law nerds shed a tear when the court resolved the sentencing issue in Hughes v. United States without reaching the central question presented by the cert petition, which involved clarifying the rule of Marks v. United States about what the governing rule is in cases involving plurality decisions. The court has another opportunity to resolve that issue in Wass v. Idaho, 17-425, which involves the admissibility of a statement when an officer questions an in-custody suspect before administering Miranda warnings, later administers the warnings, and then obtains a similar statement. Petitioner Shawn Wass seeks clarification of Missouri v. Seibert, in which a four-justice plurality opinion authored by Justice David Souter espoused one rule and Justice Anthony Kennedy, concurring only in the judgment, advocated another.

I have the power to foretell insignificant events of the immediate future. I predict that if the court grants review in Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc., 17-1229, the bar section will be completely full on the day it is argued. If you’re wondering how I’m able to make that mildly impressive prediction, take a moment to look over the docket and consider how many suits will be present if just the authors of the 10 amicus briefs show up for argument. Evidently, the intellectual property bar cares a great deal about whether, under the Leahy-Smith America Invents Act, an inventor’s sale of an invention to a third party who is obligated to keep the invention confidential qualifies as prior art for purposes of determining the patentability of the invention. The petitioner argues that the plain language of the America Invents Act excludes from prior art inventions that, by agreement, are kept secret. The government rarely files unsolicited amicus briefs at the petition stage, but it filed an amicus brief in the federal circuit supporting petitioner Helsinn Healthcare’s reading of the act.

You know who thinks there is a reasonable probability that Supreme Court will grant cert in Henry Schein Inc. v. Archer and White Sales Inc., 17-1272? Well, we don’t know their names, exactly, but at least 5 members of the Supreme Court. Back in March, they granted the company’s request for a stay, without recorded dissent. Respondent Archer and White Sales is a former distributor of dental equipment manufactured by the petitioners. Its distributorship agreements required it to arbitrate disputes “arising under or related to” the agreements, “except for actions seeking injunctive relief,” and (by incorporation of American Arbitration Association rules) delegated decisions about arbitrability to arbitrators. When Archer and White Sales sought to challenge the petitioners’ actions in restricting and terminating its distributorship rights under the antitrust laws, it filed suit in district court. The petitioners moved to compel arbitration, citing provisions in the distributorship agreement delegating questions of arbitrability to an arbitrator. The magistrate judge ordered arbitration, but the district court reversed. The court of appeals then affirmed, holding that the matter need not be sent to arbitration because “the argument that the claim at hand is within the scope of the arbitration agreement is ‘wholly groundless,’” concluding that there was “no plausible argument that the arbitration applies here” because the lawsuit sought injunctive relief. The petitioners contend that there is a circuit conflict on “whether the [Federal Arbitration Act] permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the court concludes the claim of arbitrability is ‘wholly groundless.’”

Troy Lambert has a bone to pick with Nutraceutical Corporation. He says he bought its product, “Cobra Sexual Energy,” in reliance on its claims that it would provide him with “animal magnetism” and “potency wood.” He alleges it did nothing of the sort, and also contained an ingredient, yohimbe, that is dangerous for some people. He filed a putative class action, which the district court initially granted, but then decertified. Instead of filing a notice of appeal within the 14 days as provided by Federal Rule of Civil Procedure 23(f), Lambert filed a motion for reconsideration. Fourteen days after the district court denied his motion for reconsideration, Lambert finally appealed. The 9th Circuit held that Rule 23(f)’s deadline is nonjurisdictional and Lambert’s motion for reconsideration tolled the deadline. Moreover, the court held, the deadline was tolled because of other “equitable circumstances,” such as the fact that Lambert “conveyed his intention to file a motion for reconsideration” at a status conference 10 days after decertification. The 9th Circuit, however, “recognize[d] that other circuits would likely not toll the Rule 23(f) deadline in Lambert’s case,” which may have gotten the Supreme Court’s attention. In Nutraceutical Corporation v. Lambert, 17-1094, the company argues that the court of appeals erred.

Kaushal v. Indiana, 17-1356, involves an Indian permanent-resident alien who pleaded guilty to molesting his stepdaughter. Petitioner Umesh Kaushal contends that his defense counsel did not fully advise him of the immigration consequences of pleading guilty and that, days afterward, he met with an immigration attorney who informed him that as a result of his conviction, he was likely to be “picked up” by immigration officials immediately. Kaushal then tried to have his plea agreement set aside, and the trial court denied his motion. The Indiana Court of Appeals affirmed, concluding that Kaushal was not prejudiced by his defense counsel’s supposedly ineffective assistance because Kaushal was aware of the possibility of deportation at the time he pleaded guilty. Before the Supreme Court, Kaushal argues that the fact that he tried to have the guilty plea set aside so promptly demonstrates that he was prejudiced, and argues that his case is part of a “pattern” of Indiana cases in which aliens plead guilty while ignorant of the immigration consequences of their guilty pleas.

Lastly, we have a couple of cases that the court appears to have relisted so it can determine if the petitioners are entitled to relief under cases decided earlier this term. Nieves v. Bartlett, 17-1174, asks whether probable cause defeats a First Amendment retaliatory-arrest claim under 42 U.S.C. § 1983, answered in the negative by Lozman v. City of Riviera Beach, Florida. The case involves an arrest made during Alaska’s Arctic Man race, allegedly for criticizing police investigation of underaged drinking. Ramirez-Hidalgo v. United States, 17-7793, asks whether 18 U.S.C. § 16(b) violates the Constitution’s prohibition on vague criminal laws, answered in the affirmative by Sessions v. Dimaya. But the government argues that Jesus Ramirez-Hidalgo’s challenge to the sentencing enhancement is moot because he has finished serving his sentence and has been deported.

With this, Relist Watch is nearly at an end for another term. We expect to be back Monday for a brief post about relists the court will be considering at its not-yet-scheduled (but widely anticipated) mop-up conference on Monday, June 25.

Thanks once again to Kent Piacenti for compiling the cases in this post.

 

New Relists

Republic of Sudan v. Harrison, 16-1094

Issue: Whether the U.S. Court of Appeals for the 2nd Circuit erred by holding – in direct conflict with the U.S. Courts of Appeals for the District of Columbia, 5th and 7th Circuits and in the face of an amicus brief from the United States – that plaintiffs suing a foreign state under the Foreign Sovereign Immunities Act may serve the foreign state under 28 U.S.C. § 1608(a)(3) by mail addressed and dispatched to the head of the foreign state’s ministry of foreign affairs “via” or in “care of” the foreign state’s diplomatic mission in the United States, despite U.S. obligations under the Vienna Convention on Diplomatic Relations to preserve mission inviolability. CVSG: 05/22/2018.

(relisted after June 14 conference)

 

Washington State Department of Licensing v. Cougar Den, Inc., 16-1498

Issue: Whether the Yakama Treaty of 1855 creates a right for tribal members to avoid state taxes on off-reservation commercial activities that make use of public highways. CVSG: 05/15/2018.

(relisted after June 14 conference)

 

Dawson v. Steager, 17-419

Issue: Whether the Supreme Court’s precedent and the doctrine of intergovernmental tax immunity bar states from exempting groups of state retirees from state income tax while discriminating against similarly situated federal retirees based on the source of their retirement income. CVSG: 05/15/2018.

(relisted after June 14 conference)

 

Wass v. Idaho, 17-425

Issue: Whether, when an officer elicits an admission without first providing a Miranda warning, the admissibility of the suspect’s post-warning statement is governed by the objective, subject-focused test adopted by the plurality opinion in Missouri v. Seibert, or the subjective, officer-focused test adopted by Justice Anthony Kennedy’s separate opinion in that case.

(relisted after June 14 conference)

 

Nutraceutical Corporation v. Lambert, 17-1094

Issue: Whether the U.S. Court of Appeals for the 9th Circuit erred when it held that equitable exceptions apply to mandatory claim-processing rules—such as Federal Rule of Civil Procedure 23(f), which establishes a 14-day deadline to file a petition for permission to appeal an order granting or denying class-action certification—and can excuse a party’s failure to file timely within the deadline specified by Federal Rule of Civil Procedure 23(f), in conflict with the decisions of the U.S. Courts of Appeals for the 2nd, 3rd, 4th, 5th, 7th, 10th and 11th Circuits.

(relisted after June 14 conference)

 

Nieves v. Bartlett, 17-1174

Issue: Whether probable cause defeats a First Amendment retaliatory-arrest claim under 42 U.S.C. § 1983.

(relisted after June 14 conference)

 

Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc., 17-1229

Issue: Whether, under the Leahy-Smith America Invents Act, an inventor’s sale of an invention to a third party that is obligated to keep the invention confidential qualifies as prior art for purposes of determining the patentability of the invention.

(relisted after June 14 conference)

 

Kumar v. Republic of Sudan, 17-1269

Issue: Whether a service packet is “addressed and dispatched … to the head of the ministry of foreign affairs” of a foreign state, as required by 28 U.S.C. § 1608(a)(3), when the service packet is sent by registered mail to the head of the ministry of foreign affairs of the foreign state at the state’s embassy in the United States.

(relisted after June 14 conference)

 

Henry Schein Inc. v. Archer and White Sales Inc., 17-1272

Issue: Whether the Federal Arbitration Act permits a court to decline to enforce an agreement delegating questions of arbitrability to an arbitrator if the court concludes the claim of arbitrability is “wholly groundless.”

(relisted after June 14 conference)

 

Kaushal v. Indiana, 17-1356

Issues: (1) Whether, when a resident alien pleads guilty after incorrect advice by counsel as to clear immigration consequences and discovers the error prior to sentencing, a defendant must prove that he would have opted for trial had he been correctly advised when the sole remedy he seeks is to proceed to trial; (2) whether, when a defendant learns the immigration consequences three weeks after his guilty plea and promptly demands to go to trial, that adequately proves he would have opted for trial had he known the immigration consequences of his plea before he pleaded guilty; (3) whether the instant case represents a pattern of Indiana cases in which alien defendants who plead guilty while ignorant of the immigration consequences of their respective plea are unfairly denied their Sixth Amendment rights to effective assistance of counsel and trial by jury.

(relisted after June 14 conference)

 

Ramirez-Hidalgo v. United States, 17-7793

Issue: Whether 18 U.S.C. § 16(b) violates the Constitution’s prohibition on vague criminal laws by requiring application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.

(relisted after June 14 conference)

 

Returning Relists

Sause v. Bauer, 17-742

Issue: Whether the U.S. Court of Appeals for the 10th Circuit’s holding that law-enforcement officers who stopped the petitioner from praying silently in her own home were entitled to qualified immunity because there was no prior case law involving similar facts conflicts with Hope v. Pelzer, which “expressly rejected a requirement that previous cases be ‘fundamentally similar’” or involve “‘materially similar’” facts.

(relisted after the February 23, March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences)

 

Evans v. Mississippi, 17-7245

Issue: Whether the death penalty in and of itself violates the Eighth Amendment in light of contemporary standards of decency and the geographic arbitrariness of its imposition.

(relisted after the February 23, March 2, April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences; rescheduled after the March 16 conference; rescheduled before the March 23, March 29 and April 13 conferences)

 

Gamble v. United States, 17-646

Issue: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences)

 

Tyler v. United States, 17-5410

Issue: Whether the Supreme Court should overrule the dual sovereignty exception, which permits a successive federal prosecution after a defendant has been prosecuted for the same offense in state court.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences)

 

Ochoa v. United States, 17-5503

Issues: (1) Whether the double jeopardy clause of the Fifth Amendment prohibits the federal government from charging, convicting and sentencing a person who has already been charged, convicted and sentenced in the court of a state for much of the same conduct; and (2) whether the seriousness of the offense conduct is an appropriate consideration for a district court when fashioning a sentence on revocation of supervised release.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences)

 

Gordillo-Escandon v. United States, 17-7177

Issue: Whether, when a criminal defendant has already been convicted of an offense in a state criminal proceeding, the United States may thereafter prosecute the defendant for the same offense without violating the Fifth Amendment’s prohibition on double jeopardy.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences)

 

Eaton v. United States, 17-6680

Issue(s): [Petitioner is a pro se prisoner and the government waived its right to respond, so we have been unable to obtain a copy of the petition.]

(relisted after the April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences)

 

Bearcomesout v. United States, 17-6856

Issue: Whether the “separate sovereign” concept actually exists when Congress’s plenary power over Indian tribes and the general erosion of any real tribal sovereignty is amplified by the Northern Cheyenne Tribe’s constitution in such a way that the petitioner’s prosecutions in both tribal and federal court violate the double jeopardy clause of the Fifth Amendment to the U. S. Constitution.

(relisted after the April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences)

 

Jordan v. Mississippi, 17-7153

Issue(s): (1) Whether incarcerating a prisoner over four decades awaiting execution, even after the state found at one point that a life without parole sentence was appropriate, violates the Eighth Amendment because it fails to serve any legitimate penological purpose; (2) Whether incarcerating a prisoner over four decades awaiting execution, with over half that time attributable to repeated constitutional violations in a succession of sentencing hearings, violates the Eighth Amendment because it fails to serve any legitimate penological purpose.

(relisted after the April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences)

 

Quality Systems, Inc. v. City of Miami Fire Fighters and Police Officers’ Retirement Trust, 17-1056

Issue: Whether, or in what circumstances, a defendant must admit that non-forward-looking statements are false or misleading, in order to be protected by the Private Securities Litigation Reform Act safe-harbor provision for forward-looking statements.

(relisted after the April 20, April 27, May 10, May 17, May 24, May 31, June 7 and June 14 conferences)

 

Clark v. Louisiana, 16-9541

Issues: (1) Whether the Louisiana Supreme Court erred in upholding the petitioner’s death sentence when the jury made only one of the two statutory required jury findings beyond a reasonable doubt; (2) whether standards of decency have evolved to render the execution of a defendant prosecuted as a principal to first degree murder unconstitutional when, as the state conceded, jurors could not know who inflicted the blows that caused the victim’s death; (3) whether testimony establishing communications between a deputy monitoring the trial and an alternate juror in front of other jurors about the trial constitutes sufficient evidence to be presumptively prejudicial; and (4) whether the Louisiana Supreme Court’s rule, which requires an indigent defendant to accept his trial counsel’s decision to concede his guilt of second-degree murder over his express objections or represent himself, vitiates the voluntariness of the petitioner’s waiver of counsel.

(relisted after the May 17, May 24, May 31, June 7 and June 14 conferences)

 

Wood v. Oklahoma, 17-6891

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7 and June 14 conferences)

 

Jones v. Oklahoma, 17-6943

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7 and June 14 conferences)

 

Gelhaus v. Estate of Andy Lopez, 17-1354

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit improperly departed from the Supreme Court’s decision in White v. Pauly and numerous other cases when it denied qualified immunity notwithstanding the absence of clearly established law imposing liability under circumstances closely analogous to those confronting the petitioner in this case; and (2) whether the lower court improperly departed from the Supreme Court’s decisions in Graham v. Connor and Plumhoff v. Rickard when it denied qualified immunity based on the absence of a constitutional violation given that the undisputed facts established that the petitioner acted reasonably in responding to the threat of a suspect turning towards him while raising the barrel of what appeared to be an assault rifle.

(relisted after the May 31, June 7 and June 14 conferences)

 

North Carolina v. Covington, 17-1364

Issues: (1) Whether the district court had jurisdiction to consider challenges to the new districting plan the North Carolina General Assembly enacted after North Carolina’s previous state districting plan was invalidated as a racial gerrymander; (2) whether the district court erred by finding that four districts were racially gerrymandered even though the legislature did not consider race; (3) whether the district court erred by considering and substantiating a state-law challenge to five districts in which no plaintiff resides; (4) whether the district court erred by refusing to allow the legislature to enact its own remedial plan; and (5) whether the district court erred by imposing a map that improperly considered race.

(relisted after the May 31, June 7 and June 14 conferences)

 

Arlene’s Flowers Inc v. Washington, 17-108

Issues: (1) Whether the creation and sale of custom floral arrangements to celebrate a wedding ceremony is artistic expression, and, if so, whether compelling their creation violates the free speech clause; and (2) whether the compelled creation and sale of custom floral arrangements to celebrate a wedding and attendance of that wedding against one’s religious beliefs violates the free exercise clause.

(relisted after the June 7 and June 14 conferences)

 

Biestek v. Berryhill, 17-1184

Issue: Whether a vocational expert’s testimony can constitute substantial evidence of “other work,” 20 C.F.R. § 404.1520(a)(4)(v), available to an applicant for social security benefits on the basis of a disability, when the expert fails upon the applicant’s request to provide the underlying data on which that testimony is premised.

(relisted after the June 7 and June 14 conferences)

 

Sanders v. United States, 17-8002

Issue: Whether the Supreme Court should overrule the “dual sovereignty” exception to the Double Jeopardy Clause of the Fifth Amendment for serial state and federal prosecutions for the same conduct.

(relisted after the June 7 and June 14 conferences)

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Relist Watch: Just the facts

Relist Watch: Just the factsJohn Elwood provides an unadorned roll of Monday’s relists.   New Relists Arlene’s Flowers Inc v. Washington, 17-108 Issues: (1) Whether the creation and sale of custom floral arrangements to celebrate a wedding ceremony is artistic expression, and, if so, whether compelling their creation violates the free speech clause; and (2) whether the compelled creation […]

The post Relist Watch: Just the facts appeared first on SCOTUSblog.

