At its May 31, 2012 Conference, the Court will consider such issues as dismissing a claim so that it may be appealed instead of amended, bribery and implied “explicit” promises, mens rea in the federal alien smuggling statute, and whether the police can detain someone away from the premises being searched while executing a search warrant.  This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.

Spot Runner, Inc. v. WPP Luxembourg Gamma Three Sarl

Docket: 11-1069
Issue(s): Whether the Ninth Circuit erred by holding that a district court may enter a judgment dismissing a claim without prejudice for the express purpose of enabling a plaintiff to appeal the Federal Rule of Civil Procedure 12(b)(6) dismissal of that claim instead of amending it.

Certiorari stage documents:

Scrushy v. United States

Docket: 11-972
Issue(s): In the context of a First-Amendment-protected contribution to an issue advocacy campaign, whether the McCormick v. United States holding that campaign contributions cannot constitute bribery unless “the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act” means “explicit,” or whether something less than proof of an “explicit promise” can be sufficient to sustain a conviction.

Certiorari stage documents:

Siegelman v. United States

Docket: 11-955
Issue(s): Whether the McCormick v. United States standard -- under which a connection between a campaign contribution and an official action is a crime “only if the payments are made in return for an explicit promise or undertaking by the official to perform or not to perform an official act” -- requires proof of an “explicit” quid pro quo in the sense of actually being communicated expressly, or whether there can be a conviction based instead only on the inference that there was an unstated and implied agreement connecting a campaign contribution and an official action; (2) whether 18 U.S.C. § 666 and “honest services” law (under 18 U.S.C. § 1346) cover campaign or referendum contributions as alleged bribes at all; and (3) whether the “intent” clause of 18 U.S.C. § 1512(b)(3) requires proof of the specific intent to interfere with communications to law enforcement, or whether it is satisfied by proof of an intent to engage in a “coverup” more generically.

Certiorari stage documents:

Dominguez v. United States

Docket: 11-950
Issue(s): (1) Whether the Eleventh Circuit’s determination that the federal alien smuggling statute, 8 U.S.C. § 1324(a)(2)(B), requires no proof of criminal intent creates a circuit conflict warranting review; (2) whether the federal alien smuggling statute, 8 U.S.C. § 1324(a)(2)(B), requires proof of criminal intent as an essential element, such that a defendant is entitled to present evidence of good faith compliance with the law, and (3) whether a defendant in a prosecution for violating the alien smuggling statute, 8 U.S.C. § 1324(a)(2)(B), is entitled to an instruction on “willfulness.”

Certiorari stage documents:

Bailey v. United States (Granted )

Docket: 11-770
Issue(s): Whether, pursuant to Michigan v. Summers, police officers may detain an individual incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises before the warrant is executed.

Certiorari stage documents:

Harris v. Quinn (Granted )

Note: Disclosure: Kevin Russell of Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel on an amicus brief in support of the respondent in Harris.
Docket: 11-681
Issue(s): (1) Whether a state may, consistent with the First and Fourteenth Amendments to the United States Constitution, compel personal care providers to accept and financially support a private organization as their exclusive representative to petition the state for greater reimbursements from its Medicaid programs; and (2) whether the lower court erred in holding that the claims of providers in the Home Based Support Services Program are not ripe for judicial review.

Certiorari stage documents:

Slough v. United States

Docket: 11-591
Issue(s): When the government has compelled individuals to make potentially incriminating statements, whether prosecutors’ subsequent use of those statements in deciding to indict those individuals violates the Fifth Amendment’s Self-Incrimination Clause and the use immunity principles of Kastigar v. United States.

Certiorari stage documents:

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The following petitions have been re-listed for the conference of May 31.  If any other paid petitions are redistributed for this conference, we will add them below as soon as their redistribution is noted on the docket.

Howes v. Walker (Granted )

Docket: 11-1011
Issue(s): (1) Whether 28 U.S.C. § 2254(d)(2)’s invitation to decide the reasonableness of a state-court factual determination fits with 28 U.S.C. § 2254(e)(1)’s command that an underlying state-court fact determination must be presumed correct; (2) whether the Sixth Circuit violated Section 2254(d)(1) of the Antiterrorism and Effective Death Penalty Act (AEDPA) by granting habeas relief on a purportedly unreasonable application of state law; and (3) whether the Sixth Circuit violated AEDPA § 2254(d)(1) by asserting its own prejudice standard – that a defendant “must only show that he had a substantial defense” – rather than this Court’s clearly established law as set forth in Strickland v. Washington, that prejudice requires a showing that, but for counsel’s error, there is a reasonable probability of a different outcome.

