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Relist (and hold) watch

John Elwood reviews Tuesday’s relisted and held cases.

Long time, no see!  Although surely you have a back-up hobby or two and perhaps a job to keep you occupied, I for one am relieved the Court is back from its four-week hiatus between Conferences – without the Court’s docket to fuss over, I was having to confront the fundamental emptiness of my life.  So let’s get back to it, shall we?

First the old business:  Seeing as you must have an Internet connection and apparently aren’t confined to a tower by a wicked stepmother, you already know about the Court’s big cert. grant in Fischer v. University of Texas at Austin, 11-345, the challenge to UT’s affirmative action program that has been lingering around One First Street lo these many weeks.   And at long last we have closure in Wetzel v. Lambert, 11-38, a state-on-top petition that the Court relisted ten times before it summarily reversed Tuesday.  Not to toot my own horn or anything, but I did predict last time (and, uh, the time before that, and, well, also here, here, and here) that we’d be seeing an opinion in Wetzel soon.  By a six-to-three vote, the Court reversed the Third Circuit, which had held an ambiguous piece of evidence exculpatory and required a grant of habeas relief in a thirty-year-old murder case.  Justice Breyer, joined by Justices Ginsburg and Kagan, dissented, which explains a good number of those relists.

After being relisted a mere two times – oh Marmet, we hardly knew ye – Marmet Health Care Center v. Brown, 11-391, and Clarksburg Nursing Home v. Marchio, 11-394, are no more.  The Court unanimously reversed both cases, which had held nursing-home arbitration clauses invalid as against public policy, at least in personal injury suits.  The West Virginia Supreme Court of Appeals apparently thought it could disregard Supreme Court precedents construing the Federal Arbitration Act that it considered “tendentious” and “created from whole cloth.”  And apparently, in a hierarchical court system, you can’t do that.

There are only two new relists; indeed, since the Court cleared out the backlog, there are only two relists period.  The first, Gore v. United States, 11-6606, concerns whether a felony conviction under Texas law for conspiracy to commit aggravated robbery is a “violent felony” under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).  The Fifth Circuit had held that it qualifies under the ACCA’s residual clause.  In addition to other, broader arguments (such as that the residual clause is void for vagueness), Gore argues that similar state crimes had been held inapplicable to the ACCA by other circuits.  The government responds by saying that Gore’s purported split is “not a square conflict.”  I have no particular insight into whether the Court will take this case or not, but if they do, I think there will be more Armed Career Criminal Act cases than there are armed career criminals.

The second, Tracey v. United States, 11-6971, concerns the constitutionality of a warrant authorizing police to search for any item representing “possible exploitation of children.”  Petitioner says that description is impermissibly vague and the Third Circuit’s decision upholding the warrant creates a split between it and the Fifth and Eighth Circuits.  The government invoked the good faith doctrine in its brief in opposition, so it’s possible the Court relisted it so it could consider the case in light of Tuesday’s decision in Messerschmidt v. Millender, 10-704—although the government’s opp anticipated (p.15 n.*) that any decision in that case would not affect the outcome.  This case looks a bit like Bridges v. United States, 11-7928, another child pornography case involving an allegedly defective warrant.  As discussed in my last post, Bridges raises the question whether an officer who authored a defective warrant to search the petitioner’s home for child pornography could reasonably believe the warrant was valid when it did not describe the physical evidence to be obtained.  The Court called for a response in Bridges, which isn’t due for another month.

As I’ve said so many times that it’s become my own personal Wetzel v. Lambert:  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.

