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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