The first edition of “Petitions to Watch” for the October 2008 term features cases up for consideration at the Justices’ opening conference of September 29. As always, the list contains the petitions on the Court’s paid docket that Tom has deemed to have a reasonable chance of being granted. To access editions of Petitions to Watch from prior terms, visit our archives here on SCOTUSwiki.

Issues raised in our current list include district courts’ ability to amend incorrect sentences, the constitutionality of appointments to a patent appeals board, the validity of the “automatic companion” rule under the Fourth Amendment, the statute of limitations in securities fraud claims, whether state criminal convictions require jury unanimity, and many (many, many) others. For the full list of petitions on our watch list, continue reading after the jump.

Conference of September 29, 2008

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Docket: 07-811
Case name: Morris, et al. v Center for Bio-Ethical Reform, Inc. et al.
Issue: Whether two federal law enforcement officers are entitled to qualified immunity against First and Fourth Amendment claims stemming from the detention and investigation of anti-abortion protestors.

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Docket: 07-897
Case name: Hust v. Phillips
Issue: Whether a prison librarian can face personal liability under 42 U.S.C. 1983 for preventing an inmate from using a comb-binding machine to file a petition for certiorari at the U.S. Supreme Court.

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Docket: 07-1042
Case name: Lett v. United States
Issue: Whether, under the Federal Rules of Criminal Procedure, a district judge may amend a prior criminal sentence mistakenly based on a misunderstanding of federal sentencing factors.

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Docket: 07-1109
Case name: Kickapoo Traditional Tribe of Texas v. Texas, et al.
Issue: Whether, under Seminole Tribe v. Florida (1996), the Secretary of the Interior may establish procedures for Indian gaming if a state declines to enter a compact with the Tribe and invokes immunity from suit under the Eleventh Amendment.

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Docket: 07-1182
Case name: Michigan Civil Rights Initiative Committee, et al. v. Coalition to Defend Affirmative Action, et al.
Issue: Whether, under Federal Rule of Civil Procedure 24(a)(2), the sponsors of a successful ballot initiative are entitled to intervene in post-election litigation over whether the measure is constitutional.

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Docket: 07-1213
Case name: Kentucky v. Leach, et ux.
Issue: Whether police violate the Fourth Amendment by initiating a “knock and talk” investigation at a back door not viewable to members of the public.

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Docket: 07-1234
Case name: The Long Island Savings Bank, FSB, et al. v. United States
Issue: Whether, under federal common law, a government contract is void from the outset if its formation was induced by a misrepresentation.

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Docket: 07-1261
Case name: DIRECTV, Inc. v. Huynh, et al.
Issue: Whether removing and reinserting previously-disabled access cards into DirecTV receivers constitutes “assembly” of piracy devices under Section 605(e)(4) of the Federal Communications Act.

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Docket: 07-1262
Case name: Bussell v. United States
Issue: Whether a defendant can be convicted of making a false statement based on what she considers to be a truthful response to an ambiguous government question.

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Docket: 07-1281
Case name: Kay v. United States
Issue: Whether an indictment that omits an element of an offense must be dismissed, and whether the rule of lenity should have been applied to the petitioners’ conduct under the Foreign Corrupt Practices Act. (Disclosure: Akin Gump represents the petitioner.)

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Docket: 07-1295
Case name: Lewis v. United States
Issue: Whether, if a defendant violates the terms of supervised release, a district court may base the new sentence upon factors stated in 18 U.S.C. 3553(a)(2)(A). (Disclosure: Akin Gump represents the petitioner.)

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Docket: 07-1303
Case name: Translogic Technology, Inc., v. Dudas
Issue: Whether the director of the Patent and Trademark Office lacked constitutional authority to appoint members of the Board of Patent Appeals and Interferences, and, if so, whether the board’s decision below must be vacated as a result.

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Docket: 07-1310
Case name: Grullon v. Mukasey
Issue: Whether an alien facing deportation must exhaust his administrative remedies before seeking judicial review if the Board of Immigration Appeals has already rejected his argument while sitting en banc.

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Docket: 07-1336
Case name: Wilcox v. United States, ex rel. Stoner
Issue: Whether, under the False Claims Act, state officials are “persons” who can be sued in their individual capacity for actions taken in their official capacity, and whether the Eleventh Amendment bars such suits by qui tam relators if the United States declines to intervene. (Disclosure: Akin Gump represents the respondent.)

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Docket: 07-1356
Case name: Kansas v. Ventris
Issue: Whether prosecutors may use a defendant’s statement – made in the absence of a knowing and voluntary waiver of the right to counsel – to impeach a witness, as opposed to during its case-in-chief.

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Docket: 07-1362
Case name: Martinez-Guerrero v. United States
Issue: Whether a district court may direct a defendant to serve a federal sentence consecutively to a not-yet-imposed state sentence.

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Docket: 07-1363
Case name: Viracacha v. Mukasey
Issue: Whether the Immigration and Nationality Act bars judicial review of whether an alien failed to satisfy an exception to the one-year deadline for filing asylum claims, and, if so, whether the Constitution requires some review.