Relist Watch: Just the facts

John Elwood provides an unadorned roll of Monday’s relists.

 

New Relists

Arlene’s Flowers Inc v. Washington, 17-108

Issues: (1) Whether the creation and sale of custom floral arrangements to celebrate a wedding ceremony is artistic expression, and, if so, whether compelling their creation violates the free speech clause; and (2) whether the compelled creation and sale of custom floral arrangements to celebrate a wedding and attendance of that wedding against one’s religious beliefs violates the free exercise clause.

(relisted after the June 7 conference)

 

Apple, Inc v. Pepper, 17-204

Issue: Whether consumers may sue anyone who delivers goods to them for antitrust damages, even when they seek damages based on prices set by third parties who would be the immediate victims of the alleged offense. CVSG: 05/08/2018.

(relisted after the June 7 conference)

 

Sturgeon v. Frost, 17-949

Issue: Whether the Alaska National Interest Lands Conservation Act prohibits the National Park Service from exercising regulatory control over state, native corporation, and private land physically located within the boundaries of the national park system in Alaska.

(relisted after the June 7 conference)

 

Garza v. Idaho, 17-1026

Issue: Whether the “presumption of prejudice” recognized in Roe v. Flores-Ortega applies when a criminal defendant instructs his trial counsel to file a notice of appeal but trial counsel decides not to do so because the defendant’s plea agreement included an appeal waiver.

(relisted after the June 7 conference)

 

Lorenzo v. Securities and Exchange Commission, 17-1077

Issue: Whether a misstatement claim that does not meet the elements set forth in Janus Capital Group, Inc. v. First Derivative Traders can be repackaged and pursued as a fraudulent-scheme claim.

(relisted after the June 7 conference)

 

Timbs v. Indiana, 17-1091

Issue: Whether the Eighth Amendment’s excessive fines clause is incorporated against the states under the 14th Amendment.

(relisted after the June 7 conference)

 

Biestek v. Berryhill, 17-1184

Issue: Whether a vocational expert’s testimony can constitute substantial evidence of “other work,” 20 C.F.R. § 404.1520(a)(4)(v), available to an applicant for social security benefits on the basis of a disability, when the expert fails upon the applicant’s request to provide the underlying data on which that testimony is premised.

(relisted after the June 7 conference)

 

Sanders v. United States, 17-8002

Issue: Whether the Supreme Court should overrule the “dual sovereignty” exception to the double jeopardy clause of the Fifth Amendment for serial state and federal prosecutions for the same conduct.

(relisted after the June 7 conference)

 

Returning Relists

Sause v. Bauer, 17-742

Issue: Whether the U.S. Court of Appeals for the 10th Circuit’s holding that law-enforcement officers who stopped the petitioner from praying silently in her own home were entitled to qualified immunity because there was no prior case law involving similar facts conflicts with Hope v. Pelzer, which “expressly rejected a requirement that previous cases be ‘fundamentally similar’” or involve “‘materially similar’” facts.

(relisted after the February 23, March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 17, May 24, May 31 and June 7 conferences)

 

Evans v. Mississippi, 17-7245

Issue: Whether the death penalty in and of itself violates the Eighth Amendment in light of contemporary standards of decency and the geographic arbitrariness of its imposition.

(relisted after the February 23, March 2, April 20, April 27, May 10, May 17, May 24, May 31 and June 7 conferences; rescheduled after the March 16 conference; rescheduled before the March 23, March 29 and April 13 conferences)

 

Gamble v. United States, 17-646

Issue: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24, May 31 and June 7 conferences)

 

Tyler v. United States, 17-5410

Issue: Whether the Supreme Court should overrule the dual sovereignty exception, which permits a successive federal prosecution after a defendant has been prosecuted for the same offense in state court.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24, May 31 and June 7 conferences)

 

Ochoa v. United States, 17-5503

Issues: (1) Whether the double jeopardy clause of the Fifth Amendment prohibits the federal government from charging, convicting and sentencing a person who has already been charged, convicted and sentenced in the court of a state for much of the same conduct; and (2) whether the seriousness of the offense conduct is an appropriate consideration for a district court when fashioning a sentence on revocation of supervised release.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24, May 31 and June 7 conferences)

 

Gordillo-Escandon v. United States, 17-7177

Issue: Whether, when a criminal defendant has already been convicted of an offense in a state criminal proceeding, the United States may thereafter prosecute the defendant for the same offense without violating the Fifth Amendment’s prohibition on double jeopardy.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24, May 31 and June 7 conferences)

 

Eaton v. United States, 17-6680

Issue(s): [Petitioner is a pro se prisoner and the government waived its right to respond, so we have been unable to obtain a copy of the petition.]

(relisted after the April 20, April 27, May 10, May 17, May 24, May 31 and June 7 conferences)

 

Bearcomesout v. United States, 17-6856

Issue: Whether the “separate sovereign” concept actually exists when Congress’s plenary power over Indian tribes and the general erosion of any real tribal sovereignty is amplified by the Northern Cheyenne Tribe’s constitution in such a way that the petitioner’s prosecutions in both tribal and federal court violate the double jeopardy clause of the Fifth Amendment to the U. S. Constitution.

(relisted after the April 20, April 27, May 10, May 17, May 24, May 31 and June 7 conferences)

 

Jordan v. Mississippi, 17-7153

Issue(s): (1) Whether incarcerating a prisoner over four decades awaiting execution, even after the state found at one point that a life without parole sentence was appropriate, violates the Eighth Amendment because it fails to serve any legitimate penological purpose; (2) Whether incarcerating a prisoner over four decades awaiting execution, with over half that time attributable to repeated constitutional violations in a succession of sentencing hearings, violates the Eighth Amendment because it fails to serve any legitimate penological purpose.

(relisted after the April 20, April 27, May 10, May 17, May 24, May 31 and June 7 conferences)

 

Quality Systems, Inc. v. City of Miami Fire Fighters and Police Officers’ Retirement Trust, 17-1056

Issue: Whether, or in what circumstances, a defendant must admit that non-forward-looking statements are false or misleading, in order to be protected by the Private Securities Litigation Reform Act safe-harbor provision for forward-looking statements.

(relisted after the April 20, April 27, May 10, May 17, May 24, May 31 and June 7 conferences)

 

Clark v. Louisiana, 16-9541

Issues: (1) Whether the Louisiana Supreme Court erred in upholding the petitioner’s death sentence when the jury made only one of the two statutory required jury findings beyond a reasonable doubt; (2) whether standards of decency have evolved to render the execution of a defendant prosecuted as a principal to first degree murder unconstitutional when, as the state conceded, jurors could not know who inflicted the blows that caused the victim’s death; (3) whether testimony establishing communications between a deputy monitoring the trial and an alternate juror in front of other jurors about the trial constitutes sufficient evidence to be presumptively prejudicial; and (4) whether the Louisiana Supreme Court’s rule, which requires an indigent defendant to accept his trial counsel’s decision to concede his guilt of second-degree murder over his express objections or represent himself, vitiates the voluntariness of the petitioner’s waiver of counsel.

(relisted after the May 17, May 24, May 31 and June 7 conferences)

 

Wood v. Oklahoma, 17-6891

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31 and June 7 conferences)

 

Jones v. Oklahoma, 17-6943

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31 and June 7 conferences)

 

Gelhaus v. Estate of Andy Lopez, 17-1354

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit improperly departed from the Supreme Court’s decision in White v. Pauly and numerous other cases when it denied qualified immunity notwithstanding the absence of clearly established law imposing liability under circumstances closely analogous to those confronting the petitioner in this case; and (2) whether the lower court improperly departed from the Supreme Court’s decisions in Graham v. Connor and Plumhoff v. Rickard when it denied qualified immunity based on the absence of a constitutional violation given that the undisputed facts established that the petitioner acted reasonably in responding to the threat of a suspect turning towards him while raising the barrel of what appeared to be an assault rifle.

(relisted after the May 31 and June 7 conferences)

 

North Carolina v. Covington, 17-1364

Issues: (1) Whether the district court had jurisdiction to consider challenges to the new districting plan the North Carolina General Assembly enacted after North Carolina’s previous state districting plan was invalidated as a racial gerrymander; (2) whether the district court erred by finding that four districts were racially gerrymandered even though the legislature did not consider race; (3) whether the district court erred by considering and substantiating a state-law challenge to five districts in which no plaintiff resides; (4) whether the district court erred by refusing to allow the legislature to enact its own remedial plan; and (5) whether the district court erred by imposing a map that improperly considered race.

(relisted after the May 31 and June 7 conferences)

 

Thanks once again to Kevin Brooks for compiling the cases in this post.  John Elwood’s humorless commentary will return next week.

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Relist Watch

Relist WatchJohn Elwood reviews Monday’s relists. This week finally answered our questions about what was going on with Azar v. Garza, 17-654, the closely watched case involving an unaccompanied minor alien’s efforts to obtain an abortion against the wishes of the government. After 14 relists, the court issued a short per curiam opinion granting the government […]

The post Relist Watch appeared first on SCOTUSblog.

Relist Watch

John Elwood reviews Monday’s relists.

This week finally answered our questions about what was going on with Azar v. Garza, 17-654, the closely watched case involving an unaccompanied minor alien’s efforts to obtain an abortion against the wishes of the government. After 14 relists, the court issued a short per curiam opinion granting the government its requested vacatur of the court of appeals’ decision under United States v. Munsingwear Inc. But the court did not act on the government’s allegations that the minor’s counsel had engaged in misconduct. The court has been relisting the case since mid-January. Because it doesn’t take four-plus months to write a unanimous five-page opinion, the odds are good that a lot of memoranda were exchanged about this case. Although the opinion was unsigned, eagle-eyed court-watchers looked to distinctive language like this for clues about its authorship: “The Court takes allegations like those the Government makes here seriously, for ethical rules are necessary to the maintenance of a culture of civility and mutual trust within the legal profession.”

After seven relists, the court also denied review in Trevino v. Davis, 17-6883. But Carlos Trevino got the petitioner’s consolation prize: Justice Sonia Sotomayor released a 13-page dissent from the court’s denial of cert in the case, joined by Justice Ruth Bader Ginsburg.

On to the new business. The big news is that the court has relisted North Carolina v. Covington, 17-1364, an appeal from a three-judge district court decision invalidating that state’s districting plan as an unlawful racial gerrymander. The court also has relisted yet another qualified immunity case, this one involving a police officer who shot a 13-year-old boy who was carrying an airsoft pellet gun resembling an AK-47 assault rifle, Gelhaus v. Estate of Andy Lopez, 17-1354. In Gelhaus, a divided panel of the U.S. Court of Appeals for the 9th Circuit held that the officer was not entitled to qualified immunity based on the pleadings and remanded the case for trial. In dissent, Judge Clifford Wallace concluded that precedent at the time did not clearly establish that the use of deadly force under the circumstances was objectively unreasonable.

The court also has relisted Armstead v. United States, 17-7941, but there’s no reason to get too excited about that. The case raises the same issue as Hughes v. United States, namely, whether a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C) (under which the prosecution and defense agree to a specific sentence) is “based on” the defendant’s Federal Sentencing Guidelines range if the guidelines range was part of the framework the district court relied on. Armstead went to conference the week before Hughes was decided. Because the Supreme Court held in Hughes that a similarly situated defendant was entitled to relief, it looks like Tremell Armstead will be getting good news on Monday’s order list.

That’s all for this week. We only have three more opportunities for relists. We’ll be back next week with more as October Term 2017 draws to a close.

Thanks once again to Kent Piacenti for compiling these cases.

 

New Relists

Gelhaus v. Estate of Andy Lopez, 17-1354

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit improperly departed from the Supreme Court’s decision in White v. Pauly and numerous other cases when it denied qualified immunity notwithstanding the absence of clearly established law imposing liability under circumstances closely analogous to those confronting the petitioner in this case; and (2) whether the lower court improperly departed from the Supreme Court’s decisions in Graham v. Connor and Plumhoff v. Rickard when it denied qualified immunity based on the absence of a constitutional violation given that the undisputed facts established that the petitioner acted reasonably in responding to the threat of a suspect turning towards him while raising the barrel of what appeared to be an assault rifle.

(relisted after the May 31 conference)

 

North Carolina v. Covington, 17-1364

Issues: (1) Whether the district court had jurisdiction to consider challenges to the new districting plan the North Carolina General Assembly enacted after North Carolina’s previous state districting plan was invalidated as a racial gerrymander; (2) whether the district court erred by finding that four districts were racially gerrymandered even though the legislature did not consider race; (3) whether the district court erred by considering and substantiating a state-law challenge to five districts in which no plaintiff resides; (4) whether the district court erred by refusing to allow the legislature to enact its own remedial plan; and (5) whether the district court erred by imposing a map that improperly considered race.

(relisted after the May 31 conference)

 

Armstead v. United States, 17-7941

Issue: Whether a defendant who enters into a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement is generally eligible for a sentence reduction if there is a later, retroactive amendment to the relevant sentencing guidelines range.

(relisted after the May 31 conference)

 

Returning Relists

Sause v. Bauer, 17-742

Issue: Whether the U.S. Court of Appeals for the 10th Circuit’s holding that law-enforcement officers who stopped the petitioner from praying silently in her own home were entitled to qualified immunity because there was no prior case law involving similar facts conflicts with Hope v. Pelzer, which “expressly rejected a requirement that previous cases be ‘fundamentally similar’” or involve “‘materially similar’” facts.

(relisted after the February 23, March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 17, May 24 and May 31 conferences)

 

Evans v. Mississippi, 17-7245

Issue: Whether the death penalty in and of itself violates the Eighth Amendment in light of contemporary standards of decency and the geographic arbitrariness of its imposition.

(relisted after the February 23, March 2, April 20, April 27, May 10, May 17, May 24 and May 31 conferences; rescheduled after the March 16 conference; rescheduled before the March 23, March 29 and April 13 conferences)

 

Gamble v. United States, 17-646

Issue: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24 and May 31 conferences)

 

Tyler v. United States, 17-5410

Issue: Whether the Supreme Court should overrule the dual sovereignty exception, which permits a successive federal prosecution after a defendant has been prosecuted for the same offense in state court.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24 and May 31 conferences)

 

Ochoa v. United States, 17-5503

Issues: (1) Whether the double jeopardy clause of the Fifth Amendment prohibits the federal government from charging, convicting and sentencing a person who has already been charged, convicted and sentenced in the court of a state for much of the same conduct; and (2) whether the seriousness of the offense conduct is an appropriate consideration for a district court when fashioning a sentence on revocation of supervised release.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24 and May 31 conferences)

 

Gordillo-Escandon v. United States, 17-7177

Issue: Whether, when a criminal defendant has already been convicted of an offense in a state criminal proceeding, the United States may thereafter prosecute the defendant for the same offense without violating the Fifth Amendment’s prohibition on double jeopardy.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24 and May 31 conferences)

 

Eaton v. United States, 17-6680

Issue(s): [Petitioner is a pro se prisoner and the government waived its right to respond, so we have been unable to obtain a copy of the petition.]

(relisted after the April 20, April 27, May 10, May 17, May 24 and May 31 conferences)

 

Bearcomesout v. United States, 17-6856

Issue: Whether the “separate sovereign” concept actually exists when Congress’s plenary power over Indian tribes and the general erosion of any real tribal sovereignty is amplified by the Northern Cheyenne Tribe’s constitution in such a way that the petitioner’s prosecutions in both tribal and federal court violate the double jeopardy clause of the Fifth Amendment to the U. S. Constitution.

(relisted after the April 20, April 27, May 10, May 17, May 24 and May 31 conferences)

 

Jordan v. Mississippi, 17-7153

Issue(s): (1) Whether incarcerating a prisoner over four decades awaiting execution, even after the state found at one point that a life without parole sentence was appropriate, violates the Eighth Amendment because it fails to serve any legitimate penological purpose; (2) Whether incarcerating a prisoner over four decades awaiting execution, with over half that time attributable to repeated constitutional violations in a succession of sentencing hearings, violates the Eighth Amendment because it fails to serve any legitimate penological purpose.

(relisted after the April 20, April 27, May 10, May 17, May 24 and May 31 conferences)

 

Quality Systems, Inc. v. City of Miami Fire Fighters and Police Officers’ Retirement Trust, 17-1056

Issue: Whether, or in what circumstances, a defendant must admit that non-forward-looking statements are false or misleading, in order to be protected by the Private Securities Litigation Reform Act safe-harbor provision for forward-looking statements.

(relisted after the April 20, April 27, May 10, May 17, May 24 and May 31 conferences)

 

Clark v. Louisiana, 16-9541

Issues: (1) Whether the Louisiana Supreme Court erred in upholding the petitioner’s death sentence when the jury made only one of the two statutory required jury findings beyond a reasonable doubt; (2) whether standards of decency have evolved to render the execution of a defendant prosecuted as a principal to first degree murder unconstitutional when, as the state conceded, jurors could not know who inflicted the blows that caused the victim’s death; (3) whether testimony establishing communications between a deputy monitoring the trial and an alternate juror in front of other jurors about the trial constitutes sufficient evidence to be presumptively prejudicial; and (4) whether the Louisiana Supreme Court’s rule, which requires an indigent defendant to accept his trial counsel’s decision to concede his guilt of second-degree murder over his express objections or represent himself, vitiates the voluntariness of the petitioner’s waiver of counsel.

