John Elwood reviews Monday’s relists.

This is spring break for many American schoolchildren, meaning that they’re spending the week in exotic destinations, trying local specialties, and enjoying beautiful scenery with their loving parents. All while their parents try to get their work done late at night on hotel WiFi. At least the Supremes did their part by giving us a light week on the relist front: All last week’s relists hung around for another week, and only two new cases joined the rolls.

Pace v. United States, 17-7140, joins last week’s already swollen list of cases asking whether robbery (and, in particular, robbery under Florida law) constitutes a violent felony for purposes of the Armed Career Criminal Act’s sentencing enhancements.

Brown v. Brown, 17-887, may sound like a family-law case gone horribly wrong. But it’s actually a state-on-top petition in a habeas case. This one concerns claims of ineffective assistance of counsel, and in particular, whether defendants can claim they should be excused for raising ineffectiveness claims for the first time in collateral habeas corpus proceedings because raising such claims during their initial direct appeal is too difficult. Indiana law provides a (rarely used) mechanism for criminal defendants to raise such claims on direct appeal. The U.S. Court of Appeals for the 7th Circuit concluded that procedure does not provide a meaningful opportunity to raise such claims and thus held that respondent Brown should be excused for failing to raise the claim on direct appeal. Indiana seeks to have the Supreme Court revisit that determination.

That, mercifully, is all for this week. Thanks to Kent Piacenti for compiling this week’s cases. We’ll be back next week when we have no excuses for being unfunny.

New Relists

Brown v. Brown, 17-887

Issue: Whether the Indiana procedure that allows trial-counsel Strickland v. Washington claims on direct appeal in one of two ways–defendants may assert the claims in their brief on direct appeal if they choose to make no further record in support of their claims or, if they wish to develop a record, defendants may suspend their direct appeal while they develop the factual record in the trial court–satisfies the MartinezTrevino doctrine, which allows a federal habeas court to hear a substantial claim of ineffective assistance of trial counsel if a state denies a meaningful opportunity to raise the claim on direct appeal.

(relisted after the March 23 conference)

 

Pace v. United States, 17-7140

Issues: (1) Whether a conviction for Florida robbery qualifies as a “violent felony” within the Armed Career Criminal Act’s elements clause simply because it requires overcoming victim resistance, as the U.S. Court of Appeals for the 11th Circuit has held, or whether such a conviction fails to qualify as a “violent felony” under the ACCA because Florida caselaw confirms that overcoming victim resistance does not invariably require the use of “violent force,” as the U.S. Court of Appeals for the 9th Circuit has held; and (2) whether a conviction for any state robbery offense that includes “as an element” the common-law requirement of overcoming “victim resistance” is categorically a “violent felony” within the ACCA’s elements clause if the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.

(relisted after the March 23 conference)

 

Returning Relists

Sykes v. United States, 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).

(relisted after the October 6, October 13, October 27, November 3, November 9, November 21, December 1, December 8, January 5, January 12, January 19, February 16, February 23, March 2, March 16 and March 23 conferences)

 

Kisela v. Hughes, 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.

(relisted after the January 5, January 12, January 19, February 16, February 23, March 2, March 16 and March 23 conferences)

 

Azar v. Garza, 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.

(relisted after the January 12, January 19, February 16, February 23, March 2, March 16 and March 23 conferences)

 

Allen v. United States, 17-5864

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 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.

(relisted after the February 16, February 23, March 2, March 16 and March 23 conferences)

 

James v. United States, 17-6769

Issues: 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.

(relisted after the February 16, February 23, March 2, March 16 and March 23 conferences)

 

Gates v. United States, 17-6262

Issues: 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.

(relisted after the February 23, March 2, March 16 and March 23 conferences)

 

Sause v. Bauer, 17-742

Issue: Whether the U.S. Court of Appeals for the 10th Circuit’s holding that law-enforcement officers who stopped the petitioner from praying silently in her own home were entitled to qualified immunity 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.

(relisted after the February 23, March 2, March 16 and March 23 conferences)

 

Evans v. Mississippi, 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.

(relisted after the February 23 and March 2 conferences; rescheduled after the March 16 conference; rescheduled before the March 23 and March 29 conferences)

 

Deutsche Bank Trust Company Americas v. Robert R. McCormick Foundation, 16-317

Issues: (1) Whether the U.S. Court of Appeals for the 2nd Circuit correctly held – contrary to several other courts of appeals – that the presumption against federal pre-emption of state law does not apply in the bankruptcy context; (2) whether the 2nd Circuit correctly held – following the U.S. Courts of Appeals for the 3rd, 6th, and 8th Circuits, but contrary to the U.S. Courts of Appeals for the 7th and 11th Circuits – that a fraudulent transfer is exempt from avoidance under 11 U.S.C. § 546(e) when a financial institution acts as a mere conduit for fraudulently transferred property, or whether instead the safe harbor applies only when the financial institution has its own beneficial interest in the transferred property; and (3) whether the 2nd Circuit correctly held – contrary to the Supreme Court’s decisions holding that it is for Congress, and not the courts, to balance the multiple purposes of the Bankruptcy Code, and that courts must therefore rely first and foremost on the text of the code – that 11 U.S.C. § 546(e) is properly construed to extend far beyond its text and impliedly pre-empt fraudulent-transfer actions brought by private parties (as opposed to the “trustee” expressly mentioned in the statute).

