John Elwood reviews Monday’s relisted and held cases, among other things.

Today the Court released its decisi0n in HHS v. Florida, conclusively holding that the individual mandate is unconstitutional as applied to left-handed anosmiacs and wearers of extended-tab-closure slacks.  As much as I enjoy breaking this news before the traditional (read: non-delusional) media, in the interests of completeness, I should note that I just now made it up.  For the next couple of weeks, until the case actually is decided and my incredible clairvoyance receives the recognition it so richly deserves, we’re left with the usual diet of relists and holds to dissect.  So let’s get to it.

Every one of last week’s relists is back for another go.  If present trends continue, our seven Guantanamo detainee cases might outlast Raul’s older brother.  Back for a fourth go-around are Al-Bihani v. Obama, 10-1383Uthman v. Obama, 11-413Almerfedi v. Obama, 11-683Al-Madhwani v. Obama, 11-7020; and Al Alwi v. Obama, 11-7700.  And back for a third time are Latif v. Obama, 11-1027, and Al Kandari v. Obama11-1054.  All four of last week’s non-detainee relists are back again, as well.  Unlike certain fish-fry establishments, the Court can be very generous about repeat visits to its all-you-can-eat relist bar:  up for a seventh helping since the Court denied the petitioner in forma pauperis status is Fairey v. Tucker11-7185, a state-on-bottom habeas case out of the Fourth Circuit.  Mr. Fairey is proceeding pro se, which makes the repeated appearance of his case at Conference all the more unusual.  The hold-up appears to stem in significant part from delays in procuring the record the Court requested way back in mid-April, which evidently has been held back by the shortage of qualified Cistercian monks and good parchment for copying.  Back for a sixth time is Parker v. Matthews, 11-845, a state-on-top habeas case out of the Sixth Circuit.  Then there’s thrice-relisted Howes v. Walker11-1011, another Sixth Circuit state-on-top habeas case, which presents a question left open two Terms ago in Wood v. Allen involving whether Section 2254(e)(1)’s command that state-court fact determinations be presumed correct applies in a case presenting a challenge to the reasonableness of the state court’s factual determinations under Section 2254(d)(2).  Last but certainly not least, in terms of market capitalization, is Comcast Corp. v. Behrend11-864, the follow-on to Wal-Mart v. Dukes involving the standard for class-action certification, which is now on its fourth relist since the Court called for a response.

Before you fault me for dwelling in the past, let me tell you:  If you feel like dwelling – and really, who doesn’t? – that’s about your only option this week.  There were no new relists.  The Court tossed us only one new hold:  Harris v. Quinn, 11-681, which concerns the constitutionality of an Illinois law requiring 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.  The back-story is too long and convoluted to reproduce here, but involves Illinois’ Paul Mitchell hairbrush-loving former governor Rod Blagojevich.  Respondent is the state’s current governor Pat Quinn, who has received special dispensation to serve in that capacity though not under indictment.  Harris appears to be on hold for Knox v. SEIU, 10-1121, which was argued back in January and concerns the constitutionality of requiring state employees to pay union dues used to pay for political advocacy.

Since it’s a slow news day and I’m even more desperate for material than usual, I’ll run the risk of mission creep by noting that the Court recently called for the record in two cases that had been slated for consideration at last week’s Conference.  First up is Abdur’Rahman v. Colson, 11-1215, a habeas case out of the Sixth Circuit.  (If Abdur’Rahman’s name sounds familiar, it may be because the Court granted cert. in an earlier stage of his case, to consider whether a motion pursuant to Federal Rule of Civil Procedure 60(b) is always a second or successive habeas petition, but later dismissed the case as improvidently granted.  The Court eventually resolved that question (in the negative) in Gonzalez v. Crosby.)  Abu-Ali Abdur’Rahman, f/k/a James Lee Jones, was convicted of murder and sentenced to death in Tennessee state court; his petition presents three questions:  (1) when is “cumulative error” a legally permitted basis for relief on federal habeas corpus? (2) whether a prosecutor’s suppression of material exculpatory evidence is excused when the defendant was aware of the facts the evidence contained, although the suppression prevented the defense from presenting the evidence of those facts to the jury; and (3) whether defense counsel’s failure to investigate evidence that has some negative characteristics is categorically immune from a claim of ineffective assistance of counsel.  (Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, represents Mr. Abdur’Rahman.)

The Court also called for the record in Baskerville v. United States, 11-8278, a habeas case from the Third Circuit involving claims of error under Brady, Batson, and Federal Rule of Evidence 804(b)(6) (codifying the forfeiture-by-wrongdoing exception to the hearsay rules).  In my experience, it’s unusual for the Court to call for the record when the Solicitor General represents the respondent.  The government’s brief in opposition argued that there were race-neutral explanations for the peremptory strikes and that the court of appeals’ factbound conclusions are supported by the record, and perhaps the Court is checking to see whether that dog will hunt.  It’s not a capital case, but Baskerville is serving a life sentence, and perhaps the Court is experiencing some mission creep of its own.

That’s it.  We’ll be back here next week, hopefully with a new relist or two in hand, or maybe an opinion of some sort in one of the many repeat relists.  Until then, I’ll be enjoying a refreshing 48-oz. cup of ice-cold freedom.

Thanks to Victoria Galvez and Eric White for compiling and drafting this update.


Howes v. Walker (relisted after the 5/17, 5/24, and 5/31 Conferences)

Docket: 11-1101

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) by granting habeas relief on a purportedly unreasonable application of state law; and (3) whether the Sixth Circuit violated § 2254(d)(1) by asserting its own prejudice standard – that a defendant “must only show that he had a substantial defense” – rather than the standard 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

 Comcast v. Behrend (relisted after the 5/10, 5/17, 5/24, and 5/31 Conferences)

Docket: 11-864

Issue(s):  Whether a district court may certify a class action without resolving “merits arguments” that bear on Federal Rule of Civil Procedure 23’s prerequisites for certification, including whether purportedly common issues predominate over individual ones under Rule 23(b)(3).

Certiorari stage documents

 Parker v. Matthews (relisted after the 3/30, 4/27, 5/10, 5/17, 5/24, and 5/31 Conferences)

Docket: 11-845

Issue(s):  Whether the Sixth Circuit erred in finding that the Kentucky courts unreasonably applied clearly established federal law and granting respondent habeas relief.

Certiorari stage documents

 Fairey v. Tucker (relisted after the 4/13, 4/20, 4/27, 5/10, 5/17, 5/24, and 5/31 Conferences)

Docket: 11-7185

Issue(s):  Did the court of appeals err in dismissing the petitioner’s appeal and denying the certificate of appealability where the record showed that the district court’s assessment of the constitutional claims was wrong?

Certiorari stage documents

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist (and Hold) (and CFRecord) Watch, SCOTUSblog (Jun. 5, 2012, 5:00 PM), http://www.scotusblog.com/2012/06/relist-and-hold-and-cfrecord-watch/