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Hold (and Relist?) Watch

John Elwood reviews Monday’s relisted and held cases.

It’s finally happened:  This week’s Relist Watch is, well, relist-free.  Thankfully, I had the foresight to include the “and hold” parenthetical, so I still get to spout off to my readers.  Both of you.

Before delving into this week’s holds, let’s take a few moments to reflect on the brief lives of last week’s first- (and only-) time relists.  Gore v. United States, 11-6606, concerned whether a felony conviction under Texas law for conspiracy to commit aggravated robbery is a “violent felony” for purposes of the Armed Career Criminal Act.  And Tracey v. United States, 11-6971, concerned the constitutionality of a rather broad warrant authorizing police to search for any item representing “possible exploitation of children.”  Both died a quiet death just one day after they were identified in my last post with nary a dissent from denial of cert.  To quote one of Chief Justice Rehnquist’s favorite (or at least most-invoked) poems, “full many a flower is born to blush unseen, and waste its sweetness on the desert air.”

Monday’s order list yielded eight new holds.  The first up has a name that might be familiar:  Hartman v. Moore, 11-836, the latest iteration of the Hartman v. Moore (2006) that yielded a five-two opinion holding that a plaintiff who brings a First Amendment claim for retaliatory prosecution must allege and prove that the criminal charges were brought without probable cause.  This time around, Reichle v. Howards, 11-262, appears to have stolen Hartman’s spotlight.  Like Reichle, Hartman concerns whether law enforcement agents are entitled to qualified immunity if they reasonably believed probable cause existed for a retaliatory arrest.  Both the D.C. Circuit (Hartman) and the Tenth Circuit (Reichle) denied the officials qualified immunity from Bivens damages.

The ranks of cases on hold for the Fair Sentencing Act duo Dorsey v. United States, 11-5683, and Hill v. United States, 11-5721, swelled further Monday.  Along with Dorsey, Hill, and seemingly countless others, Moore v. United States, 11-7558, and Gibson v. United States, 11-8268, involve retroactivity of the FSA amendment reducing the sentencing disparity between crack-cocaine and powdered-cocaine convictions.  Meanwhile, Al-Madhwani v. Obama, 11-7020, is one in a series of Guantanamo detainee case that are slowly making their way through briefing.  As I mused back in January, my guess is that these are being held until the briefing is complete in all of them.

Two cases come out of state courts.  Newbold v. North Carolina, 11-6624, appears to be a straightforward hold for Martinez v. Ryan, 10-1001.  Similar to Martinez, Newbold raises the question whether pro se inmates, convicted by guilty pleas, have a constitutional right to counsel in a post-conviction proceeding that presents the first opportunity to review their guilty pleas.  Martinez was argued way back on the second day of the Term; we should be seeing an opinion soon.  Meanwhile, Haley v. Georgia, 11-6870, is probably a hold for United States v. Alvarez, 11-210, the First Amendment challenge to the Stolen Valor Act.  Haley participated in an online murder mystery game under the moniker “catchmekiller,” in which he would upload YouTube videos giving participants clues that would lead to the bodies of the 16 people he “murdered.”  Instead of making everything up, though, Haley used information from real-life murders for his posts.  Perhaps not surprisingly, he was eventually called in for questioning by officials investigating one of the real murders.  Haley ultimately was charged with and convicted of violating a Georgia law that makes it a felony to “knowingly and willfully . . . make[] a false . . . statement . . . in any matter within the jurisdiction of any department or agency of state government or of the government of any county, city, or other political subdivision of this state.”  In his cert. petition, Haley contends that the conviction violates his First Amendment rights, and asks the Court to hold the case pending the decision in Alvarez (and cites last week’s Arneson v. 281 Care Committee, 11-535, which also appears to be a hold for that case).

Finally, more to love for the tax nerderati:  Two cases out of the Fifth Circuit, Commissioner of Internal Revenue v. Equipment Holding Co., 11-657, and Commissioner of Internal Revenue v. R and J Partners, 11-763, appear to be on hold for the Court’s decision in United States v. Home Concrete & Supply, 11-139.  By my count, that makes at least six cases (see here and here) raising the apparently quite common issue whether an understatement of gross income attributable to an overstatement of basis in sold property is an “omi[ssion] from gross income” that triggers an extended six-year assessment period.

If it was dull, at least it was short.  I make no promises for next week.

Thanks yet again to Eric White for compiling and drafting this update.

Recommended Citation: John Elwood, Hold (and Relist?) Watch, SCOTUSblog (Mar. 2, 2012, 10:58 AM),