Relist (and Hold) Watch
John Elwood reviews Monday’s relisted and held cases.
Happy New Year! The folks over at One First Street have made good on their resolution to shed pounds of unsightly relists as the Justices on Monday halved the number of cases they have been carrying around since 2011, including one that has been weighing on them since the beginning of the Term. And witness also the belt-tightening as the Court took up only one new relist this week. (Note that I am making good on my resolution to use more labored metaphors.)
As a pessimist, I feel there is no better way to begin a new year than with disappointment. The First Amendment challenge to a campaign finance law that prohibits aliens from contributing to federal, state, and local elections fizzled in Bluman v. FEC, 11-275, as the Court summarily affirmed the judgment of the D.C. Circuit. But it’s an ill wind that blows no good, and the silver lining here is that when your friends squeeze you for a political donation, just tell them you’re Canadian. The string of successes for state-on-top habeas cases came to a halt in Cash v. Maxwell, 10-1548, in which the Court denied California’s petition arguing that the Ninth Circuit had been insufficiently deferential to its state courts’ rejection of a claim that a murder conviction was based on perjured testimony. Cash had been relisted eight times since the Long Conference. You know a case doesn’t hang around that long unless an opinion of some sort is in the offing, and this case is no exception: Justice Scalia, joined by Justice Alito, dissented from the denial of cert., and Justice Sotomayor issued an opinion respecting the denial of cert.
The new year brought happy returns in Alvis v. Espinosa, 11-84, which the Court relisted for the first time since calling for a response. (Note: Goldstein & Russell, P.C., represents the respondent.) Alvis questions whether the Ninth Circuit (so far, so good) erred in (1) holding that when an officer makes an unlawful entry (and does so “intentionally or recklessly”) the officer loses authority under the Fourth Amendment to use reasonable force to protect himself or the public during that search; and (2) denying qualified immunity for the officers’ use of force based solely on the conclusion that the force may have violated the Fourth Amendment.
Although the Court cut two relisted cases, two others are making return appearances this week. Ryburn v. Huff, 11-208 – a case involving the emergency and exigent-circumstances exceptions to the Fourth Amendment’s warrant requirement – is back for its third relist since the Court called for a response. Of the former bumper crop of state-on-top habeas petitions, only one remains: Wetzel v. Lambert, 11-38, which has now been relisted eight times. We’ll be seeing an opinion in that.
As I’ve said so many times now that I am considering having it trademarked: if a case has been relisted once, it generally means the Court is paying close attention, increasing the chance of a grant. But once a case has been relisted more than twice, it is generally no longer a likely candidate for plenary review, and is more likely to result in a summary reversal or a dissent from the denial of cert.
The rest of the action all appears to be on the hold front. First, federal criminal cases: Newcomb v. United States, 11-7328; Parker v. United States, 11-7500; and Holcomb v. United States, 11-7505, all appear to be among the growing mass of cases awaiting Dorsey v. United States, 11-5683, and Hill v. United States, 11-5721, involving the retroactivity of the Fair Sentencing Act. Potts v. United States, 11-6414, and Arpon v. United States, 11-6482, appear to be on hold for Setser v. United States, 10-7387, which involves whether a district court can direct that a federal sentence be served consecutively to a state sentence that had not yet been imposed.
Although Guantanamo cases no longer seem to receive the sort of news coverage they did when the respondent’s name had four letters instead of five, that doesn’t mean there aren’t still plenty of detainees with habeas cases working their way through the courts. This week, two cases with detainees challenging their detention, Al-Bihani v. Obama, 10-1383, and Uthman v. Obama, 11-413, have been put on hold—apparently so they can be considered along with other detainee cases in which the SG has yet to file a response (Al-Madhwani v. Obama, 11-7020, 11-7020; Almerfedi v. Obama, 11-683; Al-Alwi v. Obama, 11-7700). Others are doubtless on the way.
Now the state criminal cases. Four cases from the Golden State—Moscoe v. California, 11-5759; Espinoza v. California, 11-5796; Kwon v. California, 11-5832; and Sisolak v. California, 11-6217—appear to be on hold for Williams v. Illinois, 10-8505, which concerns the issue left open in Justice Sotomayor’s concurrence in last term’s Bullcoming v. New Mexico, 131 S. Ct. 2705: whether it violates the Confrontation Clause for a testifying DNA analyst to rely on results conducted by a non-testifying analyst to explain the basis of the testifying expert’s own opinion. Meanwhile, two capital habeas cases—McGehee v. Arkansas, 11-6472, and Newbury v. Thaler, 11-6969—are probably on hold for Martinez v. Ryan, 10-1001, which asks whether a defendant prevented by state law from raising an ineffective assistance of counsel claim on direct review has a federal constitutional right to effective assistance of counsel to raise that claim during his first state collateral proceeding. Ninham v. Wisconsin, 11-6494, is almost certainly a hold for Miller v. Alabama, 10-9646, and Jackson v. Hobbs, 10-9647, involving the constitutionality of sentencing juvenile offenders convicted of murder to life imprisonment without the possibility of parole. And then there’s Basham v. Arkansas, 11-536, which is likely being held for the resolution of another case out of the Natural State, Blueford v. Arkansas, 10-1320, presenting the question whether, if a jury deadlocks on a lesser-included offense, the Double Jeopardy Clause bars the reprosecution of a greater offense after the jury announces that it has voted against guilt on the greater offense.
Yes, dear reader, the Court actually reviews civil cases from time to time as well. Article Slope Native Association v. Sebelius, 11-83, which had been relisted once, moves into the “hold” column awaiting decision in the newly granted Salazar v. Ramah Navajo Chapter, 11-551, involving a similar issue of the government’s obligation to pay contractors despite limitations on the agency’s spending.
That’s it until next week, when we start it all over again.
Thanks to Eric White for compiling and drafting this update.
Alvis v. Espinosa (relisted after the 1/6 Conference)
Issue: (1) Whether the Ninth Circuit erred in holding that when an officer makes an unlawful entry, and does so “intentionally or recklessly,” the officer loses authority under the Fourth Amendment to use reasonable force to protect himself or the public during that search; and (2) whether the Ninth Circuit erred in denying qualified immunity for the officers’ use of force based solely on the conclusion that the force may have violated the Fourth Amendment, without performing the second step of the qualified immunity analysis by inquiring whether clearly established law prohibited the force under the circumstances.
Certiorari stage documents:
Ryburn v. Huff (relisted after the 12/2, 12/9, and 1/6 Conferences)
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 and 1/6 Conferences)
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: