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Relist (and Hold) Watch

John Elwood reviews Monday’s relisted and held cases.

Slim pickings again this week.  As forecast ad nauseum in recent weeks, the Court summarily reversed in one of the long-running trio of state-on-top habeas cases, Hardy v. Cross, 11-74, ending the total number of relists in that case at eight.  It seems like a long time to wait for a seven-page, unanimous summary reversal, but I understand that the Court was having trouble getting the full record from the Seventh Circuit.  The Court also granted cert. in the twice-relisted RadLAX Gateway Hotel v. Amalgamated Bank, 11-166, the Chapter 11 bankruptcy case discussed in more detail here, which basically presents the question whether secured creditors are guaranteed the right to “credit bid” in Chapter 11 auction sales.

The Clerk’s Office is a bit slower about updating the docket when there won’t be another Conference for several weeks, leaving us to speculate about which cases have been relisted and which are simply being held for another case.  There is one likely new relist this week: Bluman v. Federal Election Commission, 11-275.  The case involves a First Amendment challenge to the campaign finance law prohibiting any “foreign national” from making a contribution in connection with a federal, state, or local election.

The Court also appears to have relisted a second time in Ryburn v. Huff, 11-208, involving the emergency and exigent-circumstances exceptions to the Fourth Amendment’s warrant requirement.  And the Court appears to have relisted once again in the two remaining state-on-top habeas cases that have been pending for months:  Cash v. Maxwell, 10-1548 (apparently relisted eight times); and Wetzel v. Lambert, 11-38 (seven times).  

There is also one likely new hold: Garcia v. Holder, 11-79, an immigration case that involves whether a state conviction for possession of an unspecified quantity of marijuana categorically constitutes a felony conviction under federal law (and therefore an “aggravated felony” under federal immigration law), even if the offense could fall within the federal misdemeanor exception for low-level drug offenses.  It’s possible that the Court is holding the case for Moncrieffe v. Holder, 11-702, which appears to raise the same question.  (Goldstein & Russell, P.C. represents Moncrieffe.)  Also, the petitioner in Salem v. Holder, 11-206, argues that the two cases should be granted and considered together, although the Solicitor General responds that cert. should be denied in Salem even if it’s granted in Garcia.

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.


Bluman v. Federal Election Commission (likely relisted after the 12/9 Conference)

Docket:  11-275

Issues:  Whether Congress violates the First Amendment by making it a crime for individuals who lawfully reside in the United States, but are neither U.S. citizens nor “permanent residents” under the immigration laws, to make independent expenditures or campaign contributions in connection with any federal, state, or local election; or whether, as the district court held, the ban satisfies strict scrutiny as a “piecemeal” attempt to reduce the “influence” on “how voters will cast their ballots” of aliens whom Congress may suspect of lacking “primary loyalty” to the nation.

Certiorari stage documents:


Ryburn v. Huff (relisted after the 12/2 and 12/9 Conferences)

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:


Cash v. Maxwell (relisted after the 9/26, 10/7, 10/14, 11/4, 11/10, 11/22, 12/2, and 12/9 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, 12/2, and 12/9 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. 14, 2011, 4:14 PM),