In its conference of March 2, 2018, the court will consider petitions involving issues such as whether a state court’s denial of capital post-conviction counsel’s request for funds to conduct a mitigation investigation constitutes “cause” to overcome procedural default when the denial operated as an objective factor external to the defense, and impeded the development and presentation of an ineffective-assistance-of-trial counsel claim during the state-court proceedings; whether Bowles v. Seminole Rock & Sand Co. and Auer v. Robbins should be overruled; and whether the U.S. Court of Appeals for the 10th Circuit’s holding—granting qualified immunity to law-enforcement officers who stopped the petitioner from praying silently in her own home because there was no prior case law involving similar facts—conflicts with Hope v. Pelzer, which “expressly rejected a requirement that previous cases be ‘fundamentally similar’” or involve “‘materially similar’ facts.”

17-5684

Issues: (1) Whether the petitioner’s mandatory guidelines sentence, which was enhanced under the residual clause of U.S.S.G. § 4B1.2, is unconstitutional in light of the Supreme Court’s decision in Johnson v. United States, and, if so, whether a conviction for burglary of a dwelling under Florida law qualifies as a “crime of violence” under U.S.S.G. § 4B1.2’s elements clause; and (2) whether published orders issued by a circuit court of appeals under 28 U.S.C. § 2244(b)(3), and in the context of applications to file second or successive 28 U.S.C. § 2255 motions, constitute binding precedent outside of that context.

16-334

Issues: (1) Whether Section 1610(g) of the Foreign Sovereign Immunities Act establishes a freestanding exception to sovereign immunity, as the U.S. Court of Appeals for the 9th Circuit held below, or instead merely supersedes First National City Bank v. Banco Para El Comercio Exterior de Cuba’s presumption of separate status while still requiring a plaintiff to satisfy the criteria for overcoming immunity elsewhere in Section 1610, as the U.S. Court of Appeals for the 7th Circuit has held and the United States has repeatedly urged; and (2) whether a court should apply federal or state law to determine whether assets constitute “property of” or “assets of” the sovereign under the Terrorism Risk Insurance Act and Section 1610(g), and whether those provisions require that the sovereign own the property in question, as the U.S. Court of Appeals for the District of Columbia Circuit has held and the United States has repeatedly urged, contrary to the decision below.

17-7245

Issue: Whether the death penalty, in and of itself, violates the Eighth Amendment in light of contemporary standards of decency and the geographic arbitrariness of its imposition.

17-6262

Issue: Whether, under the Supreme Court’s opinions in United States v. BookerJohnson v. United States and Beckles v. United States, which depended heavily upon the distinction between advisory and mandatory sentencing schemes, the residual clause of the mandatory sentencing guidelines is unconstitutionally vague.

17-6086

Issues: (1) Whether convicted sex offenders are “required to register” under the federal Sex Offender Notification and Registration Act while in custody, regardless of how long they have until release; (2) whether all offenders convicted of a qualifying sex offense prior to SORNA’s enactment are “required to register” under SORNA no later than August 1, 2008; (3) whether a defendant travels in interstate commerce for purposes of 18 U.S.C. § 2250(a) when his only movement between states occurs while he is in the custody of the Federal Bureau of Prisons and serving a prison sentence; and (4) whether SORNA’s delegation of authority to the attorney general to issue regulations under 42 U.S.C. § 16913 violates the nondelegation doctrine.

17-654

Issue: Whether, pursuant to United States v. Munsingwear, Inc., the Supreme Court should vacate the U.S. Court of Appeals for the District of Columbia Circuit’s judgment and instruct that court to remand the case to the district court with directions to dismiss all claims for prospective relief regarding pregnant unaccompanied minors.

17-251

Issues: (1) Whether Arizona’s capital sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment; and (2) whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.

17-6769

Issue: Whether, under the Supreme Court’s opinions in United States v. BookerJohnson v. United States and Beckles v. United States, which depended heavily upon the distinction between advisory and mandatory sentencing schemes, the residual clause of the mandatory sentencing guidelines is unconstitutionally vague.

