Relist Watch
on Apr 27, 2018 at 9:47 am
John Elwood finally reviews Monday’s relists.
There’s been plenty of commentary on Sessions v. Dimaya since its April 17 release addressing a number of subjects – the decision’s importance for the immigration bar; the surprise that Justice Neil Gorsuch joined the court’s progressives to hold that 18 U.S.C. § 16(b)’s definition of “crime of violence” is unconstitutionally vague; and the legal significance of Gorsuch’s concurrence and what it may portend for future administrative law cases.
But in my view, all of that commentary totally missed what is really important here: How does this decision affect me? The answer is: Not super well.
When the Supreme Court grants review on a case, it “holds” cases that might be affected by its disposition, erring on the side of caution in close cases. Then, when that case is decided, the court releases the held cases, and the justice who authored the majority opinion, with perhaps some minor assistance from his or her law clerks, recommends a disposition for all the held cases. In most cases, when there are between zero and (say) three held cases, the court usually knocks that work out in the first week following the decision’s hand-down date. But every once in a while, a large number of held cases builds up, and the workload becomes, well, unmanageable. Such times may call for a relist.
That’s my guess about what happened this week. We have a record number of relists, at least during the seven-plus years I’ve been watching carefully: 44. Of those, 43 are cases that obviously were held for Dimaya (or relisted in anticipation of it), and now the court is trying to decide what to do with them. Just identifying all those relists on the court’s docket, and then figuring out the legal issues involved, was a big job for people who really do have other responsibilities. But although the task was a bit dull, at least it involved an enormous amount of backbreaking labor. And so let me begin where I usually end: Thanks to Kevin Brooks for identifying all the relists, and thanks to Aurora Temple Barnes for sorting through the heaps of PDFs I lobbed at her and identifying the questions presented and creating tidy case pages.
The Dimaya relists fall into three main groups. First, there are many cases that simply present the very same question as Dimaya about the constitutionality of § 16(b). This group is enormous, including Sessions v. Magana-Pena, 15-1494, Sessions v. Lopez-Islava, 15-1496, Sessions v. Miranda-Godinez, 16-398, Sessions v. Baptiste, 16-978, Sessions v. Shuti, 16-991, Gonzalez-Longoria v. United States, 16-6259, Solano-Cruz v. United States, 16-6288, Perdomo v. United States, 16-7214, Bello v. United States, 16-7667, Alvaro-Velasco v. United States, 16-8058, Castaneda-Morales v. United States, 16-8734, Maldonado-Landaverde v. United States, 16-9318, Linares-Mazariego v. United States, 16-9319, Larios-Villatoro v. United States, 16-9660, Diaz-Esparza v. Session, 17-820, Gomez-Ureaba v. United States, 17-5283, Garcia-Hernandez v. United States, 17-5305, Hernandez-Ramirez v. United States, 17-6065, Ontiveros-Cedillo v. United States, 17-6721, Gutierrez-Lopez v. United States, 17-6751, Casabon-Ramirez v. United States, 17-7183, and – so far as we can tell (the parties haven’t gotten back to us yet), Eaton v. United States, 17-6680. These cases should have been easy to resolve by denying cert or granting, vacating and remanding for further consideration in light of Dimaya. That they were not is the clearest example that the volume was just too great.
The second group of Dimaya relists involves application of that case to a Sentencing Guidelines provision – a type of claim the government argues is foreclosed by Beckles v. United States. Those cases include first-time relists United States v. Hernandez-Lara, 16-617, Aguirre-Arellano v. United States, 16-8675, and Rodriguez v. United States, 17-5476, as well as returning relist Robinson v. United States, 17-6877.
