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Re-list (and hold) watch (UPDATED)

This week, the Court relisted in one new case:  Eisai Co. v. Teva Pharmaceuticals USA, Inc., 10-1070, which we included in last week’s Petitions to Watch.  The Court relisted for a second time in Martinez v. Regents of the University of California, 10-1029, the preemption case from the California Supreme Court involving resident tuition rates for unlawful aliens, mentioned in last week’s post.  The Court relisted for a third time in Messerschmidt v. Millender, 10-704, the Ninth Circuit qualified immunity case, and Cavazos v. Smith, 10-1115, the Ninth Circuit habeas case back at the Court after two prior GVRs, in which the Court called for the record on May 24.  A summary reversal or dissent from (or statement respecting) the denial of cert. may be in the works for any of these three.


The Court relisted for a seventh time in Reynolds v. Thomas, 10-7502.  As I noted on April 5, Reynolds involves a question (whether the Federal Bureau of Prisons must give effect to a state court’s order that petitioner’s state and federal sentences run concurrently) related to that presented in several petitions the Court had apparently been holding, which challenge a district court’s authority to direct that a sentence be imposed consecutively to a not-yet-imposed state sentence.  Last week, the Court rescheduled several of those petitions for the June 9 Conference, including Bustos v. United States, 10-8659, Garcia v. United States, 10-8908, Setser v. United States, 10-7387, and Vargas-Solis v. United States, 10-6866.  The Acting Solicitor General has confessed error on the underlying issue in this group of petitions, agreeing with petitioners that a district court lacks such authority, but he nonetheless maintains the issue does not warrant plenary review because state courts and the Bureau of Prisons can reach their own conclusion about whether to credit service in another sovereign’s correctional system.  If the Court relists Reynolds again next week, it will be able to consider that petition at the June 9 Conference together with Bustos and the others.


The Court appears to be holding Mendoza v. United States, 10-8583, which presents the question whether evading arrest in a vehicle is a “crime of violence” under Sentencing Guidelines § 4B1.2(a), for Sykes v. United States, 09-11311, which involves a similar question under the Armed Career Criminal Act; however, Mendoza also presents the same question as Bustos, so perhaps we’ll see it relisted for June 9.  The Court also appears to be holding Williams v. Illinois, 10-8505, which raises a Confrontation Clause challenge to the use at trial of laboratory results obtained by a non-testifying forensic analyst, for Bullcoming v. New Mexico, 09-10876.


After holding Burris v. Judge, 10-367, and Quinn v. Judge, 10-821 (both involving the special election to fill Barack Obama’s old Senate seat) following the March 4 Conference, the Court has relisted both petitions for the June 2 Conference; I discussed both petitions in February (here and here) when they were relisted twice.People familiar with Burris and Quinn think that the Court has been holding those cases for Camreta v. Greene, 09-1454, decided May 26, because the cases involve mootness issues that Camreta may shed light on.  Similarly, after apparently holding Martinez v. Ryan, 10-1001, following the May 19 Conference (the petition was not scheduled for the May 26 Conference), the Court has now relisted that petition for the June 2 Conference.  The relist may indicate a forthcoming denial.  Because it was relisted, the Court is probably not holding Martinez for Maples v. Thomas, 10-63.  And the Court is evidently no longer considering Martinez together with the two capital petitions discussed in prior posts:  Foster v. Texas, 10-8317 (in which the Court yesterday denied a petition for rehearing, dissolving its April 5 stay of execution), and Bradford v. Thaler, 09-11519 (in which the Court on Friday denied an application for a stay of execution and motion for leave to file a petition for rehearing).


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: Eisai Co. v. Teva Pharmaceuticals USA (relisted after the 5/26 Conference)

Docket: 10-1070

Issue(s): When a case becomes moot as the result of a third party’s independent action after the court of appeals issues a judgment but while a petition for rehearing is still pending, should the court of appeals vacate the judgment upon the request of the aggrieved party?


Certiorari stage documents:

Title: Martinez v. Regents of the University of California (relisted after the 5/19 and 5/26 Conferences)

Docket: 10-1029

Issue(s): (1) Whether a state statute that provides resident tuition rates at public postsecondary institutions to illegal aliens, based on their attendance at high schools in the state, is preempted by 8 U.S.C. § 1623; (2) whether a court must undertake conflict preemption analysis after concluding that an express preemption provision does not apply in a case involving both types of preemption claims.


Certiorari stage documents:

Title: Messerschmidt v. Millender (Relisted after the 5/12, 5/19, and 5/26 Conferences)

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: Cavazos v. Smith (Relisted after the 5/12, 5/19, and 5/26 Conferences)
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; scheduled for the June 2 Conference)
Docket: 10-1001
Issue(s): Whether a federal habeas petitioner can establish “cause” for the procedural default of an ineffective-assistance-of-trial-counsel claim by alleging ineffective assistance of state-collateral-review counsel.


Certiorari stage documents:

Title: Reynolds v. Thomas (Relisted after the 4/1, 4/15, 4/22, 4/29, 5/12, 5/19, and 5/26 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 (UPDATED), SCOTUSblog (Jun. 2, 2011, 8:02 AM),