Relist Watch: The return of the snor’easter [UPDATED]

John Elwood reviews Monday’s relists.

[Editor’s Note: This post was updated at 1:41 p.m. to include discussion of two cases that the court appears likely to relist, although it has not done so yet.]

It’s a rare occasion when you hear people mention “extreme wind” in the same sentence as our nation’s capital and they aren’t talking about gale-force bloviation. But on a day when the weather was so bad that “pretty much every one” arriving into D.C. “threw up” for reasons having nothing to do with politics and when – as usual whenever Washington weather is not at least 55 degrees and sunny – they cancelled school, the justices braved the elements to meet for conference.

To skip to the end, we have thin offerings this week. The court appears likely to relist one new case, which concerns the same issue as three returning serial relists, which together merited not quite a single sentence the first week they were relisted. The court also appears likely to relist two other cases it has been holding for recently decided cases, one of them a bankruptcy case that is already familiar to readers. So batten down the hatches, everyone: We’re in for a real snor’easter.

Before we get to the new business, let us briefly rehearse last week’s relists. There are two success stories. Knick v. Township of Scott, Pennsylvania, 17-647, seeks to revisit Supreme Court precedent regarding the need to exhaust state-court remedies before bringing a Fifth Amendment takings claim. Gundy v. United States, 17-6086, involves a long-brewing nondelegation question regarding the federal Sex Offender Notification and Registration Act that the court passed on back in 2015 when it granted cert on another SORNA question in Nichols v. United States, 15-5238, and, well, also passed on a few other times.

Other petitioners left empty-handed. Bank Melli v. Bennett, 16-334, about the scope of the Foreign Sovereign Immunities Act, was sent packing after a single relist. Wilson v. Callahan, 17-552, a deadly force case, left after three. And although Scott v. Federal Deposit Insurance Corp., 17-567, denied after two relists, involves the same appointments clause question that the court now faces in Lucia v. Securities and Exchange Commission, 17-130, the government persuaded the court that the petitioners in Scott had “failed to raise an Appointments Clause challenge either before the [agency] or before the court of appeals, and neither of those bodies addressed the issue.” Petitioners, remember: Preservation is key. Cert also was denied in Wessinger v. Vannoy, 17-6844, involving counsel’s obligation to investigate mitigation evidence in a death-penalty case even if the court refuses a request for funds to conduct such an investigation. But at least Justice Sonia Sotomayor filed an opinion dissenting from the denial of certiorari on its way out.

That brings us to this week’s new (likely) relists. Robinson v. United States, 17-6877, presents the same issue as returning relists Allen v. United States, 17-5864, James v. United States, 17-6769, and Gates v. United States, 17-6262 (although Quentery Gates now has been released from prison, potentially mooting his case).

In 2015, the Supreme Court held in Johnson v. United States that the “residual clause” of the Armed Career Criminal Act of 1984 is unconstitutionally vague. The ACCA’s residual clause defines a “violent felony” to include an offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” and the court held that phrase to be so vague that it fails to give ordinary people fair notice of the conduct it punishes. There is a comparable provision in the U.S. Sentencing Guidelines, which were still considered mandatory in 2000, at the time Robinson was sentenced. Robinson and its fellow-travelers all argue that the residual clause in former Sentencing Guidelines § 4B1.2(a)(2), when it was applied in the context of a mandatory guidelines regime, was unconstitutionally vague in light of Johnson. The government responds that Johnson is inapplicable for even mandatory-sentencing-guidelines cases, because sentencing courts had discretion to depart from the guidelines in “exceptional cases.” The government also argues that this question “is of limited and diminishing importance” because the number of affected prisoners diminishes over time as the mandatory guidelines fade into the distant past. We should have the court’s take on this issue … one of these days.

UPDATE at 1:41 p.m.: With some gentle prodding from Lawrence Hurley, we’ve identified a couple of other likely relists. The Supreme Court has not yet relisted these cases on its dockets – the last entry on both dockets is the March 2 conference – but we infer these cases likely will be relisted early next week.

Deutsche Bank Trust Company Americas v. Robert R. McCormick Foundation, 16-317, will be familiar to those serial time-wasters who were idly skimming Relist Watch last yearDeutsche Bank has spent the better part of a year on hold as the court resolved one of the three questions it presents in another case (Merit Management Group, LP v. FTI Consulting, Inc.). The court decided Merit Management, which  involves the avoidance of a particular kind of transfer under the bankruptcy laws, on February 27. Now the court must decide whether review is warranted on Deutsche Bank’s other issues, which involve whether the presumption against federal pre-emption of state law applies in the bankruptcy context, and if so, the scope of that pre-emption.

Nielsen v. Preap, 16-1363, like the recently decided Jennings v. Rodriguez, involves a provision of the Immigration and Nationality Act that states that the attorney general “shall take into custody any alien” who falls into one of several enumerated categories regarding criminal offenses and terrorist activities. One paragraph of the provision states that the attorney general “shall take into custody any alien who [has committed certain offenses or is inadmissible or deportable] when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation.”  The U.S. Court of Appeals for the 9th Circuit held that that language “applies only to those criminal aliens who are detained promptly after their release from criminal custody, not to those detained long after.” The court thus held that the provision did not authorize the detention of aliens who had been released from criminal custody much earlier. The government seeks review of that conclusion. Preap has been on hold for Jennings since the September 25 conference. But now that the court has held that the INA does not give detained aliens the right to periodic bond hearings during the course of their detention, the court must decide whether to review this separate issue – which is the subject of a circuit split between the 9th Circuit on one hand and the U.S. Courts of Appeals for the 2nd, 3nd, 4th and 10th Circuits on the other.

The court is taking next week off, but we’ll be back the week of March 19 with more. Thanks to Kent Piacenti for compiling the cases in this post; he spotted them all, I just misinterpreted the Deutsche Bank and Preap dockets on the first go-round.

 

New (Suspected) Relists

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).

(likely to be relisted after the March 2 conference)

 

Nielsen v. Preap, 16-1363,

Issue: Whether a criminal alien becomes exempt from mandatory detention under 8 U.S.C. § 1226(c) if, after the alien is released from criminal custody, the Department of Homeland Security does not take him into immigration custody immediately.

(likely to be relisted after the March 2 conference)

 

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 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 and February 23 conferences; likely to be relisted after the March 2 conference)

 

Hidalgo v. Arizona, 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.

(relisted after the December 1, December 8, January 5, January 12, January 19, February 16 and February 23 conferences; likely to be relisted after the March 2 conference)

 

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 and February 23 conferences; likely to be relisted after the March 2 conference)

 

Garco Construction, Inc. v. Secretary of the Army, 17-225

Issue: Whether Bowles v. Seminole Rock & Sand Co. and Auer v. Robbins should be overruled.

(relisted after the January 12, January 19, February 16 and February 23 conferences; likely to be relisted after the March 2 conference)

 

Hargan 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 and February 23 conferences; likely to be relisted after the March 2 conference)

 

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, and February 23 conferences; likely to be relisted after the March 2 conference)

 

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 and February 23 conferences; likely to be relisted after the March 2 conference)

 

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 16 and February 23 conferences; likely to be relisted after the March 2 conference)

 

Oliver v. McDaniels, 17-682

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

(relisted after the February 23 conference; record requested)

 

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 conference; likely to be relisted after the March 2 conference)

 

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 conference; likely to be relisted after the March 2 conference)

 

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