(relisted after the March 2, March 16 and March 23 conferences)

 

Robinson v. United States, 17-6877

Issue: Whether, following Johnson v. United States, in which the Supreme Court invalidated the Armed Career Criminal Act’s residual clause as unconstitutionally vague, identical language in the residual clause of the previously-mandatory sentencing guidelines is likewise unconstitutional.

(relisted after the March 2, March 16 and March 23 conferences)

 

Harris v. United States, 16-8616

Issues: (1) Whether “violent force” is an element of robbery, as defined at common law, such that it constitutes a “violent felony” under the elements clause of the Armed Career Criminal Act, as the U.S. Courts of Appeals for the 10th and 11th Circuits have held, or whether the force necessary to commit common law robbery is too slight to qualify as violent force, as the U.S. Courts of Appeals for the 4th and 8th Circuits have held; and (2) whether, when a federal court applies Moncrieffe v. Holder, which states that whether an offense qualifies as a “violent felony” depends on whether “the minimum conduct criminalized by the state statute” measures up to the federal definition of a “violent felony,” it should consult common law authorities to determine the minimum conduct connoted by the common law term of art, as the U.S. Court of Appeals for the 5th Circuit has done, or whether federal courts should assume that “force” and “violence” carry the ordinary meanings given by general-usage dictionaries, as the U.S. Court of Appeals for the 10th Circuit did in this case.

(relisted after the March 16 and March 23 conferences)

 

Lamb v. United States, 17-5152

Issues: (1) Whether the categorical approach, as detailed in Mathis v. United States, requires courts to determine whether an alternatively phrased statute presents alternative means or alternative elements; and whether, pursuant to this analysis, Michigan’s unarmed robbery statute is indivisible and overbroad because it does not require violent force, and therefore does not qualify as a predicate prior conviction under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1); and (2) whether, pursuant to Mathis, Wisconsin’s burglary statute is broader than generic burglary and therefore does not qualify as a predicate prior conviction under the ACCA.

(relisted after the March 16 and March 23 conferences)

 

Stokeling v. United States, 17-5554

Issue: Whether a state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.

(relisted after the March 16 and March 23 conferences)

 

Conde v. United States, 17-5772

Issue: Whether a state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), if the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.

(relisted after the March 16 and March 23 conferences)

 

Matthews v. United States, 17-5876

Issue: Whether the Michigan unarmed robbery statute “has an element, the use, attempted use, or threatened use of physical force against the person of another,” so as to constitute a “violent felony” under the federal Armed Career Criminal Act.

(relisted after the March 16 and March 23 conferences)

 

Weston v. United States, 17-5965

Issues: (1) Whether robbery, as defined at common law, has violent force as an element, as the U.S. Courts of Appeals for the 10th and 11th Circuits have held, and as the U.S. Court of Appeals for the 4th Circuit held in this case, or whether the force necessary to commit common law robbery is too slight to qualify as violent force, as the U.S. Courts of Appeals for the 8th, 9th and District of Columbia Circuits have held, and as the U.S. Court of Appeals for the 4th Circuit has held in the past; and (2) whether, after Parke v. Raley, defendants bear a burden to show that the presumption of regularity that attaches to final judgments should be suspended, and, if so, what that burden is.

(relisted after the March 16 and March 23 conferences)

 

Williams v. United States, 17-6026

Issue: Whether petitioner’s prior conviction for robbery under Florida law was a conviction for a “violent felony” under the elements clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i).

(relisted after the March 16 and March 23 conferences)

 

Everette v. United States, 17-6054

Issue: Whether a conviction for armed robbery qualifies as a “violent felony” under the Armed Career Criminal Act’s elements clause where, as in Florida and several other states, the offense may be committed by using a de minimis amount of force.

(relisted after the March 16 and March 23 conferences)

 

Jones v. United States, 17-6140

Issues: (1) Whether reasonable jurists can debate whether Florida armed robbery and attempted armed robber qualify as “violent felon[ies]” under the Armed Career Criminal Act after Johnson v. United States; and (2) whether reasonable jurists can debate whether Florida attempted first-degree murder qualifies as a violent felony under the Armed Career Criminal Act after Johnson v. United States.

(relisted after the March 16 and March 23 conferences)

 

James v. United States, 17-6271

Issues: (1) Whether the U.S. Court of Appeals for the 11th Circuit erroneously denied petitioner’s certificate of appealability on the issue of whether he was sentenced above the statutory maximum for his offense of conviction; and (2) whether reasonable jurists can, at a minimum, debate the issue of whether a Florida conviction for robbery qualifies as a “violent felony” under the elements clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e).

