Petition of the day

Petition of the dayThe petition of the day is: Garner v. Colorado 16-857 Issue: Whether, when the actual basis for counsel’s acts or omissions was unreasonable, a court may nevertheless hold, based on an invented rationale, that defense counsel’s performance was reasonable under Strickland v. Washington.

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Petition of the day

The petition of the day is:

16-857

Issue: Whether, when the actual basis for counsel’s acts or omissions was unreasonable, a court may nevertheless hold, based on an invented rationale, that defense counsel’s performance was reasonable under Strickland v. Washington.

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Petition of the day

Petition of the dayThe petition of the day is: Snyder v. Doe 16-768 Issue: Whether retroactively applying a sex-offender-registry law that classifies offenders into tiers based on crime of conviction, requires certain offenders to register for life, requires offenders to report in person periodically and within days of certain changes to registry information, and restricts offenders’ activities within school zones […]

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Petition of the day

The petition of the day is:

16-768

Issue: Whether retroactively applying a sex-offender-registry law that classifies offenders into tiers based on crime of conviction, requires certain offenders to register for life, requires offenders to report in person periodically and within days of certain changes to registry information, and restricts offenders’ activities within school zones imposes “punishment” in violation of the ex post facto clause.

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Petitions to watch | Conference of March 24

Petitions to watch | Conference of March 24In its conference of March 24, 2017, the court will consider petitions involving issues such as whether Item 303 of Securities and Exchange Commission Regulation S-K creates a duty to disclose that is actionable under Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5; whether the proper test for determining non-statutory insider status requires […]

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Petitions to watch | Conference of March 24

In its conference of March 24, 2017, the court will consider petitions involving issues such as whether Item 303 of Securities and Exchange Commission Regulation S-K creates a duty to disclose that is actionable under Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5; whether the proper test for determining non-statutory insider status requires bankruptcy courts to conduct an “arm’s length” analysis or to apply a “functional equivalent” test; and whether reasonable jurists could disagree that, by anticipatorily applying a procedural default not actually grounded in state law, a district court abused its discretion when it refused a routine stay and amendment necessary to exhaust claims associated with newly discovered evidence revealing overt discrimination in the prosecution’s decision to seek the death penalty.

15-1509

Issues: (1) Whether an assignee of an insider claim acquires the original claimant’s insider status, such that his or her vote to confirm a cramdown plan cannot be counted under 11 U.S.C. § 1129(a)(10); (2) whether the appropriate standard of review for determining non-statutory insider status is the de novo standard of review applied by the U.S. Courts of Appeals for the 3rd, 7th and 10th Circuits, or the clearly erroneous standard of review adopted for the first time by the U.S. Court of Appeals for the 9th Circuit in this action; and (3) whether the proper test for determining non-statutory insider status requires bankruptcy courts to conduct an “arm’s length” analysis as applied by the 3rd, 7th and 10th Circuits, or to apply a “functional equivalent” test which looks to factors comparable to those enumerated for statutory insider classifications as erroneously applied for the first time by the 9th Circuit in this action. CVSG: 2/13/2017.

16-111

Issue: Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.

16-515

Issue: Whether, when a police officer shoots an unarmed person in the back and the person testifies that he was merely walking away when shot, a court may grant summary judgment to the officer in a suit for excessive force by concluding that it is an “undisputed fact” that the person reached for his waistband just because the officer said he did.

16-581

Issue: Whether the U.S. Court of Appeals for the 2nd Circuit erred in holding – in direct conflict with the decisions of the U.S. Courts of Appeals for the 3rd and 9th Circuits – that Item 303 of Securities and Exchange Commission Regulation S-K creates a duty to disclose that is actionable under Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5.

16-881

Issues: (1) Whether, viewing the evidence from the officer’s perspective at the time of the incident as shown in the dashboard video, a reasonable officer could have believed that the decedent posed an imminent threat of serious harm to the officer or others in the vicinity; and (2) whether, at the time of the incident, the law clearly established in a particularized sense, considering the evidence available including the dashboard video, that the use of deadly force was unlawful in this situation.

16-6795

Issues: (1) Whether reasonable jurists could disagree that, by anticipatorily applying a procedural default not actually grounded in state law, a district court abused its discretion when it refused a routine stay and amendment necessary to exhaust claims associated with newly discovered evidence revealing overt discrimination in the prosecution’s decision to seek the death penalty; and (2) whether the U.S. Court of Appeals for the 5th Circuit erred in holding that 18 U.S.C. § 3599(f) withholds “reasonably necessary” resources to investigate and develop an ineffective-assistance-of-counsel claim that state habeas counsel forfeited, where the claimant’s existing evidence does not meet the ultimate burden of proof at the time the Section 3599(f) motion is made.

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Petition of the day

Petition of the dayThe petition of the day is: Peruta v. California 16-894 Issue: Whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.

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Petition of the day

The petition of the day is:

16-894

Issue: Whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.

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Petition of the day

Petition of the dayThe petition of the day is: Mera v. City of Glendale, California 16-917 Issue: Whether the Constitution preempts local government expressive conduct that intrudes on the federal government’s exclusive foreign affairs power.

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Petition of the day

The petition of the day is:

16-917

Issue: Whether the Constitution preempts local government expressive conduct that intrudes on the federal government’s exclusive foreign affairs power.

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Petition of the day

Petition of the dayThe petition of the day is: DeCoster v. United States 16-877 Issues: (1) Whether the due process clause prohibits the imposition of a term of imprisonment as punishment for a supervisory liability offense, such as the one described in United States v. Park; and (2) whether Park and its precursor, United States v. Dotterweich, should be overruled.