Certiorari stage documents:

Parker v. Matthews

Docket: 11-845
Issue(s): (1) Whether the Sixth Circuit erroneously applied 28 U.S.C. § 2254(d) and rulings of this Court by rejecting the Kentucky Supreme Court's interpretation of extreme emotional disturbance (EED) in Kentucky’s murder statute, KRS 507.020; (2) whether the Sixth Circuit erroneously applied 28 U.S.C. § 2254(d) by rejecting the Kentucky Supreme Court's finding of sufficient evidence to support two convictions of intentional murder in light of the factual findings and the Kentucky Supreme Court’s interpretation of EED; and (3) whether the Sixth Circuit erroneously applied 28 U.S.C. § 2254(d) by concluding that the prosecutor’s guilt-phase closing argument violated the Due Process Clause and by rejecting the Kentucky Supreme Court’s ruling.

Certiorari stage documents:

Latif v. Obama

Docket: 11-1027
Issue(s): (1) Whether requiring the district court to presume the accuracy of intelligence reports denies Guantanamo habeas petitioners the “meaningful opportunity” to contest the lawfulness of their detention guaranteed by Boumediene v. Bush; (2) whether a court of appeals’ substitution of its own analysis of the record evidence for that of a district court in a habeas case, where there is no finding that the district court committed clear error, improperly intrudes upon the fact-finding function of the district court and exceeds the appellate function of the court of appeals; and (3) whether the court of appeals’ manifest unwillingness to allow Guantanamo detainees to prevail in their habeas corpus cases calls for the exercise of this Court’s supervisory power.

Certiorari stage documents:

Al-Bihani v. Obama

Docket: 10-1383
Issue(s): Whether the laws of armed conflict apply to determine the scope of who may be indefinitely detained under the Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001).

Certiorari stage documents:

Uthman v. Obama

Docket: 11-413
Issue(s): (1) Whether the Authorization of Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (‘‘AUMF”), authorizes the President to detain, indefinitely and possibly for the rest of his life, an individual who was not shown to have fought for al Qaeda, trained to fight for al Qaeda, or received or executed orders from al Qaeda, and was not claimed to have provided material support to al Qaeda; and (2) whether the AUMF, as applied by the court of appeals for the D.C. Circuit, violates the command of Boumediene v. Bush that “[t]he habeas court . . . [will] . . . conduct a meaningful review of . . . the Executive’s power to detain” an individual, and violates the Suspension Clause, U.S. CONST. art. I, § 9, cl. 2.

Certiorari stage documents:

Almerfedi v. Obama

Docket: 11-683
Issue(s): (1) Whether the Authorization for Use of Military Force, Pub. L. No. 107-40 § 2(a), 115 Stat. 224 (2001) (“AUMF”), or Boumediene v. Bush, permits detention on the basis of three facts that are themselves not incriminating; (2) whether the AUMF or Boumediene authorizes a standard of proof under which, if the government puts forward some credible evidence justifying the detainee’s detention, the detainee, to prevail, must rebut government’s evidence; and (3) whether the Court of Appeals’ manifest unwillingness to allow Guantanamo detainees to prevail in their habeas corpus cases calls for the exercise of this Court’s supervisory power.

Certiorari stage documents:

Al Kandari v. United States

Docket: 11-1054
Issue(s): (1) Whether the Federal Rules of Evidence, including the rules governing admissibility of hearsay evidence, apply to habeas corpus cases brought by Guantanamo detainees; and (2) whether the court of appeals’ disregard for the unambiguous requirements of the Federal Rules of Evidence so far departs from the accepted and usual course of judicial proceedings as to warrant this Court’s exercise of its supervisory power.

Certiorari stage documents:

Posted in Cases in the Pipeline

Recommended Citation: Matthew Bush, Petitions to watch | Conference of May 31, 2012, SCOTUSblog (May. 29, 2012, 12:40 PM), http://www.scotusblog.com/2012/05/petitions-to-watch-conference-of-may-31-2012/