The third and final group of Dimaya relists involves cases that ask whether the logic of that case and Johnson v. United States invalidates 18 U.S.C. §924(c)(3)(B), yet another criminal code provision defining “crime of violence.” This week’s new relists that involve that question include Taylor v. United States, 16-6392, Prickett v. United States, 16-7373, Glover v. United States, 16-8777, Taylor v. United States, 16-8996, Davis v. United States, 16-8997, United States v. Jenkins, 17-97, United States v. Jackson, 17-651, McCoy v. United States, 17-5484, Winters v. United States, 17-5495, Lin v. United States, 17-5767, Eizember v. United States, 17-6117, Enix v. United States, 17-6340, Ecourse-Westbrook v. United States, 17-6368, and Carreon v. United States, 17-6926. The government argues that after Dimaya, these cases should be sent back to the courts of appeals to consider narrowing constructions of Section 924(c) that might resolve the constitutional issues. Unsurprisingly, criminal defendants argue that the court should just grant review on this issue. We’ll see which side prevails.
Believe it or not, the court did do other business. Remember that tangle of cases from last week about the “dual sovereignty” exception to the double jeopardy clause? The fifth case raising that issue, Bearcomesout v. United States, 17-6856, which the court rescheduled last week, has finally been relisted. So we’ll be keeping a close eye on that.
That brings us to our last really new relist. On the plus side, the case involves what is an undeniably interesting argument about a recurring situation. Jordan v. Mississippi, 17-7153, is a capital case presenting the question whether making condemned prisoners spend decades in prison before execution is cruel and unusual punishment that violates the Eighth Amendment. On the negative side, the court has denied cert on the issue any number of times. It’s an interesting issue, forever to be called a Lackey claim because of an early petitioner to raise the argument. But we’ve seen this show before, and at best it usually draws a dissent from denial of certiorari.
We’ll be back next week with more ill-informed speculation about the relists from today’s conference. Until next time!
New Relists
Sessions v. Magana-Pena, 15-1494
Issue: Whether 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.
(relisted after April 20 conference)
Sessions v. Lopez-Islava, 15-1496
Whether 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.
(relisted after April 20 conference)
Sessions v. Miranda-Godinez, 16-398
Issue: Whether 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.
(relisted after April 20 conference)
United States v. Hernandez-Lara, 16-617
Issue: Whether 18 U.S.C. § 16(b), as incorporated into Sentencing Guidelines § 2L1.2(b)(1)(C), is unconstitutionally vague.
(relisted after April 20 conference)
Issue: Whether 18 U.S.C. 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.
(relisted after April 20 conference)
Issue: Whether 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.
(relisted after April 20 conference)
Issue: Whether 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.
(relisted after April 20 conference)
Gonzalez-Longoria v. United States, 16-6259
Issue: Whether — after the Supreme Court’s decision in Johnson v. United States, which held the residual clause of the Armed Career Criminal Act’s “violent felony” definition to be unconstitutionally vague — 18 U.S.C. § 16(b) is unconstitutionally vague when it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.
(relisted after April 20 conference)
Solano-Cruz v. United States, 16-6288
Issue: Whether 18 U.S.C. § 16(b), as incorporated into the definition of the term “aggravated felony” in 8 U.S.C. § 1326(b)(2), is unconstitutionally vague.
(relisted after April 20 conference)
Taylor v. United States, 16-6392
Issues: (1) Whether the U.S. Court of Appeals for the 6th Circuit erred when it affirmed the exclusion of the petitioner’s expert rebuttal testimony regarding his future dangerousness in violation of Kelly v. South Carolina, which recognized a capital defendant’s broad due process right to rebut any “implication” or “inference” of dangerousness “from the [government’s] evidence,” and misread the record, which plainly shows that the petitioner’s expert testimony would have rebutted not only the government’s evidence but also its summation arguments; and (2) whether, after the Supreme Court invalidated the definition of a “violent felony” in the residual clause of the Armed Career Criminal Act in Johnson v. United States, the definition of a “crime of violence,” 18 U.S.C. § 924(c)(3)(B), is unconstitutionally vague.
(relisted after April 20 conference)
Perdomo v. United States, 16-7214
Issue: Whether 18 U.S.C. § 16(b) is unconstitutionally vague because it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.
