John Elwood reviews Monday’s relisted cases.

Good afternoon race fans, and welcome to the 108th running of the Relist Derby. Don your hat, grab a julep, and prepare to witness the most exciting two minutes on the internet.

If you’re looking to squander serious cash at long odds, you’ve come to the right place. Our dance with fate last week has paid off thus far. Both grants this week, Jesinoski v. Countrywide Home Loans, Inc., 13-684 (asking how a borrower exercises his right to rescind a mortgage loan under the Truth in Lending Act), and Yates v. United States, 13-7451 (involving whether Sarbanes-Oxley’s “anti-shredding” prohibition can be used to go after small fry) were first-time relists last week.  As the Court’s consecutive “relisted grant” streak extends to fourteen, the Court continues to enter all its provisional grants in the relist stakes: whether they’re doing so to double-check for vehicle problems or because they don’t want to miss out on our jokes is anyone’s guess. If this trend continues, it could expand our readership to the high single digits.

With Jesinoski’s grant, its two companions, Keiran v. Home Capital, Inc., 13-705, and Takushi v. BAC Home Loans Servicing, 13-884, are now stuck as holds. They will take an intense holiday and await the resolution of Jesinoski for their next hoppertunity at a grant.

Meanwhile, two other contenders were denied their bid for social inclusion. One-time relists Espinoza v. United States, 13-7909 (whether an offense with a mens rea of recklessness triggers a sentencing enhancement under the Armed Career Criminal Act’s residual clause), and Dykes v. South Carolina, 13-8037 (involving a constitutional challenge to a state law imposing GPS monitoring on released sex offenders), were both put out to pasture.

The rest of our field from last week is back for another run for the roses. Any takers for our favorite dark horse, Ryan v. Hurles, 12-1472? That case, which still addresses whether it is per se unreasonable for a state not to provide an evidentiary hearing on a judicial-bias claim, pocketed relist number twenty. Two other veterans upped their medal count to eight relists since the Court received their records: Tolan v. Cotton, 13-551, a qualified immunity case involving a man shot after police made a mistake typing in a license plate, and Martinez v. Illinois, 13-5967, which asks if jeopardy attaches when a jury is sworn after the prosecution refuses to participate in the case. Thomas v. Nugent, 13-862, which was originally rescheduled, has now been relisted twice. This qualified immunity case addresses whether it was clearly established that a police officer violates the Fourth Amendment when he tases a handcuffed but non-cooperative suspect eight times. The Second Amendment case Drake v. Jerejian, 13-827, a constitutional challenge to New Jersey’s handgun carry permit laws, also picked up its second relist. Expect a photo finish from two other double relists angling for the Triple Crown. The first is Federal National Mortgage Association v. Sundquist, 13-852, involving the power of a state to restrict an out-of-state national bank’s exercise of its fiduciary powers in that state. The second is T-Mobile South, LLC v. City of Roswell, 13-975, which asks what satisfies the Communication Act’s requirement that an application denial be “in writing.”

The stable of new relists this week is wicked strong. Pole position belongs to state-on-top habeas case Beard v. Aguilar, 13-677. The Ninth Circuit, looking to remind the Sixth that they are still the favorite to have grants of habeas overturned, granted habeas relief to Mr. Aguilar after determining that the California Court of Appeals unreasonably applied Brady v. Maryland in a case involving alleged dog sniff errors. The Derby’s host circuit has a new entrant in M&G Polymers USA, LLC v. Tackett, 13-1010. The petition alleges that the Sixth Circuit is on the wrong side of two distinct circuit splits relating to collectively bargained retirement plans – a subject so dull it could make your uncle sigh.

Finally, the Court has tossed us a commanding curve with a group of cases that are not conventional relists. These cases were on for various Conferences, but — before their appointed dates even arrived — the Court let them skip straight to the Preakness and rescheduled the lot of them for the May 15 Conference. The lead case should be familiar:  James v. United States, 13-632. The question presented in that case is whether forensic pathology reports are testimonial for Confrontation Clause purposes. As James’s reply brief notes (see p.10), there are at least a baker’s dozen of petitions raising the same issue. The Court appears to have rescheduled the cases to consider the lot together.

Another group of cases out of Texas will be joining James at the May 15 Conference: Luna v. Texas, 13-994, Ibarra v. Texas, 13-999, and Gomez v. Texas, 13-1036. Each of these cases asks whether Padilla v. Kentucky applies retroactively to ineffective assistance of counsel cases alleging “affirmative misadvice.” While the rescheduling suggests the issue has the Court’s attention, in only one of the cases (Gomez) has the state been required to file a reply.

That’s all for this edition. See you in the winner’s circle next week, after Harry’s holiday.

Thanks to Kentucky Colonel Dmitry Slavin 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, December 13, January 10, January 17, January 24, February 21,  February 28, March 7, March 21, March 28, April 4, April 18 and April 25 Conferences)

13-551

Issue: Whether courts deciding qualified immunity in Fourth Amendment cases should consider the factual reasonableness of the search or seizure when applying the second, “clearly established” prong of the test.

