Relist Watch: The return of the snor’easter

Relist Watch: The <u><a href="https://loweringthebar.net/2012/10/a-real-snoreaster.html">return</a></u> <a href="http://www.scotusblog.com/2018/03/relist-watch-return-snoreaster/">of the snor’easter</a>John Elwood reviews Monday’s relists. It’s a rare occasion when you hear people mention “extreme wind” in the same sentence as our nation’s capital and they aren’t talking about gale-force bloviation. But on a day when the weather was so bad that “pretty much every one” arriving into D.C. “threw up” for reasons having nothing […]

The post Relist Watch: The <u><a href=”https://loweringthebar.net/2012/10/a-real-snoreaster.html”>return</a></u> <a href=”http://www.scotusblog.com/2018/03/relist-watch-return-snoreaster/”>of the snor’easter</a> appeared first on SCOTUSblog.

Relist Watch: The <u><a href="https://loweringthebar.net/2012/10/a-real-snoreaster.html">return</a></u> <a href="http://www.scotusblog.com/2018/03/relist-watch-return-snoreaster/">of the snor’easter</a>

John Elwood reviews Monday’s relists.

It’s a rare occasion when you hear people mention “extreme wind” in the same sentence as our nation’s capital and they aren’t talking about gale-force bloviation. But on a day when the weather was so bad that “pretty much every one” arriving into D.C. “threw up” for reasons having nothing to do with politics and when – as usual whenever Washington weather is not at least 55 degrees and sunny – they cancelled school, the justices braved the elements to meet for conference.

To skip to the end, the court relisted just one new case, which concerns the same issue as three returning serial relists, which together merited not quite a single sentence the first week they were relisted. So batten down the hatches, everyone: We’re in for a real snor’easter.

Before we get to the new business, let us briefly rehearse last week’s relists. There are two success stories. Knick v. Township of Scott, Pennsylvania, 17-647, seeks to revisit Supreme Court precedent regarding the need to exhaust state-court remedies before bringing a Fifth Amendment takings claim. Gundy v. United States, 17-6086, involves a long-brewing nondelegation question regarding the federal Sex Offender Notification and Registration Act that the court passed on back in 2015 when it granted cert on another SORNA question in Nichols v. United States, 15-5238, and, well, also passed on a few other times.

Other petitioners left empty-handed. Bank Melli v. Bennett, 16-334, about the scope of the Foreign Sovereign Immunities Act, was sent packing after a single relist. Wilson v. Callahan, 17-552, a deadly force case, left after three. And although Scott v. Federal Deposit Insurance Corp., 17-567, denied after two relists, involves the same appointments clause question that the court now faces in Lucia v. Securities and Exchange Commission, 17-130, the government persuaded the court that the petitioners in Scott had “failed to raise an Appointments Clause challenge either before the [agency] or before the court of appeals, and neither of those bodies addressed the issue.” Petitioners, remember: Preservation is key. Cert also was denied in Wessinger v. Vannoy, 17-6844, involving counsel’s obligation to investigate mitigation evidence in a death-penalty case even if the court refuses a request for funds to conduct such an investigation. But at least Justice Sonia Sotomayor filed an opinion dissenting from the denial of certiorari on its way out.

That brings us to this week’s solitary new relist, Robinson v. United States, 17-6877. That case presents the same issue as do Allen v. United States, 17-5864, James v. United States, 17-6769, and Gates v. United States, 17-6262 (although Quentery Gates now has been released from prison, potentially mooting his case).

In 2015, the Supreme Court held in Johnson v. United States that the “residual clause” of the Armed Career Criminal Act of 1984 is unconstitutionally vague. The ACCA’s residual clause defines a “violent felony” to include an offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” and the court held that phrase to be so vague that it fails to give ordinary people fair notice of the conduct it punishes. There is a comparable provision in the U.S. Sentencing Guidelines, which were still considered mandatory in 2000, at the time Robinson was sentenced. Robinson and its fellow-travelers all argue that the residual clause in former Sentencing Guidelines § 4B1.2(a)(2), when it was applied in the context of a mandatory guidelines regime, was unconstitutionally vague in light of Johnson. The government responds that Johnson is inapplicable for even mandatory-sentencing-guidelines cases, because sentencing courts had discretion to depart from the guidelines in “exceptional cases.” The government also argues that this question “is of limited and diminishing importance” because the number of affected prisoners diminishes over time as the mandatory guidelines fade into the distant past. We should have the court’s take on this issue … one of these days.

The court is taking next week off, but we’ll be back the week of March 19 with more. Thanks to Kent Piacenti for compiling the cases in this post.

 

New Relist

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 conference)

 

Returning Relists

Sykes v. United States, 16-9604

Issue: Whether Missouri’s second-degree burglary statute is divisible into two offenses with separate elements for the purpose of analyzing whether a conviction under that statute qualifies as a conviction for a “violent felony” as defined in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

(relisted after the October 6, October 13, October 27, November 3, November 9, November 21, December 1, December 8, January 5, January 12, January 19, February 16, February 23 and March 2 conferences)

 

Hidalgo v. Arizona, 17-251

Issues: (1) Whether Arizona’s capital-sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment; and (2) whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.

(relisted after the December 1, December 8, January 5, January 12, January 19, February 16, February 23 and March 2 conferences)

 

Kisela v. Hughes, 17-467

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in holding that Andrew Kisela, the police officer who found Amy Hughes walking down her driveway toward another woman while carrying a large kitchen knife, acted unreasonably when he shot and wounded Hughes after she ignored commands to drop the knife, given Kisela’s well-founded belief that potentially lethal force was necessary to protect the other woman from an attack that could have serious or deadly consequences; and (2) whether the lower court erred — to the point of warranting summary reversal — in refusing qualified immunity in the absence of any precedent finding a Fourth Amendment violation based on similar facts and, indeed, ignoring a case with remarkably similar facts that found no constitutional violation.

(relisted after the January 5, January 12, January 19, February 16, February 23 and March 2 conferences)

 

Garco Construction, Inc. v. Secretary of the Army, 17-225

Issue: Whether Bowles v. Seminole Rock & Sand Co. and Auer v. Robbins should be overruled.

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

 

Hargan 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 and March 2 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 and March 2 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 and March 2 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 and March 2 conferences)

 

Oliver v. McDaniels, 17-682

Issues: (1) Whether a one-sentence allegation of fact in the background section of the prisoner’s state court brief for appellee is sufficient to exhaust a novel and complex federal constitutional double jeopardy claim; and (2) whether it is unreasonable to conclude that double jeopardy did not bar retrial, when the Supreme Court has repeatedly indicated that double jeopardy does not apply if the trial court lacked the power to enter a verdict.

(relisted after the February 23 conference; record requested)

 

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.

 

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)

The post Relist Watch: The <u><a href="https://loweringthebar.net/2012/10/a-real-snoreaster.html">return</a></u> <a href="http://www.scotusblog.com/2018/03/relist-watch-return-snoreaster/">of the snor’easter</a> appeared first on SCOTUSblog.

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