John Elwood reviews Monday’s relisted cases.

UPDATED December 19, 2013 [2:24 p.m.].  Since our post yesterday, we have learned of another case pending that may explain the status of Turner v. United States, 13-127, and have revised this post accordingly.

As Old Man Winter begins to take the country in his grasp, Relist Watch offers the rare chance to strike back at those December doldrums.  But with only a few shopping days left for those special someones on your list, we’ll keep today’s update brisk.

The nearly month-long break between Conferences is good news for most sentient creatures, who have better things to do than track docket minutiae interspersed with hyperlinks to infected websites. But with the Clerk’s office experiencing a rare bit of breathing room, the docket updates tend to be slower in coming, meaning it’s harder to definitively tell the relists from the holds.  So hard as it is to believe, today’s update will be even less accurate than usual.

It appears last week’s sole dancing sugarplum, Ryan v. Hurles, 12-1472, is back for a whopping ninth relist.  The case involves whether it is per se unreasonable for a state not to provide an evidentiary hearing on a judicial-bias claim.  We suspect the clerkerati will use the winter break to put finishing touches an opinion (or, likelier still, opinions), and we will at long last find out what has been holding this case up.

We have long since abandoned the practice of routinely noting held cases, but for cases that have some prospect of being granted, we’ll make an exception.  The Court appears to be holding Turner v. United States, 13-127, for Brewington v. North Carolina, 13-504, a case that presents the same issue, and in which the Court called for a response on December 2; the Court is likely holding Turner so Brewington can catch up and it can consider the cases together.  Turner alleges a split, following Williams v. Illinois, over whether the Confrontation Clause prohibits a government expert from testifying about the procedures and conclusions of a non-testifying forensic analyst.  Hard as it is to imagine that any confusion could remain after the Court’s four-one-four decision in that case, Turner alleges an eight-to-five split among the courts of appeals.  Mr. Turner was convicted of selling crack cocaine on the mean streets of Madison, WI, based on the government’s expert testimony about a (non-testifying) lab analyst’s results.  Brewington, who believe it or not was stopped by police for riding a bicycle without reflectors –  police in Goldsboro, North Carolina take bike safety very seriously – raises the same issue but frames the question slightly differently, arguing that the North Carolina Supreme Court’s decision was contrary to Melendez-Diaz v. Massachusetts and Bullcoming v. New MexicoAt Brewington’s trial, the government’s expert – who had not personally performed or observed the lab tests – testified that a white substance that had fallen out of Mr. Brewington’s sock during his bicycle stop was cocaine.  Brewington suggests the error was so clear that summary reversal may be appropriate.  [Goldstein & Russell, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in Brewington.]

The Court likely is holding Hinton v. Alabama, 13-6440, a capital case involving the Sixth Amendment standard for effective assistance of counsel, while it awaits the arrival of the record, which it requested on December 4.  And yes, the Court is indeed holding United States v. Wurie, 13-121, the warrantless phone-search case, while it continues to wait for the record to arrive in Riley v. California, 13-132.

With that, you’ve let yet another perfectly good year slip through your fingers reading Relist Watch.  Assuming the Justices don’t adjourn to fairer pastures during the interim, we’ll be back in mid-January with our signature blend of keen insight and humor.

Thanks to Conor McEvily and Jeremy Marwell for compiling and drafting this update.


12-1472

Issue: 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, October 18, November 1, November 8, November 15, November 26, December 6, and December 13 Conferences)

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch (UPDATED), SCOTUSblog (Dec. 18, 2013, 11:35 AM), http://www.scotusblog.com/2013/12/relist-watch-29/