(relisted after the May 17, May 24 and May 31 conferences)

 

Wood v. Oklahoma, 17-6891

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24 and May 31 conferences)

 

Jones v. Oklahoma, 17-6943

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24 and May 31 conferences)

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Status Quo Watch

Status Quo WatchJohn Elwood reviews Tuesday’s relists. You know how every time news shows cut to a commercial after another boring segment, they tease the one interesting story about the dirtiest local restaurants/approaching swarm of killer bees/looming derecho, which they finally air in the program’s last two minutes? We at Relist Watch would never stoop to such […]

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Status Quo Watch

John Elwood reviews Tuesday’s relists.

You know how every time news shows cut to a commercial after another boring segment, they tease the one interesting story about the dirtiest local restaurants/approaching swarm of killer bees/looming derecho, which they finally air in the program’s last two minutes? We at Relist Watch would never stoop to such tactics, instead preferring on principle that our reader(s) experience disappointment as early and often as possible. So we will say right up front that there are no new relists this week.

There are also very few old relists this week for that matter — in the sense of former relists. The court denied cert in only two relisted cases, Lee v. Ohio, 17-7213, and Belton v. Ohio, 17-7233, both challenging the constitutionality of an Ohio statute requiring certain juvenile offenders to be prosecuted as adults. And two one-time relists have reverted to being serially rescheduled cases: Wood v. Oklahoma, 17-6891, and Jones v. Oklahoma, 17-6943, both involving statistical disparities in capital sentencing.

There are, however, lots and lots of returning relists. And as you probably have noticed, there have been lots and lots of returning relists for a long time. In years past, I started prattling on about expecting an opinion around when a case had been relisted five or six times. The Supreme Court now has a dozen pending cases that have been relisted at least five times, and two cases approaching (Sause v. Bauer, 17-742, 11 relists) or surpassing (Azar v. Garza, 17-654, 14 relists) a dozen relists. When we close the books on October Term 2017 (and do our annual statistics post), it seems likely that we will see a trend toward more serial relists. A term that has been noteworthy for a slow pace of grants and a slow pace of decisions has also been noteworthy for its slow pace of clearing out relists.

We only have four more scheduled conferences in October Term 2017. (The court usually holds one unscheduled mop-up conference on the last Monday of the term.) Thus, there will be only four more opportunities for relists. I will be abroad during most of the next two weeks, so expect a list of relisted cases without much commentary. But unfortunately for our readership, I will return in time to comment on the last two weeks of relists.

Thanks once again to Kevin Brooks for compiling these cases.

 

New Relists

Now you’re hurting my feelings. Didn’t you read above that there are no new relists this week?

 

Returning Relists

Azar v. Garza, 17-654

Issue: Whether, pursuant to United States v. Munsingwear, Inc., the Supreme Court should vacate the U.S. Court of Appeals for the District of Columbia Circuit’s judgment and instruct that court to remand the case to the district court with directions to dismiss all claims for prospective relief regarding pregnant unaccompanied minors.

(relisted after the January 12, January 19, February 16, February 23, March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 17 and May 24 conferences)

 

Sause v. Bauer, 17-742

Issue: Whether the U.S. Court of Appeals for the 10th Circuit’s holding that law-enforcement officers who stopped the petitioner from praying silently in her own home were entitled to qualified immunity because there was no prior case law involving similar facts conflicts with Hope v. Pelzer, which “expressly rejected a requirement that previous cases be ‘fundamentally similar’” or involve “‘materially similar’” facts.

(relisted after the February 23, March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 17 and May 24 conferences)

 

Evans v. Mississippi, 17-7245

Issue: Whether the death penalty in and of itself violates the Eighth Amendment in light of contemporary standards of decency and the geographic arbitrariness of its imposition.

(relisted after the February 23, March 2, April 20, April 27, May 10, May 17 and May 24 conferences; rescheduled after the March 16 conference; rescheduled before the March 23, March 29 and April 13 conferences)

 

Trevino v. Davis, 17-6883

Issue: Whether — when the U.S. Court of Appeals for the 5th Circuit found that the new mitigating evidence discovered on federal habeas review was “double-edged” and could not outweigh the substantial aggravating evidence, and when it misapplied the standard for evaluating prejudice in a Wiggins claim — it denied the petitioner due process.

(relisted after the March 29, April 13, April 20, April 27, May 10, May 17 and May 24 conferences)

 

Gamble v. United States, 17-646

Issue: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

(relisted after the April 13, April 20, April 27, May 10, May 17 and May 24 conferences)

 

Tyler v. United States, 17-5410

Issue: Whether the Supreme Court should overrule the dual sovereignty exception, which permits a successive federal prosecution after a defendant has been prosecuted for the same offense in state court.

(relisted after the April 13, April 20, April 27, May 10, May 17 and May 24 conferences)

 

Ochoa v. United States, 17-5503

Issues: (1) Whether the double jeopardy clause of the Fifth Amendment prohibits the federal government from charging, convicting and sentencing a person who has already been charged, convicted and sentenced in the court of a state for much of the same conduct; and (2) whether the seriousness of the offense conduct is an appropriate consideration for a district court when fashioning a sentence on revocation of supervised release.

(relisted after the April 13, April 20, April 27, May 10, May 17 and May 24 conferences)

 

Gordillo-Escandon v. United States, 17-7177

Issue: Whether, when a criminal defendant has already been convicted of an offense in a state criminal proceeding, the United States may thereafter prosecute the defendant for the same offense without violating the Fifth Amendment’s prohibition on double jeopardy.

(relisted after the April 13, April 20, April 27, May 10, May 17 and May 24 conferences)

 

Eaton v. United States, 17-6680

Issue(s): [Petitioner is a pro se prisoner and the government waived its right to respond, so we have been unable to obtain a copy of the petition.]

(relisted after the April 20, April 27, May 10, May 17 and May 24 conferences)

 

Bearcomesout v. United States, 17-6856

Issue: Whether the “separate sovereign” concept actually exists when Congress’s plenary power over Indian tribes and the general erosion of any real tribal sovereignty is amplified by the Northern Cheyenne Tribe’s constitution in such a way that the petitioner’s prosecutions in both tribal and federal court violate the double jeopardy clause of the Fifth Amendment to the U. S. Constitution.

(relisted after the April 20, April 27, May 10, May 17 and May 24 conferences)

 

Jordan v. Mississippi, 17-7153

Issue(s): (1) Whether incarcerating a prisoner over four decades awaiting execution, even after the state found at one point that a life without parole sentence was appropriate, violates the Eighth Amendment because it fails to serve any legitimate penological purpose; (2) Whether incarcerating a prisoner over four decades awaiting execution, with over half that time attributable to repeated constitutional violations in a succession of sentencing hearings, violates the Eighth Amendment because it fails to serve any legitimate penological purpose.

(relisted after the April 20, April 27, May 10, May 17 and May 24 conferences)

 

Quality Systems, Inc. v. City of Miami Fire Fighters and Police Officers’ Retirement Trust, 17-1056

Issue: Whether, or in what circumstances, a defendant must admit that non-forward-looking statements are false or misleading, in order to be protected by the Private Securities Litigation Reform Act safe-harbor provision for forward-looking statements.

(relisted after the April 20, April 27, May 10, May 17 and May 24 conferences)

 

Clark v. Louisiana, 16-9541

Issues: (1) Whether the Louisiana Supreme Court erred in upholding the petitioner’s death sentence when the jury made only one of the two statutory required jury findings beyond a reasonable doubt; (2) whether standards of decency have evolved to render the execution of a defendant prosecuted as a principal to first degree murder unconstitutional when, as the state conceded, jurors could not know who inflicted the blows that caused the victim’s death; (3) whether testimony establishing communications between a deputy monitoring the trial and an alternate juror in front of other jurors about the trial constitutes sufficient evidence to be presumptively prejudicial; and (4) whether the Louisiana Supreme Court’s rule, which requires an indigent defendant to accept his trial counsel’s decision to concede his guilt of second-degree murder over his express objections or represent himself, vitiates the voluntariness of the petitioner’s waiver of counsel.

(relisted after the May 17 and May 24 conferences)

 

Vitol S.A. v. Autoridad de Energia Electrica de Puerto Rico, 17-951

Issue: Whether the rule espoused in Steel Company v. Citizens for a Better Environment, which held that a federal court generally may not rule on the merits of a dispute without first determining that it has subject-matter jurisdiction, is limited to Article III jurisdictional disputes, as the U.S. Court of Appeals for the 1st Circuit and other circuits have held, or whether it applies to statutory as well as Article III jurisdictional disputes, as the U.S. Court of Appeals for the 11th Circuit and other circuits have held.

(relisted after the May 17 and May 24 conferences)

 

Wood v. Oklahoma, 17-6891

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10 and May 24 conferences)

 

Jones v. Oklahoma, 17-6943

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10 and May 24 conferences)

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Relist Watch

Relist WatchJohn Elwood (finally) reviews Monday’s relists. Monday’s order list was a striking illustration of how nice it is to have Washington on your side: Of the four relisted cases the Supreme Court agreed to review, the government (either as amicus or respondent) had told the court that review was warranted in three of them. The […]

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Relist Watch

John Elwood (finally) reviews Monday’s relists.

Monday’s order list was a striking illustration of how nice it is to have Washington on your side: Of the four relisted cases the Supreme Court agreed to review, the government (either as amicus or respondent) had told the court that review was warranted in three of them.

The court also denied review without comment in a knot of cases involving whether sentence enhancements imposed under the residual clause of the then-mandatory sentencing guidelines’ career offender provision were constitutionally infirm because the clause is similar to an Armed Career Criminal Act provision declared unconstitutionally vague in Johnson v. United States. So long Allen v. United States, 17-5684; farewell Gates v. United States, 17-6262; auf Wiedersehen, James v. United States, 17-6769; adieu, Robinson v. United States, 17-6877; smell ya later Lester v. United States, 17-1366. It’s curious when cases that have been relisted as many as ten times are denied review without even a short statement respecting denial. But perhaps, just as the most effective dissent from denial of cert is never seen (because the court just decides to go ahead and grant review), maybe someone wrote a killer concurrence. If this strikes you as maddeningly indeterminate, don’t worry: We’ll all know what happened in about another 70 years when the current justices’ papers are released.

That brings us to the real stars, this week’s new relists. There are six, so I’m going to be a bit summary in discussing them to avoid droning on forever. For sheer lawnerd love, it will be hard to top Vitol S.A. v. Autoridad de Energia Electrica de Puerto Rico, 17-951. In Steel Company v. Citizens for a Better Environment, the Supreme Court held that federal courts generally may not rule on the merits of a dispute without first determining that it has subject-matter jurisdiction. According to Vitol S.A., a commodities-trading company that specializes in fuel, the circuits are divided about whether the rule applies to questions of statutory jurisdiction (as well as the Article III jurisdiction at issue in Steel Company). Vitol S.A. pleaded guilty to grand larceny in New York state court in connection with the Iraq oil-for-food program. The respondent (the Puerto Rico electric power authority) claimed that Vitol S.A.’s conviction voided its contract with corporate affiliate Vitol Inc. The power authority filed suit in Puerto Rico commonwealth court, Vitol removed the suit to federal court, and the power authority won a remand to commonwealth court based on a forum-selection clause. The Vitol companies appealed. In the U.S. Court of Appeals for the 1st Circuit, there was a major kerfuffle about whether the court had jurisdiction. Although the court thought jurisdiction “dubitable” – surprisingly, the opinion was not written by Judge Bruce Selya– it avoided resolving jurisdiction by invoking the “hypothetical jurisdiction” doctrine, which allows a court to proceed to the merits “when the merits can easily be resolved in favor of the party challenging jurisdiction.” The Vitol companies argue the 1st Circuit needed to address jurisdiction first before proceeding to the merits. The power authority argues that Vitol will lose either way, either on the merits (as the 1st Circuit already held after assuming jurisdiction was proper), or because the 1st Circuit holds that it lacks jurisdiction to entertain the Vitol companies’ challenge to the remand order. They may have a point. But given the complexity of the case, it may also be that the Supremes just want another week to figure out what is going on.

Every other new relist this week involves a homicide. What a cheery way to begin a holiday weekend.

Clark v. Louisiana, 16-9541, is a capital case involving a prisoner convicted of murder in connection with the death of a correctional officer during an attempt to escape from the Louisiana State Penitentiary at Angola. The case raises four issues, but it’s safe to assume one is the particular focus of the Supreme Court. Issue number one turns on the fact that Louisiana law requires jurors to “find beyond a reasonable doubt that at least one statutory aggravating circumstance exists,” but does not require the jury to employ that same beyond-a-reasonable-doubt standard applies to making a second determination, whether “the sentence of death should be imposed.” The second issue is whether the “evolving standards of decency” standard forbids using the death penalty when jurors could not be sure which of several defendants inflicted the blows that caused the victim’s death. The third issue involves whether Clark was presumptively prejudiced when a deputy monitoring the trial, within view of other jurors, asked an alternate juror how she thought the trial was going. The fourth issue may explain why the case has been hanging around the docket since last October, and only recently was released and relisted: Clark alleges that his lawyer conceded his guilt in the aggravated escape during his first trial and only contested whether the death penalty should be imposed. Clark says he represented himself at his second trial, where he was convicted, solely to prevent his counsel from conceding his guilt against his wishes. Because the court held on May 14 that the Sixth Amendment guarantees a defendant the right to insist that his counsel refrain from admitting guilt, even when counsel’s view is that confessing guilt offers the best chance to avoid the death penalty, I expect they’ll be taking a very close look at this case.

The last four new relists consist of two sets of related criminal cases arising out of states whose names begin with the letter O. And all four involve the court’s repeated use of the murky procedure of “rescheduling” cases – ordinarily meaning the court moved them from one conference to another before considering them at conference. Wood v. Oklahoma, 17-6891, and Jones v. Oklahoma, 17-6943, have been rescheduled nine times each – and both have been rescheduled even since they were relisted. Lee v. Ohio, 17-7213, and Belton v. Ohio, 17-7233, have both been rescheduled four times. So perhaps these cases will at last shed some light on the rescheduling procedure.

The first two cases are from a place where, if my sources are to be believed, the wind comes sweepin’ down the plain, where there is plenty of air and plenty of room. In the years around Y2K, Tremane Wood and Julius Jones, two African-Americans, were convicted in central Oklahoma of unrelated murders of white men and sentenced to death. In 2017, after Jones had finished state and federal collateral proceedings, and as Moore would soon complete them, a statistical study on capital-sentencing patterns in Oklahoma was published, concluding that nonwhites accused of killing white males are statistically more likely to receive a death sentence, even controlling for aggravating circumstances. Under Oklahoma’s post-conviction statute, a death-sentenced prisoner has just 60 days to file a second or successive post-conviction application based on newly available evidence. Both filed post-conviction applications arguing that the study constituted newly discovered evidence that they were convicted and sentenced in violation of the Sixth Amendment right to a fair trial, the Eighth Amendment bar on cruel and unusual punishment, and the 14th Amendment right to due process of law. But the court denied their applications on the basis of a state procedural bar, saying that neither had shown that “the identified patterns of race and gender disparity were not ascertainable through the exercise of reasonable diligence” at the time of their original post-conviction proceedings. The petitions in Wood v. Oklahoma, 17-6891, and Jones v. Oklahoma, 17-6943, present two main questions: First, whether the study indicating a risk that racial considerations entered into Oklahoma’s capital sentencing determinations proves that their death sentences are unconstitutional under the Sixth, Eighth, and 14th amendments; and second, whether Oklahoma’s post-conviction statute, as applied by the Oklahoma courts, denied Wood and Jones an adequate corrective process for the hearing and determination of their federal constitutional claims in violation of their rights under the 14th Amendment’s due process and equal protection clauses.

To avoid further depressing our reader, we will refrain from quoting songs about our second O-state – at least beyond the upbeat kind that just spell its name. Ohio’s legislature has enacted a statute that requires that minors be tried as adults when the defendant is a 16-year-old (or a 14- or 15-year-old recidivist) who is charged with homicide or a handful of other serious offenses (kidnapping, rape, and the aggravated forms of arson, robbery and burglary), generally either while using a firearm or as a recidivist. In 2016, the Supreme Court of Ohio invalidated the statute as unconstitutional. After two justices retired, Ohio successfully sought rehearing, and less than a year later issued a decision upholding the mandatory transfer law as constitutional. To make things more confusing, Justice Kennedy wrote the majority opinion reversing course, while Justice O’Connor (actually, Chief Justice O’Connor) wrote the dissent – just not the ones you think. The petitioners in Lee v. Ohio, 17-7213, and Belton v. Ohio, 17-7233, both were convicted of killing people in botched robberies. Both argue that mandatory trial as an adult violates the Constitution, relying on recent Supreme Court decisions emphasizing the lesser culpability of juvenile offenders and their greater potential for rehabilitation.