17-467

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in holding that Andrew Kisela, the police officer who found Amy Hughes walking down her driveway toward another woman while carrying a large kitchen knife, acted unreasonably when he shot and wounded Hughes after she ignored commands to drop the knife given Kisela’s well-founded belief that potentially lethal force was necessary to protect the other woman from an attack that could have serious or deadly consequences; and (2) whether the lower court erred—to the point of warranting summary reversal—in refusing qualified immunity in the absence of any precedent finding a Fourth Amendment violation based on similar facts and, indeed, ignoring a case with remarkably similar facts that found no constitutional violation.

17-647

Issues: (1) Whether the Supreme Court should reconsider the portion of Williamson County Regional Planning Commission v. Hamilton Bank that requires property owners to exhaust state court remedies to ripen federal takings claims; and (2) whether Williamson County’s ripeness doctrine bars review of takings claims that assert that a law causes an unconstitutional taking on its face, as the U.S. Courts of Appeals for the 3rd, 6th, 9th and 10th Circuits hold, or whether facial claims are exempt from Williamson County, as the U.S. Courts of Appeals for the 1st, 4th and 7th Circuits hold.

17-682

Issues: (1) Whether a one-sentence allegation of fact in the background section of a prisoner’s state court brief can be sufficient to exhaust a novel and complex federal constitutional double jeopardy claim; and (2) whether it is unreasonable to conclude that double jeopardy does not bar retrial, when the Supreme Court has repeatedly indicated that double jeopardy does not apply if the trial court lacks the power to enter a verdict.

17-742

Issue: Whether the U.S. Court of Appeals for the 10th Circuit’s holding—granting qualified immunity to law-enforcement officers who stopped the petitioner from praying silently in her own home because there was no prior case law involving similar facts—conflicts with Hope v. Pelzer, which “expressly rejected a requirement that previous cases be ‘fundamentally similar’” or involve “‘materially similar’ facts.”

17-567

Issue: Whether the administrative law judges of the Federal Deposit Insurance Corporation are inferior officers under the appointments clause, U.S. Const. Art. II, § 2, Cl. 2.

16-9604

Issue: Whether Missouri’s second-degree burglary statute is divisible into two offenses with separate elements for the purpose of analyzing whether a conviction under that statute qualifies as a conviction for a “violent felony” as defined in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

17-6844

Issues: (1) Whether, when a state post-conviction court refuses a request for funds to conduct a mitigation investigation in a death penalty case, counsel nevertheless has a duty to investigate mitigation evidence; (2) whether a state court’s denial of capital post-conviction counsel’s request for funds to conduct a mitigation investigation constitutes “cause” to overcome procedural default when the denial operated as an objective factor external to the defense, and impeded the development and presentation of an ineffective-assistance-of-trial counsel claim during the state-court proceedings; and (3) whether a state court’s denial of capital post-conviction counsel’s request for funds to conduct a mitigation investigation renders the available state corrective process ineffective to protect the rights of the applicant under 28 U.S.C. § 2254(b)(1)(B)(ii), such that state-court exhaustion of a claim of ineffective assistance of trial counsel based on the results of such an investigation is not required.

17-552

Issues: (1) Whether, in deadly force shooting cases, the U.S. Court of Appeals for the 2nd Circuit erred by requiring that the jury must be instructed regarding the specific legal justifications for the use of deadly force, and that the usual less specific instructions regarding the use of excessive force are not adequate, when such a requirement is in direct conflict with the Supreme Court’s decision in Scott v. Harris and subsequent decisions, which abrogated the use of special standards in deadly force cases and established “reasonableness” as the ultimate and only inquiry; and (2) whether, in light of the direct conflict with several of its sister circuits, the U.S. Court of Appeals for the 2nd Circuit’s requirement that a jury must be instructed regarding the specific legal justifications for the use of deadly force creates an uncertainty preventing law enforcement officers from having adequate fair notice of what conduct is proscribed or constitutionally permissible, thereby further hampering the application of qualified immunity at the earliest stage of a case.

Posted in Cases in the Pipeline

Recommended Citation: Aurora Barnes, Petitions to watch | Conference of March 2, SCOTUSblog (Mar. 1, 2018, 2:43 PM), http://www.scotusblog.com/2018/03/petitions-watch-conference-march-2/