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Re-list (and hold) watch

On Monday, the Court granted cert. in M.B.Z. v. Clinton, 10-699, which it had relisted after the April 22 Conference.  As suggested in my tea-leaf reading from prior posts, the Court summarily reversed in Bobby v. Mitts, 10-1000, a twice-relisted capital case involving the grant of habeas relief on the same jury instruction the Court upheld last term in Smith v. Spisak, 08-724. The Court denied cert. without comment in Catholic League for Religious and Civil Rights v. City and County of San Francisco, 10-1034, relisted after the April 22 Conference.

The Court has not yet updated its online or telephone docket, so there is no definitive word on what happened to the cases still left over from Friday’s conference.  But we can venture an educated guess based on what we know about those cases.  There is a good possibility that the Court relisted a second time in the two pro se habeas cases in which it previously called for a response (Winn v. Buss, 10-7867, and Aviles v. Medina, 10-8003), and in the Sixth Circuit capital case (Smith v. Bell, 10-8629), mentioned in last week’s post.  And the Court likely relisted for a third time in Khadr v. Obama, 10-751, and a fourth time in Reynolds v. Thomas, 10-7502, also discussed in prior posts.  Seems like we might be seeing a dissent from denial (or statement respecting denial) of cert. in those cases.

The Court is likely holding Ducasse v. Maine, 10-1012, for Bullcoming v. New Mexico, 09-10876, argued on March 2.  Ducasse presents the question “[w]hether the admission of a certificate of compliance issued by the manufacturer of blood collection tubes used in blood alcohol kits stating that the chemical additives in the tubes ‘will not disturb the integrity of the blood sample relative to alcohol content’ was a testimonial statement” for purposes of the Confrontation Clause.  And the Court appears to be holding Gagnon v. United States, 10-8097, and DiTomasso v. United States, 10-8532, for Reynolds v. United States, 10-6549, to be argued next Term.  Gagnon and DiTomasso both involve whether the registration requirements of the Sex Offender Registration and Notification Act of 2006 (“SORNA”) became applicable to persons convicted of sex offenses prior to the statute’s enactment, on the statute’s effective date, or did not become effective until the Attorney General provided for their inclusion by issuing an interim regulation.  (The Court acknowledged a split of authority on that question in footnote 2 of its opinion last Term in Carr v. United States, 08-1301.)  Reynolds involves the predicate question of whether a defendant who was subject to a registration requirement before SORNA’s enactment has standing to challenge the Attorney General’s regulation.

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: Smith v. Bell (relisted after the 4/22 Conference and possibly after the 4/29 Conference)

Docket: 10-8629

Issue(s): (1) Whether the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by withholding exculpatory evidence about testimony by the prosecution’s key witness? (2) Whether instructing a jury to convict if it reaches a mere “satisfactory conclusion” or “moral certainty” of guilt, while allowing jurors to convict “as you think justice and truth dictate,” violates due process?  (3) Whether “cause” exists for failing to present an ineffective assistance claim in state court, where such a claim may first be raised in postconviction proceedings, and state-appointed postconviction counsel failed to raise a claim implicating actual innocence?


Certiorari stage documents:

Title: Khadr v. Obama (Relisted after the 4/15 and 4/22 Conferences, and possibly the 4/29 Conference)
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 and 4/22 Conferences, and possibly the 4/29 Conference)

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. 3, 2011, 2:15 PM),