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Relist (and Hold) Watch

John Elwood reviews Monday’s relisted and held cases.

This year, Thanksgiving seemed but a brief prelude to the days that really mattered – Black Friday, Small Business Saturday, Still-Somehow-Without-A-Silly-Name Sunday, and Cyber Monday – when hundreds of millions of Americans flocked to stores, real and virtual, to take advantage of great deals on the staples of modern life.  But a certain brick-and-mortar establishment with a flagship location on First Street N.E. had the opposite of a clearance sale Monday, granting plenary review in precisely zero cases.

But there was a cert. grant of sorts in one of our previous relists, Nitro-Lift Technologies, LLC v. Howard, 11-1377, which had been relisted four times.  If the Federal Arbitration Act was feeling like it had no friends, this will lift its spirits:  A unanimous Court summarily vacated the judgment of the Oklahoma Supreme Court, admonishing that court that whether the provisions in a contract are invalid as a matter of state public policy is a matter for decision by the arbitrator where the contract contains an otherwise-valid arbitration clause.  The petitioner in thrice-relisted Delling v. Idaho, 11-1515, was not so lucky:  The Court denied cert. over the dissent of Justice Breyer, joined by Justices Ginsburg and Sotomayor.  For now, it will remain a mystery whether it violates the Constitution to “eliminate” the insanity defense (as “Idaho and a few other states” have done, slip op. 1) if insanity is still relevant to determining intent.  (Disclosure:  Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, served as co-counsel to the petitioner in Delling.)  Second-time relist Hodge v. Kentucky, 11-10974 (involving the prejudice prong of the familiar ineffective-assistance-of-counsel test) and third-time relist Bond v. United States, 12-158 (involving whether the Constitution’s structural limits on federal authority impose any constraints on Congress’s authority to enact legislation to implement a valid treaty) remain.  Seems likely that someone is writing an opinion respecting denial in Bond, but these things are hard to predict: Miller v. Alabama was granted after four relists, and Comcast v. Behrend, 11-864, was granted after six.

Joining Bond and Hodge is one new relist involving a pro se petition, Law v. Siegel, 12-5196, out of the Ninth Circuit.  As best I can tell (as the respondent puts it, “it is difficult to discern from reading the Petition just what it is that Petitioner would have th[e] Court review”), the case concerns the latest in an ongoing series of disputes between the petitioner, a Chapter 7 debtor, and respondent, the court-appointed trustee.  In the present dispute, the bankruptcy court authorized the trustee to surcharge Mr. Law’s otherwise-valid homestead exemption on the grounds that Law willingly and knowingly attempted to defraud his creditors by removing equity through a fraudulent lien.  Mr. Law claims he engaged in no such misconduct, and that he is entitled to his entire constitutionally protected homestead exemption.  I would not be surprised if this were relisted for some housekeeping reason rather than because of interest in a plenary grant.

Monday brought a flotilla of holds, all but one in criminal cases.  The lone civil case is Three-Dimensional Media Group v. Kappos, 12-48, which concerns something I was just discussing with my children over breakfast: the Federal Circuit’s summary affirmance of the reexamination decision of the Board of Patent Appeals and Interferences construing the term “three-dimensional image” in the petitioner’s patent.  The case raises a similar issue to that in Retractable Technologies v. Becton, 11-1154 (which I had discussed previously here), in which the Court invited the Solicitor General to offer his views way back in June.  Until the SG responds, Three-Dimensional will likely maintain its current position on the z-axis.

On the criminal front, in Minnesota v. Sahr, 12-239, Justices whose chambers perhaps overlook one or more of the fabled 10,000 lakes dismissed Mr. Sahr’s subsequent prosecution on double-jeopardy grounds.  Minnesota’s petition asks whether a defendant who is given the chance to obtain judicial determination of a legal defense prior to trial (in this case, an error in the probable-cause portion of the complaint) but who knowingly allows himself to be placed in jeopardy before raising the defense forfeits or waives his double jeopardy protections.  That is not quite the same as the question presented in Evans v. Michigan, 11-1327 (which asks whether the Double Jeopardy Clause bars retrial after the trial judge mistakenly holds a particular fact to be an element of the offense and then grants a midtrial directed verdict of acquittal for failure to prove that fact), but close enough to be the most likely reason.

Carbajal v. United States, 12-5240, is almost certainly on hold for Florida v. Harris, 11-817, as both ask whether an alert by a well-trained narcotics detection dog establishes probable cause for a vehicle search – despite some obvious distinguishing facts (e.g., the dog in Harris is “Aldo” while the dog here is “Franky”).  Meanwhile, out of the Eleventh comes Martinez-Porta v. United States, 12-5491, concerning the retroactivity of Padilla v. Kentucky, and thus most probably a hold for Chaidez v. United States, 11-820.  (Disclosure:  Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serve as co-counsel to the petitioner in Chaidez.)

