John Elwood reviews Monday’s relisted and held cases.

Last Monday brought bad news for respondents in Ryburn v. Huff, 11-208, as we finally got the predicted opinion in that four-time-relisted case.  The Court summarily reversed the Ninth Circuit’s decision, holding that police officers were entitled to qualified immunity for their entry into the Huffs’ house while there to investigate a suspected school-shooting plot.

This time of year is a hard one for distinguishing relists from holds.  The Court’s next Conference is a looooong way off (February 17), and so the online dockets are not always up to date.  As a result, some of the relist/holds this week are characterized by positively Pat-like ambiguity.

United States v. Valdez, 11-385, looks like it might be a one-time relist to allow the Court time to figure out what to do with it in light of Reynolds v. United States, 10-6549, just decided on MondayValdez and Reynolds both concern the federal Sex Offender Registration and Notification Act (“SORNA”).  Specifically, they ask whether pre-enactment sex offenders had to register under SORNA before the Attorney General stated that the provisions applied to them.  (The answer, by a 7-2 vote:  no.)  In its petition in Valdez, the government suggests that if Reynolds wins, Valdez wins.  So you’d expect the Court to deny cert.  The government’s petition in Valdez recognizes that the case implicates another circuit split on a SORNA issue (whether the Attorney General validly issued the regulation providing that the Act’s registration requirements apply to all sex offenders as an interim rule), but it does not seek review on that issue because it applies to a finite and diminishing group of cases.  The Court denied cert. on that issue on October 3, but maybe there’s another pending petition that raises that issue.  Very curious.

The capital case Smith v. Bell, 10-8629, is one of this week’s hardest-to-read cases.  After holding the case since the May 12 Conference, the Court released the hold and put it on for the January 20 Conference, suggesting the Court was holding the case for Maples v. Thomas, 10-63, decided on January 18. And indeed, Smith likens his case to Maples.  But it doesn’t appear that Smith’s counsel abandoned him like the Court found counsel had in Maples, which was pretty fundamental to the finding of “cause” for the procedural default there.  The case also raises Brady claims, and in supplemental briefing, Smith says his case should be GVR’d in light of Smith v. Cain, 10-8145, decided on January 11.  Smith also has requested that his case be held for Martinez v. Ryan, 10-1001 (which involves whether criminal defendants have a constitutional right to appointed counsel in post-conviction proceedings when that is the only forum for raising ineffective assistance claims), but since that case has not yet been decided, that theory doesn’t explain relisting the case for January 20.  Maybe a dissent from denial of cert. is brewing, or perhaps having held the case for Maples, the Court is now giving this capital defendant’s case a close look to determine whether there may be some other basis for relief in the Smith v. Cain or Martinez.

Up for a second relist are City of St. Louis, Missouri v. Neighborhood Enterprises, Inc., 11-616, involving a First Amendment challenge to St. Louis’s zoning laws governing public signs, and the West Virginia double-header Marmet Health Care Center, Inc. v. Brown, 11-391, and Clarksburg Nursing Home & Rehabilitation Center, LLC v. Marchio, 11-394, which concern preemption under the Federal Arbitration Act.  The Court also relisted for the second time since calling for and receiving the record in Floyd v. Cain, 11-5987.  As you will recall, that case alleged yet more Brady violations at the New Orleans District Attorney’s Office, in the vein of Smith v. Cain.  As January 11 recedes into the past, a simple GVR seems increasingly unlikely.  As I speculated last week, there might be an opinion in the works relating either to summary reversal or denial of cert.  Of course, Fisher v. University of Texas at Austin, 11-345 (which asks whether the Equal Protection Clause permits UT Austin’s use of race in undergraduate admissions decisions) is still hangin’ around at the Court.  Finally, there’s our old friend, Wetzel v. Lambert, 11-38.  It’s getting hard to recall a time when that state-on-top habeas case was not scheduled for whatever Conference was next, with its ultimate resolution, mirage-like, always just slightly further down the road; this week it’s back for the tenth time.  As I said last week (and here, here, and here), we’ll be seeing an opinion in Wetzel soon.  But this time I really mean it.

So now some anticipatory relists, otherwise known as CFRs.  The Court called for responses from the government in three very different cases:  Sid Mar’s Restaurant & Lounge, Inc. v. United States, 11-652, which asks whether there is an exception to the prior exclusive jurisdiction rule when the United States brings a later-filed federal action seeking title to property within the jurisdiction of a state court; Bridges v. United States, 11-7928, which asks whether an officer who authored a defective warrant to search the petitioner’s home for child pornography could reasonably believe the warrant was valid when it did not describe the physical evidence to be obtained; and Gunnings v. United States, 11-7900, a pro se petition which concerns the denial of a federal prisoner’s request to have the facility in which he is now serving a state sentence designated nunc pro tunc as the place to serve his federal sentence; maybe that case reminds someone at the Court of Setser v. United States, 10-7387.

On the hold front—or then again, maybe not—is Ryan v. United States, 11-499, as in George Ryan—the former Illinois governor who, in my home state’s grand tradition, has had his share of legal troubles.  The petition asks whether Ryan adequately preserved his Skilling challenge to the “honest services fraud” jury instructions in his case.  Although the Solicitor General tells the Court that it doesn’t have to hold the case for Wood v. Milyard, 10-995 (involving, in relevant part, a court’s ability to raise a petitioner’s procedural default sua sponte), or for Vasquez v. United States, 11-199 (involving harmess error analysis), Mr. Ryan begs to differ.  So it’s probably a hold, but maybe a relist.  The Court is most likely holding Cook v. Arizona, 10-9742, for Martinez v. Ryan, 10-1001, which was argued back on October 4.  Cook asks whether criminal defendants have a constitutional right to have a lawyer appointed to represent them at post-conviction proceedings, where the state system allows a claim of ineffective assistance of counsel only during post-conviction proceedings and not on direct appeal.