What Tuesday’s order list lacks in relists it more than makes up for in holds.  Another eight cases involving the retroactivity of the Fair Sentencing Act have piled up behind Dorsey v. United States, 11-5683, and Hill v. United States, 11-5721Blake v. United States, 11-799; Vance v. United States, 11-7879; Tickles (!) v. United States, 11-8023; Walker v. United States, 11-8026; Wilks v. United States, 11-8063; Sidney v. United States, 11-8134; Lewis v. United States, 11-8146; and Jones v. United States, 11-8244Castro v. United States, 11-7206, and Valentine v. United States, 11-7495, are doubtless on hold for Setser v. United States, 10-7387, which questions whether a federal court can order a defendant’s federal sentence be served consecutively to a state sentence that had not yet been imposed.  Meanwhile, Arneson v. 281 Care Committee, 11-535, appears to be a possible hold for United States v. Alvarez, 11-210, the challenge to the constitutionality of the Stolen Valor Act in which the Court heard arguments on Wednesday.  Arneson raises the somewhat similar issue of whether the First Amendment protects citizens from prosecution for knowingly making false statements to promote or defeat ballot questions during political campaigns.  OK, it strikes me as something of a stretch too, but I don’t know what else it could be.

Moving on to murder, Whiteside v. Arkansas, 11-7979, seems a likely hold for Miller v. Alabama, 10-9646, and Jackson v. Hobbs, 10-9647.  All three cases raise the issue whether it is cruel and unusual punishment to sentence defendants who were minors at the time they committed the offense to life imprisonment without the possibility of parole.  But while the petitioners in Miller and Jackson both were fourteen when they committed the crime, the petitioner in Whiteside was seventeen, so whether Whiteside benefits from even a pro-defendant ruling remains to be seen.  Noling v. Bobby, 11-7376, is a capital case concerning whether a habeas petitioner’s claim has been “adjudicated on the merits” for purposes of 28 U.S.C. § 2254(d) where the state court denied relief without acknowledging a federal-law basis for the claim.  It appears to be on hold for Cavazos v. Williams, 11-465, which raises the same claim.  Woods v. Holbrook, 11-7978, another capital case, is almost certainly being held for Martinez v. Ryan, 10-1001; both raise the issue whether criminal defendants have a constitutional right to appointed counsel in post-conviction proceedings when that is the only forum for raising ineffective assistance claims.

Turning to civil cases, Salman Ranch, Ltd. v. Commissioner of Internal Revenue, 11-582, is likely being held for United States v. Home Concrete & Supply, LLC, 11-139, argued January 17.  Both cases raise what must be a common issue for the tax nerderati:  whether an understatement of gross income attributable to an overstatement of basis in sold property is an “omi[ssion] from gross income” that can trigger the extended six-year assessment period.  Salman Ranch joins a couple other cases that have been cooling their heels since October, as detailed here.  Meanwhile, Seven-Sky v. Holder, 11-679, the D.C. Circuit’s contribution to the circuit split on the constitutionality of the Affordable Care Act, looks to be on hold for HHS v. Florida, 11-398, per the Solicitor General’s recommendation.  Somewhat more perplexing is the Court’s hold in Association for Molecular Pathology v. Myriad Genetics, Inc., 11-725, which concerns the patentability of strands of DNA as well as standing to challenge patent rights.  That case seems to be on hold for Mayo Collaborative Services v. Prometheus Labs, Inc., 10-1150, which asks whether observed correlations between blood test results and patient health are patentable.  Although the cases concern patents for different “products,” the Court’s decision in Mayo with regard to 35 U.S.C. § 101 might shed light on the limits of patentability.

And that’s it.  We’ll be back in a few days with the next gripping installment.

Thanks to Eric White for compiling and drafting this update.

Gore v. United States (relisted after the 2/17 Conference)

Docket: 11-6606

Issue(s): Whether petitioner’s prior felony conviction under Texas law for conspiracy to commit aggravated robbery is a “violent felony” under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).


Certiorari stage documents


Tracey v. United States (relisted after the 2/17 Conference)

Docket: 11-6971

Issue(s): Whether the good-faith exception to the Fourth Amendment exclusionary rule applies when a search warrant fails to describe with particularity the items to be searched and seized but does refer to images of the “possible exploitation of children,” cites the relevant state statute prohibiting possession of images of children under 18 engaged in sexual acts, and includes an attached affidavit and warrant application, reviewed and signed by the issuing magistrate, that particularizes the material sought.


Certiorari stage documents

Recommended Citation: John Elwood, Relist (and hold) watch, SCOTUSblog (Feb. 26, 2012, 5:47 PM),