John Elwood (finally) reviews Monday’s relists.

Monday’s order list was a striking illustration of how nice it is to have Washington on your side: Of the four relisted cases the Supreme Court agreed to review, the government (either as amicus or respondent) had told the court that review was warranted in three of them.

The court also denied review without comment in a knot of cases involving whether sentence enhancements imposed under the residual clause of the then-mandatory sentencing guidelines’ career offender provision were constitutionally infirm because the clause is similar to an Armed Career Criminal Act provision declared unconstitutionally vague in Johnson v. United States. So long Allen v. United States, 17-5684; farewell Gates v. United States, 17-6262; auf Wiedersehen, James v. United States, 17-6769; adieu, Robinson v. United States, 17-6877; smell ya later Lester v. United States, 17-1366. It’s curious when cases that have been relisted as many as ten times are denied review without even a short statement respecting denial. But perhaps, just as the most effective dissent from denial of cert is never seen (because the court just decides to go ahead and grant review), maybe someone wrote a killer concurrence. If this strikes you as maddeningly indeterminate, don’t worry: We’ll all know what happened in about another 70 years when the current justices’ papers are released.

That brings us to the real stars, this week’s new relists. There are six, so I’m going to be a bit summary in discussing them to avoid droning on forever. For sheer lawnerd love, it will be hard to top Vitol S.A. v. Autoridad de Energia Electrica de Puerto Rico, 17-951. In Steel Company v. Citizens for a Better Environment, the Supreme Court held that federal courts generally may not rule on the merits of a dispute without first determining that it has subject-matter jurisdiction. According to Vitol S.A., a commodities-trading company that specializes in fuel, the circuits are divided about whether the rule applies to questions of statutory jurisdiction (as well as the Article III jurisdiction at issue in Steel Company). Vitol S.A. pleaded guilty to grand larceny in New York state court in connection with the Iraq oil-for-food program. The respondent (the Puerto Rico electric power authority) claimed that Vitol S.A.’s conviction voided its contract with corporate affiliate Vitol Inc. The power authority filed suit in Puerto Rico commonwealth court, Vitol removed the suit to federal court, and the power authority won a remand to commonwealth court based on a forum-selection clause. The Vitol companies appealed. In the U.S. Court of Appeals for the 1st Circuit, there was a major kerfuffle about whether the court had jurisdiction. Although the court thought jurisdiction “dubitable” – surprisingly, the opinion was not written by Judge Bruce Selya– it avoided resolving jurisdiction by invoking the “hypothetical jurisdiction” doctrine, which allows a court to proceed to the merits “when the merits can easily be resolved in favor of the party challenging jurisdiction.” The Vitol companies argue the 1st Circuit needed to address jurisdiction first before proceeding to the merits. The power authority argues that Vitol will lose either way, either on the merits (as the 1st Circuit already held after assuming jurisdiction was proper), or because the 1st Circuit holds that it lacks jurisdiction to entertain the Vitol companies’ challenge to the remand order. They may have a point. But given the complexity of the case, it may also be that the Supremes just want another week to figure out what is going on.

Every other new relist this week involves a homicide. What a cheery way to begin a holiday weekend.

Clark v. Louisiana, 16-9541, is a capital case involving a prisoner convicted of murder in connection with the death of a correctional officer during an attempt to escape from the Louisiana State Penitentiary at Angola. The case raises four issues, but it’s safe to assume one is the particular focus of the Supreme Court. Issue number one turns on the fact that Louisiana law requires jurors to “find beyond a reasonable doubt that at least one statutory aggravating circumstance exists,” but does not require the jury to employ that same beyond-a-reasonable-doubt standard applies to making a second determination, whether “the sentence of death should be imposed.” The second issue is whether the “evolving standards of decency” standard forbids using the death penalty when jurors could not be sure which of several defendants inflicted the blows that caused the victim’s death. The third issue involves whether Clark was presumptively prejudiced when a deputy monitoring the trial, within view of other jurors, asked an alternate juror how she thought the trial was going. The fourth issue may explain why the case has been hanging around the docket since last October, and only recently was released and relisted: Clark alleges that his lawyer conceded his guilt in the aggravated escape during his first trial and only contested whether the death penalty should be imposed. Clark says he represented himself at his second trial, where he was convicted, solely to prevent his counsel from conceding his guilt against his wishes. Because the court held on May 14 that the Sixth Amendment guarantees a defendant the right to insist that his counsel refrain from admitting guilt, even when counsel’s view is that confessing guilt offers the best chance to avoid the death penalty, I expect they’ll be taking a very close look at this case.

The last four new relists consist of two sets of related criminal cases arising out of states whose names begin with the letter O. And all four involve the court’s repeated use of the murky procedure of “rescheduling” cases – ordinarily meaning the court moved them from one conference to another before considering them at conference. Wood v. Oklahoma, 17-6891, and Jones v. Oklahoma, 17-6943, have been rescheduled nine times each – and both have been rescheduled even since they were relisted. Lee v. Ohio, 17-7213, and Belton v. Ohio, 17-7233, have both been rescheduled four times. So perhaps these cases will at last shed some light on the rescheduling procedure.