In closing, this was another interesting week for relists. Looks like we’ll have about five more of these columns before the court decamps for the summer. We’ll be back next week with more as October Term 2017 draws to a close. Thanks once again to Kent Piacenti for compiling these cases.

 

New Relists

Clark v. Louisiana, 16-9541

Issues: (1) Whether the Louisiana Supreme Court erred in upholding the petitioner’s death sentence when the jury made only one of the two statutory required jury findings beyond a reasonable doubt; (2) whether standards of decency have evolved to render the execution of a defendant prosecuted as a principal to first degree murder unconstitutional when, as the state conceded, jurors could not know who inflicted the blows that caused the victim’s death; (3) whether testimony establishing communications between a deputy monitoring the trial and an alternate juror in front of other jurors about the trial constitutes sufficient evidence to be presumptively prejudicial; and (4) whether the Louisiana Supreme Court’s rule, which requires an indigent defendant to accept his trial counsel’s decision to concede his guilt of second-degree murder over his express objections or represent himself, vitiates the voluntariness of the petitioner’s waiver of counsel.

(relisted after the May 17 conference)

 

Vitol S.A. v. Autoridad de Energia Electrica de Puerto Rico, 17-951

Issue: Whether the rule espoused in Steel Company v. Citizens for a Better Environment, which held that a federal court generally may not rule on the merits of a dispute without first determining that it has subject-matter jurisdiction, is limited to Article III jurisdictional disputes, as the U.S. Court of Appeals for the 1st Circuit and other circuits have held, or whether it applies to statutory as well as Article III jurisdictional disputes, as the U.S. Court of Appeals for the 11th Circuit and other circuits have held.

(relisted after the May 17 conference)

 

Wood v. Oklahoma, 17-6891

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the May 24 conference)

 

Jones v. Oklahoma, 17-6943

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference)

 

Lee v. Ohio, 17-7213

Issue: Whether Ohio’s mandatory transfer statute, which requires that certain children be prosecuted as adults and prohibits an individualized determination, violates the due process and equal protection clauses of the U.S. Constitution.

(relisted after the May 17 conference)

 

Belton v. Ohio, 17-7233

Issue: Whether Ohio’s mandatory transfer statute, which requires that certain children be prosecuted as adults and prohibits an individualized determination, violates the due process and equal protection clauses of the U.S. Constitution.

(relisted after the May 17 conference)

 

Returning Relists

Azar v. Garza, 17-654

Issue: Whether, pursuant to United States v. Munsingwear, Inc., the Supreme Court should vacate the U.S. Court of Appeals for the District of Columbia Circuit’s judgment and instruct that court to remand the case to the district court with directions to dismiss all claims for prospective relief regarding pregnant unaccompanied minors.

(relisted after the January 12, January 19, February 16, February 23, March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10 and May 17 conferences)

 

Sause v. Bauer, 17-742

Issue: Whether the U.S. Court of Appeals for the 10th Circuit’s holding that law-enforcement officers who stopped the petitioner from praying silently in her own home were entitled to qualified immunity because there was no prior case law involving similar facts conflicts with Hope v. Pelzer, which “expressly rejected a requirement that previous cases be ‘fundamentally similar’” or involve “‘materially similar’” facts.

(relisted after the February 23, March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10 and May 17 conferences)

 

Evans v. Mississippi, 17-7245

Issue: Whether the death penalty in and of itself violates the Eighth Amendment in light of contemporary standards of decency and the geographic arbitrariness of its imposition.

(relisted after the February 23, March 2, April 20 and April 27 conferences; rescheduled after the March 16 conference; rescheduled before the March 29, April 13, April 20, April 27, May 10 and May 17 conferences)

 

Trevino v. Davis, 17-6883

Issue: Whether — when the U.S. Court of Appeals for the 5th Circuit found that the new mitigating evidence discovered on federal habeas review was “double-edged” and could not outweigh the substantial aggravating evidence, and when it misapplied the standard for evaluating prejudice in a Wiggins claim — it denied the petitioner due process.

(relisted after the March 29, April 13, April 20, April 27, May 10 and May 17 conferences)

 

Gamble v. United States, 17-646

Issue: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

(relisted after the April 13, April 20, April 27, May 10 and May 17 conferences)

 

Tyler v. United States, 17-5410

Issue: Whether the Supreme Court should overrule the dual sovereignty exception, which permits a successive federal prosecution after a defendant has been prosecuted for the same offense in state court.

(relisted after the April 13, April 20, April 27, May 10 and May 17 conferences)

 

Ochoa v. United States, 17-5503

Issues: (1) Whether the double jeopardy clause of the Fifth Amendment prohibits the federal government from charging, convicting and sentencing a person who has already been charged, convicted and sentenced in the court of a state for much of the same conduct; and (2) whether the seriousness of the offense conduct is an appropriate consideration for a district court when fashioning a sentence on revocation of supervised release.

(relisted after the April 13, April 20, April 27, May 10 and May 17 conferences)

 

Gordillo-Escandon v. United States, 17-7177

Issue: Whether, when a criminal defendant has already been convicted of an offense in a state criminal proceeding, the United States may thereafter prosecute the defendant for the same offense without violating the Fifth Amendment’s prohibition on double jeopardy.

(relisted after the April 13, April 20, April 27, May 10 and May 17 conferences)

 

Eaton v. United States, 17-6680

Issue(s): [Petitioner is a pro se prisoner and the government waived its right to respond, so we have been unable to obtain a copy of the petition.]

(relisted after the April 20, April 27, May 10 and May 17 conferences)

 

Bearcomesout v. United States, 17-6856

Issue: Whether the “separate sovereign” concept actually exists when Congress’s plenary power over Indian tribes and the general erosion of any real tribal sovereignty is amplified by the Northern Cheyenne Tribe’s constitution in such a way that the petitioner’s prosecutions in both tribal and federal court violate the double jeopardy clause of the Fifth Amendment to the U. S. Constitution.

(relisted after the April 20, April 27, May 10 and May 17 conferences)

 

Jordan v. Mississippi, 17-7153

Issue(s): (1) Whether incarcerating a prisoner over four decades awaiting execution, even after the state found at one point that a life without parole sentence was appropriate, violates the Eighth Amendment because it fails to serve any legitimate penological purpose; (2) Whether incarcerating a prisoner over four decades awaiting execution, with over half that time attributable to repeated constitutional violations in a succession of sentencing hearings, violates the Eighth Amendment because it fails to serve any legitimate penological purpose.

(relisted after the April 20, April 27, May 10 and May 17 conferences)

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Relist Watch

Relist WatchJohn Elwood (finally) reviews Monday’s relists. We are about to hit a critical date as October Term 2017 draws to a close: “cutoff” – the date by which briefs in opposition (and court-invited amicus briefs from the solicitor general) must be received for the Supreme Court to act on them before the summer recess following […]

The post Relist Watch appeared first on SCOTUSblog.

Relist Watch

John Elwood (finally) reviews Monday’s relists.

We are about to hit a critical date as October Term 2017 draws to a close: “cutoff” – the date by which briefs in opposition (and court-invited amicus briefs from the solicitor general) must be received for the Supreme Court to act on them before the summer recess following ordinary procedures. That date this year is May 22. And this week’s relists illustrate a fundamental truth: It’s nice to have Washington on your side. The petitioners in three of this week’s five new relists have the support of the solicitor general, which vastly increases their odds of a grant.

The petitioner in Virginia Uranium Inc. v. Warren, 16-1275, is a business with a name that inspires puzzlement, like “Arizona Oysters, Ltd.,” “Beachfront Iowa, LLC,” or “Greater San Diego Penguin Ranch, P.C.” Through some twist of fate, the Old Dominion is home to America’s largest domestic uranium deposits. Federal law doesn’t regulate the mining of uranium, but it does regulate uranium processing and the handling of the tailings left over afterwards. By agreement, federal regulators permit Virginia to regulate some processing activities, but the agreement expressly excludes regulation of uranium tailings. The commonwealth has long prohibited uranium mining, allegedly motivated by concerns about the radiological safety of uranium milling and tailings-management activities. The owners of the deposits did not seek to exploit the deposits for years, but when the price of uranium spiked during the mid-2000s, they sued to challenge the commonwealth’s mining moratorium.  The U.S. Court of Appeals for the 4th Circuit held that because federal law did not address mining, the Virginia moratorium was not pre-empted. The owners sought Supreme Court review and after the court’s September 2017 “long conference,” the court “invited” the solicitor general to file a brief expressing the views of the United States.  That’s an “invitation” in the same sense as when your father “invites” you to mow the lawn when you’re a kid, or when your spooky cellmate with the creepy thousand-yard stare and facial tattoos “invites” you to take the upper bunk.  In April 2018, the solicitor general finally responded to the invitation by saying that review is warranted because the 4th Circuit’s view of Atomic Energy Act pre-emption is “cramped,” conflicts with both Supreme Court precedent and decisions of other federal courts of appeals, and is “important and likely to recur in other nuclear-safety contexts.”  The court has tended to follow the grant recommendations of the solicitor general in recent years, so this is a case to watch.

What could be better than a court-invited amicus brief from the solicitor general telling the Supreme Court to grant your case? How ‘bout an amicus brief the solicitor general files without even being asked?  Such an unsolicited amicus brief is a compelling demonstration that the “Tenth Justice” thinks the case is exceedingly important. As Judge Patricia Millett once observed, “[o]nly infrequently does the solicitor general file unsolicited amicus briefs at the certiorari stage.”  I have been able to identify only 15 such briefs that have been filed since October Term 1995, and at that point I gave up looking. There have been nine perfect games pitched in the major leagues during the same period, so like I say, these are rare.

The most recent unsolicited solicitor-general amicus brief was filed in Royal v. Murphy, 17-1107. Respondent Patrick Dwayne Murphy is a member of the Muscogee (Creek) Nation of Indians.  He was convicted in Oklahoma state court and sentenced to death for killing another nation member within the nation’s historic territory in eastern Oklahoma. In post-conviction proceedings, he argued that the federal government had exclusive jurisdiction over his conduct because both he and the victim were members of the nation and the acts occurred in “Indian country.” A federal district court denied relief, concluding that “[a] careful review of the Acts of Congress which culminated in the grant of statehood to Oklahoma in 1906, as well as subsequent actions by Congress, leaves no doubt the historic territory of the Creek Nation was disestablished” and thus lost its status as “Indian country.” The U.S. Court of Appeals for the 10th Circuit reversed, concluding that the statutes through which Congress took various actions for the state (including, the solicitor general says, “allot[ing] the Creek Nation’s lands, abolish[ing] its courts, and extend[ing] the laws of the new State of Oklahoma over the former Indian Territory”) included none of the “hallmark[]” language present in prior Supreme Court cases concluding that a reservation had been disestablished. The SG recommends that the court take the case, saying that “Congress disestablished the Creek Nation’s historic territory when, in preparation for and granting Oklahoma statehood, it broke up and allotted the Creek Nation’s lands, displaced tribal jurisdiction, and provided for application of state law and state jurisdiction.” “If left uncorrected,” the solicitor general argues, the decision “will radically shift criminal jurisdiction in cases involving Indians in vast areas of eastern Oklahoma from the State to the federal government, and affect state taxing and other jurisdiction.” To drive that last point home, a broad cross-section of amici argue that the 10th Circuit’s decision “will upend Oklahoma’s energy regulation” and cause “significant jurisdictional consequences.”  The odds look good for that one.

What is better than an unsolicited amicus brief recommending your case be granted? I’m honestly not sure – maybe when the government, as respondent in a case, says your case is cert-worthy and should be granted? And if that dream is still just a little modest for you, how about if the government disavows the position it took below? That’s what happened in Culbertson v. Berryhill, 17-773. That case involves a provision of the Social Security Act providing that:

Whenever a court renders a judgment favorable to a claimant … who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment.

The petitioner argues that the 25-percent cap includes only fees for representation in court, as the U.S. Courts of Appeals for the 6th, 9th and 10th Circuits have held, and does not also include fees for representation in agency proceedings, as the U.S. Courts of Appeals for the 4th, 5th and 11th Circuits have held. In its brief as respondent, “[t]he government concludes that petitioner is correct” in his reading of the statute, and therefore suggests “the Court may wish to consider appointing an amicus curiae to defend the judgment of the court of appeals.” The case comes out of the U.S. Court of Appeals for the 11th Circuit, so the amicus to defend the judgment would ordinarily be appointed by (and typically be a former law clerk of) Circuit Justice Clarence Thomas.

The next case is captioned Budha Ismailthat’s myJam v. International Finance Corp., 17-1011, a caption cool enough to name the offspring of at least three Brooklyn hipsters.  The International Organizations Immunities Act, 22 U.S.C. § 288a(b), affords international organizations the “same immunity from suit and every form of judicial process as is enjoyed by foreign governments,” 22 U.S.C. § 288a(b).  President Dwight Eisenhower designated respondent the International Finance Corporation, which is composed of 184 member countries, as an “international organization” under IOIA.  The question presented is whether the IOIA confers the same immunity on such international organizations as foreign governments have under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-11, which contains an exception from immunity for “commercial activities.” The IFC argues for broader, “virtually absolute” immunity that it says was predominant before Congress enacted the Foreign Sovereign Immunities Act. The case involves a suit by “farmers and fishermen” who live near a power plant in Gujarat, India financed by $450 million in IFC loans.  Plaintiffs sued the IFC in the U.S. District Court for the District of Columbia as lender “for negligence, negligent supervision, public nuisance, private nuisance, trespass, and breach of contract” because the plant’s construction and operation violated the terms of the loan agreement. Now represented by counsel for the petitioners in Jesner v. Arab Bank, the new petitioners seek to challenge the D.C. Circuit’s 2-1 ruling granting the IFC immunity over the concurrence (really, dissent) of Judge Cornelia Pillard.

Last up is Wright v. United States, 17-1059, which presents what may be the most specific criminal-law question in the history of the world.  Namely: whether the Sixth Amendment right of confrontation is violated when a trial court prevents defense counsel from cross-examining a government witness regarding the mandatory life sentence the witness would have faced absent cooperation in order to prevent the jury from inferring that the defendant will probably face a life sentence if convicted. If you have trouble following that, it’s because you’re human.  Basically, the question is whether, to prevent the jurors from going easy on the defendant because they know he faces a life sentence, it is justifiable to keep the jury from knowing that a government witness avoided a life sentence by testifying.  The government argues that it’s enough for confrontation purposes to let the jury know the witness avoided decades in prison.  It also denies the existence of a conflict and argues that “this case would be an especially poor vehicle in which to take up the question presented,” because the defendant’s counsel contributed to the error, which was probably harmless anyway.  The government notes that the same issue is present in Trent v. United States, 17-830, which the court has rescheduled repeatedly.  It will be interesting to see what happens with that one.

Finally, the court has gotten rid of the two-plus score of cases it had repeatedly relisted because of Sessions v. Dimaya.  Thanks, guys:  We were getting tired of carrying around all that weight.

We’ll be back next week with more.  Thanks to Kevin Brooks for compiling these cases.

 

New Relists

Virginia Uranium, Inc. v. Warren, 16-1275

Issue: Whether the Atomic Energy Act pre-empts a state law that on its face regulates an activity within its jurisdiction (here, uranium mining), but that has the purpose and effect of regulating the radiological safety hazards of activities entrusted to the Nuclear Regulatory Commission (here, the milling of uranium and the management of the resulting tailings). CVSG: 04/09/2018.

(relisted after the May 10 conference)

 

Culbertson v. Berryhill, 17-773

Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.

Issue: Whether fees subject to 42 U.S.C. § 406(b)’s 25-percent cap related to the representation of individuals claiming Social Security benefits include, as the U.S. Courts of Appeals for the 6th, 9th and 10th Circuits hold, only fees for representation in court or, as the U.S. Courts of Appeals for the 4th, 5th and 11th Circuits hold, also fees for representation before the agency.

(relisted after the May 10 conference)

 

Jam v. International Finance Corp., 17-1011,

Issues: (1) Whether the International Organizations Immunities Act—which affords international organizations the “same immunity” from suit that foreign governments have, 22 U.S.C. § 288a(b)—confers the same immunity on such organizations as foreign governments have under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-11; and (2) what rules govern the immunity to which international organizations are entitled if the IOIA does not afford the same immunity.

(relisted after the May 10 conference)

 

Wright v. United States, 17-1059

Issue: Whether the Sixth Amendment right to confrontation is violated when the trial court prevents a defendant from cross-examining a government witness regarding the mandatory life sentence he would have faced absent cooperation in order to prevent the jury from inferring the defendant’s likely life sentence.

(relisted after the May 10 conference)

 

Royal v. Murphy, 17-1107

Issue: Whether the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an “Indian reservation” today under 18 U.S.C. § 1151(a).

(relisted after the May 10 conference)

 

Returning Relists

Azar v. Garza, 17-654

Issue: Whether, pursuant to United States v. Munsingwear, Inc., the Supreme Court should vacate the U.S. Court of Appeals for the District of Columbia Circuit’s judgment and instruct that court to remand the case to the district court with directions to dismiss all claims for prospective relief regarding pregnant unaccompanied minors.

