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Re-list (and hold) watch

Yesterday, the Court relisted in five cases for the first time.  Kawashima v. Holder, 10-577, presents the question whether a false statement on a corporate tax return is an “aggravated felony” for purposes of the federal removal statute.  Messerschmidt v. Millender, 10-704, seeks review of the en banc Ninth Circuit’s denial of qualified immunity for a search executed pursuant to a warrant later found to be invalid.  Rosario v. Griffin, 10-854, featured in last week’s Petitions to Watch, involves application of New York’s “meaningful representation” standard to evaluate Sixth Amendment claims of ineffective assistance of counsel.  The Court also relisted in Cavazos v. Smith, 10-1115, for which a summary reversal may be in the works:  This is California’s third cert. petition in this case seeking review of the Ninth Circuit’s grant of habeas relief; the Court granted both prior petitions, vacating and remanding in light of intervening decisions applying AEDPA’s deferential standard of review.  The Court also relisted for a fourth time in Khadr v. Obama, 10-751, and for a fifth time in Reynolds v. Thomas, 10-7502, suggesting that statements respecting, or dissents from, the denial of cert. may be forthcoming.

The last new relist from yesterday’s orders is Martinez v. Ryan, 10-1001, in which the Court previously called for a response.  Martinez involves the question whether ineffective assistance of state post-conviction counsel constitutes “cause” for procedural default of a claim of ineffective assistance of trial counsel.  A similar question is presented in the pending petition for rehearing in Foster v. Texas, 10-8317, which the Court on May 10 rescheduled from the May 12 to the May 26 Conference, after having granted a stay of execution on April 5.  The actions in Martinez and Foster may suggest the Court is interested in taking a case addressing the right to counsel in post-conviction proceedings, notwithstanding its grant of cert. in Maples v. Thomas, 10-63.  To that end, the Court now appears to be holding Smith v. Bell, 10-8629, which it had previously relisted after the April 22 and April 29 Conferences; Smith presents a similar question as Martinez.  However, the Court denied cert. this week without comment in Winn v. Buss, 10-7867, and Aviles v. Medina, 10-8003, two cases mentioned in last week’s post which had been relisted twice.  The Court may be holding Smith for Maples, or may schedule Smith for the May 26 Conference for consideration with Foster and Bradford v. Thaler, 09-11519.  As in Foster, the Court denied Bradford’s petition in January; the Court has now called for the record in response to Bradford’s motion for leave to file a petition for rehearing in light of the intervening grant in Maples.

The Court appears to be holding Pineda-Moreno v. United States, 10-7515, which involves a defendant’s Fourth Amendment challenge to warrantless GPS surveillance of his automobile, pending its disposition of the government’s April 15 cert. petition in United States v. Jones, 10-1259.  In Jones, the SG has sought review of the D.C. Circuit’s decision (captioned United States v. Maynard) holding that long-term GPS surveillance constitutes a search for purposes of the Fourth Amendment, and adopting a “mosaic” theory for determining when law enforcement actions implicate the Fourth Amendment.

The Court appears to be holding Zuress v. Donley, 10-374, and Wetherill v. McHugh, 10-638, for consideration together with the petition in Witt v. United States, 10-885. Zuress and Wetherill present the question whether “dual-status technicians” who perform civilian roles within military departments may sue the government for employment discrimination under Title VII, notwithstanding the Court’s holding in Feres v. United States, 340 U.S. 135 (1950), barring suits by members of the military for injuries that arise out of, or are in the course of activity incident to, military service.  The petition in Witt asks the Court to overrule Feres; the Court called for the government’s response, which is due to be filed today.

Finally, sports fans will note that the Court appears to be holding Clemens v. McNamee, 10-966, a petition arising out of a defamation lawsuit brought by Roger Clemens against his former trainer.  The Fifth Circuit held that the trainer’s defamatory statements, which were made elsewhere but allegedly harmed the Rocket in the forum state, were insufficient to establish personal jurisdiction over the trainer, where the content and context of statements lacked connection with forum.  The Court is likely holding Clemens for the personal jurisdiction cases in which it heard argument in January, J. McIntryre Machinery, Ltd. v. Nicastro, 09-1343, and Goodyear Dunlop Tires Operations, S.A. v. Brown, 10-76.

