John Elwood reviews Monday’s relists.

All activity in Washington, D.C., may have ground to a halt because of snow, but the Supreme Court has entered a time of unparalleled productivity on the relist front.

The court first thinned the relist ranks this week by granting review in Nielsen v. Preap, 16-1363, which like the recently decided Jennings v. Rodriguez involves the attorney general’s authority to jail aliens who are inadmissible or deportable. That was the one bit of good relist news this week – for the federal government at least.

There was also one bit of decidedly neutral news on the relist front, as Oliver v. McDaniels, 17-682, was dismissed under Supreme Court Rule 46.1 by agreement of the parties. There, the commonwealth of Pennsylvania and the Philadelphia district attorney challenged the grant of habeas relief to a woman convicted of murdering her disabled stepson. The court had requested and received the record, making clear that at least one of the justices was taking a very close look at the case. Perhaps that was enough to nudge the parties together for settlement. And who knows – it may be that the arrival of a new Philadelphia district attorney and his new staff had something to do with the settlement.

But two closely watched petitions will not be gaining admission to the court. Hidalgo v. Arizona, 17-251, was a frontal assault on the constitutionality of the death penalty “in light of contemporary standards of decency,” as well as a more particularized attack on the breadth of aggravating circumstances under the Arizona capital-sentencing scheme. And Garco Construction, Inc. v. Secretary of the Army, 17-225, was a challenge to so-called Auer deference, under which courts defer to agencies’ interpretations of their own ambiguous regulations. The case was catnip for the growing ranks of anti-administrativists. But both Hidalgo and Garco got consolation prizes on their way out. Four justices joined an opinion respecting denial in Hidalgo, saying that evidence in that case that virtually all first-degree murder defendants were death-eligible pointed to “a possible constitutional problem” that could be more fully developed in future cases. Justice Clarence Thomas, joined by Justice Neil Gorsuch, dissented from denial of certiorari in Garco, writing that it “would have been an ideal case to reconsider” Auer deference, which he said “frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary government.”

Having thinned the ranks of relists, the court then went about filling them back up to bursting. The court relisted a whopping 20 new cases on Monday, the most since … well, I actually can’t remember when we’ve had more. But although we have new cases coming out of our ears, there actually aren’t many new issues this week: All 20 new relists principally concern just two legal issues. And every single one of them involves the Armed Career Criminal Act, a “three strikes”-type sentencing enhancement whose legendary ambiguity has spawned so much litigation that there are now more Armed Career Criminal Act appeals than there are armed career criminals.

Eighteen of the new relists — Harris v. United States, 16-8616, Stokeling v. United States, 17-5554, Conde v. United States, 17-5772, Matthews v. United States, 17-5876, Weston v. United States, 17-5965, Williams v. United States, 17-6026, Everette v. United States, 17-6054, Jones v. United States, 17-6140, James v. United States, 17-6271, Middleton v. United States, 17-6276, Reeves v. United States, 17-6357, Rivera v. United States, 17-6374, Shotwell v. United States, 17-6540, Orr v. United States, 17-6577, Mays v. United States, 17-6664, Hardy v. United States, 17-6829, Wright v. United States, 17-6887, and Baxter v. United States, 17-6991 — all involve the same issue.

Namely, whether a conviction for robbery qualifies as a “violent felony” under ACCA even when (as in Florida and several other states) the offense may be committed using a negligible amount of force. The government concedes that “a shallow conflict exists between [the U.S. Courts of Appeals for] the Ninth and Eleventh Circuits” about Florida’s robbery statute, but maintains that “the issue is unlikely to recur with great frequency in the Ninth Circuit, which sits on the other side of the country.” Some petitioners argue that the split is actually deeper, involves more robbery statutes besides Florida’s, and also involves decisions of the U.S. Courts of Appeals for the 4th, 8th and 10th Circuits. But whatever the scope of the split, it is tough ending your brief in opposition with the statement that the question “is unlikely to recur” when there are 18 cases pending at that single conference that raise the same basic issue. And that is to say nothing of the additional cases pending at future conferences.

The remaining two new relists could hardly be more different, concerning as they do a completely separate aspect of ACCA. Both involve the “divisibility” of burglary statutes. Under ACCA, a prior conviction for burglary can be a predicate offense supporting a sentence enhancement if the crime of conviction matches the elements of “generic” burglary (that is, entering or remaining in a building with intent to commit a crime).  If a single statute prohibits both generic burglary and other conduct (say, breaking into a car or tent), and the non-generic-burglary offense is not segregated into a separate subsection so a sentencing court can tell which part of the statute the defendant was convicted of, that crime cannot serve as an ACCA predicate.

Brown v. United States, 17-6344, argues that a now-superseded Missouri burglary statute includes conduct that falls outside generic burglary, is not divisible, and therefore cannot serve as an ACCA predicate offense. If that sounds vaguely familiar to you, there’s a reason for that: Serial relist Sykes v. United States, 16-9604, presents the same issue with respect to the current Missouri burglary statute. Sykes has now been relisted 14 times, making it (along with Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, 16-111) the second-most-relisted case I have ever seen. The U.S. Court of Appeals for the 8th Circuit is now reconsidering en banc its holding that the Missouri burglary statute is an ACCA predicate. Both Trevon Sykes and Jerry Brown have asked that consideration of their petitions be deferred until the 8th Circuit — which heard argument en banc in September 2017 — has announced its decision. The government in Brown stated that if the 8th Circuit reverses course and holds the Missouri statute is not an ACCA predicate, it has no objection to having Brown’s adverse judgment vacated and the case sent back for reconsideration in light of the government’s position. It’s conceivable that the court will keep relisting both cases until that decision is announced.

Last up is Lamb v. United States, 17-5152, which asks whether the Michigan and Wisconsin burglary statutes are indivisible and sweep in conduct that does not constitute generic burglary such that they cannot serve as ACCA predicates. The government waived its right to respond. Perhaps the court has relisted Lamb because it considers the case related to Brown and Sykes, though it involves a different state’s statute. The court presumably will direct the government to file a response before it grants relief to petitioner Jonathon Lamb.

That’s all for this week. We’ll be back next week for more ill-conceived speculation, although in summary form since I’ll be traveling. Thanks to Kevin Brooks for compiling all these cases, and special thanks to Aurora Temple Barnes for making 20 new case pages (and rephrasing the questions presented to SCOTUSblog style) on such short notice.

 

New Relists

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 conference)

 

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 conference)

 

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 conference)

 

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 conference)

 

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 conference)

 

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 conference)

 

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 conference)

 

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 conference)

 

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 conference)

 

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 conference)

 

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 conference)

 

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 conference)

 

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 conference)

 

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 conference)

 

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 conference)

 

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 conference)

 

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 conference)

 

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 conference)

 

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 conference)

 

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 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 and March 16 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 and March 16 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 and March 16 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 and March 16 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 and March 16 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 and March 16 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 and March 16 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)

 

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 and March 16 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.

(likely to be relisted after the March 2 and March 16 conferences)

Posted in Cases in the Pipeline, Featured

Recommended Citation: John Elwood, Relist Watch: Quantity has a quality all its own, SCOTUSblog (Mar. 22, 2018, 11:11 AM), http://www.scotusblog.com/2018/03/relist-watch-quantity-quality/