It just wouldn’t be the Relist (and Hold) Watch you know and love tolerate without a slew of habeas holds.  First is Miller aka C-Murder v. Louisiana, 12-162.  You can follow the petitioner (a rapper who just might want to stop calling himself C-Murder) on the Twitter, which I once read in a mimeograph is one of those social media web sites that young people are talking about.  His petition tees up the question whether the Sixth Amendment right to jury trial allows a criminal conviction based on a non-unanimous jury verdict.  It seems only two states allow non-unanimous verdicts for felony convictions: Louisiana and the state I always confuse it with, Oregon.  (Oklahoma also permits it, but only for crimes punishable by less than six months in prison, and those don’t require a jury trial anyway.)  Striking down those arrangements would pretty much require overturning Apodaca v. Oregon (1972), and similar cert. petitions, respondent pointedly notes, have been denied many times before.  Nevertheless, Miller is hanging around a while on hold, most likely for the requested responses to come in in two other petitions raising the same question, both captioned McElveen v. Louisiana, 12-5163 and 12-5199, involving brothers convicted of murdering a Tulane student.  (Disclosure:  Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as co-counsel to the petitioner in Miller.)

The next habeas hold serves as a useful reminder that Christmas is just around the corner:  San Nicolas v. Dexter, Warden, 12-5691, comes to us out of the Ninth Circuit, which I suppose is the appropriate venue for a suit involving a jolly old elf.  (Arising as it does from a conviction for second-degree murder, it puts into perspective the notion that failure to eat one’s vegetables is “naughty.”)  In any event, San Nicolas is almost certainly being held for Johnson v. Williams, 11-465, as both cases concern whether a habeas petitioner’s claim has been presumptively “adjudicated on the merits” for purposes of 28 U.S.C. § 2254(d) where the state court denied relief in an explained decision but did not expressly acknowledge a federal-law basis for the claim.  Then there’s Smith v. Colson, 12-390, a capital habeas case from the Sixth Circuit that is almost certainly being held for Trevino v. Thaler, 11-10189, which asks whether, in light of Martinez v. Ryan, the court of appeals should reconsider the petitioner’s habeas claim that his trial counsel was ineffective for failing to investigate mitigating evidence despite the Texas state court’s dismissal of the claim under the state abuse of the writ rules.  Smith raises nearly the same issue, but under Tennessee law.

Finally, Cassidy v. Tucker, 12-5747, appears to be on hold for something, although I’m not sure quite what.  Mr. Cassidy claims that when the Florida state court vacated his conviction and sentence on one count of a two-count information, it effectively resentenced him on the remaining count.  That is crucial because he now seeks to file a second or successive habeas petition on his sentence; the court of appeals said no, reasoning that there was no resentencing, so he was merely attacking the same underlying judgment he did in his first habeas petition.  Perhaps another case raising a similar issue is working its way through the Court’s docket.  As always, if you have any leads, drop me a line.

That’s all for this week.  The Justices are meeting again this Friday, so we’ll be back next week to pick through the detritus of Monday’s order list.  Maybe they’ll even grant something this time.

Thanks to Eric White and Travis Wimberly for drafting and compiling this update.

Law v. Siegel (relisted after the November 20 Conference)

Issue(s):  Whether the Ninth Circuit erred in allowing the bankruptcy trustee to surcharge the debtor’s constitutionally protected homestead property?


Hodge v. Kentucky (relisted after the November 9 and November 20 Conferences)

Issue(s):  Whether the Kentucky Supreme Court properly applied the Strickland prejudice prong when it required a nexus between the mitigation and the facts of the crime, and by applying additional criteria created an automatic death penalty under the facts of this case?


Bond v. United States (relisted after the November 2, November 9, November 20 Conferences)

Issue(s):  (1) Whether the Constitution’s structural limits on federal authority impose any constraints on the scope of Congress’ authority to enact legislation to implement a valid treaty, at least in circumstances where the federal statute, as applied, goes far beyond the scope of the treaty, intrudes on traditional state prerogatives, and is concededly unnecessary to satisfy the government’s treaty obligations; and (2) whether the provisions of the Chemical Weapons Convention Implementation Act, 18 U.S.C. § 229, can be interpreted not to reach ordinary poisoning cases, which have been adequately handled by state and local authorities since the Framing, in order to avoid the difficult constitutional questions involving the scope of and continuing vitality of this Court’s decision in Missouri v. Holland.

Recommended Citation: John Elwood, Relist (and Hold) Watch, SCOTUSblog (Nov. 29, 2012, 10:19 AM),