(relisted after April 20 conference)
Prickett v. United States, 16-7373
Issue: Whether 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague.
(relisted after April 20 conference)
Bello v. United States, 16-7667
Issue: Whether — after the Supreme Court’s decision in Johnson v. United States, which held the residual clause of the Armed Career Criminal Act’s “violent felony” definition to be unconstitutionally vague — 18 U.S.C. § 16(b) is unconstitutionally vague when it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.
(relisted after April 20 conference)
Alvaro-Velasco v. United States, 16-8058
Issue: Whether 18 U.S.C. § 16(b) is unconstitutionally vague because it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.
(relisted after April 20 conference)
Perez-Jimenez v. United States, 16-8453
Issues: (1) Whether all facts that increase a defendant’s statutory maximum, including the fact of a prior conviction, must be pleaded in the indictment and either admitted by the defendant or proven to a jury beyond a reasonable doubt; (2) whether the Supreme Court should hold this petition for certiorari pending a decision in Sessions v. Dimaya.
(relisted after April 20 conference)
Aguirre-Arellano v. United States, 16-8675
Issue: Whether 18 U.S.C. § 16(b) is unconstitutionally vague.
(relisted after April 20 conference)
Castaneda-Morales v. United States, 16-8734
Issue: Whether — after the Supreme Court’s decision in Johnson v. United States, which held the residual clause of the Armed Career Criminal Act’s “violent felony” definition to be unconstitutionally vague — 18 U.S.C. § 16(b) is unconstitutionally vague when it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.
(relisted after April 20 conference)
Glover v. United States, 16-8777
Issue: Whether the definition of the term “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague.
(relisted after April 20 conference)
Taylor v. United States, 16-8996
Issue: Whether a certificate of appealability should be granted to resolve a circuit split regarding whether the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague.
(relisted after April 20 conference)
Davis v. United States, 16-8997
Issues: (1) Whether 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague; (2) whether Hobbs Act robbery is a “crime of violence” as defined by 18 U.S.C. § 924(c)(3); and (3) whether a prior Texas conviction for burglary is a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e).
(relisted after April 20 conference)
Maldonado-Landaverde v. United States, 16-9318
Issue: Whether 18 U.S.C. § 16(b) is unconstitutionally vague.
(relisted after April 20 conference)
Linares-Mazariego v. United States, 16-9319
Issue: Whether 18 U.S.C. § 16(b) is unconstitutionally vague.
(relisted after April 20 conference)
Larios-Villatoro v. United States, 16-9660
Issue: Whether — after the Supreme Court’s decision in Johnson v. United States, which held the residual clause of the Armed Career Criminal Act’s “violent felony” definition to be unconstitutionally vague — 18 U.S.C. § 16(b) is unconstitutionally vague when it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.
(relisted after April 20 conference)
United States v. Jenkins, 17-97
Issue: Whether the definition of the term “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague.
(relisted after April 20 conference)
United States v. Jackson, 17-651
Issue: Whether the definition of the term “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague.
(relisted after April 20 conference)
Diaz-Esparza v. Session, 17-820
Issue: Whether 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.
(relisted after April 20 conference)
Gomez-Ureaba v. United States, 17-5283
Issue(s): (1) Whether 18 U.S.C. § 16(b) is unconstitutionally vague; (2) whether evading arrest with a motor vehicle a “crime of violence” for purposes of 18 U.S.C. § 16(b).
(relisted after April 20 conference)
Garcia-Hernandez v. United States, 17-5305
Issue: Whether — after the Supreme Court’s decision in Johnson v. United States, which held the residual clause of the Armed Career Criminal Act’s “violent felony” definition to be unconstitutionally vague — 18 U.S.C. § 16(b) is unconstitutionally vague when it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.
(relisted after April 20 conference)
Rodriguez v. United States, 17-5476
Issue: Whether 18 U.S.C. § 16(b) is unconstitutionally vague, in the context of a challenge to the “aggravated felony” enhancement under Sentencing Guidelines § 2L1.2(b)(1)(C).
