John Elwood reviews Monday’s relisted cases.

For those of you joining us from a Google search, this is the little, irrelevant corner of SCOTUSblog where you won’t hear a peep about when and how the Court will decide Fisher v. University of Texas at Austin, the affirmative action case; Shelby County v. Holder, the Voting Rights Act case; or Hollingsworth v. Perry and United States v. Windsor, the Prop 8 gay-marriage and DOMA cases.  But thanks anyway for visiting and adding to the viewer count.  :-P.  For both of you who are left, welcome to yet another episode of Relist Watch, Habeas Edition.

After months at One First Street, it’s jackpot for the petitioner in Nevada v. Jackson, 12-694, the state-on-top habeas case relisted a lucky seven times since the Court received the record.  In a per curiam opinion, the Court summarily reversed the Ninth Circuit, holding that no Supreme Court decision establishes that it violates the defendant’s constitutional rights to exclude evidence of the victim’s prior false reports of rape because of noncompliance with procedural rules .

But not everyone can be a high roller.  It’s time to say goodbye to two relists from last week we hardly even got to know:  The Justices denied cert. without even reading the fantasy suite card in Thompson v. Harris, 12-885, a state-on-top habeas case from the Seventh Circuit, and Sims v. Houston, 12-8906, a state-on-bottom habeas case from the birthplace of the Reuben sandwich.  Sims didn’t even get the hoped-for GVR following the Court’s opinion in Trevino v. Thaler, 11-10189.

In other habeas news, White v. Woodall, 12-794, a state-on-topper out of the Sixth, is back for its third trip to the all-you-can-eat relist buffet.  And somehow a non-habeas case got another relist – last week’s generically named Limited Liability Company v. Doe, 12-855, the Federal Arbitration Act case out of el Tribunal Supremo de Puerto Rico.

Three, maybe four, new relists this week.  Our first newbie – Scott v. Saint John’s Church in the Wilderness, 12-1077 – comes to us from the highest state in the nation, where the Colorado Supreme Court (with two dissenting votes) refused to hear two protestors’ challenge to an injunction barring them from (1) displaying “gruesome images” of aborted fetuses and (2) “disturbing worship,” after having picketed on Easter Sunday outside a progressive Episcopal church whose message, “[T]here will be no outcasts.  We have room for all persons,” apparently doesn’t include edgy anti-abortion protestors.  According to the Colorado Court of Appeals, the “gruesome images” provision, though content-based, is “narrowly tailored” to support the “compelling government interest” in “protecting children from exposure to certain images of aborted fetuses and dead bodies.”  And, it held, the “disturbing worship” provision is content neutral.  More on the case can be found here.

Next up is Gallow v. Cooper, 12-7516, out of the Fifth Circuit, which has graced these pages before, first as a relist and then as a hold.  Apparently the Court just can’t quit this state-on-bottom, ineffective-assistance-of-counsel, new-evidence habeas case.  Maybe it’s being relisted to be considered beside other similar cases?  Or for some other reason.  Definitely one of the two.

Last up is what may be a twofer.  Acosta-Ruiz v. United States, 12-6908, out of the Fifth Circuit, is sure to excite dorks criminal procedure fans still reeling from last year, when the Court dismissed the writ in Vasquez v. United States as improvidently granted.  Petitioner and his common-law wife were convicted of two counts of unlawfully transporting an illegal alien after being found with border crossers in their car, whom petitioner admitted at trial he “knew” “were illegal aliens,” seeing as he had just crossed the border with them.  The court of appeals brushed aside the argument that the prosecution’s use of videotaped testimony from two of the illegal aliens necessitated reversal because, even assuming that it was a Sixth Amendment violation, the jury “would have nonetheless found Acosta guilty.”  In his petition, Acosta-Ruiz says the Fifth Circuit’s harmless-error test marks a radical departure from the Chapman v. United States standard and that the court should instead have conducted a more searching inquiry into the  effects of the constitutional error on the jury’s verdict.  Acosta-Ruiz may have been relisted at least in part to be considered alongside Ford v. United States, 12-7958, a Seventh Circuit case raising a similar harmless-error issue.  According to the online docket, Ford has been listed for the June 6 Conference twice, but we hear tell that the online docket originally listed it for May 30.  So Ford is either itself a relist or perhaps just prompted the Acosta-Ruiz relist.  Like everything else, it’s probably caused by sequestration.

That brings us to the end of another tedious post.  With the Justices set to conference Thursday for – ugh – the fifth week in a row, we’ll be back here next week with another enlightening installment.

Thanks to Eric White and V&E summer associate Varun Jain for compiling and drafting this update.

 

12-1077

Issue: (1) Whether the government may restrict the display of “gruesome” material within political, moral, and religious advocacy in a traditional public forum, in order to protect the sensibilities of children; and (2) whether provisions of an injunction based expressly in part on the supposedly harmful content of defendants’ speech should be subjected to strict scrutiny.

(relisted after the May 30 Conference)

 

12-7516

Issue: Whether a federal court can consider new evidence to support a state prisoner’s application for habeas relief under 28 U.S.C. § 2254(d), when the state court record was not developed as a result of incompetent and likely conflicted post-conviction counsel.

(relisted after the May 30 Conference)

 

12-6908

Issue: Whether a court of appeals must consider what effect a constitutional error had on a jury’s verdict, before it may find that the error was harmless beyond a reasonable doubt.

(relisted after the May 30 Conference)

 

12-7958

Issue: (1) Whether a proper harmless error analysis may ignore the prejudicial effect of evidence erroneously admitted at a trial and focus only on whether other evidence from the trial is convincing enough to sustain a conviction; (2) Whether a Court of Appeals may override the Government’s express waiver of the harmlessness inquiry and engage in sua sponte harmless error review.

(relisted after the May 30 Conference)

 

12-855

Issue: (1) Is the contract for operation of an interstate business “a contract evidencing a transaction involving commerce” governed by the Federal Arbitration Act (FAA); (2) are arbitration-specific rules under Puerto Rico law that limit an arbitration clause to the subject matter of the underlying agreement and entitle a person to judicial enforcement of discrimination and retaliation claims preempted by the FAA; and (3) should questions of arbitrability be decided by the arbitrator when the parties select commercial arbitration rules that so provide?

(relisted after the May 23 and May 30 Conferences)

 

12-794

Issue: (1) Whether the Sixth Circuit violated 28 U.S.C. 2254(d)(1) by granting habeas relief on the trial court's failure to provide a no adverse inference instruction even though the Supreme Court has not "clearly established" that such an instruction is required in a capital penalty phase when a non-testifying defendant has pled guilty to the crimes and aggravating circumstances; and (2) whether the Sixth Circuit violated the harmless error standard in Brecht v. Abrahamson in ruling that the absence of a no adverse interference instruction was not harmless in spite of overwhelming evidence of guilt and in the face of a guilty pleas to the crimes and aggravators.

(relisted after the May 16, May 23, and May 30 Conferences)

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist watch, SCOTUSblog (Jun. 4, 2013, 3:50 PM), http://www.scotusblog.com/2013/06/relist-watch-18/