(relisted after the March 16 and March 23 conferences)

 

Middleton v. United States, 17-6276

Issues: (1) Whether the U.S. Court of Appeals for the 11th Circuit erroneously denied petitioner’s certificate of appealability on the issue of whether he was sentenced above the statutory maximum for his offense of conviction; and (2) whether reasonable jurists can, at a minimum, debate the issue of whether a Florida conviction for robbery qualifies as a “violent felony” under the elements clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e).

(relisted after the March 16 and March 23 conferences)

 

Brown v. United States, 17-6344

Issues: (1) Whether a certificate of appealability should be issued to determine whether a predicate conviction that requires merely “physical force that overcomes reasonable resistance” satisfies the force clause of the Armed Career Criminals Act; and (2) whether a certificate of appealability should be issued to determine whether a Missouri burglary conviction from 1969 is a violent felony because, like the contemporary Missouri burglary statute, it is a fatally overbroad and indivisible statute.

(relisted after the March 16 and March 23 conferences)

 

Reeves v. United States, 17-6357

Issues: (1) Whether any conviction for robbery qualifies as a “violent felony” under Armed Career Criminal Act’s elements clause where, as in Florida and several other states, the offense may be committed by using a de minimis amount of force; and (2) whether the U.S. Court of Appeals for the 11th Circuit’s rule that reasonable jurists could not debate an issue foreclosed by binding circuit precedent for determining whether a movant has made the threshold showing necessary to obtain a certificate of appealability, even when a judge on the panel who issued the binding precedent subsequently stated that the panel’s decision may be erroneous and misapplies the standard articulated by the Supreme Court in Miller-El v. Cockrell and Buck v. Davis.

(relisted after the March 16 and March 23 conferences)

 

Rivera v. United States, 17-6374

Issue: Whether reasonable jurists could debate whether petitioner was denied his due process rights under the Fifth Amendment when he was sentenced as an armed career criminal to an 188-month term of imprisonment pursuant to 18 U.S.C. § 924(e) for possessing a gun after three Florida state armed robbery convictions, when such offenses are not violent felonies after Johnson v. United States.

(relisted after the March 16 and March 23 conferences)

 

Shotwell v. United States, 17-6540

Issue: Whether petitioner’s prior convictions for armed robbery, in violation of Fla. Stat. § 812.13, were convictions for “violent felon[ies]” under the elements clause of the Armed Career Criminal Act, 18 U.S.C. 924(e)(2)(B)(i).

(relisted after the March 16 and March 23 conferences)

 

Orr v. United States, 17-6577

Issue: Whether, when the Supreme Court held in Johnson v. United States that the phrase “physical force” in the Armed Career Criminal Act requires “violent force – that is, force capable of causing physical pain or injury to another person,” the elements of a robbery offense satisfy the “violent force” threshold if state law requires only that the robber use “any degree” of force to overcome the victim’s resistance, such as the force exerted by a “bump” of the victim’s shoulder while snatching her purse or the force needed to snatch cash from the victim’s grasp.

(relisted after the March 16 and March 23 conferences)

 

Mays v. United States, 17-6664

Issues: (1) Whether the U.S. Court of Appeals for the 11th Circuit erroneously denied petitioner’s certificate of appealability on the issue of whether he was sentenced above the statutory maximum for his offense of conviction; and (2) whether reasonable jurists can, at a minimum, debate the issue of whether a Florida conviction for robbery qualifies as a “violent felony” under the elements clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e).

(relisted after the March 16 and March 23 conferences)

 

Hardy v. United States, 17-6829

Issues: (1) Whether a conviction for Florida robbery qualifies as a “violent felony” within the Armed Career Criminal Act’s elements clause simply because it requires overcoming victim resistance, as the U.S. Court of Appeals for the 11th Circuit has held, or whether such a conviction fails to qualify as an ACCA “violent felony” because Florida caselaw confirms that overcoming victim resistance does not invariably require the use of “violent force,” as the U.S. Court of Appeals for the 9th Circuit has held; and (2) whether a conviction for any state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” within the ACCA’s elements clause, if the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.

(relisted after the March 16 and March 23 conferences)

 

Wright v. United States, 17-6887

Issues: (1) Whether the district court erred when it ruled that a Florida “strong-armed robbery” is a crime of violence under the Armed Career Criminal Act; and (2) whether the district court erred when it denied defendant’s motion to suppress physical evidence.

(relisted after the March 16 and March 23 conferences)

 

Baxter v. United States, 17-6991

Issues: (1) Whether a conviction for robbery under Florida law qualifies as a “violent felony” within the Armed Career Criminal Act’s elements clause simply because it requires overcoming victim resistance, as the U.S. Court of Appeals for the 11th Circuit has held, or whether such a conviction fails to qualify as an ACCA “violent felony” because Florida caselaw confirms that overcoming victim resistance does not invariably requires the use of “violent force,” as the U.S. Court of Appeals for the 9th Circuit has held; and (2) whether a conviction for any state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” within the ACCA’s elements clause if the offense has been specifically interpreted by a state appellate court to require only slight force to overcome resistance.

(relisted after the March 16 and March 23 conferences)

Posted in Cases in the Pipeline, Featured

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Mar. 29, 2018, 10:01 AM), http://www.scotusblog.com/2018/03/relist-watch-120/