And that, friends, is it for January.  Mercifully, the Court is giving us the next three weeks off.  That means I’ll have time to do some paying work, and you won’t be subjected to my lame humor—a win-win.  But before I go, let me wish you all a happy Chinese New Year with this heartfelt, if somewhat atonal greeting, which pretty much exemplifies the banality of evil.  No wait, I meant the evil of banality.

Thanks to Eric White for compiling and drafting this update.  And yes, he drafted that sentence, too.

 

United States v. Vasquez (possibly relisted after the 1/20 Conference)

Docket: 10-8629

Issue(s): (1) Whether the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by withholding exculpatory evidence about testimony by the prosecution’s key witness? (2) Whether instructing a jury to convict if it reaches a mere “satisfactory conclusion” or “moral certainty” of guilt, while allowing jurors to convict “as you think justice and truth dictate,” violates due process?  (3) Whether “cause” exists for failing to present an ineffective assistance claim in state court, where such a claim may first be raised in postconviction proceedings, and state-appointed postconviction counsel failed to raise a claim implicating actual innocence?

 

Certiorari stage documents

Smith v. Bell (relisted after the 4/22, 4/29, 5/12, and possibly 1/20 Conferences)

Docket: 10-8629

Issue(s): (1) Whether the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by withholding exculpatory evidence about testimony by the prosecution’s key witness? (2) Whether instructing a jury to convict if it reaches a mere “satisfactory conclusion” or “moral certainty” of guilt, while allowing jurors to convict “as you think justice and truth dictate,” violates due process?  (3) Whether “cause” exists for failing to present an ineffective assistance claim in state court, where such a claim may first be raised in postconviction proceedings, and state-appointed postconviction counsel failed to raise a claim implicating actual innocence?

 

Certiorari stage documents

Fisher v. University of Texas at Austin

Docket:  11-345

Issue:  Whether the Supreme Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, 539 U.S. 306 (2003), permit the University of Texas at Austin’s use of race in undergraduate admissions decisions.

Certiorari-stage documents

City of St. Louis, Missouri v. Neighborhood Enterprises, Inc. (relisted after the 1/13 Conference)

Docket:  11-616

Issues:  (1) Whether the City of St. Louis Sign Code—which exempts from the definition of “Sign” items such as flags, merchandise window displays, time and temperature devices, civic symbols or crests, on-site church displays and works of art—impermissibly infringes speech based on content or constitutes a permissible content-neutral restriction; and (2) whether the Sign Code impermissibly infringes speech based on content by exempting from the permit requirement items such as traffic safety and directional signs, danger or cautionary signs, cornerstones and commemorative and historical signs, address numbers, holiday decorations, business window signs, information and directional signs related to a property’s use, wall or window political signs, temporary signs related to private construction, private sale, lease and rental, parking signs, and signs on refuse containers.

 

Certiorari-stage documents

Marmet Health Care Center, Inc. v. Brown (relisted after the 1/13 and 1/2 Conferences)

Docket:  11-391

Issues:  (1) Whether Section 2 of the Federal Arbitration Act (FAA) preempts a state-law rule that prohibits the enforcement of a pre-dispute arbitration agreement when a plaintiff asserts a personal injury or wrongful death claim; and (2) whether the Supreme Court of Appeals of West Virginia applied its state law unconscionability doctrine in a manner that subjected petitioners’ arbitration provisions to special scrutiny, thereby contravening the FAA.

Certiorari-stage documents

Clarksburg Nursing Home & Rehabilitation Center, LLC v. Marchio (relisted after the 1/13 and 1/20 Conferences)

Docket11-394

Issue:  Whether Section 2 of the Federal Arbitration Act preempts a state-law rule prohibiting the enforcement of a pre-dispute arbitration agreement when a plaintiff asserts a personal injury or wrongful death claim.

Certiorari-stage documents

 

Floyd v. Cain (relisted after the 1/13 and 1/20 Conferences)

Docket11-5987

Issues:  (1) Is Louisiana violating the petitioner’s right to due process by not vacating his conviction despite un-rebutted evidence, adduced during post-conviction proceedings, that the State withheld several pieces of exculpatory evidence that, collectively, undermine confidence in the outcome of his trial; and (2) Given that the vast majority of states now bar the continued punishment of a convicted prisoner who has proved his factual innocence, is Louisiana’s continued punishment of the petitioner despite proof of his factual innocence cruel and unusual punishment and a violation of his right to due process?

Certiorari-stage documents:

 

Wetzel v. Lambert (relisted after the 9/26, 10/28, 11/4, 11/10, 11/22, 12/2, 12/9, 1/6, 1/13, and 1/20 Conferences)

Docket:  11-38

Issue:  Did the Third Circuit fail to properly apply the habeas deference standard to the state court’s rejection of respondent’s Brady claim?

Certiorari stage documents:

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist (and hold) watch, SCOTUSblog (Jan. 30, 2012, 4:03 PM), http://www.scotusblog.com/2012/01/relist-and-hold-watch-11/