The first two cases are from a place where, if my sources are to be believed, the wind comes sweepin’ down the plain, where there is plenty of air and plenty of room. In the years around Y2K, Tremane Wood and Julius Jones, two African-Americans, were convicted in central Oklahoma of unrelated murders of white men and sentenced to death. In 2017, after Jones had finished state and federal collateral proceedings, and as Moore would soon complete them, a statistical study on capital-sentencing patterns in Oklahoma was published, concluding that nonwhites accused of killing white males are statistically more likely to receive a death sentence, even controlling for aggravating circumstances. Under Oklahoma’s post-conviction statute, a death-sentenced prisoner has just 60 days to file a second or successive post-conviction application based on newly available evidence. Both filed post-conviction applications arguing that the study constituted newly discovered evidence that they were convicted and sentenced in violation of the Sixth Amendment right to a fair trial, the Eighth Amendment bar on cruel and unusual punishment, and the 14th Amendment right to due process of law. But the court denied their applications on the basis of a state procedural bar, saying that neither had shown that “the identified patterns of race and gender disparity were not ascertainable through the exercise of reasonable diligence” at the time of their original post-conviction proceedings. The petitions in Wood v. Oklahoma, 17-6891, and Jones v. Oklahoma, 17-6943, present two main questions: First, whether the study indicating a risk that racial considerations entered into Oklahoma’s capital sentencing determinations proves that their death sentences are unconstitutional under the Sixth, Eighth, and 14th amendments; and second, whether Oklahoma’s post-conviction statute, as applied by the Oklahoma courts, denied Wood and Jones an adequate corrective process for the hearing and determination of their federal constitutional claims in violation of their rights under the 14th Amendment’s due process and equal protection clauses.

To avoid further depressing our reader, we will refrain from quoting songs about our second O-state – at least beyond the upbeat kind that just spell its name. Ohio’s legislature has enacted a statute that requires that minors be tried as adults when the defendant is a 16-year-old (or a 14- or 15-year-old recidivist) who is charged with homicide or a handful of other serious offenses (kidnapping, rape, and the aggravated forms of arson, robbery and burglary), generally either while using a firearm or as a recidivist. In 2016, the Supreme Court of Ohio invalidated the statute as unconstitutional. After two justices retired, Ohio successfully sought rehearing, and less than a year later issued a decision upholding the mandatory transfer law as constitutional. To make things more confusing, Justice Kennedy wrote the majority opinion reversing course, while Justice O’Connor (actually, Chief Justice O’Connor) wrote the dissent – just not the ones you think. The petitioners in Lee v. Ohio, 17-7213, and Belton v. Ohio, 17-7233, both were convicted of killing people in botched robberies. Both argue that mandatory trial as an adult violates the Constitution, relying on recent Supreme Court decisions emphasizing the lesser culpability of juvenile offenders and their greater potential for rehabilitation.

In closing, this was another interesting week for relists. Looks like we’ll have about five more of these columns before the court decamps for the summer. We’ll be back next week with more as October Term 2017 draws to a close. Thanks once again to Kent Piacenti for compiling these cases.

 

New Relists

Clark v. Louisiana, 16-9541

Issues: (1) Whether the Louisiana Supreme Court erred in upholding the petitioner’s death sentence when the jury made only one of the two statutory required jury findings beyond a reasonable doubt; (2) whether standards of decency have evolved to render the execution of a defendant prosecuted as a principal to first degree murder unconstitutional when, as the state conceded, jurors could not know who inflicted the blows that caused the victim’s death; (3) whether testimony establishing communications between a deputy monitoring the trial and an alternate juror in front of other jurors about the trial constitutes sufficient evidence to be presumptively prejudicial; and (4) whether the Louisiana Supreme Court’s rule, which requires an indigent defendant to accept his trial counsel’s decision to concede his guilt of second-degree murder over his express objections or represent himself, vitiates the voluntariness of the petitioner’s waiver of counsel.

(relisted after the May 17 conference)

 

Vitol S.A. v. Autoridad de Energia Electrica de Puerto Rico, 17-951

Issue: Whether the rule espoused in Steel Company v. Citizens for a Better Environment, which held that a federal court generally may not rule on the merits of a dispute without first determining that it has subject-matter jurisdiction, is limited to Article III jurisdictional disputes, as the U.S. Court of Appeals for the 1st Circuit and other circuits have held, or whether it applies to statutory as well as Article III jurisdictional disputes, as the U.S. Court of Appeals for the 11th Circuit and other circuits have held.

(relisted after the May 17 conference)

 

Wood v. Oklahoma, 17-6891

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the May 24 conference)

 

Jones v. Oklahoma, 17-6943

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference)

 

Lee v. Ohio, 17-7213

Issue: Whether Ohio’s mandatory transfer statute, which requires that certain children be prosecuted as adults and prohibits an individualized determination, violates the due process and equal protection clauses of the U.S. Constitution.

(relisted after the May 17 conference)

 

Belton v. Ohio, 17-7233

Issue: Whether Ohio’s mandatory transfer statute, which requires that certain children be prosecuted as adults and prohibits an individualized determination, violates the due process and equal protection clauses of the U.S. Constitution.

(relisted after the May 17 conference)

 

Returning Relists

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, March 23, March 29, April 13, April 20, April 27, May 10 and May 17 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, March 23, March 29, April 13, April 20, April 27, May 10 and May 17 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, March 2, April 20 and April 27 conferences; rescheduled after the March 16 conference; rescheduled before the March 29, April 13, April 20, April 27, May 10 and May 17 conferences)

 

Trevino v. Davis, 17-6883

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, April 20, April 27, May 10 and May 17 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, April 20, April 27, May 10 and May 17 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, April 20, April 27, May 10 and May 17 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, April 20, April 27, May 10 and May 17 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, April 20, April 27, May 10 and May 17 conferences)

 

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 the April 20, April 27, May 10 and May 17 conferences)

 

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 the April 20, April 27, May 10 and May 17 conferences)

 

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 the April 20, April 27, May 10 and May 17 conferences)

Posted in Cases in the Pipeline, Featured

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (May. 25, 2018, 9:41 AM), http://www.scotusblog.com/2018/05/relist-watch-126/