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Relist (and Hold) Watch

John Elwood reviews Monday’s relisted and held cases.

Compared to last week’s smorgasbord, this week’s order list was slim pickings.  Two of the post-Thanksgiving leftovers discussed last week reached their expiration date, with the Court denying cert. without comment on a couple of once-relisted cases, The Bronx Household of Faith v. New York City Board of Education, 11-386 (a First Amendment case involving religious groups’ use of New York City Board of Education facilities) and Beauchamp v. Wisconsin, 11-148 (a Confrontation Clause case involving dying declarations).

The sole new relist this week is Ryburn v. Huff, 11-208, in which a divided panel of the Ninth Circuit denied qualified immunity to two police officers who entered a family’s home without a warrant while investigating what turned out to be a false rumor that the family’s son was planning a school shooting; the petition alleges a split about whether Brigham City v. Stuart merged the emergency and exigent-circumstances exceptions to the Fourth Amendment’s warrant requirement (the Ninth Circuit concluded it did not).

The Court relisted for a second time in RadLAX Gateway Hotel v. Amalgamated Bank, 11-166, the Chapter 11 bankruptcy case discussed in last week’s post.  The rest of the crop are long-running state-on-top habeas relists involving claims that a court of appeals gave insufficient deference to state-court decisions:  Hardy v. Cross, 11-74 (relisted eight times); Cash v. Maxwell, 10-1548 (seven times); and Wetzel v. Lambert, 11-38 (six times).  At the risk of becoming a broken record, we should be seeing opinions of some sort in those cases quite soon. 

The Court appears to be holding Smith v. Florida, 09-10755, a capital petition denied in June 2011, in which (as Lyle previously noted) the Court took the unusual step of CFR’ing on a petition for rehearing.  The rehearing petition asked the Court to hold Smith’s petition pending Williams v. Illinois, 10-8505 – granted the same day the Court denied Smith’s petition and argued on the merits yesterday – which also involves a Confrontation Clause claim based on discussion of a lab test of DNA evidence at trial by someone other than the lab technician who actually did the test.  This is the Court’s second hold on a rehearing petition in as many weeks.  And the Court also appears to have added King v. United States, 11-7029, and Cain v. United States, 11-7043, to the growing list of cases held for Dorsey v. United States, 11-5683, and Hill v. United States, 11-5721, involving the retroactive application of the Fair Sentencing Act, which reduced the crack-powder cocaine sentence differential.

If a case has been relisted once, it generally means the Court is paying close attention, increasing the chance of a grant.  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.


Ryburn v. Huff (relisted after the 12/2 Conference)

Docket:  11-208

Issues:  (1) Whether Brigham City v. Stuart merged the emergency doctrine and application of exigent circumstances for evaluating warrantless entry;  (2) whether the Court should resolve the conflict between the Ninth Circuit (which answers “no”) and the Sixth and Tenth Circuits (which answer “yes”); (3) whether, on the facts of this case, involving a police investigation of a potential plan for a school shooting, officers were free to enter a student’s home without a warrant to prevent possible harm to themselves and others; and (4) whether, where the district court and one circuit judge concluded that the police conduct was arguably valid under another constitutional doctrine, the officers can be denied qualified immunity.

Certiorari stage documents:


RadLAX Gateway Hotel v. Amalgamated Bank (relisted after the 11/22 and 12/2 Conferences)

Docket:  11-166

Issue:  Whether a debtor may pursue a Chapter 11 plan that proposes to sell assets free of liens without allowing the secured creditor to credit bid, but instead providing it with the indubitable equivalent of its claim under Section 1129(b)(2)(A)(iii) of the Bankruptcy Code.

Certiorari stage documents:


Hardy v. Cross (relisted after the 9/26, 10/7, 10/14, 10/28, 11/4, 11/10, 11/22, and 12/2 Conferences)

Docket:  11-74

Issue(s):  Whether the court of appeals violated 28 U.S.C. § 2254 and Supreme Court precedent by overriding state court determinations of law and fact and awarding habeas relief based on a constitutional rule that this Court has never recognized and that the Seventh Circuit derived entirely from its own precedent.

Certiorari stage documents:


Cash v. Maxwell (relisted after the 9/26, 10/7, 10/14, 11/4, 11/10, 11/22, and 12/2 Conferences)

Docket:  10-1548

Issue(s):  (1) Whether, under 28 U.S.C. § 2254, a federal court may grant habeas relief on a claim that the state-court conviction rested on perjured testimony absent proof that the prosecution knew that the challenged testimony was false and when the state post-conviction court deemed the testimony truthful; (2) whether, under 28 U.S.C. § 2254, a federal court may grant habeas relief on a claim alleging suppression of exculpatory evidence when that evidence was unknown to law enforcement officials working on the case and without considering whether the state court might have rejected this claim.

Certiorari stage documents:


Wetzel v. Lambert (relisted after the 9/26, 10/28, 11/4, 11/10, 11/22, and 12/2 Conferences)

Docket:  11-38

Issue:  Did the Third Circuit fail to properly apply the habeas deference standard to the state court’s rejection of respondent’s Brady claim?

Certiorari stage documents:

Recommended Citation: John Elwood, Relist (and Hold) Watch, SCOTUSblog (Dec. 8, 2011, 4:15 PM),