John Elwood reviews the cases relisted after the Long Conference.

The Court is taking a second look at several important cases after the “Long Conference” — the sort of cases that chuckleheads have in mind when they spout obviousisms like “[t]his could be a blockbuster term, depending on how events break.”   For starters, the Court has relisted two petitions involving an Establishment Clause challenge to roadside crosses memorializing fallen state troopers, Utah Highway Patrol Ass’n v. American Atheists, 10-1276, and Davenport v. American Atheists, 10-1297, which in many ways are follow-ons to OT2009’s plurality opinion in Salazar v. Buono (involving a cross used as a war memorial), and which together must set some kind of record for amicus participation at the cert. stage.  The Court also relisted in two cases presenting the question whether imposing a sentence of life without parole on an underage offender convicted of murder violates the Eighth Amendment’s Cruel and Unusual Punishments Clause, which are follow-ons to OT2009’s Graham v. Florida (which held that the Eighth Amendment prohibited such sentences for nonhomicide offenses).  Those two cases are the consecutively numbered Miller v. Alabama, 10-9646, and Jackson v. Hobbs, 10-9647.

As long as we’re talking about constitutional criminal procedure, Blueford v. Arkansas, 10-1320, presents the question whether the Double Jeopardy Clause bars reprosecution for a greater offense if a jury deadlocks on a lesser-included offense and announces that it has voted against guilt on the greater offense.  I haven’t been able to track down the briefs yet, but Sun v. United States, 10-9333, apparently presents the question whether judges of the District Court for the Northern Mariana Islands are able to hear criminal cases arising under the laws of the United States, because its judges do not enjoy the protections of Article III of the Constitution.  This is a sequel to 2003’s Nguyen v. United States, which held that judges of the U.S. District Court for the District of Guam lacked statutory authority to sit by designation on the court of appeals because they lack Article III tenure.   Buck v. Thaler, 11-6391, is a capital case in which the Court has granted a stay, which will dissolve if the Court denies cert.; the petition primarily presents questions about whether the petitioner’s race played an impermissible role in the sentencing phase of his capital murder trial.  And it is hard to ferret out information on in forma pauperis cases quickly, but Pacheco-Garcia v. United States, 10-9445, Guerrero-Campos v. United States, 10-9746, and Wesevich v. United States, 10-10340, all appear to involve the third prong of plain error review (establishing prejudice) in the context of Guidelines sentencing.

On the federal statutory front, Magner v. Gallagher, 10-1032, involves whether disparate impact claims are cognizable under the Fair Housing Act.  There are also three cases all presenting a question relating to an increasingly common type of litigation, in which alleged victims of acts of torture committed abroad sue the alleged perpetrators in U.S. courts.  Kiobel v. Royal Dutch Petroleum Co., 10-1491, Bowoto v. Chevron Corp., 10-1536, and Mohamad v. Rajoub, 11-88, each involves whether corporations can be sued for such claims.   United States v. New York, 10-1404, and Oneida Nation of New York v. County of Oneida, 10-1420, both involve whether the United States and the Oneida Indian Nation can obtain relief for claims that Oneida lands in New York were alienated in violation of the Nonintercourse Act.

With respect to habeas corpus, two cases involve Michigan v. Long and the identification of adequate and independent state grounds to support a state-court judgment (and thus to preclude federal habeas relief): Rocha v. Thaler, 10-9659, and Adams v. Thaler, 10-10881; Rocha involved a long dissent from denial of rehearing en banc that apparently got the Court’s attention.  The Court also relisted three petitions filed by state attorneys general claiming that decisions granting state prisoners federal habeas relief were insufficiently deferential to state courts, and suggesting that summary action is appropriate: Cash v. Maxwell, 10-1548, Ryan v. Doody, 11-175 (both from the Ninth Circuit, the latter case en banc), and Hardy v. Cross, 11-74 (Seventh Circuit).  Ohio is similarly seeking review of what it says was an insufficiently deferential decision by the Sixth Circuit in Bobby v. Dixon, 10-1540, which the state also claims disregarded various Supreme Court precedents.  In light of the Sixth Circuit’s record of reversals in habeas cases (several of them by summary action), this one is worth watching closely.

Johnson v. Obama, 10-10652, involves questions about the propriety of a judge presiding over a case in which she was a named defendant, and what the appropriate relief would be.  The case is a bit unusual in that the Court has relisted it despite the fact that the Solicitor General waived his right to file a response and the Court hasn’t yet ordered him to file one.

If a case has been relisted once, it generally means that the Court is paying close attention to the case, and the chances of a grant are higher than for an average case.  But once a case has been relisted more than twice, it is generally no longer a likely candidate for plenary review, and is more likely to result in a summary reversal or a dissent from the denial of cert.

I didn’t have it in me to do the “holds” from Monday’s colossal order list; the “hold watch” aspect of this feature will (probably) return next week.


