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Relist (and hold) watch

John Elwood reviews Tuesday’s relisted and held cases.

Following last week’s flurry of relist activity, the Justices had a sluggish start Tuesday, returning from their Memorial Day barbecues with one summary reversal, no new relists, and no plenary grants from the stable of old chestnuts kicking around One First Street.

The big news is that, as kinda sorta predicted last week, the Court did issue an opinion in the thrice-relisted Coleman v. Johnson, 11-1053, taking a mere seven pages to summarily and unanimously reverse the Third Circuit’s grant of habeas relief.  If you managed to make it through last week’s post, the rest will seem familiar to you:  the Court relisted for a third time (since calling for a response) in Comcast Corp. v. Behrend11-864, the follow-on to Wal-Mart v. Dukes involving the standard for class-action certification, and a fourth time in Parker v. Matthews, 11-845, a Sixth Circuit state-on-top habeas case, and Fairey v. Tucker11-7185, a state-on-bottom habeas case out of the Fourth Circuit, in which the Court has waited a small eternity for South Carolina to furnish the record as requested.  The Court also relisted for a second time in another state-on-top habeas case, Howes v. Walker, 11-1011, which presents (among other things) the question left open two Terms ago in Wood v. Allen about whether Section 2254(e)(1)’s command that an underlying state-court fact determination is presumed correct applies in a case presenting a challenge to the reasonableness of the state court’s factual determinations under Section 2254(d)(2).

Proving yet again that this column offers you only news as fresh as the day-olds at Krispy Kreme:  as I have twice bored you about already, and as Lyle has again already noted, the Court put off for another day the expanding mass of Guantanamo petitions.  Our thrice-relisted favorites Al-Bihani v. Obama, 10-1383Uthman v. Obama, 11-413Almerfedi v. Obama, 11-683Al-Madhwani v. Obama, 11-7020; and Al Alwi v. Obama, 11-7700, are now fellow-travelers with two-timers Latif v. Obama, 11-1027, and Al Kandari v. Obama11-1054.

The rest of last week’s competitors fared about as well as Katherine and Mark’s prime-time jive.  After graciously giving me a mulligan by relisting the motion for leave to file a rehearing petition in Cook v. Schriro, 08-7229, three years after denial of cert., the Justices denied relief without comment, reminding us that grants of rehearing remain very much the exception to the rule.  And the Court deep-sixed Jennings v. Owens11-789, involving the imposition of sex offender parole conditions without contemporaneous notice or opportunity to be heard.

The news on the hold front is similarly scintillating.  The Court is probably holding Smith v. United States, 11-9261, for Florida v. Harris, 11-817, as both involve Fourth Amendment challenges to vehicle searches following an alert by a narcotics dog.  Bennett v. United States, 11-9711, Jackson v. United States, 11-9938, and Owens v. United States, 11-9961 all appear to be routine holds for Dorsey v. United States, 11-5683, and Hill v. United States, 11-5721, involving application of the Fair Sentencing Act of 2010 when a defendant is sentenced after that statute’s effective date for conduct that occurred before the effective date.  The Court is probably also holding Raysor v. United States, 11-8894 for Dorsey and Hill, though for a slightly different reason; the SG’s brief in opposition argues that the question presented in that petition (whether the district court had discretion to impose a sentence below a statutory minimum) would be mooted if the Court concludes that the FSA applies to Raysor.

And with that, you’ve wasted another perfectly good (tenth of a billable) hour reading the tea leaves about One First Street.  I’ll be back next week with more of the same.  Until then, you’ll find me waiting behind the velvet rope trying fruitlessly to make it in to the clerkerati happy hour, hoping to derive guidance about the state of the discuss list from the size and shape of the bags under the eyes of the Elect.

Howes v. Walker (relisted after the 5/17 and 5/24 Conferences)

Docket: 11-1101

Issue(s):  (1) Whether 28 U.S.C. § 2254(d)(2)’s invitation to decide the reasonableness of a state-court factual determination fits with 28 U.S.C. § 2254(e)(1)’s command that an underlying state-court fact determination must be presumed correct; (2) whether the Sixth Circuit violated Section 2254(d)(1) by granting habeas relief on a purportedly unreasonable application of state law; and (3) whether the Sixth Circuit violated § 2254(d)(1) by asserting its own prejudice standard – that a defendant “must only show that he had a substantial defense” – rather than the standard in Strickland v. Washington that prejudice requires a showing that, but for counsel’s error, there is a reasonable probability of a different outcome.

Certiorari stage documents

 Comcast v. Behrend (relisted after the 5/10, 5/17, and 5/24 Conferences)

Docket: 11-864

Issue(s):  Whether a district court may certify a class action without resolving “merits arguments” that bear on Federal Rule of Civil Procedure 23’s prerequisites for certification, including whether purportedly common issues predominate over individual ones under Rule 23(b)(3).

Certiorari stage documents


Parker v. Matthews (relisted after the 4/27, 5/10, 5/17, and 5/24 Conferences)

Docket: 11-845

Issue(s):  Whether the Sixth Circuit erred in finding that the Kentucky courts unreasonably applied clearly established federal law and granting respondent habeas relief.

Certiorari stage documents


 Fairey v. Tucker (relisted after the 4/27, 5/10, 5/17, and 5/24 Conferences)

Docket: 11-7185

Issue(s):  Did the court of appeals err in dismissing the petitioner’s appeal and denying the certificate of appealability where the record showed that the district court’s assessment of the constitutional claims was wrong?

Certiorari stage documents

Recommended Citation: John Elwood, Relist (and hold) watch, SCOTUSblog (May. 31, 2012, 3:43 PM),