(relisted after April 20 conference)
McCoy v. United States, 17-5484
Issue: Whether the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague in light of the Supreme Court’s holding in Johnson v. United States.
(relisted after April 20 conference)
Winters v. United States, 17-5495
Issue: Whether the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague in light of the Supreme Court’s holding in Johnson v. United States.
(relisted after April 20 conference)
Issues: (1) Whether the analysis of whether a predicate act constitutes a “crime of violence” under the language of 18 U.S.C. § 924(c)(3)(B) must comport with the Supreme Court’s jurisprudence regarding the Armed Career Criminal Act’s residual clause, 18 U.S.C. § 924(e)(2)(B)(ii), as the U.S. Courts of Appeals for the 3rd, 7th and 9th Circuits have held, in conflict with the rulings of the U.S. Courts of Appeals for the 2nd, 6th, 8th and 11th Circuits; and (2) whether the “ordinary case” methodology survived Johnson v. United States for purposes of statutes other than the Armed Career Criminal Act, 18 U.S.C. § 924(e).
(relisted after April 20 conference)
Hernandez-Ramirez v. United States, 17-6065
Issues: (1) Whether the federal generic aggravated-assault offense requires more than a showing of mere recklessness for conviction; and (2) whether the definition of an “aggravated felony” in 18 U.S.C. § 16(b) is unconstitutionally vague.
(relisted after April 20 conference)
Eizember v. United States, 17-6117
Issues: Whether the U.S. Court of Appeals for the 8th Circuit erred when it denied a certificate of appealability regarding petitioner’s claim that the definition of a “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague in light of Johnson v. United States.
(relisted after April 20 conference)
Enix v. United States, 17-6340
Issues: (1) Whether the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague; (2) whether conspiracy to commit Hobbs Act robbery has as an element “the use … of physical force against the person or property of another,” 18 U.S.C. § 924(c)(3)(A); and (3) whether the U.S. Court of Appeals fo the 11th Circuit’s rule that reasonable jurists could not debate an issue foreclosed by binding circuit precedent, even when a judge on the panel issued the binding precedent and subsequently stated that the panel’s decision may be erroneous, misapplies the standard articulated by the Supreme Court in Miller-El v. Cockrell and Buck v. Davis for determining whether a movant has made the threshold showing for a certificate of appealability.
(relisted after April 20 conference)
Ecourse-Westbrook v. United States, 17-6368
Issue: Whether the U.S. Court of Appeals for the 11th Circuit erred when it denied a certificate of appealability regarding petitioner’s claim that the definition of a “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague in light of Johnson v. United States.
(relisted after April 20 conference)
Orozco v. Sessions, 17-6628
Issue: Whether 18 U.S.C. § 16(b), as applied to the definition of an aggravated felony in the Immigration and Naturalization Act, is constitutional.
(relisted after April 20 conference)
Eaton v. United States, 17-6680
Issue(s): [Petitioner is a pro se prisoner and the government waived its right to respond, so we have been unable to obtain a copy of the petition.]
(relisted after April 20 conference)
Ontiveros-Cedillo v. United States, 17-6721
Issue: Whether the term “crime of violence” in 18 U.S.C. § 16(b) is unconstitutionally vague.
(relisted after April 20 conference)
Gutierrez-Lopez v. United States, 17-6751
Issue: Whether the term “crime of violence” in 18 U.S.C. § 16(b) is unconstitutionally vague.
(relisted after April 20 conference)
Bearcomesout v. United States, 17-6856
Issue: Whether the “separate sovereign” concept actually exists when Congress’s plenary power over Indian tribes and the general erosion of any real tribal sovereignty is amplified by the Northern Cheyenne Tribe’s constitution in such a way that the petitioner’s prosecutions in both tribal and federal court violate the double jeopardy clause of the Fifth Amendment to the U. S. Constitution.
