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Petitions to Watch | Conference of 9.29.09 (Part III)

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on Sep 26, 2009 at 10:52 am
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This is the third edition of  “Petitions to Watch”  featuring cases up for consideration at the Justices’ opening conference of September 29. Because of the great number of petitions to be considered on the summer list, we’ll have multiple installations leading up to the “long conference.” 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.   Links to previous editions are also available in our archives on SCOTUSwiki.

Docket: 08-1385
Title: Virginia v. Harris
Issue:When a law enforcement officer receives an anonymous tip that a driver is driving drunk or dangerously, what degree of corroboration is required for the officer to make a valid Terry stop?

Docket: 08-1389
Title: Prelesnik, Warden v. Avery
Issue: Whether the decision of the United States Court of Appeals for the Sixth Circuit, which affirmed the grant of a habeas petition, abrogated the “prejudice” prong of Strickland v. Washington by holding that the issue of an alibi witness’s credibility is “not” for a reviewing court, but rather is a question for the jury and, therefore, the State trial court’s determination that the alibi witnesses lacked credibility was not relevant.

Docket: 08-1391
Title: Achobe  v. United States
Issue: Whether a defendant who is retried for an offense may appeal, after final judgment, the denial of his motion for a judgment of acquittal at the first trial.

Docket: 08-1393
Title: May v. Arizona
Issue: Whether Arizona’s child molestation statutes violate an accused’s Fourteenth Amendment right to due process because the laws “manipulate the prosecutor’s burden of proof by … placing the affirmative defense label on ‘at least some elements’ of traditional crimes,’” as per Apprendi v. New Jersey.

Docket: 08-1394
Title: Skilling v. United States
Issue: Whether the federal “honest services” fraud statute, 18 U.S.C. § 1346, requires the government to prove that the defendant’s conduct was intended to achieve “private gain” rather than to advance the employer’s interests, and, if not, whether § 1346 is unconstitutionally vague. Whether the government must rebut the presumption of jury prejudice, which arose because of pretrial publicity and community impact of the alleged conduct, and, if so, whether the government must prove beyond a reasonable doubt that no juror was actually prejudiced.

Docket: 08-1396
Title: The Coffee Beanery, Ltd., et al. v. WW, LLC, et al.
Issue: Is manifest disregard of the law a valid common-law or statutory ground for vacating an arbitration award under the Federal Arbitration Act (9 U.S.C. § 10(a)(4))?  [Note: Prof. David Stras, a blog contributor, is counsel on the petitioner’s brief.]

Docket: 08-1446 (similar to above–a manifest disregard case, also out of the 6th Cir.)
Title: Grain, et ux. v. Trinity Health, et al.
Issue: Does a federal district court have the authority to modify an arbitration award based upon the “manifest disregard of the law” standard when the arbitrators do not apply the particular law for resolving the dispute specified by the parties in their pre-dispute arbitration agreement?

Docket: 08-1401
Title: Metrish, Warden v. Newman
Issue: Whether the Sixth Circuit erred in granting habeas relief and applying the “reasonable speculation” rule, when the Michigan state court had applied the Jackson v. Virginia standard and found there was sufficient evidence.

Docket: 08-1402
Title: Berghuis, Warden v. Smith
Issue: Whether the Sixth Circuit erred in concluding that the Michigan Supreme Court failed to apply “clearly established Federal law” under 28 U.S.C. § 2254 when it rejected a state prisoner’s Sixth Amendment fair cross-section claim and whether the Sixth Circuit erred in applying the comparative-disparity test (for evaluating the difference between the numbers of African Americans in the community as compared to the venires).

Docket: 08-1409
Title: Ford Motor Company v. Delaware Director of Revenue
Issue: Whether the Delaware Wholesale Merchants’ License Tax, 30 Del. C. §2902, is fairly apportioned under the Commerce Clause, when the State taxes Ford Motor Company based on the fact that its goods were “physically delivered” into the State, and whether this gross receipts tax as a transaction tax on the seller that only one State has the right to tax, rather than as a tax on income that must be apportioned, violates the Commerce Clause by permitting the taxation of sales that occur outside the State’s borders.

Docket: 08-1425
Title: Welch v. Moore
Issue: Did the Sixth Circuit properly interpret Faretta v. California, 422 U.S. 806 (1975) and properly grant a writ of habeas corpus on the ground that the state trial court failed to rule formally on a defendant’s request for self-representation? Did the state courts err in applying Faretta by failing to consider the defendant’s request to proceed pro se?

Docket: 08-1454
Title: Asociacion de Empleados del Estado Libre Asociado de Puerto Rico v. Monteagudo
Issue: Whether an employer is vicariously liable under Title VII for sexual harassment where the employer has implemented a concededly adequate anti-harassment policy with complaint procedure pursuant to this Court’s decisions in Burlington Industries, Inc. v. Ellerth (1998), and Faragher v. City of Boca Raton (1998) and the plaintiff fails to take advantage of the policy because of an unsupported subjective belief that it would be futile or lead to retaliation.

Cases involving lawyers from Akin Gump or Howe & Russell (listed without regard to likelihood of being granted):
Docket: 08-1403
Title: Daniels v. Washington
Issue: Whether the Double Jeopardy Clause prohibits retrial on a charge when a jury instructed in this manner does not return a verdict on it but finds the defendant guilty of a less serious offense. [Akin Gump and Howe & Russell represent the petitioner]

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