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Re-list (and hold) watch

The Court granted cert. Monday in Martinez v. Ryan, 10-1001, which it had relisted twice since calling for a response from the State of Arizona (and which I previously discussed here and here).  Most of last week’s relists are back for another go-round: Messerschmidt v. Millender, 10-704 (fourth relist); Cavazos v. Smith, 10-1115 (fourth); Reynolds v. Thomas, 10-7502 (eighth!); and Eisai Co. v. Teva Pharmaceuticals USA, Inc., 10-1070 (second relist since the Court called for a response).  It seems like we ought to be seeing an opinion of some sort in Messerschmidt, Cavazos, or Reynolds before too long.  As noted last week, the Court may also dispose of Reynolds together with Bustos and related petitions scheduled for the June 9 Conference.

The Court also relisted for the first time in Gonzalez v. Thaler, 10-895, noted in last week’s Petitions to Watch and involving questions about the one-year time limit for bringing federal habeas petitions; Gonzalez looks to me like it may be on a glide path to a grant.  The Court also relisted in Innis v. Buss, 10-8952, a pro se habeas case that may involve a question related to Gonzalez.  The Court has relisted for the first time in Smith v. Louisiana, 10-8145, a state-court habeas case involving Brady and due process claims, in which the Court has requested (and now received) the record.

On the hold front, the Court appears to be holding both John Crane Co. v. Atwell, 10-272, and Griffin Wheel Co. v. Harris, 10-520, for Kurns v. Railroad Friction Products Corp., 10-879, which was granted Monday (and which is mentioned in a past installment here).  All involve whether the Locomotive Inspection Act (formerly known as the Boiler Inspection Act), 49 U.S.C. § 20701 et seq., preempts state tort lawsuits involving asbestos.  The Acting Solicitor General recommended a grant in Atwell, but the Court decided Kurns was a better vehicle.

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: Gonzalez v. Thaler (relisted after the 6/2 Conference)

Docket: 10-895

Issue(s): 1) Whether the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) – which establishes a one-year statute of limitations for a state prisoner to file a federal habeas petition, running from “the date on which the judgment [of conviction] became final by the conclusion of direct review or the expiration of the time for seeking such review” – dictates a single federally prescribed point in time when all state direct-review processes are deemed to have concluded; 2) whether AEDPA’s “conclusion of direct review” occurs upon issuance of an intermediate appellate court’s mandate, expiration of the time for seeking discretionary review in the state’s highest court, or issuance of the intermediate appellate court’s decision; and 3) whether “expiration of the time for seeking [direct] review” under AEDPA includes the ninety-day period for filing a petition for a writ of certiorari with the Supreme Court even when the petitioner forewent discretionary review in the state’s highest court.


Certiorari stage documents:


Title: Smith v. Louisiana (relisted after the 6/2 Conference)

Docket: 10-8145

Issue(s): 1) Whether there is a reasonable probability that the outcome of Smith’s trial would have been different but for Brady and Giglio/Napue errors; 2) whether the state courts violated the Due Process Clause by rejecting Smith’s Brady and Giglio/Napue claims.


Certiorari stage documents:


Title: Eisai Co. v. Teva Pharmaceuticals USA (relisted after the 5/26 and 6/2 Conferences)

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: Messerschmidt v. Millender (Relisted after the 5/12, 5/19, 5/26 and 6/2 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, 5/26, and 6/2 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: Reynolds v. Thomas (Relisted after the 4/1, 4/15, 4/22, 4/29, 5/12, 5/19, 5/26 and 6/2 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 (Jun. 7, 2011, 12:12 PM),