(relisted after the February 21, February 28, March 7, March 21, March 28, April 4, April 18 and April 25 Conferences)

13-5967

Issue: Whether a defendant is acquitted for purposes of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, where a court grants a motion for directed verdict after the prosecution refuses to present any evidence at trial to the empaneled and sworn jury.

(relisted after the February 21, February 28, March 7, March 21, March 28, April 4, April 18 and April 25 Conferences)

13-862

Issue: (1) Whether it was clearly established in 2008 that a police officer violates the Fourth Amendment when he uses a Taser to electroshock a person eight times, where that person is already handcuffed and poses no threat to anyone’s safety and no risk of flight but does not comply with the officer’s orders to stand up; (2) whether, on a motion for summary judgment, the non-moving party bears the burden of disproving the moving party’s affirmative defense of qualified immunity; and (3) whether a court of appeals has subject-matter jurisdiction to hear an interlocutory appeal of a district court’s decision that there is a genuine dispute over factual issues, where the district court does not decide any legal issue.

(relisted after the March 28, April 18, and April 25 Conferences)

13-827

Issue: (1) Whether the Second Amendment secures a right to carry handguns outside the home for self-defense; and (2) whether state officials violate the Second Amendment by requiring that individuals wishing to exercise their right to carry a handgun for self-defense first prove a “justifiable need” for doing so.

(relisted after the April 18 and April 25 Conferences)

13-852

Issue: Whether a state can restrict a national bank’s exercise of its fiduciary powers in connection with real property in that state if the bank is authorized to act as a fiduciary by the Comptroller of the Currency and not prohibited from doing so by the (different) state in which the bank is “located” under 12 U.S.C. § 92a and 12 C.F.R. § 9.7. CVSG: 10/07/2014.

(relisted after the April 18 and April 25 Conferences)

13-975

Issue: Whether a document from a state or local government stating that an application has been denied, but providing no reasons whatsoever for the denial, can satisfy the Communications Act’s “in writing” requirement.

(relisted after the April 18 and April 25 Conferences)

13-677

Issue: Whether the Ninth Circuit’s grant of habeas relief in this case violated 28 U.S.C. § 2254(d).

(relisted after the April 25 Conference)

13-1010

Issue: Whether, when construing collective bargaining agreements in Labor Management Relations Act (LMRA) cases, courts should presume that silence concerning the duration of retiree health-care benefits means the parties intended those benefits to vest (and therefore continue indefinitely), as the Sixth Circuit holds; or should require a clear statement that health-care benefits are intended to survive the termination of the collective bargaining agreement, as the Third Circuit holds; or should require at least some language in the agreement that can reasonably support an interpretation that health-care benefits should continue indefinitely, as the Second and Seventh Circuits hold.

(relisted after the April 25 Conference)

13-632

Issue: Whether forensic pathology reports are testimonial for purposes of the Confrontation Clause.

(relisted after the April 25 Conference)

13-994

Issue: (1) Whether the Texas Court of Appeals erred in applying Teague v. Lane without engaging in a proper analysis as to whether the constitutional right recognized in Padilla v. Kentucky was a watershed rule of criminal procedure, and by not recognizing that Padilla applies to affirmative misadvice as well as no advice, while the no retroactive application of Chaidez v. United States only applies to the “no advice” part of Padilla; (2) whether pursuant to the clearly established precedent of Martinez v. Ryan and Trevino v. Thaler, the Texas Court of Appeals erred in applying the “new rule v. old rule” threshold question of Teague to an ineffective assistance of counsel (IAC) claim that is the functional equivalent of a direct appeal; and (3) whether the court of appeals, in not applying the Texas definition of final conviction but rather the definition of “conviction” in 8 U.S.C. § 1101(a)(48)(A), has avoided following the requirements of Padilla v. Kentucky in violation of due process under the Fourteenth Amendment.

(relisted before the April 25 Conference)

13-999

Issue: (1) Whether the Texas Court of Appeals erred in applying Teague v. Lane without engaging in a proper analysis as to whether the constitutional right recognized in Padilla v. Kentucky was a watershed rule of criminal procedure, and by not recognizing that Padilla applies to affirmative misadvice as well as no advice, while the no retroactive application of Chaidez v. United States only applies to the “no advice” part of Padilla; and (2) whether pursuant to the clearly established precedent of Martinez v. Ryan and Trevino v. Thaler, the Texas Court of Appeals erred in applying the “new rule v. old rule” threshold question of Teague to an ineffective assistance of counsel (IAC) claim that is the functional equivalent of a direct appeal.

(relisted before the April 25 Conference)

(rescheduled before the April 25 Conference)

Posted in Cases in the Pipeline, Featured

Recommended Citation: John Elwood, Relist Watch: The Streak Continues, SCOTUSblog (May. 2, 2014, 3:28 PM), http://www.scotusblog.com/2014/05/relist-watch-the-streak-continues/