(relisted after the January 12, January 19, February 16, February 23, March 2, March 16, March 23, March 29, April 13, April 20, April 27 and May 10 conferences)

 

Allen v. United States, 17-5684

Issues: (1) Whether the petitioner’s mandatory guidelines sentence, which was enhanced under the residual clause of U.S.S.G. § 4B1.2, is unconstitutional in light of the Supreme Court’s decision in Johnson v. United States, and whether a conviction for burglary of a dwelling under Florida law qualifies as a “crime of violence” under U.S.S.G. § 4B1.2’s elements clause; and (2) whether published orders issued by a circuit court of appeals under 28 U.S.C. § 2244(b)(3), and in the context of applications to file second or successive 28 U.S.C. § 2255 motions, constitute binding precedent outside of that context.

(relisted after the February 16, February 23, March 2, March 16, March 23, March 29, April 13, April 20, April 27 and May 10 conferences)

 

Gates v. United States, 17-6262

Issues: Whether, under the Supreme Court’s opinions in United States v. Booker, Johnson v. United States and Beckles v. United States, which depended heavily upon the distinction between advisory and mandatory sentencing schemes, the residual clause of the mandatory sentencing guidelines is unconstitutionally vague.

(relisted after the February 16, February 23, March 2, March 16, March 23, March 29, April 13, April 20, April 27 and May 10 conferences)

 

James v. United States, 17-6769

Issues: Whether, under the Supreme Court’s opinions in United States v. Booker, Johnson v. United States and Beckles v. United States, which depended heavily upon the distinction between advisory and mandatory sentencing schemes, the residual clause of the mandatory sentencing guidelines is unconstitutionally vague.

(relisted after the February 16, February 23, March 2, March 16, March 23, March 29, April 13, April 20, April 27 and May 10 conferences)

 

Sause v. Bauer, 17-742

Issue: Whether the U.S. Court of Appeals for the 10th Circuit’s holding that law-enforcement officers who stopped the petitioner from praying silently in her own home were entitled to qualified immunity because there was no prior case law involving similar facts conflicts with Hope v. Pelzer, which “expressly rejected a requirement that previous cases be ‘fundamentally similar’” or involve “‘materially similar’” facts.

(relisted after the February 23, March 2, March 16, March 23, March 29, April 13, April 20, April 27 and May 10 conferences)

 

Evans v. Mississippi, 17-7245

Issue: Whether the death penalty in and of itself violates the Eighth Amendment in light of contemporary standards of decency and the geographic arbitrariness of its imposition.

(relisted after the February 23, March 2, April 20 and April 27 conferences; rescheduled after the March 16 conference; rescheduled before the March 29, April 13, April 20, April 27 and May 10 conferences)

 

Robinson v. United States, 17-6877

Issue: Whether, following Johnson v. United States, in which the Supreme Court invalidated the Armed Career Criminal Act’s residual clause as unconstitutionally vague, identical language in the residual clause of the previously-mandatory sentencing guidelines is likewise unconstitutional.

(relisted after the March 2, March 16, March 23, March 29, April 13, April 20, April 27 and May 10 conferences)

 

Trevino v. Davis, 17-6883

Issue: Whether — when the U.S. Court of Appeals for the 5th Circuit found that the new mitigating evidence discovered on federal habeas review was “double-edged” and could not outweigh the substantial aggravating evidence, and when it misapplied the standard for evaluating prejudice in a Wiggins claim — it denied the petitioner due process.

(relisted after the March 29, April 13, April 20, April 27 and May 10 conferences)

 

Gamble v. United States, 17-646

Issue: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

(relisted after the April 13, April 20, April 27 and May 10 conferences)

 

Tyler v. United States, 17-5410

Issue: Whether the Supreme Court should overrule the dual sovereignty exception, which permits a successive federal prosecution after a defendant has been prosecuted for the same offense in state court.

(relisted after the April 13, April 20, April 27 and May 10 conferences)

 

Ochoa v. United States, 17-5503

Issues: (1) Whether the double jeopardy clause of the Fifth Amendment prohibits the federal government from charging, convicting and sentencing a person who has already been charged, convicted and sentenced in the court of a state for much of the same conduct; and (2) whether the seriousness of the offense conduct is an appropriate consideration for a district court when fashioning a sentence on revocation of supervised release.

(relisted after the April 13, April 20, April 27 and May 10 conferences)

 

Gordillo-Escandon v. United States, 17-7177

Issue: Whether, when a criminal defendant has already been convicted of an offense in a state criminal proceeding, the United States may thereafter prosecute the defendant for the same offense without violating the Fifth Amendment’s prohibition on double jeopardy.

(relisted after the April 13, April 20, April 27 and May 10 conferences)

 

Eaton v. United States, 17-6680

Issue(s): [Petitioner is a pro se prisoner and the government waived its right to respond, so we have been unable to obtain a copy of the petition.]

(relisted after the April 20, April 27 and May 10 conferences)

 

Bearcomesout v. United States, 17-6856

Issue: Whether the “separate sovereign” concept actually exists when Congress’s plenary power over Indian tribes and the general erosion of any real tribal sovereignty is amplified by the Northern Cheyenne Tribe’s constitution in such a way that the petitioner’s prosecutions in both tribal and federal court violate the double jeopardy clause of the Fifth Amendment to the U. S. Constitution.

(relisted after the April 20, April 27 and May 10 conferences)

 

Jordan v. Mississippi, 17-7153

Issue(s): (1) Whether incarcerating a prisoner over four decades awaiting execution, even after the state found at one point that a life without parole sentence was appropriate, violates the Eighth Amendment because it fails to serve any legitimate penological purpose; (2) Whether incarcerating a prisoner over four decades awaiting execution, with over half that time attributable to repeated constitutional violations in a succession of sentencing hearings, violates the Eighth Amendment because it fails to serve any legitimate penological purpose.

(relisted after the April 20, April 27 and May 10 conferences)

 

Lester v. United States, 17-1366

Issues: (1) Whether the retroactivity analysis of Teague v. Lane is categorical, such that when the Supreme Court held that Johnson v. United States announced a new substantive rule of constitutional law that is retroactive to cases on collateral review in Welch v. United States, it made Johnson’s rule retroactive for purposes of all cases on collateral review; and (2) whether the Johnson rule made retroactive in Welch renders the residual clause of the career offender provision of the mandatory, pre-Booker sentencing guidelines unconstitutionally vague.

(relisted after the April 27 and May 10 conferences)

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Relist Watch

Relist WatchJohn Elwood reviews Monday’s relists. Everyone has been talking about the historically slow pace of decisions this year. Various explanations have been offered for the phenomenon: The Supreme Court has more controversial cases than usual and fewer unanimous decisions; the court’s early calendars were especially heavy with contentious issues; the court’s newest justice might be […]

The post Relist Watch appeared first on SCOTUSblog.

Relist Watch

John Elwood reviews Monday’s relists.

Everyone has been talking about the historically slow pace of decisions this year. Various explanations have been offered for the phenomenon: The Supreme Court has more controversial cases than usual and fewer unanimous decisions; the court’s early calendars were especially heavy with contentious issues; the court’s newest justice might be writing more separate opinions; or perhaps flaming rivers of magma have threatened the court’s very survival. But it seems to me that people are overlooking the obvious answer: While many people were hoping and praying during the bleak dull days of October Term 2016 that the Supreme Court would finally get some interesting cases, nobody thought to wish that the court would ever actually decide them.

Before we head on to this week’s new relists, a word about the old. The big tangle of Sessions v. Dimaya relists returns this week. During the intervening week, yet another court of appeals has weighed in on one of the issues awaiting resolution in the wake of Dimaya, namely whether yet another criminal code provision defining “crime of violence” with a problematic residual clause, 18 U.S.C. §924(c)(3)(B), is unconstitutionally vague in light of Johnson v. United States (and now Dimaya). The U.S. Court of Appeals for the 10th Circuit has now weighed in, favoring defendants. These Section 924(c)(3)(B) cases strike me as the best candidates of the remaining Dimaya relists for an outright grant. But we’ll see soon whether four justices agree, or whether they call an audible and do something else.

Probably the most interesting new relist has a really long name: Quality Systems Inc. v. City of Miami Fire Fighters’ and Police Officers’ Retirement Trust, 17-1056. The case involves the scope of a safe harbor Congress created as part of the Private Securities Litigation Reform Act. Congress wanted to encourage companies to provide investors with forecasts of expected future performance, while providing companies a certain measure of protection from lawsuits that might yield unduly lavish recoveries. To that end, the PSLRA shields from liability any “forward-looking statement” that is “accompanied by meaningful cautionary statements identifying important factors that could cause actual results to differ materially from those in the forward-looking statement.” Petitioner Quality Systems argues that courts “are divided over whether (and how) courts should look beyond the cautionary statements themselves in deciding whether the safe harbor applies.” The U.S. Court of Appeals for the 9th Circuit held that the safe harbor’s “meaningful cautionary language” requirement is not satisfied when a company’s forward-looking statement is accompanied by a non­-forward-looking statement that the plaintiff alleges is false or misleading, because “it is likely that no cautionary language—short of an outright admission of the false or misleading nature of the non-forward looking statement—would be ‘sufficiently meaningful’ to qualify the statement for the safe harbor.” What?

Just like the recently granted Lamps Plus Inc v. Varela, 17-988, the Quality Systems petition prominently notes that the late Judge Stephen Reinhardt was on the panel that decided the case. But while the petitioner in Lamps Plus worked that fact into the question presented, this petition was in no hurry to draw out that fact: It waited until page three of the introduction. Court-watchers will watch closely whether Lamps Plus will be the last Reinhardt decision the Supreme Court will review, and everyone will be hoping for promises fulfilled. There is at least one more decision by the judge still in the pipeline: an en banc opinion Reinhardt authored that was issued after his death and that allegedly deepens a three-way split on the “any factor other than sex” defense in the Equal Pay Act. That petition is due in July.

BNSF Railway Company v. Loos, 17-1042, will pull the court in different directions. On the one hand, the case is – some would say – spectacularly dull: It involves whether a railroad’s payment to an employee for wages lost because of the railroad’s conduct is subject to employment taxes under the Railroad Retirement Tax Act. On the other hand, the issue is so undeniably important as a practical matter, and the courts are so splintered, that the Supreme Court should do something. On top of all that, there appears to be a strong federal interest, because the U.S. Court of Appeals for the 8th Circuit refused below to defer to IRS regulations providing that lost wages are taxable “compensation” under the RRTA. But how much Railroad Retirement Tax Act can the Supreme Court take? The court is already considering another RRTA case involving the same clause in Wisconsin Central Ltd. v. United States, 17-530, which addresses whether employee income from exercising stock options is taxable “compensation.” But BNSF argues here that Wisconsin Central turns on a different phrase – “money remuneration” – and implicates different questions of interpretation. We’ll see whether the court agrees, and whether they want to enlist the solicitor general’s assistance in deciding what to do with this case. The government already filed an amicus brief supporting BNSF in the court of appeals. Although a grant may come like a (golden) bolt from the blue, maybe some good magic will spare the court from having to address the Railroad Retirement Tax Act twice in two terms, as though the RRTA were some kind of ACCA.

Air and Liquid Systems Corp. v. Devries, 17-1104, involves lawsuits brought by former U.S. Navy seamen against companies who made equipment used aboard ships. The former seamen allege that they developed lung cancer as a result of asbestos insulation that the Navy placed on that equipment. The U.S. Court of Appeals for the 3d Circuit, citing “maritime law’s special solicitude for the safety and protection of sailors,” held that the even though the Navy and not the manufacturers added asbestos insulation to the products, the “manufacturer of a bare-metal product may be held liable for a plaintiff’s injuries suffered from later-added asbestos-containing materials if the facts show the plaintiff’s injuries were a reasonably foreseeable result of the manufacturer’s [conduct].” The U.S. Court of Appeals for the 6th Circuit, by contrast, adhered to “a bright-line rule, holding that a manufacturer of a bare-metal product is never liable for injuries caused by later-added asbestos-containing materials.” We’ll know soon whether Air and Liquid Systems will win review or whether some lone sailor will be allowed to proceed with the lawsuit.

PNC Bank National Association v. Secure Axcess, LLC, 17-350, is a fascinating case involving a fascinating issue that divided the U.S. Court of Appeals for the Federal Circuit through a series of fascinating events. But intervening events may have made the whole thing much less fascinating. The America Invents Act established a new post-grant adjudicatory process for challenging the validity of patents, called “covered business method” review. A panel of the Federal Circuit, by a 2-1 vote, read the law narrowly to condition eligibility for CBM review on whether a patent claim itself contains “a financial activity element,” limiting its application. The Federal Circuit then denied rehearing en banc by a 6-5 vote. But in a separate proceeding, the court of appeals affirmed a determination holding invalid all the patent claims that Secure Axcess was asserting against PNC Bank. PNC now seeks vacatur of the Federal Circuit decision under United States v. Munsingwear, Inc., arguing that the case became moot with the invalidation of the relevant patent claims. As a fallback, PNC argues that if the Supreme Court concludes the case is not moot – known in legal circles as “a big if” – it should hold that the Federal Circuit construed the statute too narrowly. The court held the case for four months pending its decision in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, involving the constitutionality of inter partes review. But now the court is focused on this issue. In my book, there is no way PNC Bank leaves empty-handed. If you disagree, flame away.

Lester v. United States, 17-1366, would justify readers in feeling a bit of déjà vu all over again. The case presents the question whether the residual clause of the career offender sentencing guideline was unconstitutionally vague back before United States v. Booker when the Sentencing Guidelines were still mandatory. If that seems as familiar as Indiana Jones 4, that very question is already before the court in a number of serial relists: Allen v. United States, 17-5684, Gates v. United States, 17-6262, James v. United States, 17-6769 (all relisted nine times) and Robinson v. United States, 17-6877 (relisted seven times). This case is unusual in that the improbably named petitioner Stoney Lester filed his petition before the court of appeals had even ruled on his case, and certiorari before judgment is a rare (and rarely successful) move. Lester’s petition was filed after Allen and Gates and James had already been relisted five times, making me wonder whether my boy Jack rushed to file a petition hoping the court would pick this case to be the sole combatant on this issue. This case has one benefit: According to Lester, his case, alone among all cases presenting the question, was granted a certificate of appealability by the relevant court of appeals. But the government waived its right to file a responsive brief, so unless the court calls for a response, Lester is a longshot for bringing home the roses.

Finally, I am at a loss for what might have enticed the court to relist Kitchen v. United States, 17-7521. Neither of the issues it presents is very promising. First, the petitioner argues that a prior Florida conviction for drug trafficking that rests upon the mere possession of drugs does not qualify as a “controlled substance offense” for purposes of a federal sentencing guidelines enhancement, because the Florida statute lacks an element of intent to distribute. But the case simply involves the construction of one of the sentencing guidelines, and the court usually just allows the Sentencing Commission to resolve such splits. The other issue the petition raises – whether the federal prohibition on felons possessing firearms exceeds Congress’ authority under the commerce clause when applied to intrastate possession of a handgun – is interesting, but splitless, and would be reviewed only for plain error because Kitchen did not raise it in district court. Which raises the question why this case is here. Did the cert-pool author have too much vino rosso? Maybe the court simply kept the case around because of the petitioner’s unusual name: Sadonnie Marquis Kitchen.

That’s all for now. Let me add that the favorite has now won the Kentucky Derby for the sixth year in a row, showing that some things are more predictable than my humor. We’ll be back next week with more ill-informed speculation about the relists from today’s conference. Until next time!

Thanks to Kent Piacenti for compiling these cases.

 

New Relists

PNC Bank National Association v. Secure Axcess, LLC, 17-350

Issues: (1) Whether the U.S. Court of Appeals for the Federal Circuit’s judgment should be vacated and remanded with instructions to dismiss the appeal as moot, in accordance with United States v. Munsingwear, Inc., when the claims of the challenged patent are invalid, and there is no longer a live case or controversy between petitioners and respondent; and (2) whether, if the case is not moot, the lower court erred in holding that the statutory definition of a patent eligible for covered business method review requires that the claims of the patent expressly include a “financial activity element”—in other words, that the claim have no use outside of financial activity—rather than making covered business method review available for patents that claim “a method or corresponding apparatus for performing data processing or other operations used in the practice, administration, or management of a financial product or service.”

(relisted after the April 27 conference)

 

BNSF Railway Company v. Loos, 17-1042

Issue: Whether a railroad’s payment to an employee for time lost from work is subject to employment taxes under the Railroad Retirement Tax Act.

(relisted after the April 27 conference)

 

Quality Systems, Inc. v. City of Miami Fire Fighters’ and Police Officers’ Retirement Trust, 17-1056

Issue: Whether, or in what circumstances, a defendant must admit that non-forward-looking statements are false or misleading, in order to be protected by the Private Securities Litigation Reform Act safe-harbor provision for forward-looking statements.

(relisted after the April 27 conference)

 

Air and Liquid Systems Corp. v. Devries, 17-1104

Issue: Whether products-liability defendants can be held liable under maritime law for injuries caused by products that they did not make, sell or distribute.

