John Elwood reviews Monday’s relisted cases.

There are those who say the Supreme Court involves itself in too much of American life.  But when you see how well the other branches are doing, you begin to understand why.  The Court was takin’ care of business again this week, but as usual, there were a handful of cases that need a bit more time.

We always start with the old.  Congratulations to the petitioner in two-time relist Robers v. United States, 12-9012:  Following Monday’s grant, those contemplating a second life in straw purchasing will at long last know whether they’ll get credit for the fair market value of their fraudulently purchased real estate in determining victim restitution.  Joining Robers in the winner’s circle is two-time relist Hall v. Florida, 12-10882, concerning the Sunshine State’s definition of mental retardation.  (Fellow traveler and one-time relist Lipsey v. United States, 12-10638, is now most likely on hold for Robers; ditto Quince v. Florida, 13-5753, for Hall.)  Meanwhile, the petitioner in one-time relist Martin v. Blessing, 13-169, the case involving the racially conscious class-certification order, keeps his hopes alive as the Court has called for the record.  Sadly, it’s curtains for the once-relisted dog-sniff petition in Sellars v. North Carolina, 12-10958.

It appears that several cases are back for another round of relists.  I say appears, in italics no less, because the Court has not yet updated its docket.  But after careful analysis, we’re going to say the Court has relisted these again rather than just putting them on hold.  Back for a third time is the trio of state-on-top habeas cases, Ryan v. Hurles, 12-1472 (asking whether it is per se unreasonable for a state not to provide an evidentiary hearing on a judicial-bias claim), Rapelje v. McClellan, 12-1480 (asking whether dismissal “for lack of merit in the grounds presented” is adjudication on the merits), and Unger v. Young, 13-95 (asking whether a state can forfeit application of the Stone v. Powell rule that Fourth Amendment claims aren’t cognizable on habeas).  Relisted state petitions in habeas cases are as a class better-than-average candidates for summary reversals, dissents from denial of cert., or even belated grants, but it’s hard to tell what is in store for any one of these.  Stanton v. Sims, 12-1217, the cop-on-top qualified immunity case, is likewise still in “hot pursuit” with a third relist.  And trailing just slightly behind at two relists is Marek v. Lane, 13-136, the Facebook case concerning the propriety of cy pres class-action remedies.

Enough with the old.  This week brought us what appear to be two new relists.  The first is Plumhoff v. Rickard, 12-1117.  Sounding at first blush a little like Stanton (where the Ninth Circuit denied qualified immunity to an officer in hot pursuit of a suspect), Plumhoff concerns the Sixth Circuit’s denial of qualified immunity to an officer in hot pursuit of a suspect, this time in a car instead of on foot.  But where the plaintiff in Stanton was an innocent bystander, the plaintiff in Plumhoff was a driver who led the police on a high-speed chase before police elected to end the chase by shooting him.  The officers’ petition claims that the panel majority essentially inverted the proper qualified-immunity inquiry by looking to whether subsequent case law supported their actions rather than whether those actions violated then-existing clearly established law.

Meanwhile, possible relist Woodward v. Alabama, 13-5380, holds out the possibility that the standards of decency undergirding the Eighth Amendment are still evolving.  Following Woodward’s conviction for murdering a police officer, the penalty-phase jury voted eight to four in favor of life imprisonment without parole.  But, based in part on recordings and transcripts “the jury did not hear,” the trial judge decided to impose the death penalty anyway.  The Alabama Court of Criminal Appeals affirmed.  Woodward argues that the increasingly rare and “geographically isolated” practice of “imposing the death penalty through override” violates evolving standards of decency.  And when he says “geographically isolated,” you can bet he doesn’t mean the Northeast and California.

That’s all for now, so we’ll leave you to your Chulalongkorn Day parties.  The Justices’ next Conference is November 1, so don’t get bent out of shape about a missing post next week.  We’ll be back fresh-faced in two weeks.

Thanks to Eric White for compiling and drafting this update.


Issue(s): Whether, or in what circumstances, a cy pres remedy that provides no direct relief to class members comports with the requirement of Federal Rule of Civil Procedure 23(e)(2) that a settlement that binds class members must be “fair, reasonable, and adequate.”

(relisted after the October 11 and October 18 Conferences)


Issue(s): (1) Whether the “hot pursuit” doctrine articulated in United States v. Santana applies where police officers seek to arrest a fleeing suspect for a misdemeanor; and (2) whether a police officer is entitled to qualified immunity where he pursued a suspect fleeing the officer’s attempt to arrest him for a jailable misdemeanor committed in the officer’s presence, into the front yard of a residence through a gate used to access the front door, and the officer had reason to believe the suspect might have been just involved in a fight involving weapons.

(relisted after the September 30, October 11, and October 18 Conferences)


Issue(s): Whether, under the Antiterrorism and Effective Death Penalty Act (AEDPA), state court adjudications are per se unreasonable and not entitled to deference under 28 U.S.C. § 2254(d)(2) merely because the state court does not conduct an evidentiary hearing.

(relisted after the September 30, October 11, and October 18 Conferences)


Issue(s): (1) Whether a state-court order denying a request for relief on a constitutional claim “for lack of merit in the grounds presented” constitutes a merits adjudication of that claim for purposes of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA); and (2) whether a federal habeas court may, consistent with AEDPA, delve into the internal procedures of a state court to support its speculation that an order denying relief “for lack of merit” is not, in fact, a merits adjudication.

(relisted after the September 30, October 11, and October 18 Conferences)


Issue(s): (1) Whether the state forfeits an argument that Stone v. Powell bars habeas relief if the state fails to raise Stone in the district court, or whether Stone announced a categorical rule that Fourth Amendment claims are not cognizable on habeas review absent a showing that the state prisoner was denied a full and fair opportunity to litigate the issue in state court; (2) whether the decision of the United States Court of Appeals for the Second Circuit, in relying on studies that were not part of the state court record, conflicts with this Court's decision in Cullen v. Pinholster, which held that habeas review is limited to the record that was before the state court; and (3) whether the decision of the Second Circuit affords the state court the deference required by 28 U.S.C § 2254(d), as interpreted by this Court in Harrington v. Richter.

(relisted after the September 30, October 11, and October 18 Conferences)


Issue(s): (1) Whether the Sixth Circuit wrongly denied qualified immunity to the petitioners by analyzing whether the force used in 2004 was distinguishable from factually similar force ruled permissible three years later in Scott v. Harris. Stated otherwise, the question presented is whether, for qualified immunity purposes, the Sixth Circuit erred in analyzing whether the force was supported by subsequent case decisions as opposed to prohibited by clearly established law at the time the force was used; and (2) whether the Sixth Circuit erred in denying qualified immunity by finding the use of force was not reasonable as a matter of law when, under the respondent's own facts, the suspect led police officers on a high-speed pursuit that began in Arkansas and ended in Tennessee, the suspect weaved through traffic on an interstate at a high rate of speed and made contact with the police vehicles twice, and the suspect used his vehicle in a final attempt to escape after he was surrounded by police officers, nearly hitting at least one police officer in the process.

(relisted after the September 30, October 11, and October 18 Conferences)


Issue(s): (1) Whether the increasingly rare and geographically isolated practice of imposing the death penalty through override violates the nation's evolving standards of decency and the Eighth Amendment; and (2) whether, when the jury determines that aggravation does not outweigh mitigation, the trial judge's override of that determination based on evidence not considered by the jury violates the defendant's Sixth Amendment right to a jury under Ring v. Arizona.

(relisted after the September 30, October 11, and October 18 Conferences)

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Oct. 23, 2013, 2:59 PM),