Utah Highway Patrol Ass’n v. American Atheists (relisted after the 9/26 Conference)

Docket:  10-1276

Issue(s):  (1) Which Establishment Clause test should be applied when analyzing passive public displays; (2) does the Establishment Clause forbid roadside memorial crosses marking the site of death for state highway troopers killed in the line of duty; and (3) is a collection of memorials owned by a private organization, disclaimed by the state, and located on both private and public property properly classified as government speech?

Certiorari stage documents:

 

Davenport v. American Atheists (relisted after the 9/26 Conference)

Docket:  10-1297

Issue(s):  (1) What is the appropriate test for evaluating whether a passive display with religious imagery violates the Establishment Clause; (2) whether this Court should set aside the “endorsement test” in favor of the “coercion test”; and (3) whether a memorial cross placed on state land by a private organization to commemorate fallen state troopers is an unconstitutional establishment of religion.

Certiorari stage documents:

 

Miller v. Alabama (relisted after the 9/26 Conference)

Docket:  10-9646

Issue(s):  Whether imposing a sentence of life without possibility of parole on an offender who was 14 at the time he committed capital murder constitutes cruel and unusual punishment in violation of the Eighth Amendment.

Certiorari stage documents:

 

Jackson v. Hobbs (relisted after the 9/26 Conference)

Docket:  10-9647

Issue(s):  Whether imposing a sentence of life without possibility of parole on an offender who was 14 at the time he committed capital murder constitutes cruel and unusual punishment in violation of the Eighth Amendment.

Certiorari stage documents:

 

Blueford v. Arkansas (relisted after the 9/26 Conference)

Docket:  10-1320

Issue(s):  Whether, if a jury deadlocks on a lesser-included offense, the Double Jeopardy Clause bars the reprosecution of a greater offense after a jury announces that it has voted against guilt on the greater offense.

Certiorari stage documents:

 

Sun v. United States (relisted after the 9/26 Conference)

Docket:  10-9333

Issue(s):  Whether the U.S. District Court for the Northern Mariana Islands has jurisdiction to hear criminal cases arising under the laws of the United States, because its judges do not enjoy the protections of Article III of the Constitution.

Certiorari stage documents:

  • Opinion below (9th Cir.)
  • Petition for certiorari (forthcoming)
  • Brief in opposition (forthcoming)
  • Petitioners’ reply (forthcoming)

 

Buck v. Thaler (relisted after the 9/26 Conference)

Docket:  11-6391

Issue(s):  (1) Whether the defendant’s race or ethnic background was used impermissibly as an aggravating circumstance in the punishment phase of a capital murder trial; (2) whether the defendant’s race was used as evidence of future dangerousness during the punishment phase of a capital murder trial; (3) whether a reasonable jurist could believe this case presents extraordinary circumstances justifying reopening federal habeas corpus proceedings under Fed. R. Civ. P. 60(b)(6); (4) whether a reasonable jurist could believe that the Texas Attorney General made material misrepresentations that constitute a fraud on the court; and (5) whether imposition of the death penalty in this case was arbitrary and capricious.

Certiorari stage documents:

 

Pacheco-Garcia v. United States (relisted after the 9/26 Conference)

Docket:  10-9445

Issue(s):  Whether the court of appeals erred in finding no reversible plain error in petitioner’s sentence, where the sentence imposed was within the advisory Guidelines range used by the district court and would also have fallen within the range that petitioner contends is correct.

 Certiorari stage documents:

 

Guerrero-Campos v. United States (relisted after the 9/26 Conference)

Docket:  10-9746

Issue(s):  Whether petitioner established reversible plain error when the district court sentenced him within an erroneous advisory Guidelines range but his sentence also fell within the correct range.

Certiorari stage documents:

 

Wesevich v. United States (relisted after the 9/26 Conference)

Docket:  10-10340

Issue(s):  Whether petitioner established reversible plain error when the district court sentenced him within an erroneous advisory Guidelines range but his sentence also fell within the correct range.

Certiorari stage documents:

 

Magner v. Gallagher (relisted after the 9/26 Conference)

Docket:  10-1032

Issue(s):  (1) Whether disparate impact claims are cognizable under the Fair Housing Act; and, if so, (2) what test should be used to analyze them.

Certiorari stage documents:

 

Kiobel v. Royal Dutch Petroleum Co. (relisted after the 9/26 Conference)

Docket:  10-1491

Issue(s):  (1) Whether the issue of corporate civil tort liability under the Alien Tort Statute (ATS), 28 U.S.C. § 1350, is a merits question or instead an issue of subject matter jurisdiction; and (2) whether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide, or if corporations may instead be sued in the same manner as any other private party defendant under the ATS for such egregious violations.

Certiorari stage documents:

 

Bowoto v. Chevron Corp.(relisted after the 9/26 Conference)

Docket:  10-1536

Issue(s):  Whether corporations and other legal entities may be sued for torture and extrajudicial killing under the Torture Victim Protection Act of 1991.

Certiorari stage documents:

 

Mohamad v. Rajoub (relisted after the 9/26 Conference)

Docket:  11-88

Issue(s):  Whether the Torture Victim Protection Act of 1991 permits actions against defendants that are not natural persons.

Certiorari stage documents:

 

United States v. New York (relisted after the 9/26 Conference)

Docket:  10-1404

Issue(s):  Whether the United States may be barred from enforcing the Nonintercourse Act against a state that repeatedly purchased and resold (at a substantial profit) Indian lands in violation of the Act between 1795 and 1846, based on the passage of time and the transfer of the unlawfully obtained Indian lands into the hands of third parties, when the United States seeks monetary relief only against the state.

Certiorari stage documents:

 

Oneida Nation of New York v. County of Oneida, New York (relisted after the 9/26 Conference)

Docket:  10-1420

Issue(s):  (1) Whether the court of appeals contravened this Court’s decisions in Oneida Indian Nation of New York v. County of Oneida and City of Sherrill v. Oneida Indian Nation by ruling that “equitable considerations”  rendered petitioners’ claims for money damages for the dispossession of their tribal lands in violation of federal law void ab initio; and (2) whether the court of appeals impermissibly encroached on the legislative power of Congress by relying on “equitable considerations” to bar petitioners’ claims as untimely, even though they were brought within the statute of limitations fixed by Congress for the precise tribal land claims at issue.

Certiorari stage documents:

 

Rocha v. Thaler (relisted after the 9/26 Conference)

Docket:  10-9659

Issue(s):  (1) Whether there was an adequate and independent state law ground for denying petitioner habeas corpus relief; (2) whether suppression of evidence is an appropriate remedy for violation of the Vienna Convention on Consular Relations.

Certiorari stage documents:

 

Adams v. Thaler (relisted after the 9/26 Conference)

Docket:  10-10881

Issue(s):  Whether the Fifth Circuit properly applied Michigan v. Long, 463 U.S. 1032 (1983) to conclude that the judgment below rested on an adequate and independent state ground.

Certiorari stage documents:

 

Cash v. Maxwell (relisted after the 9/26 Conference)

Docket:  10-1548

Issue(s):  (1) Whether, under 28 U.S.C. § 2254, a federal court may grant habeas relief on a claim that the state-court conviction rested on perjured testimony absent proof that the prosecution knew that the challenged testimony was false and when the state post-conviction court deemed the testimony truthful; (2) whether, under 28 U.S.C. § 2254, a federal court may grant habeas relief on a claim alleging suppression of exculpatory evidence when that evidence was unknown to law enforcement officials working on the case and without considering whether the state court might have rejected this claim.

Certiorari stage documents:

 

Hardy v. Cross (relisted after the 9/26 Conference)

Docket:  11-74

Issue(s):  Whether the court of appeals violated 28 U.S.C. § 2254 and Supreme Court precedent by overriding state court determinations of law and fact and awarding habeas relief based on a constitutional rule that this Court has never recognized and that the Seventh Circuit derived entirely from its own precedent.

Certiorari stage documents:

 

Ryan v. Doody (relisted after the 9/26 Conference)

Docket:  11-175

Issue(s):  (1) Whether the Ninth Circuit disregarded the limitations of the Antiterrorism and Effective Death Penalty Act when it held that the Miranda warnings given to respondent were inadequate; (2) whether the Ninth Circuit disregarded AEDPA and Supreme Court precedent in holding that respondent’s statements were involuntary; and (3) whether any constitutional error had a “substantial and injurious effect” on the verdict.

Certiorari stage documents:

 

Bobby v. Dixon (Relisted after the 9/26 Conference)

Docket:  10-1540

Issue(s):  (1) Whether the Sixth Circuit contravened the directives of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) when it abandoned the “in custody” requirement of Miranda v. Arizona and Edwards v. Arizona; (2) whether the interviewer’s state of mind has any bearing on whether a suspect’s statement is voluntary under the established law of Oregon v. Elstad; and (3) whether the Sixth Circuit exceeded its authority under AEDPA when it condemned the use of the “prisoner’s dilemma” – where the police indicate that favorable treatment will go to the first suspect who cooperates – as an unconstitutionally coercive interrogation tactic.

Certiorari stage documents:

 

Johnson v. Obama (relisted after the 9/26 Conference)

Docket:  10-10652

Issue(s):  What is the appropriate relief when the trial judge declines to recuse herself from presiding over a civil case in which she is a defendant.

 Certiorari stage documents:

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist watch, SCOTUSblog (Oct. 5, 2011, 7:53 PM), http://www.scotusblog.com/2011/10/relist-watch-4/