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Petition of the day

The petition of the day is:

16-877

Issues: (1) Whether the due process clause prohibits the imposition of a term of imprisonment as punishment for a supervisory liability offense, such as the one described in United States v. Park; and (2) whether Park and its precursor, United States v. Dotterweich, should be overruled.

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Petition of the day

Petition of the dayThe petition of the day is: Jones v. Wells Fargo Bank, N.A. 16-902 Issue: Whether, where the right to foreclose is extinguished as a matter of law by federal statute (Truth in Lending Act) and a unanimous Supreme Court decision (Jesinoski v Countrywide Home Loans, Inc.), and a homeowner’s home is foreclosed upon by improper foreclosure judgment, […]

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Petition of the day

The petition of the day is:

16-902

Issue: Whether, where the right to foreclose is extinguished as a matter of law by federal statute (Truth in Lending Act) and a unanimous Supreme Court decision (Jesinoski v Countrywide Home Loans, Inc.), and a homeowner’s home is foreclosed upon by improper foreclosure judgment, a lender can use res judicata to bar examination of an invalid judgment that was barred by federal consumer protection law.

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Petition of the day

Petition of the dayThe petition of the day is: Doe v. United States 16-876 Issue: Whether a federal district court’s ancillary jurisdiction in criminal cases includes the power to hear motions to expunge criminal records.

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Petition of the day

The petition of the day is:

16-876

Issue: Whether a federal district court’s ancillary jurisdiction in criminal cases includes the power to hear motions to expunge criminal records.

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Relist Watch

Relist WatchJohn Elwood reviews the current relists It’s going to be another short update this week. Not because we have other pressing engagements, although we do. This installment will be short because there are only three new relists this week, and they raise only two related issues. All of this week’s new relists involve the Supreme […]

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Relist Watch

John Elwood reviews the current relists

It’s going to be another short update this week. Not because we have other pressing engagements, although we do. This installment will be short because there are only three new relists this week, and they raise only two related issues.

All of this week’s new relists involve the Supreme Court’s 2002 opinion in Atkins v. Virginia holding that the execution of intellectually disabled criminals constitutes cruel and unusual punishment prohibited by the Eighth Amendment. In 2014, the court extended that ruling, concluding in Hall v. Florida that a state-law threshold requirement that defendants show an IQ test score of 70 or below before being permitted to submit intellectual-disability evidence to jurors violated the Eighth Amendment by creating an unacceptable risk that persons with intellectual disabilities would be executed.

Many of the court’s capital cases come from “Deep South” states, but this week’s first two capital relists come from the erstwhile “border state” of Tennessee. Payne v. Tennessee, 16-395, and Sims v. Tennessee, 16-445, present with respect to Hall v. Florida the question that seems inevitably to arise whenever the Court adopts a new rule of criminal procedure: whether the rule applies retroactively to cases on collateral review. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in both Payne and Sims.]

That brings us to our final new relist of the week, which is a capital case from a state (Oklahoma) that has a border at the same latitude as Tennessee’s. (Have you ever seen a more awkward segue in your life?) The petitioner in Smith v. Royal, 16-7393, argues that Oklahoma has set a cutoff on intellectual-disability evidence for capital defendants who have ever obtained an IQ score over 75, and that the cutoff fails to consider the impact of obsolete testing norms, which Smith argues tend to artificially inflate IQ scores. Smith contends that the Oklahoma state courts’ refusal to consider the inflationary impact of obsolete testing norms on IQ scores is contrary to or an unreasonable application of Atkins such that it provides a basis for habeas relief under the Antiterrorism and Effective Death Penalty Act.

A grant on either of these issues could make this term a big one for intellectual disability and capital punishment, since the court is already considering in Moore v. Texas, 15-797, whether the use of outdated standards on intellectual disability violates the Eighth Amendment.

With that, we can all go back to never retweeting anything ever again. Until next time!

Thanks to Bryan U. Gividen for compiling the cases in this post.

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Returning Relists

Salazar-Limon v. City of Houston
16-515
Issue: Whether, when a police officer shoots an unarmed person in the back and the person testifies that he was merely walking away when shot, a court may grant summary judgment to the officer in a suit for excessive force by concluding that it is an “undisputed fact” that the person reached for his waistband just because the officer said he did.

(relisted after the February 17, February 24 and March 3 conferences)

 

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission
16-111
Issue: Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.

(relisted after the February 24 and March 3 conferences)

 

New Relists

Payne v. Tennessee
16-395
Issue: Whether the court’s decision in Hall v. Florida must be applied retroactively on collateral review.
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.

(Relisted after the March 3 conference)

 

Sims v. Tennessee
16-445
Issue: Whether the court’s decision in Hall v. Florida must be applied retroactively on collateral review.
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.

(Relisted after the March 3 conference)

 

Smith v. Royal
16-7393
Issue: Whether refusal to consider the inflationary impact of obsolete testing norms on IQ scores is contrary to or an unreasonable application of Atkins v. Virginia when a state employs a cutoff IQ score of 75 on a single test to preclude Atkins relief.

(Relisted after the March 3 conference)

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Petition of the day

Petition of the dayThe petition of the day is: Hernandez v. Sessions 16-860 Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in holding that the causation of bodily injury necessarily establishes that an offense is a “crime of violence” within the meaning of 18 U.S.C. § 16(a), even if the offense does not have as […]

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Petition of the day

The petition of the day is:

16-860

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in holding that the causation of bodily injury necessarily establishes that an offense is a “crime of violence” within the meaning of 18 U.S.C. § 16(a), even if the offense does not have as an element the use, attempted use, or threatened use of any force; and (2) whether the 9th Circuit erred in holding that the California offense of criminal threats, California Penal Code § 422(a) – which requires a threat of bodily injury but not the use, attempted use, or threatened use of any force – is a “crime of violence” within the meaning of 18 U.S.C. § 16(a).

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