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Docket: 07-1366
Case name: Stanton, et al. v. Arizona Life Coalition, et al.
Issue: Whether an Arizona commission violated the free speech rights of an anti-abortion organization by denying its application for a specialty “Choose Life” license plate.

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Docket: 07-1370
Case name: Long John Silver’s, Inc. v. Cole, et al.
Issue: Whether federal courts must uphold decisions by arbitrators based on non-willful misinterpretations of federal law.

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Docket: 07-1371
Case name: Cambridge Literary Properties, Ltd. v. W. Goebel Porzellanfabrik G.m.b.H. & Co. KG., et al.
Issue: Whether the Copyright Act’s three-year statute of limitations only applies to actions brought under the law or also to actions arising under the Act for purposes of establishing federal jurisdiction.

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Docket: 07-1372
Case name: Hawaii, et al. v. Office of Hawaiian Affairs, et al.
Issue: Whether a 1993 congressional resolution requires Hawaii to reach a political settlement with native Hawaiians before transferring some 1.2 million acres of state land.

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Docket: 07-1376
Case name: City and County of San Francisco, et al. v. Rodis
Issue: Whether police officers can be held personally liable for arresting an individual for using a $100 bill that store employees thought was counterfeit but which later turned out to be genuine.

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Docket: 07-1391
Case name: Vonner v. United States
Issue: Whether criminal defendants must object at the time a sentence is imposed in order to challenge the sentence as either procedurally or substantively unreasonable under United States v. Booker (2005).

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Docket: 07-1404
Case name: Petrus A. C. M. Nuijten v. Dudas
Issue: Whether a signal that reduces the distortion caused by digital watermarks can be patented under federal law.

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Docket: 07-1410
Case name: United States v. Navajo Nation
Issue: Whether the Court’s prior decision in United States v. Navajo Nation (2003) foreclosed a finding that the government breached fiduciary duties in connection with Indian coal lease amendments.

  • Opinion below (Federal Circuit)
  • Petition for certiorari
  • Brief in opposition
  • Petitioner’s reply

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Docket: 07-1411
Case name: Owens v. Kentucky
Issue: Whether, under the Fourth Amendment, police may frisk an individual based solely on the arrest of his companion.

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Docket: 07-1415
Case name: Campbell v. Phelps, Warden
Issue: Whether a state court’s application of a state procedural rule is “dependent” upon federal law when the state court reviews the merits of an otherwise waived federal claim for “plain error.”

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Docket: 07-1429
Case name: Lucero v. Texas
Issue: Whether, under the Sixth Amendment, a jury foreman may read Bible passages during deliberations to persuade jurors to impose the death penalty.

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Docket: 07-1436
Case name: Cate v. Anderson
Issue: Whether, under the federal habeas statute, the continued interrogation of a suspect who said “I plead the fifth” was a clear violation of Miranda v. Arizona (1966).

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Docket: 07-1452
Case name: Yanai, Warden v. Girts
Issue: Whether, under the federal habeas statute, a prosecutor’s indirect references during closing argument to a defendant’s failure to testify was a clear violation of Griffin v. California (1965).

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Docket: 07-1470
Case name: United States Steel Corp., et al., v. Canadian Lumber Trade Alliance, et al.
Issue: Whether the NAFTA Implementation Act bars private challenges to agency interpretations of the Continued Dumping and Subsidy Offset Act of 2000, and whether it contains an impermissible “legislative entrenchment” provision.

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Docket: 07-1482
Case name: Quarterman v. Mines, Jr.
Issue: Whether, under the federal habeas statute, the jury instructions given at the defendant’s capital murder trial were a clear violation of Penry v. Lynaugh (1989).

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Docket: 07-1483
Case name: Patrick, Warden v. Smith
Issue: Whether, under the federal habeas statute, the evidence relied upon to convict the defendant of shaking an infant to death was clearly insufficient under Jackson v. Virginia (1979).

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Docket: 07-1484
Case name: Kemp v. Osage Nation
Issue: Whether, under the Eleventh Amendment, a Native American tribe may seek to enjoin a state from collecting taxes from members employed by the tribe on grounds the entire county in which they reside is “Indian country” under federal law.

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Docket: 07-1485
Case name: Smith, Warden, et al. v. Al-Amin
Issue: Whether, under the First Amendment, prison officials may open prisoners’ legal mail outside their presence so long as they do not read it.

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Docket: 07-1486
Case name: Pennsylvania v. Dunlap
Issue: Whether the observation by a trained police officer of two individuals exchanging currency for a small unknown object creates sufficient probable cause of a drug transaction to permit a warrantless search.

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Docket: 07-1489
Case name: Trainer Wortham & Company, Inc., et al. v. Betz
Issue: Whether the statute of limitations in securities fraud actions begins to run when reasonable investors would suspect they had been defrauded, or when they should have discovered the facts underlying their claim.

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Docket: 07-1495
Case name: Cerqueira v. American Airlines, Inc.
Issue: Whether, and under what circumstances, airlines can be held liable for alleged racial discrimination in ostensibly refusing to transport passengers for safety reasons.