(relisted after the April 27 conference)

 

Lester v. United States, 17-1366

Issues: (1) Whether the retroactivity analysis of Teague v. Lane is categorical, such that when the Supreme Court held that Johnson v. United States announced a new substantive rule of constitutional law that is retroactive to cases on collateral review in Welch v. United States, it made Johnson’s rule retroactive for purposes of all cases on collateral review; and (2) whether the Johnson rule made retroactive in Welch renders the residual clause of the career offender provision of the mandatory, pre-Booker sentencing guidelines unconstitutionally vague.

(relisted after the April 27 conference)

 

Kitchen v. United States, 17-7521

Issues: (1) Whether a prior conviction for drug trafficking, Fla. Stat. § 893.135, that rests upon the mere possession of a specified quantity of drugs qualifies as a “controlled substance offense” for federal sentencing enhancement purposes, when the Florida statute is missing the requisite element of intent to distribute, an issue on which the circuits are divided; and (2) whether 18 U.S.C. § 922(g)(1) is facially unconstitutional because it exceeds Congress’ authority under the commerce clause and is unconstitutional as applied to the intrastate possession of a firearm.

(relisted after the April 27 conference)

 

Returning Relists

Azar v. Garza, 17-654

Issue: Whether, pursuant to United States v. Munsingwear, Inc., the Supreme Court should vacate the U.S. Court of Appeals for the District of Columbia Circuit’s judgment and instruct that court to remand the case to the district court with directions to dismiss all claims for prospective relief regarding pregnant unaccompanied minors.

(relisted after the January 12, January 19, February 16, February 23, March 2, March 16, March 23, March 29, April 13, April 20 and April 27 conferences)

 

Allen v. United States, 17-5684

Issues: (1) Whether the petitioner’s mandatory guidelines sentence, which was enhanced under the residual clause of U.S.S.G. § 4B1.2, is unconstitutional in light of the Supreme Court’s decision in Johnson v. United States, and whether a conviction for burglary of a dwelling under Florida law qualifies as a “crime of violence” under U.S.S.G. § 4B1.2’s elements clause; and (2) whether published orders issued by a circuit court of appeals under 28 U.S.C. § 2244(b)(3), and in the context of applications to file second or successive 28 U.S.C. § 2255 motions, constitute binding precedent outside of that context.

(relisted after the February 16, February 23, March 2, March 16, March 23, March 29, April 13, April 20 and April 27 conferences)

 

Gates v. United States, 17-6262

Issues: Whether, under the Supreme Court’s opinions in United States v. Booker, Johnson v. United States and Beckles v. United States, which depended heavily upon the distinction between advisory and mandatory sentencing schemes, the residual clause of the mandatory sentencing guidelines is unconstitutionally vague.

(relisted after the February 16, February 23, March 2, March 16, March 23, March 29, April 13, April 20 and April 27 conferences)

 

James v. United States, 17-6769

Issues: Whether, under the Supreme Court’s opinions in United States v. Booker, Johnson v. United States and Beckles v. United States, which depended heavily upon the distinction between advisory and mandatory sentencing schemes, the residual clause of the mandatory sentencing guidelines is unconstitutionally vague.

(relisted after the February 16, February 23, March 2, March 16, March 23, March 29, April 13, April 20 and April 27 conferences)

 

Sause v. Bauer, 17-742

Issue: Whether the U.S. Court of Appeals for the 10th Circuit’s holding that law-enforcement officers who stopped the petitioner from praying silently in her own home were entitled to qualified immunity because there was no prior case law involving similar facts conflicts with Hope v. Pelzer, which “expressly rejected a requirement that previous cases be ‘fundamentally similar’” or involve “‘materially similar’” facts.

(relisted after the February 23, March 2, March 16, March 23, March 29, April 13, April 20 and April 27 conferences)

 

Evans v. Mississippi, 17-7245

Issue: Whether the death penalty in and of itself violates the Eighth Amendment in light of contemporary standards of decency and the geographic arbitrariness of its imposition.

(relisted after the February 23, March 2, April 20 and April 27 conferences; rescheduled after the March 16 conference; rescheduled before the March 29, April 13, April 20 and April 27 conferences)

 

Robinson v. United States, 17-6877

Issue: Whether, following Johnson v. United States, in which the Supreme Court invalidated the Armed Career Criminal Act’s residual clause as unconstitutionally vague, identical language in the residual clause of the previously-mandatory sentencing guidelines is likewise unconstitutional.

(relisted after the March 2, March 16, March 23, March 29, April 13, April 20 and April 27 conferences)

 

Trevino v. Davis, 17-6883

Issue: Whether — when the U.S. Court of Appeals for the 5th Circuit found that the new mitigating evidence discovered on federal habeas review was “double-edged” and could not outweigh the substantial aggravating evidence, and when it misapplied the standard for evaluating prejudice in a Wiggins claim — it denied the petitioner due process.

(relisted after the March 29, April 13, April 20 and April 27 conferences)

 

Gamble v. United States, 17-646

Issue: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

(relisted after the April 13, April 20 and April 27 conferences)

 

Tyler v. United States, 17-5410

Issue: Whether the Supreme Court should overrule the dual sovereignty exception, which permits a successive federal prosecution after a defendant has been prosecuted for the same offense in state court.

(relisted after the April 13, April 20 and April 27 conferences)

 

Ochoa v. United States, 17-5503

Issues: (1) Whether the double jeopardy clause of the Fifth Amendment prohibits the federal government from charging, convicting and sentencing a person who has already been charged, convicted and sentenced in the court of a state for much of the same conduct; and (2) whether the seriousness of the offense conduct is an appropriate consideration for a district court when fashioning a sentence on revocation of supervised release.

(relisted after the April 13, April 20 and April 27 conferences)

 

Gordillo-Escandon v. United States, 17-7177

Issue: Whether, when a criminal defendant has already been convicted of an offense in a state criminal proceeding, the United States may thereafter prosecute the defendant for the same offense without violating the Fifth Amendment’s prohibition on double jeopardy.

(relisted after the April 13, April 20 and April 27 conferences)

 

Sessions v. Magana-Pena, 15-1494

Issue: Whether 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.

(relisted after the April 20 and April 27 conferences)

 

Sessions v. Lopez-Islava, 15-1496

Issue: Whether 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.

(relisted after the April 20 and April 27 conferences)

 

Sessions v. Miranda-Godinez, 16-398

Issue: Whether 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.

(relisted after the April 20 and April 27 conferences)

 

United States v. Hernandez-Lara, 16-617

Issue: Whether 18 U.S.C. § 16(b), as incorporated into Sentencing Guidelines § 2L1.2(b)(1)(C), is unconstitutionally vague.

(relisted after the April 20 and April 27 conferences)

 

Sessions v. Golicov, 16-966

Issue: Whether 18 U.S.C. 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.

(relisted after the April 20 and April 27 conferences)

 

Sessions v. Baptiste, 16-978

Issue: Whether 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.

(relisted after the April 20 and April 27 conferences)

 

Sessions v. Shuti, 16-991

Issue: Whether 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.

(relisted after the April 20 and April 27 conferences)

 

Gonzalez-Longoria v. United States16-6259

Issue: Whether — after the Supreme Court’s decision in Johnson v. United States, which held the residual clause of the Armed Career Criminal Act’s “violent felony” definition to be unconstitutionally vague — 18 U.S.C. § 16(b) is unconstitutionally vague when it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.

(relisted after the April 20 and April 27 conferences)

 

Solano-Cruz v. United States16-6288

Issue: Whether 18 U.S.C. § 16(b), as incorporated into the definition of the term “aggravated felony” in 8 U.S.C. § 1326(b)(2), is unconstitutionally vague.

(relisted after the April 20 and April 27 conferences)

 

Taylor v. United States, 16-6392

Issues: (1) Whether the U.S. Court of Appeals for the 6th Circuit erred when it affirmed the exclusion of the petitioner’s expert rebuttal testimony regarding his future dangerousness in violation of Kelly v. South Carolina, which recognized a capital defendant’s broad due process right to rebut any “implication” or “inference” of dangerousness “from the [government’s] evidence,” and misread the record, which plainly shows that the petitioner’s expert testimony would have rebutted not only the government’s evidence but also its summation arguments; and (2) whether, after the Supreme Court invalidated the definition of a “violent felony” in the residual clause of the Armed Career Criminal Act in Johnson v. United States, the definition of a “crime of violence,” 18 U.S.C. § 924(c)(3)(B), is unconstitutionally vague.

(relisted after the April 20 and April 27 conferences)

 

Perdomo v. United States, 16-7214

Issue: Whether 18 U.S.C. § 16(b) is unconstitutionally vague because it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.

(relisted after the April 20 and April 27 conferences)

 

Prickett v. United States16-7373

Issue: Whether 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague.

(relisted after the April 20 and April 27 conferences)

 

Bello v. United States16-7667

Issue: Whether — after the Supreme Court’s decision in Johnson v. United States, which held the residual clause of the Armed Career Criminal Act’s “violent felony” definition to be unconstitutionally vague — 18 U.S.C. § 16(b) is unconstitutionally vague when it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.

(relisted after the April 20 and April 27 conferences)

 

Alvaro-Velasco v. United States, 16-8058

Issue: Whether 18 U.S.C. § 16(b) is unconstitutionally vague because it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.

(relisted after the April 20 and April 27 conferences)

 

Perez-Jimenez v. United States16-8453

Issues: (1) Whether all facts that increase a defendant’s statutory maximum, including the fact of a prior conviction, must be pleaded in the indictment and either admitted by the defendant or proven to a jury beyond a reasonable doubt; (2) whether the Supreme Court should hold this petition for certiorari pending a decision in Sessions v. Dimaya.

(relisted after the April 20 and April 27 conferences)

 

Aguirre-Arellano v. United States, 16-8675

Issue: Whether 18 U.S.C. § 16(b) is unconstitutionally vague.

(relisted after the April 20 and April 27 conferences)

 

Castaneda-Morales v. United States, 16-8734

Issue: Whether — after the Supreme Court’s decision in Johnson v. United States, which held the residual clause of the Armed Career Criminal Act’s “violent felony” definition to be unconstitutionally vague — 18 U.S.C. § 16(b) is unconstitutionally vague when it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.

(relisted after the April 20 and April 27 conferences)

 

Glover v. United States16-8777

Issue: Whether the definition of the term “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague.

(relisted after the April 20 and April 27 conferences)

 

Taylor v. United States, 16-8996

Issue: Whether a certificate of appealability should be granted to resolve a circuit split regarding whether the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague.

(relisted after the April 20 and April 27 conferences)

 

Davis v. United States, 16-8997

Issues: (1) Whether 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague; (2) whether Hobbs Act robbery is a “crime of violence” as defined by 18 U.S.C. § 924(c)(3); and (3) whether a prior Texas conviction for burglary is a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e).

(relisted after the April 20 and April 27 conferences)

 

Maldonado-Landaverde v. United States16-9318

Issue: Whether 18 U.S.C. § 16(b) is unconstitutionally vague.

(relisted after the April 20 and April 27 conferences)

 

Linares-Mazariego v. United States, 16-9319

Issue: Whether 18 U.S.C. § 16(b) is unconstitutionally vague.

(relisted after the April 20 and April 27 conferences)

 

Larios-Villatoro v. United States16-9660

Issue: Whether — after the Supreme Court’s decision in Johnson v. United States, which held the residual clause of the Armed Career Criminal Act’s “violent felony” definition to be unconstitutionally vague — 18 U.S.C. § 16(b) is unconstitutionally vague when it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.

(relisted after the April 20 and April 27 conferences)

 

United States v. Jenkins, 17-97

Issue: Whether the definition of the term “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague.

(relisted after the April 20 and April 27 conferences)

 

United States v. Jackson, 17-651

Issue: Whether the definition of the term “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague.

(relisted after the April 20 and April 27 conferences)

 

Diaz-Esparza v. Session, 17-820

Issue: Whether 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.

(relisted after the April 20 and April 27 conferences)

 

Gomez-Ureaba v. United States, 17-5283

Issue(s): (1) Whether 18 U.S.C. § 16(b) is unconstitutionally vague; (2) whether evading arrest with a motor vehicle a “crime of violence” for purposes of 18 U.S.C. § 16(b).

(relisted after the April 20 and April 27 conferences)

 

Garcia-Hernandez v. United States17-5305

Issue: Whether — after the Supreme Court’s decision in Johnson v. United States, which held the residual clause of the Armed Career Criminal Act’s “violent felony” definition to be unconstitutionally vague — 18 U.S.C. § 16(b) is unconstitutionally vague when it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.

(relisted after the April 20 and April 27 conferences)

 

Rodriguez v. United States, 17-5476

Issue: Whether 18 U.S.C. § 16(b) is unconstitutionally vague, in the context of a challenge to the “aggravated felony” enhancement under Sentencing Guidelines § 2L1.2(b)(1)(C).

(relisted after the April 20 and April 27 conferences)

 

McCoy v. United States17-5484

Issue: Whether the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague in light of the Supreme Court’s holding in Johnson v. United States.

(relisted after the April 20 and April 27 conferences)

 

Winters v. United States17-5495

Issue: Whether the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague in light of the Supreme Court’s holding in Johnson v. United States.

(relisted after the April 20 and April 27 conferences)

 

Lin v. United States, 17-5767

Issues: (1) Whether the analysis of whether a predicate act constitutes a “crime of violence” under the language of 18 U.S.C. § 924(c)(3)(B) must comport with the Supreme Court’s jurisprudence regarding the Armed Career Criminal Act’s residual clause, 18 U.S.C. § 924(e)(2)(B)(ii), as the U.S. Courts of Appeals for the 3rd, 7th and 9th Circuits have held, in conflict with the rulings of the U.S. Courts of Appeals for the 2nd, 6th, 8th and 11th Circuits; and (2) whether the “ordinary case” methodology survived Johnson v. United States for purposes of statutes other than the Armed Career Criminal Act, 18 U.S.C. § 924(e).

(relisted after the April 20 and April 27 conferences)

 

Hernandez-Ramirez v. United States, 17-6065

Issues: (1) Whether the federal generic aggravated-assault offense requires more than a showing of mere recklessness for conviction; and (2) whether the definition of an “aggravated felony” in 18 U.S.C. § 16(b) is unconstitutionally vague.

(relisted after the April 20 and April 27 conferences)

 

Eizember v. United States, 17-6117

Issues: Whether the U.S. Court of Appeals for the 8th Circuit erred when it denied a certificate of appealability regarding petitioner’s claim that the definition of a “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague in light of Johnson v. United States.

(relisted after the April 20 and April 27 conferences)

 

Enix v. United States, 17-6340

Issues: (1) Whether the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague; (2) whether conspiracy to commit Hobbs Act robbery has as an element “the use … of physical force against the person or property of another,” 18 U.S.C. § 924(c)(3)(A); and (3) whether the U.S. Court of Appeals for the 11th Circuit’s rule that reasonable jurists could not debate an issue foreclosed by binding circuit precedent, even when a judge on the panel issued the binding precedent and subsequently stated that the panel’s decision may be erroneous, misapplies the standard articulated by the Supreme Court in Miller-El v. Cockrell and Buck v. Davis for determining whether a movant has made the threshold showing for a certificate of appealability.

(relisted after the April 20 and April 27 conferences)

 

Ecourse-Westbrook v. United States, 17-6368

Issue: Whether the U.S. Court of Appeals for the 11th Circuit erred when it denied a certificate of appealability regarding petitioner’s claim that the definition of a “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague in light of Johnson v. United States.

(relisted after the April 20 and April 27 conferences)

 

Orozco v. Sessions, 17-6628

Issue: Whether 18 U.S.C. § 16(b), as applied to the definition of an aggravated felony in the Immigration and Naturalization Act, is constitutional.

(relisted after the April 20 and April 27 conferences)

 

Eaton v. United States, 17-6680

Issue(s): [Petitioner is a pro se prisoner and the government waived its right to respond, so we have been unable to obtain a copy of the petition.]

(relisted after the April 20 and April 27 conferences)

 

Ontiveros-Cedillo v. United States, 17-6721

Issue: Whether the term “crime of violence” in 18 U.S.C. § 16(b) is unconstitutionally vague.

(relisted after the April 20 and April 27 conferences)

 

Gutierrez-Lopez v. United States, 17-6751

Issue: Whether the term “crime of violence” in 18 U.S.C. § 16(b) is unconstitutionally vague.

(relisted after the April 20 and April 27 conferences)

 

Bearcomesout v. United States, 17-6856

Issue: Whether the “separate sovereign” concept actually exists when Congress’s plenary power over Indian tribes and the general erosion of any real tribal sovereignty is amplified by the Northern Cheyenne Tribe’s constitution in such a way that the petitioner’s prosecutions in both tribal and federal court violate the double jeopardy clause of the Fifth Amendment to the U. S. Constitution.

(relisted after the April 20 and April 27 conferences)

 

Carreon v. United States, 17-6926

Issue: Whether the U.S. Court of Appeals for the 5th Circuit erred when it denied a certificate of appealability regarding petitioner’s claim that the definition of a “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague in light of Johnson v. United States.