If a case has been relisted once, it generally means that the Court is paying close attention to the case, and the chances of a grant are higher than for an average case.  But once a case has been relisted more than twice, it is generally no longer a likely candidate for plenary review, and is more likely to result in a summary reversal or a dissent from the denial of cert.


Title: Kawashima v. Holder (Relisted after the 5/12 Conference)

Docket: 10-577

Issue(s): (1) Whether the Ninth Circuit erred in holding that petitioners’ convictions of filing, and aiding and abetting in filing, a false statement on a corporate tax return in violation of 26 U.S.C. §§ 7206(1) and (2) were aggravated felonies involving fraud and deceit under 8 U.S.C. § 1101(a)(43)(M)(i), and petitioners were therefore removable; and (2)  whether the Ninth Circuit’s 2010 amendment of its 2007 final judgment concerning petitioner Fusako Kawashima violated Federal Rule of Appellate Procedure 41, where the government did not seek rehearing or other review of that final judgment in 2007.


Certiorari stage documents:


Title: Messerschmidt v. Millender (Relisted after the 5/12 Conference)

Docket: 10-704

Issue(s): (1) Whether police officers are entitled to qualified immunity when they obtained a facially valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her?  (2)  Whether United States v. Leon, 468 U.S. 897 (1984), and Malley v. Briggs, 475 U.S. 335 (1986), should be reconsidered or clarified?


Certiorari stage documents:

Title: Rosario v. Griffin (Relisted after the 5/12 Conference)

Docket: 10-854

Issue(s): Whether application of New York’s state constitutional “meaningful representation” standard to evaluate Sixth Amendment claims of ineffective assistance of counsel results in decisions that are “contrary to, or involve an unreasonable application of, clearly established federal law” as required by the federal habeas statute.


Certiorari stage documents:

Title: Cavazos v. Smith (Relisted after the 5/12 Conference)
Docket: 10-1115
Issue(s): Did the Ninth Circuit exceed its authority under 28 U.S.C. § 2254(d) by granting relief for insufficient evidence based on its acceptance of the cause-of-death testimony of defense experts over the contrary opinion testimony of prosecution experts?


Certiorari stage documents:

Title: Martinez v. Ryan (Relisted after the 5/12 Conference)
Docket: 10-1001
Issue(s): Whether a defendant in a state criminal case who is prohibited by state law from raising on direct appeal any claim of ineffective assistance of trial counsel, but who has a state-law right to raise such a claim in a first post-conviction proceeding, has a federal constitutional right to effective assistance of first post-conviction counsel specifically with respect to his ineffective-assistance-of-trial-counsel claim


Certiorari stage documents:

Title: Khadr v. Obama (Relisted after the 4/15, 4/22, 4/29, and 5/12 Conferences)
Docket: 10-751
Issue(s): (1) Whether a district court considering a habeas corpus petition may give conclusive effect to the government’s assertion that the individual is unlikely to be tortured if transferred to another country?  (2)  Whether Section 242(a)(4) of the Immigration and Naturalization Act bars judicial review of claims under the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or Punishment except in appeals from final orders of deportation, and if so construed, whether Section 242(a)(4) violates the Equal Protection Clause or the Suspension Clause.


Certiorari stage documents:

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

Title: Reynolds v. Thomas (Relisted after the 4/1, 4/15, 4/22, 4/29, and 5/12 Conferences)

Docket:  10-7502

Issue(s): Whether, under 18 U.S.C. § 3584(a), 3585(b), and 3621(b), the Bureau of Prisons must administer the sentence of a federal prisoner in a manner that effectuates the subsequent judgment of the state judiciary that the state sentence run concurrently with the previously imposed federal term of imprisonment?


Certiorari stage documents:


Recommended Citation: John Elwood, Re-list (and hold) watch, SCOTUSblog (May. 17, 2011, 2:39 PM),