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Docket: 07-1500
Case name: Sullivan, et al. v. City of Augusta
Issue: What is the proper standard of appellate review in cases upholding First Amendment rights, and whether municipalities can enforce a permit requirement for public protests without an indigency exception.

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Docket: 07-1501
Case name: IKON Office Solutions, Inc., et al. v. NewCal Industries, Inc., et al.
Issue: Whether the plaintiff stated valid RICO and Sherman Act claims against a competitor for fraud allegedly perpetrated on customers.

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Docket: 07-1523
Case name: Lee v. Louisiana
Issue: Whether the Sixth Amendment, as applied to the states through the Fourteenth Amendment, allows criminal convictions based on non-unanimous jury verdicts.

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Docket: 07-1527
Case name: City of Garland v. Dearmore
Issue: Whether a party who obtains a preliminary injunction in the absence of a final decision on the merits of a claim for permanent injunctive relief is entitled to prevailing party status so as to permit the award of attorney’s fees under federal fee shifting statute. (Note: the question was left undecided in Sole v. Wyner (2007))

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Docket: 07-1529
Case name: Montejo v. Louisiana
Issue: Whether an indigent defendant must affirmatively accept the appointment of counsel to preclude future police interrogation in the absence the attorney.

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Docket: 07-1546
Case name: American Coalition of Life Activists, et al. v. Planned Parenthood of the Columbia/Willamette, Inc.
Issue: Whether a multi-million dollar judgment against the authors of the “Nuremberg Files” website, which lists the names of slain abortion providers, should be overturned on standing, RICO or First Amendment grounds.

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Docket: 07-1550
Case name: Southwestern Bell Telephone Company v. Texas Cable Association, et al.
Issue: Whether an association of Texas cable operators made sufficient allegations to bring a facial challenge to a state law under United States v. Salerno (1987).

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Docket: 07-1559
Case name: M.M. v. Special School District No. 1, Minneapolis, Minn.
Issue: Whether states may legislatively assign the burden of proof in special education administrative hearings.

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Docket: 07-1567
Case name: Lowery, et al. v. Euverard, et al.
Issue: Whether, under the First Amendment, a high school football coach may dismiss players for circulating a petition calling for his termination.

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Docket: 07-1568
Case name: New York v. Hall
Issue: Whether police must obtain a warrant before conducting a body cavity search of an individual arrested for selling narcotics.

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Docket: 07-1582
Case name: Commissioner of Internal Revenue v. Estate of Frazier Jelke, II
Issue: Whether the method of valuing property for estate tax purposes is a question of fact or law.

  • Opinion below (11th Circuit)
  • Petition for certiorari
  • Brief in opposition
  • Petitioner’s reply

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Docket: 07-1594
Case name: Rivera v. Quarterman
Issue: Whether a timely-filed motion for authorization in the courts of appeals, accompanied by the proposed habeas petition, satisfies the one-year filing deadline under the Antiterrorism and Effective Death Penalty Act (AEDPA).

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Docket: 07-1598
Case name: Rivera v. Pfizer Pharmaceuticals LLC
Issue: Whether, in a “regarded-as” claim under the Americans with Disabilities Act, courts must disregard an employer’s recognition of medical restrictions imposed by an employee’s personal physician.

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Docket: 07-1601; 07-1607
Case name: Burlington Northern and Santa Fe Railway Company, et al. v. United States; Shell Oil Company v. United States
Issue: Whether the petitioners were incorrectly held jointly and severally liable for environmental cleanup costs under CERCLA.

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Docket: 07-1609
Case name: Gordon v. United States
Issue: Whether the presentation of an authentic but invalid green card to border agents starts the statute of limitations for the statute making it illegal for any alien to be “found in” the United States following deportation.

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Docket: 08-2
Case name: Martin v. Kansas
Issue: Whether prosecutors may introduce evidence obtained during a search incident to an arrest if the outstanding warrant was discovered only as a result of an illegal detention.

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Docket: 08-17
Case name: Mercier v. Ohio
Issue: Whether, under Wyoming v. Houghton (1999), the Fourth Amendment requires probable cause for the search of a purse being worn or held by an automobile passenger.

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Docket: 08-43
Case name: International Rectifier Corporation v. IXYS Corporation
Issue: Whether, under the Federal Rules of Appellate Procedure, a court may construe a post-judgment motion to stay enforcement of the judgment as a notice of appeal.

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Docket: 08-66
Case name: Davis v. Georgia
Issue: Whether the Eighth and Fourteenth Amendments prohibit the execution of a defendant with substantial evidence supporting an innocence claim.

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Docket: 08-94
Case name: Pennsylvania v. Mallory, et al.
Issue: Whether a defendant convicted at a bench trial can prove ineffective assistance of counsel by demonstrating that, absent the lawyer’s actions, he would not have waived his right to a jury trial.

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Docket: 08-121
Case name: Samsung Electronics Co., Ltd. v. Rambus, Inc.
Issue: Whether a party can divest a district court of jurisdiction to sanction misconduct by offering to pay the opposing party’s attorney’s fees.

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