(relisted after the April 20 and April 27 conferences)

 

Jordan v. Mississippi, 17-7153

Issue(s): (1) Whether incarcerating a prisoner over four decades awaiting execution, even after the state found at one point that a life without parole sentence was appropriate, violates the Eighth Amendment because it fails to serve any legitimate penological purpose; (2) Whether incarcerating a prisoner over four decades awaiting execution, with over half that time attributable to repeated constitutional violations in a succession of sentencing hearings, violates the Eighth Amendment because it fails to serve any legitimate penological purpose.

(relisted after the April 20 and April 27 conferences)

 

Casabon-Ramirez v. United States, 17-7183

Issue: Whether 18 U.S.C. § 16(b) is unconstitutionally vague because it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.

(relisted after the April 20 and April 27 conferences)

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Relist Watch

Relist WatchJohn Elwood finally reviews Monday’s relists. There’s been plenty of commentary on Sessions v. Dimaya since its April 17 release addressing a number of subjects – the decision’s importance for the immigration bar; the surprise that Justice Neil Gorsuch joined the court’s progressives to hold that 18 U.S.C. § 16(b)’s definition of “crime of violence” is […]

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Relist Watch

John Elwood finally reviews Monday’s relists.

There’s been plenty of commentary on Sessions v. Dimaya since its April 17 release addressing a number of subjects – the decision’s importance for the immigration bar; the surprise that Justice Neil Gorsuch joined the court’s progressives to hold that 18 U.S.C. § 16(b)’s definition of “crime of violence” is unconstitutionally vague; and the legal significance of Gorsuch’s concurrence and what it may portend for future administrative law cases.

But in my view, all of that commentary totally missed what is really important here: How does this decision affect me? The answer is: Not super well.

When the Supreme Court grants review on a case, it “holds” cases that might be affected by its disposition, erring on the side of caution in close cases. Then, when that case is decided, the court releases the held cases, and the justice who authored the majority opinion, with perhaps some minor assistance from his or her law clerks, recommends a disposition for all the held cases. In most cases, when there are between zero and (say) three held cases, the court usually knocks that work out in the first week following the decision’s hand-down date. But every once in a while, a large number of held cases builds up, and the workload becomes, well, unmanageable. Such times may call for a relist.

That’s my guess about what happened this week. We have a record number of relists, at least during the seven-plus years I’ve been watching carefully: 44. Of those, 42 are cases that obviously were held for Dimaya, and now the court is trying to decide what to do with them. Just identifying all those relists on the court’s docket, and then figuring out the legal issues involved, was a big job for people who really do have other responsibilities. But although the task was a bit dull, at least it involved an enormous amount of backbreaking labor. And so let me begin where I usually end: Thanks to Kevin Brooks for identifying all the relists, and thanks to Aurora Temple Barnes for sorting through the heaps of PDFs I lobbed at her and identifying the questions presented and creating tidy case pages.

The Dimaya relists fall into three main groups. First, there are many cases that simply present the very same question as Dimaya about the constitutionality of § 16(b). This group is enormous, including Sessions v. Magana-Pena, 15-1494, Sessions v. Lopez-Islava, 15-1496, Sessions v. Miranda-Godinez, 16-398, Sessions v. Baptiste, 16-978, Sessions v. Shuti, 16-991, Gonzalez-Longoria v. United States16-6259, Solano-Cruz v. United States16-6288, Perdomo v. United States, 16-7214, Bello v. United States16-7667, Alvaro-Velasco v. United States, 16-8058, Castaneda-Morales v. United States, 16-8734, Maldonado-Landaverde v. United States16-9318, Linares-Mazariego v. United States, 16-9319, Larios-Villatoro v. United States16-9660, Diaz-Esparza v. Session, 17-820, Gomez-Ureaba v. United States, 17-5283, Garcia-Hernandez v. United States17-5305, Hernandez-Ramirez v. United States, 17-6065, Ontiveros-Cedillo v. United States, 17-6721, Gutierrez-Lopez v. United States, 17-6751, Casabon-Ramirez v. United States, 17-7183, and – so far as we can tell (the parties haven’t gotten back to us yet), Eaton v. United States, 17-6680.  These cases should have been easy to resolve by denying cert or granting, vacating and remanding for further consideration in light of Dimaya. That they were not is the clearest example that the volume was just too great.

The second group of Dimaya relists involves application of that case to a Sentencing Guidelines provision – a type of claim the government argues is foreclosed by Beckles v. United States. Those cases include first-time relists United States v. Hernandez-Lara, 16-617, Aguirre-Arellano v. United States, 16-8675, and Rodriguez v. United States, 17-5476, as well as returning relist Robinson v. United States, 17-6877.

The third and final group of Dimaya relists involves cases that ask whether the logic of that case and Johnson v. United States invalidates 18 U.S.C. §924(c)(3)(B), yet another criminal code provision defining “crime of violence.” This week’s new relists that involve that question include Taylor v. United States, 16-6392, Prickett v. United States16-7373, Glover v. United States16-8777, Taylor v. United States, 16-8996, Davis v. United States, 16-8997, United States v. Jenkins, 17-97, United States v. Jackson, 17-651, McCoy v. United States17-5484, Winters v. United States17-5495, Lin v. United States, 17-5767, Eizember v. United States, 17-6117, Enix v. United States, 17-6340, Ecourse-Westbrook v. United States, 17-6368, and Carreon v. United States, 17-6926. The government argues that after Dimaya, these cases should be sent back to the courts of appeals to consider narrowing constructions of Section 924(c) that might resolve the constitutional issues. Unsurprisingly, criminal defendants argue that the court should just grant review on this issue. We’ll see which side prevails.

Believe it or not, the court did do other business. Remember that tangle of cases from last week about the “dual sovereignty” exception to the double jeopardy clause? The fifth case raising that issue, Bearcomesout v. United States, 17-6856, which the court rescheduled last week, has finally been relisted. So we’ll be keeping a close eye on that.

That brings us to our last really new relist. On the plus side, the case involves what is an undeniably interesting argument about a recurring situation. Jordan v. Mississippi, 17-7153, is a capital case presenting the question whether making condemned prisoners spend decades in prison before execution is cruel and unusual punishment that violates the Eighth Amendment. On the negative side, the court has denied cert on the issue any number of times. It’s an interesting issue, forever to be called a Lackey claim because of an early petitioner to raise the argument. But we’ve seen this show before, and at best it usually draws a dissent from denial of certiorari.

We’ll be back next week with more ill-informed speculation about the relists from today’s conference. Until next time!

 

New Relists

Sessions v. Magana-Pena, 15-1494

Issue: Whether 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.

(relisted after April 20 conference)

 

Sessions v. Lopez-Islava, 15-1496

Whether 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.

(relisted after April 20 conference)

 

Sessions v. Miranda-Godinez, 16-398

Issue: Whether 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.

(relisted after April 20 conference)

 

United States v. Hernandez-Lara, 16-617

Issue: Whether 18 U.S.C. § 16(b), as incorporated into Sentencing Guidelines § 2L1.2(b)(1)(C), is unconstitutionally vague.

(relisted after April 20 conference)

 

Sessions v. Golicov, 16-966

Issue: Whether 18 U.S.C. 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.

(relisted after April 20 conference)

 

Sessions v. Baptiste, 16-978

Issue: Whether 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.

(relisted after April 20 conference)

 

Sessions v. Shuti, 16-991

Issue: Whether 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.

(relisted after April 20 conference)

 

Gonzalez-Longoria v. United States16-6259

Issue: Whether — after the Supreme Court’s decision in Johnson v. United States, which held the residual clause of the Armed Career Criminal Act’s “violent felony” definition to be unconstitutionally vague — 18 U.S.C. § 16(b) is unconstitutionally vague when it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.

(relisted after April 20 conference)

 

Solano-Cruz v. United States16-6288

Issue: Whether 18 U.S.C. § 16(b), as incorporated into the definition of the term “aggravated felony” in 8 U.S.C. § 1326(b)(2), is unconstitutionally vague.

(relisted after April 20 conference)

 

Taylor v. United States, 16-6392

Issues: (1) Whether the U.S. Court of Appeals for the 6th Circuit erred when it affirmed the exclusion of the petitioner’s expert rebuttal testimony regarding his future dangerousness in violation of Kelly v. South Carolina, which recognized a capital defendant’s broad due process right to rebut any “implication” or “inference” of dangerousness “from the [government’s] evidence,” and misread the record, which plainly shows that the petitioner’s expert testimony would have rebutted not only the government’s evidence but also its summation arguments; and (2) whether, after the Supreme Court invalidated the definition of a “violent felony” in the residual clause of the Armed Career Criminal Act in Johnson v. United States, the definition of a “crime of violence,” 18 U.S.C. § 924(c)(3)(B), is unconstitutionally vague.

(relisted after April 20 conference)

 

Perdomo v. United States, 16-7214

Issue: Whether 18 U.S.C. § 16(b) is unconstitutionally vague because it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.

(relisted after April 20 conference)

 

Prickett v. United States16-7373

Issue: Whether 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague.

(relisted after April 20 conference)

 

Bello v. United States16-7667

Issue: Whether — after the Supreme Court’s decision in Johnson v. United States, which held the residual clause of the Armed Career Criminal Act’s “violent felony” definition to be unconstitutionally vague — 18 U.S.C. § 16(b) is unconstitutionally vague when it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.

(relisted after April 20 conference)

 

Alvaro-Velasco v. United States, 16-8058

Issue: Whether 18 U.S.C. § 16(b) is unconstitutionally vague because it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.

(relisted after April 20 conference)

 

Perez-Jimenez v. United States16-8453

Issues: (1) Whether all facts that increase a defendant’s statutory maximum, including the fact of a prior conviction, must be pleaded in the indictment and either admitted by the defendant or proven to a jury beyond a reasonable doubt; (2) whether the Supreme Court should hold this petition for certiorari pending a decision in Sessions v. Dimaya.

(relisted after April 20 conference)

 

Aguirre-Arellano v. United States, 16-8675

Issue: Whether 18 U.S.C. § 16(b) is unconstitutionally vague.

(relisted after April 20 conference)

 

Castaneda-Morales v. United States, 16-8734

Issue: Whether — after the Supreme Court’s decision in Johnson v. United States, which held the residual clause of the Armed Career Criminal Act’s “violent felony” definition to be unconstitutionally vague — 18 U.S.C. § 16(b) is unconstitutionally vague when it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.

(relisted after April 20 conference)

 

Glover v. United States16-8777

Issue: Whether the definition of the term “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague.

(relisted after April 20 conference)

 

Taylor v. United States, 16-8996

Issue: Whether a certificate of appealability should be granted to resolve a circuit split regarding whether the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague.

(relisted after April 20 conference)

 

Davis v. United States, 16-8997

Issues: (1) Whether 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague; (2) whether Hobbs Act robbery is a “crime of violence” as defined by 18 U.S.C. § 924(c)(3); and (3) whether a prior Texas conviction for burglary is a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e).

(relisted after April 20 conference)

 

Maldonado-Landaverde v. United States16-9318

Issue: Whether 18 U.S.C. § 16(b) is unconstitutionally vague.

(relisted after April 20 conference)

 

Linares-Mazariego v. United States, 16-9319

Issue: Whether 18 U.S.C. § 16(b) is unconstitutionally vague.

(relisted after April 20 conference)

 

Larios-Villatoro v. United States16-9660

Issue: Whether — after the Supreme Court’s decision in Johnson v. United States, which held the residual clause of the Armed Career Criminal Act’s “violent felony” definition to be unconstitutionally vague — 18 U.S.C. § 16(b) is unconstitutionally vague when it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.

(relisted after April 20 conference)

 

United States v. Jenkins, 17-97

Issue: Whether the definition of the term “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague.

(relisted after April 20 conference)

 

United States v. Jackson, 17-651

Issue: Whether the definition of the term “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague.

(relisted after April 20 conference)

 

Diaz-Esparza v. Session, 17-820

Issue: Whether 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.

(relisted after April 20 conference)

 

Gomez-Ureaba v. United States, 17-5283

Issue(s): (1) Whether 18 U.S.C. § 16(b) is unconstitutionally vague; (2) whether evading arrest with a motor vehicle a “crime of violence” for purposes of 18 U.S.C. § 16(b).

(relisted after April 20 conference)

 

Garcia-Hernandez v. United States17-5305

Issue: Whether — after the Supreme Court’s decision in Johnson v. United States, which held the residual clause of the Armed Career Criminal Act’s “violent felony” definition to be unconstitutionally vague — 18 U.S.C. § 16(b) is unconstitutionally vague when it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.

(relisted after April 20 conference)

 

Rodriguez v. United States, 17-5476

Issue: Whether 18 U.S.C. § 16(b) is unconstitutionally vague, in the context of a challenge to the “aggravated felony” enhancement under Sentencing Guidelines § 2L1.2(b)(1)(C).

(relisted after April 20 conference)

 

McCoy v. United States17-5484

Issue: Whether the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague in light of the Supreme Court’s holding in Johnson v. United States.

(relisted after April 20 conference)

 

Winters v. United States17-5495

Issue: Whether the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague in light of the Supreme Court’s holding in Johnson v. United States.

(relisted after April 20 conference)

 

Lin v. United States, 17-5767

Issues: (1) Whether the analysis of whether a predicate act constitutes a “crime of violence” under the language of 18 U.S.C. § 924(c)(3)(B) must comport with the Supreme Court’s jurisprudence regarding the Armed Career Criminal Act’s residual clause, 18 U.S.C. § 924(e)(2)(B)(ii), as the U.S. Courts of Appeals for the 3rd, 7th and 9th Circuits have held, in conflict with the rulings of the U.S. Courts of Appeals for the 2nd, 6th, 8th and 11th Circuits; and (2) whether the “ordinary case” methodology survived Johnson v. United States for purposes of statutes other than the Armed Career Criminal Act, 18 U.S.C. § 924(e).

(relisted after April 20 conference)

 

Hernandez-Ramirez v. United States, 17-6065

Issues: (1) Whether the federal generic aggravated-assault offense requires more than a showing of mere recklessness for conviction; and (2) whether the definition of an “aggravated felony” in 18 U.S.C. § 16(b) is unconstitutionally vague.

(relisted after April 20 conference)

 

Eizember v. United States, 17-6117

Issues: Whether the U.S. Court of Appeals for the 8th Circuit erred when it denied a certificate of appealability regarding petitioner’s claim that the definition of a “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague in light of Johnson v. United States.

(relisted after April 20 conference)

 

Enix v. United States, 17-6340

Issues: (1) Whether the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague; (2) whether conspiracy to commit Hobbs Act robbery has as an element “the use … of physical force against the person or property of another,” 18 U.S.C. § 924(c)(3)(A); and (3) whether the U.S. Court of Appeals fo the 11th Circuit’s rule that reasonable jurists could not debate an issue foreclosed by binding circuit precedent, even when a judge on the panel issued the binding precedent and subsequently stated that the panel’s decision may be erroneous, misapplies the standard articulated by the Supreme Court in Miller-El v. Cockrell and Buck v. Davis for determining whether a movant has made the threshold showing for a certificate of appealability.

(relisted after April 20 conference)

 

Ecourse-Westbrook v. United States, 17-6368

Issue: Whether the U.S. Court of Appeals for the 11th Circuit erred when it denied a certificate of appealability regarding petitioner’s claim that the definition of a “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague in light of Johnson v. United States.

(relisted after April 20 conference)

 

Orozco v. Sessions, 17-6628

Issue: Whether 18 U.S.C. § 16(b), as applied to the definition of an aggravated felony in the Immigration and Naturalization Act, is constitutional.

(relisted after April 20 conference)

 

Eaton v. United States, 17-6680

Issue(s): [Petitioner is a pro se prisoner and the government waived its right to respond, so we have been unable to obtain a copy of the petition.]

(relisted after April 20 conference)

 

Ontiveros-Cedillo v. United States, 17-6721

Issue: Whether the term “crime of violence” in 18 U.S.C. § 16(b) is unconstitutionally vague.

(relisted after April 20 conference)

 

Gutierrez-Lopez v. United States, 17-6751

Issue: Whether the term “crime of violence” in 18 U.S.C. § 16(b) is unconstitutionally vague.

(relisted after April 20 conference)

 

Bearcomesout v. United States, 17-6856

Issue: Whether the “separate sovereign” concept actually exists when Congress’s plenary power over Indian tribes and the general erosion of any real tribal sovereignty is amplified by the Northern Cheyenne Tribe’s constitution in such a way that the petitioner’s prosecutions in both tribal and federal court violate the double jeopardy clause of the Fifth Amendment to the U. S. Constitution.

(relisted after April 20 conference)

 

Carreon v. United States, 17-6926

Issue: Whether the U.S. Court of Appeals for the 5th Circuit erred when it denied a certificate of appealability regarding petitioner’s claim that the definition of a “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague in light of Johnson v. United States.

(relisted after April 20 conference)

 

Jordan v. Mississippi, 17-7153

Issue(s): (1) Whether incarcerating a prisoner over four decades awaiting execution, even after the state found at one point that a life without parole sentence was appropriate, violates the Eighth Amendment because it fails to serve any legitimate penological purpose; (2) Whether incarcerating a prisoner over four decades awaiting execution, with over half that time attributable to repeated constitutional violations in a succession of sentencing hearings, violates the Eighth Amendment because it fails to serve any legitimate penological purpose.

