John Elwood reviews Tuesday’s relisted and held cases.

Greetings, sports fans!  After the restraint of last week, the Court was back with a vengeance this week on the relist and hold front, relisting for the first time (or thereabouts) in four new cases.

The Court relisted for the first time in City of St. Louis, Missouri v. Neighborhood Enterprises, Inc., 11-616, which involves a First Amendment challenge to St. Louis’s zoning laws governing public signs.  The respondent (who sought to display a 360-square-foot mural stating “End Eminent Domain Abuse”) convinced the Eighth Circuit to strike down the City’s sign regulations as impermissibly content-based.  The Court also called for the record and relisted for the January 20 Conference the petitions in Marmet Health Care Center, Inc. v. Brown, 11-391, and Clarksburg Nursing Home & Rehabilitation Center, LLC v. Marchio, 11-394 which present the question whether Section 2 of the Federal Arbitration Act preempts a state law prohibiting the enforcement of a pre-dispute arbitration agreement when a plaintiff asserts a personal injury or wrongful death claim.

The Court relisted for the first time since calling for and receiving the record in Floyd v. Cain, 11-5987. As I speculated in November, that case involves (in the words of the cert. petition) “yet another Brady case” from the New Orleans District Attorney’s Office, along the lines of Smith v. Cain, 10-8145, decided on January 11.  The record in Floyd arrived at One First Street on December 28, so the fact that we didn’t get a quick GVR in this week’s order list following the decision in Smith may suggest an opinion or two are in the works relating either to summary reversal or denial of cert.—or perhaps the memos are still flying trying to resolve how they’re going to dispose of the case.

Serial relist and state-on-top habeas case Wetzel v. Lambert, 11-38, is back for its ninth go-round.  The Court also relisted for the fourth time since calling for a response in the Fourth Amendment emergency and exigent-circumstances case Ryburn v. Huff, 11-208.  We may be seeing opinions in both cases soon.  The Court, however, denied cert. without comment in Alvis v. Espinosa, 11-84, previously relisted once after the Court called for a response (and in which Goldstein & Russell, P.C., represents the respondent).

The rest of the action is on the hold front.  The Court called for the record in Puckett v. Epps, 11-6550, a capital habeas case from the Fifth Circuit involving a Batson claim, and is holding that case pending the arrival of the record.  The Court appears to be holding Byrne v. Jackler, 11-517, which presents the questions whether (1) the First Amendment prohibits a government employer from disciplining an employee for his refusal to prepare a job-related report, and (2) there is an exception to Garcetti v. Ceballos for law enforcement employees.  It seems possible the Court rescheduled Byrne to consider it with Bowie v. Maddox, 11-670, in which the District of Columbia’s response is due January 30; Byrne alleges a split with the D.C. Circuit’s decision in Bowie.

Also on the hold front, Childers v. Floyd, 11-42, seems like a continued hold for Cavazos v. Williams, 11-465, in which the Court granted cert. on Friday.  (Childers was originally listed for the November 22 Conference, after which I speculated it was being held for the cert.-stage briefing in Williams so the Court could consider both petitions at a single conference.)  Both were listed for January 13 and both involve whether a habeas petitioner’s claim has been “adjudicated on the merits” for purposes of 28 U.S.C. § 2254(d) where a state court denied relief in an explained decision but did not address a federal-law basis for the claim.

At the Solicitor General’s request, the Court appears to be holding Commissioner of Internal Revenue v. DSDBL, Ltd., 11-581, for United States v. Home Concrete & Supply, LLC, 11-139, argued on January 17, 2012; both cases present the question whether an understatement of gross income attributable to an overstatement of basis in sold property is an “omi[ssion] from gross income” that can trigger the six-year assessment period in 26 U.S.C. § 6501(e)(1)(A).  The Court also appears to be holding United States v. Trent, 11-611, and Mefford v. United States, 11-6241, for Reynolds v. United States, 10-6549, involving the retroactive application of the registration requirements of the Sex Offender Registration and Notification Act to persons convicted of sex offenses before that statute’s effective date.  Rickmon v. United States, 11-7650, Bagu v. United States, 11-7689, and Moses v. United States, 11-7728, appear to be yet more routine holds for Dorsey v. United States, 11-5683, and Hill v. United States, 11-5721, involving the retroactive application of the Fair Sentencing Act of 2010.  Finally, the Court may be holding Rodriguez v. Oklahoma, 11-6589, which involves a claim that petitioner pled guilty based on her lawyer’s deficient advice about the sentence she would receive, for Missouri v. Frye, 10-444, and Lafler v. Cooper, 10-209, which also involve claims of ineffective assistance of counsel at the plea-bargaining stage.

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 Conference)

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 Conference)

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 Conference)

Docket:  11-5987

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:

Ryburn v. Huff (relisted after the 12/2, 12/9, 1/6, and 1/13 Conferences)

Docket: 11-208

Issues: (1) Whether Brigham City v. Stuart merged the emergency doctrine and application of exigent circumstances for evaluating warrantless entry; (2) whether the Court should resolve the conflict between the Ninth Circuit (which answers “no”) and the Sixth and Tenth Circuits (which answer “yes”); (3) whether, on the facts of this case, involving a police investigation of a potential plan for a school shooting, officers were free to enter a student’s home without a warrant to prevent possible harm to themselves and others; and (4) whether, where the district court and one circuit judge concluded that the police conduct was arguably valid under another constitutional doctrine, the officers can be denied qualified immunity.

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, and 1/13 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. 19, 2012, 10:29 AM), http://www.scotusblog.com/2012/01/relist-and-hold-watch-10/