(relisted after April 20 conference)
Carreon v. United States, 17-6926
Issue: Whether the U.S. Court of Appeals for the 5th Circuit erred when it denied a certificate of appealability regarding petitioner’s claim that the definition of a “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague in light of Johnson v. United States.
(relisted after April 20 conference)
Jordan v. Mississippi, 17-7153
Issue(s): (1) Whether incarcerating a prisoner over four decades awaiting execution, even after the state found at one point that a life without parole sentence was appropriate, violates the Eighth Amendment because it fails to serve any legitimate penological purpose; (2) Whether incarcerating a prisoner over four decades awaiting execution, with over half that time attributable to repeated constitutional violations in a succession of sentencing hearings, violates the Eighth Amendment because it fails to serve any legitimate penological purpose.
(relisted after April 20 conference)
Casabon-Ramirez v. United States, 17-7183
Issue: Whether 18 U.S.C. § 16(b) is unconstitutionally vague because it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.
(relisted after April 20 conference)
Returning Relists
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, March 23, March 29, April 13 and April 20 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, March 23, March 29, April 13 and April 20 conferences)
Gates v. United States, 17-6262
Issues: Whether, under the Supreme Court’s opinions in United States v. Booker, Johnson 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, March 23, March 29, April 13 and April 20 conferences)
James v. United States, 17-6769
Issues: Whether, under the Supreme Court’s opinions in United States v. Booker, Johnson 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, March 23, March 29, April 13 and April 20 conferences)
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, March 23, March 29, April 13 and April 20 conferences)
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, March 2 and April 20 conferences; rescheduled after the March 16 conference; rescheduled before the March 29, April 13 and April 20 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, March 23, March 29, April 13 and April 20 conferences)
Issue: Whether — when the U.S. Court of Appeals for the 5th Circuit found that the new mitigating evidence discovered on federal habeas review was “double-edged” and could not outweigh the substantial aggravating evidence, and when it misapplied the standard for evaluating prejudice in a Wiggins claim — it denied the petitioner due process.
(relisted after the March 29, April 13 and April 20 conferences)
Gamble v. United States, 17-646
Issue: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.
(relisted after the April 13 and April 20 conferences)
Issue: Whether, or in what circumstances, a cy pres award of class-action proceeds that provides no direct relief to class members supports class certification and comports with the requirement that a settlement binding class members must be “fair, reasonable, and adequate.”
(relisted after the April 13 and April 20 conferences)
Lamps Plus, Inc. v. Varela, 17-988
Issue: Whether the Federal Arbitration Act forecloses a state-law interpretation of an arbitration agreement that would authorize class arbitration based solely on general language commonly used in arbitration agreements.
(relisted after the April 13 and April 20 conferences)
Tyler v. United States, 17-5410
Issue: Whether the Supreme Court should overrule the dual sovereignty exception, which permits a successive federal prosecution after a defendant has been prosecuted for the same offense in state court.
(relisted after the April 13 and April 20 conferences)
Ochoa v. United States, 17-5503
Issues: (1) Whether the double jeopardy clause of the Fifth Amendment prohibits the federal government from charging, convicting and sentencing a person who has already been charged, convicted and sentenced in the court of a state for much of the same conduct; and (2) whether the seriousness of the offense conduct is an appropriate consideration for a district court when fashioning a sentence on revocation of supervised release.
(relisted after the April 13 and April 20 conferences)
Gordillo-Escandon v. United States, 17-7177
Issue: Whether, when a criminal defendant has already been convicted of an offense in a state criminal proceeding, the United States may thereafter prosecute the defendant for the same offense without violating the Fifth Amendment’s prohibition on double jeopardy.
(relisted after the April 13 and April 20 conferences)
Issues: (1) Whether a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition should assume that medical personnel are competent to manage his condition and that procedure will go as intended; whether evidence comparing a state’s method of execution with an alternative proposed by an inmate must be offered via a single witness, or whether a court at summary judgment must look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate; and (3) whether the Eighth Amendment requires an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition.
(relisted after the April 13 and April 20 conferences)