(relisted after April 20 conference)

 

Casabon-Ramirez v. United States, 17-7183

Issue: Whether 18 U.S.C. § 16(b) is unconstitutionally vague because it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.

(relisted after April 20 conference)

 

Returning Relists

Azar v. Garza, 17-654

Issue: Whether, pursuant to United States v. Munsingwear, Inc., the Supreme Court should vacate the U.S. Court of Appeals for the District of Columbia Circuit’s judgment and instruct that court to remand the case to the district court with directions to dismiss all claims for prospective relief regarding pregnant unaccompanied minors.

(relisted after the January 12, January 19, February 16, February 23, March 2, March 16, March 23, March 29, April 13 and April 20 conferences)

 

Allen v. United States, 17-5864

Issues: (1) Whether the petitioner’s mandatory guidelines sentence, which was enhanced under the residual clause of U.S.S.G. § 4B1.2, is unconstitutional in light of the Supreme Court’s decision in Johnson v. United States, and whether a conviction for burglary of a dwelling under Florida law qualifies as a “crime of violence” under U.S.S.G. § 4B1.2’s elements clause; and (2) whether published orders issued by a circuit court of appeals under 28 U.S.C. § 2244(b)(3), and in the context of applications to file second or successive 28 U.S.C. § 2255 motions, constitute binding precedent outside of that context.

(relisted after the February 16, February 23, March 2, March 16, March 23, March 29, April 13 and April 20 conferences)

 

Gates v. United States, 17-6262

Issues: Whether, under the Supreme Court’s opinions in United States v. Booker, Johnson v. United States and Beckles v. United States, which depended heavily upon the distinction between advisory and mandatory sentencing schemes, the residual clause of the mandatory sentencing guidelines is unconstitutionally vague.

(relisted after the February 16, February 23, March 2, March 16, March 23, March 29, April 13 and April 20 conferences)

 

James v. United States, 17-6769

Issues: Whether, under the Supreme Court’s opinions in United States v. Booker, Johnson v. United States and Beckles v. United States, which depended heavily upon the distinction between advisory and mandatory sentencing schemes, the residual clause of the mandatory sentencing guidelines is unconstitutionally vague.

(relisted after the February 16, February 23, March 2, March 16, March 23, March 29, April 13 and April 20 conferences)

 

Sause v. Bauer, 17-742

Issue: Whether the U.S. Court of Appeals for the 10th Circuit’s holding that law-enforcement officers who stopped the petitioner from praying silently in her own home were entitled to qualified immunity because there was no prior case law involving similar facts conflicts with Hope v. Pelzer, which “expressly rejected a requirement that previous cases be ‘fundamentally similar’” or involve “‘materially similar’” facts.

(relisted after the February 23, March 2, March 16, March 23, March 29, April 13 and April 20 conferences)

 

Evans v. Mississippi, 17-7245

Issue: Whether the death penalty in and of itself violates the Eighth Amendment in light of contemporary standards of decency and the geographic arbitrariness of its imposition.

(relisted after the February 23, March 2 and April 20 conferences; rescheduled after the March 16 conference; rescheduled before the March 29, April 13 and April 20 conferences)

 

Robinson v. United States, 17-6877

Issue: Whether, following Johnson v. United States, in which the Supreme Court invalidated the Armed Career Criminal Act’s residual clause as unconstitutionally vague, identical language in the residual clause of the previously-mandatory sentencing guidelines is likewise unconstitutional.

(relisted after the March 2, March 16, March 23, March 29, April 13 and April 20 conferences)

 

Trevino v. Davis, 17-6883

Issue: Whether — when the U.S. Court of Appeals for the 5th Circuit found that the new mitigating evidence discovered on federal habeas review was “double-edged” and could not outweigh the substantial aggravating evidence, and when it misapplied the standard for evaluating prejudice in a Wiggins claim — it denied the petitioner due process.

(relisted after the March 29, April 13 and April 20 conferences)

 

Gamble v. United States, 17-646

Issue: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

(relisted after the April 13 and April 20 conferences)

 

Frank v. Gaos, 17-961

Issue: Whether, or in what circumstances, a cy pres award of class-action proceeds that provides no direct relief to class members supports class certification and comports with the requirement that a settlement binding class members must be “fair, reasonable, and adequate.”

(relisted after the April 13 and April 20 conferences)

 

Lamps Plus, Inc. v. Varela, 17-988

Issue: Whether the Federal Arbitration Act forecloses a state-law interpretation of an arbitration agreement that would authorize class arbitration based solely on general language commonly used in arbitration agreements.

(relisted after the April 13 and April 20 conferences)

 

Tyler v. United States, 17-5410

Issue: Whether the Supreme Court should overrule the dual sovereignty exception, which permits a successive federal prosecution after a defendant has been prosecuted for the same offense in state court.

(relisted after the April 13 and April 20 conferences)

 

Ochoa v. United States, 17-5503

Issues: (1) Whether the double jeopardy clause of the Fifth Amendment prohibits the federal government from charging, convicting and sentencing a person who has already been charged, convicted and sentenced in the court of a state for much of the same conduct; and (2) whether the seriousness of the offense conduct is an appropriate consideration for a district court when fashioning a sentence on revocation of supervised release.

(relisted after the April 13 and April 20 conferences)

 

Gordillo-Escandon v. United States, 17-7177

Issue: Whether, when a criminal defendant has already been convicted of an offense in a state criminal proceeding, the United States may thereafter prosecute the defendant for the same offense without violating the Fifth Amendment’s prohibition on double jeopardy.

(relisted after the April 13 and April 20 conferences)

 

Bucklew v. Precythe, 17-8151

Issues: (1) Whether a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition should assume that medical personnel are competent to manage his condition and that procedure will go as intended; whether evidence comparing a state’s method of execution with an alternative proposed by an inmate must be offered via a single witness, or whether a court at summary judgment must look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate; and (3) whether the Eighth Amendment requires an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition.

(relisted after the April 13 and April 20 conferences)

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Relist Watch

Relist WatchJohn Elwood reviews Monday’s relists. April is a tricky time. By this late in the year, my skin is usually burned – although since I graduated from law school, that most often results from me setting the monitor contrast wrong. But there’s a new reason for my pallor this year. Under the new calendar – […]

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Relist Watch

John Elwood reviews Monday’s relists.

April is a tricky time. By this late in the year, my skin is usually burned – although since I graduated from law school, that most often results from me setting the monitor contrast wrong. But there’s a new reason for my pallor this year. Under the new calendar – I’m talking here about the one that eliminated spring – it’s January 110th. On the plus side, I haven’t seen any mosquitoes yet.

There is enough action on the relist front this week that I’ll keep preliminaries to a minimum. This week saw the departure of what I believe to be the second-most relisted case of all time, Sykes v. United States, 16-9604, which leaves after 17(!) relists. It and the thrice-relisted Brown v. United States, 17-6344, both challenged Armed Career Criminal Act enhancements that rested on Missouri second-degree burglary convictions. The Supreme Court sent both back to the U.S. Court of Appeals for the 8th Circuit for further consideration in light of that court’s recent en banc decision holding that Missouri’s second-degree burglary statue is not a “violent felony” for ACCA purposes.

New week, new ACCA cases. The likeliest grant this week seems to be the government’s cert petition in United States v. Stitt, 17-765, which presents the question whether a conviction for burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under ACCA, 18 U.S.C. § 924(e)(2)(B)(ii). The petition seeks review of the en banc decision of the U.S. Court of Appeals for the 6th Circuit holding (over the dissent of six judges) that the robbery of nonpermanent or mobile structures does not qualify. The court has relisted that case and fellow-travelers United States v. Sims, 17-766, out of the U.S. Court of Appeals for the 8th Circuit, and Smith v. United States, 17-7517, out of the 7th. We’ll see if the court agrees with the government that Stitt is the best vehicle to address an issue that obviously arises a lot.

That brings us to what is undoubtedly this week’s most interesting group of cases. Courts have long held that notwithstanding the double jeopardy clause, the federal government can prosecute criminal conduct that has already been the subject of a state-court trial because different sovereigns are acting in each instance. This idea is commonly known as the “dual sovereignty” doctrine. This week, the court has relisted four cases (and rescheduled a fifth) that seek to revisit that doctrine. I had long been puzzled because three cases presenting this issue had sat without action on the court’s docket since early January – Gamble v. United States, 17-646, Tyler v. United States, 17-5410, and Ochoa v. United States, 17-5503. With this week’s relists, we finally know why: The court was waiting for the government to file its brief in opposition in a fourth case raising the issue, Gordillo-Escandon v. United States, 17-7177. The fifth (rescheduled) case, has by far the best name: Bearcomesout v. United States, 17-6856. As you might have guessed given the caption, it involves whether dual sovereignty bars a federal prosecution after the defendant has been tried in Indian tribal court. It would be a big deal if the court grants review, but I have a sneaking suspicion that this is more dissentfromdenial-of-cert material.

The last criminal case is Bucklew v. Precythe, 17-8151, a habeas corpus petition involving a death-row inmate’s challenge to Missouri’s method of execution. You may want to skip to the next paragraph now. Bucklew argues that his rare medical condition – cavernous hemangioma, which causes inoperable, blood-filled tumors to grow in his throat and around his face, head, and neck, and which are susceptible to rupturing – will render Missouri’s lethal injection procedure extremely painful, and will likely cause him to feel as though he is choking on his tumors and to aspirate his own blood.

Finally, the court does do some civil cases from time to time.  Frank v. Gaos, 17-961, features the rare case when a well-known appellate lawyer appears as the named petitioner, rather than as counsel. Ted Frank asks the Supreme Court to put an end to the use of a trust-law doctrine known by the legal French term “cy pres” in class-action settlements. Frank argues that the doctrine is being abused to funnel settlement money to charities favored by class counsel. The case involves a judgment of the U.S. Court of Appeals for the 9th Circuit upholding a class-action settlement against Google that gave no money to the class members but awarded $5.3 million to third parties, including class counsel’s alma maters.

The Supreme Court on Tuesday affirmed a decision by Judge Stephen Reinhardt, the “liberal lion of the [U.S. Court of Appeals for] the 9th Circuit” who died in late March at the age of 87. Although some speculated that Sessions v. Dimaya would be the last Reinhardt case to be reviewed by the Supreme Court, Lamps Plus, Inc. v. Varela, 17-988, might yet hold that distinction. Indeed, the petitioner’s counsel identified Reinhardt by name on the “question presented” page. The case asks whether the Federal Arbitration Act forecloses a state-law interpretation of an arbitration agreement that would authorize class arbitration based solely on general language commonly used in arbitration agreements. Although the arbitration clause did not mention class arbitration, the court of appeals, by a 2-1 vote in a memorandum opinion, inferred mutual assent to class arbitration from the more general language of the arbitration agreement, such as the statement that “arbitration shall be in lieu of any and all lawsuits or other civil legal proceedings relating to … employment.” Judge Ferdinand Fernandez, in dissent, characterized the opinion as a “palpable evasion of Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 684-85 (2010),” which, the petition notes, stated that courts may not presume consent to class arbitration from “mere silence on the issue of class arbitration” or “from the fact of the parties’ agreement to arbitrate.” In this as in so many things, wording is critical. The petition ends with a plea for summary reversal. Which, given the current state of things, will certainly not be summery reversal.

I’ll be here all week. Remember to tip your waitresses.

Thanks to Kent Piacenti for compiling the cases in this post.

 

New Relists

Gamble v. United States, 17-646

Issue: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

(relisted after the April 13 conference)

 

United States v. Stitt, 17-765

Issue: Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

(relisted after the April 13 conference)

 

United States v. Sims, 17-766

Issue: Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

(relisted after the April 13 conference)

 

Frank v. Gaos, 17-961

Issue: Whether, or in what circumstances, a cy pres award of class-action proceeds that provides no direct relief to class members supports class certification and comports with the requirement that a settlement binding class members must be “fair, reasonable, and adequate.”

(relisted after the April 13 conference)

 

Lamps Plus, Inc. v. Varela, 17-988

Issue: Whether the Federal Arbitration Act forecloses a state-law interpretation of an arbitration agreement that would authorize class arbitration based solely on general language commonly used in arbitration agreements.

(relisted after the April 13 conference)

 

Tyler v. United States, 17-5410

Issue: Whether the Supreme Court should overrule the dual sovereignty exception, which permits a successive federal prosecution after a defendant has been prosecuted for the same offense in state court.

(relisted after the April 13 conference)

 

Ochoa v. United States, 17-5503

Issues: (1) Whether the double jeopardy clause of the Fifth Amendment prohibits the federal government from charging, convicting and sentencing a person who has already been charged, convicted and sentenced in the court of a state for much of the same conduct; and (2) whether the seriousness of the offense conduct is an appropriate consideration for a district court when fashioning a sentence on revocation of supervised release.

(relisted after the April 13 conference)

 

Gordillo-Escandon v. United States, 17-7177

Issue: Whether, when a criminal defendant has already been convicted of an offense in a state criminal proceeding, the United States may thereafter prosecute the defendant for the same offense without violating the Fifth Amendment’s prohibition on double jeopardy.

(relisted after the April 13 conference)

 

Smith v. United States, 17-7517

Issue: Whether the statement of general principle that a burglary of a vehicle is not generic burglary within the meaning of the Armed Career Criminal Act because vehicles are not buildings allows generic burglary status when the vehicle is a dwelling place.

(relisted after the April 13 conference)

 

Bucklew v. Precythe,  17-8151

Issues: (1) Whether a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition should assume that medical personnel are competent to manage his condition and that procedure will go as intended; whether evidence comparing a state’s method of execution with an alternative proposed by an inmate must be offered via a single witness, or whether a court at summary judgment must look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate; and (3) whether the Eighth Amendment requires an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition.

(relisted after the April 13 conference)

 

Returning Relists

Azar v. Garza, 17-654

Issue: Whether, pursuant to United States v. Munsingwear, Inc., the Supreme Court should vacate the U.S. Court of Appeals for the District of Columbia Circuit’s judgment and instruct that court to remand the case to the district court with directions to dismiss all claims for prospective relief regarding pregnant unaccompanied minors.

(relisted after the January 12, January 19, February 16, February 23, March 2, March 16, March 23, March 29 and April 13 conferences)

 

Allen v. United States, 17-5864

Issues: (1) Whether the petitioner’s mandatory guidelines sentence, which was enhanced under the residual clause of U.S.S.G. § 4B1.2, is unconstitutional in light of the Supreme Court’s decision in Johnson v. United States, and whether a conviction for burglary of a dwelling under Florida law qualifies as a “crime of violence” under U.S.S.G. § 4B1.2’s elements clause; and (2) whether published orders issued by a circuit court of appeals under 28 U.S.C. § 2244(b)(3), and in the context of applications to file second or successive 28 U.S.C. § 2255 motions, constitute binding precedent outside of that context.

(relisted after the February 16, February 23, March 2, March 16, March 23, March 29 and April 13 conferences)

 

Gates v. United States, 17-6262

Issues: Whether, under the Supreme Court’s opinions in United States v. BookerJohnson v. United States and Beckles v. United States, which depended heavily upon the distinction between advisory and mandatory sentencing schemes, the residual clause of the mandatory sentencing guidelines is unconstitutionally vague.

(relisted after the February 16, February 23, March 2, March 16, March 23, March 29 and April 13 conferences)

 

James v. United States, 17-6769

Issues: Whether, under the Supreme Court’s opinions in United States v. BookerJohnson v. United States and Beckles v. United States, which depended heavily upon the distinction between advisory and mandatory sentencing schemes, the residual clause of the mandatory sentencing guidelines is unconstitutionally vague.

(relisted after the February 16, February 23, March 2, March 16, March 23, March 29 and April 13 conferences)

 

Sause v. Bauer, 17-742

Issue: Whether the U.S. Court of Appeals for the 10th Circuit’s holding that law-enforcement officers who stopped the petitioner from praying silently in her own home were entitled to qualified immunity because there was no prior case law involving similar facts conflicts with Hope v. Pelzer, which “expressly rejected a requirement that previous cases be ‘fundamentally similar’” or involve “‘materially similar’” facts.

(relisted after the February 23, March 2, March 16, March 23, March 29 and April 13 conferences)

 

Evans v. Mississippi, 17-7245

Issue: Whether the death penalty in and of itself violates the Eighth Amendment in light of contemporary standards of decency and the geographic arbitrariness of its imposition.

(relisted after the February 23 and March 2 conferences; rescheduled after the March 16 conference; rescheduled before the March 29, April 13 and April 20 conferences)

 

Robinson v. United States, 17-6877

Issue: Whether, following Johnson v. United States, in which the Supreme Court invalidated the Armed Career Criminal Act’s residual clause as unconstitutionally vague, identical language in the residual clause of the previously-mandatory sentencing guidelines is likewise unconstitutional.

(relisted after the March 2, March 16, March 23, March 29 and April 13 conferences)

 

Trevino v. Davis, 17-6883

Issue: Whether — when the U.S. Court of Appeals for the 5th Circuit found that the new mitigating evidence discovered on federal habeas review was “double-edged” and could not outweigh the substantial aggravating evidence, and when it misapplied the standard for evaluating prejudice in a Wiggins claim — it denied the petitioner due process.

(relisted after the March 29 and April 13 conferences)

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