John Elwood reviews Tuesday’s relisted and held cases.

Given last week’s bumper crop of relists, it was perhaps unsurprising that three of Friday’s four cert. grants (or six of seven, depending how you count) came in relisted cases.  That group was led off by Bond v. United States, 12-158, involving the scope of Congress’s treaty-implementation power.  That the Court had previously relisted Bond a whopping seven times may suggest that a draft dissent from (or statement respecting) the denial of cert. ultimately shook loose enough votes for a grant.  Bond now unseats Comcast Corp. v. Behrend, 11-864, as the Term’s most-relisted grant.  The Court also granted cert. in the once-relisted troika of Chadbourne & Park LLP v. Troice, 12-79; Willis of Colorado Inc. v. Troice, 12-86; and Proskauer Rose LLP v. Troice, 12-88, all involving the preclusive effect of the Securities Litigation Uniform Standards Act on state-law claims against entities that performed investment-related work for Allen Stanford’s Ponzi scheme.  [Disclosure:  Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the counsel to the respondents in these cases.]  Finally, University of Texas Southwestern Medical Center v. Nassar, 12-484, was relisted after the January 11 Conference; it involves whether but-for causation is a necessary element of the retaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a).

But the weekend’s cold north winds blew no good for several of last week’s relists.  The Court denied cert. without comment in the thrice-relisted City of New York v. Southerland, 12-215, involving qualified immunity for a New York City case worker.  The Court also denied cert. in Deyton v. Keller, 12-6230 (a habeas case in which the Court called for the record back in November), and in Womack v. United States, 12-6988, (involving a tax preparer’s right to prove his defense that he was merely unsophisticated, not a criminal).  Yesterday also marked the end of the road for the First Amendment claims of former Virginia Department of Corrections officers in Brooks v. Arthur, 12-447.

Although we won’t know for sure until it updates the docket, the Court appears to have relisted for a second time in Northwest, Inc. v. Ginsberg, 12-462, involving whether the Airline Deregulation Act of 1978 preempts contract claims relating to a frequent-flyer mile program.  The Court also appears to have relisted for the second time since calling for a response in Marrero v. United States, 12-6355, concerning the proper application of the categorical analysis in Shepard v. United States to whether prior state-law convictions for simple assault and third-degree murder qualify as “crimes of violence.”  Three of last week’s habeas relists are likely back for another go-‘round:  Marshall v. Rodgers, 12-382 (state-on-top), Burt v. Titlow, 12-414 (state-on-top), and Calhoun v. United States, 12-6142 (federal-prisoner-on-top, involving a prosecutor’s inappropriate question).

In contrast to last week’s cornucopia, this week brought only slim pickings on the relist front: two cases, maybe – probably – less.  The Court appears to have relisted in Pearson v. Winston, 12-492, a state-on-top capital habeas case, presenting the question whether a federal court may adjudicate de novo a habeas petitioner’s ineffective assistance of counsel claim, where the petitioner presented new evidence in federal court and the state court denied the claim without an evidentiary hearing.  The district court initially deferred to the state-court decision without holding a hearing, but the Fourth Circuit reversed, remanding for a hearing and de novo adjudication.  There’s a possibility that this is just a hold for Johnson v. Williams, 11-465, which likewise addresses when a claim has been “adjudicated on the merits” for habeas purposes, or (less likely) for the recent grant in Metrish v. Lancaster, 12-547, which involves distinct claims but may provide another lesson in the need to defer to state-court determinations.

The Court may have relisted in Village of Palatine v. Senne, 12-573, which asks whether a municipality is liable under the federal Driver’s Privacy Protection Act (potentially to the tune of $2,500 per ticket issued) for including a recipient’s identifying information on parking tickets affixed to illegally parked vehicles.  Petitioners assert that the en banc Seventh Circuit’s affirmative answer misreads the Act’s exemptions allowing use of personal information in connection with an administrative proceeding or service of process, and interferes with a quintessentially local government function.  There is a decent chance that the Court is simply holding the case for Maracich v. Spears, 12-25, argued January 9, which also concerns the DPPA; the case appears to be only tangentially related, but the Palatine petitioners ask for a Maracich hold as an alternative to a grant, “since the litigation exception at issue in Maracich is found in the same provision as the service of process exception” relevant there.

This week was mercifully quiet on the hold front, with what appear to be only a handful of routine new holds joining the dozens of Florida cases discussed last week.

The Conference won’t meet again until February 15, so you’ll have to resort to another form of sleep aid for almost a month.

Thanks to Eric White and Jeremy Marwell for compiling and drafting this update.


Issue(s): (1) Whether the Fourth Circuit created an impermissible end-run around Harrington v. Richter, Cullen v. Pinholster, and the Antiterrorism and Effective Death Penalty Act by holding that a state court’s merits determination is not an “adjudication on the merits” whenever the state prisoner later presents the federal court with new material evidence and the state court decided the ineffective assistance claim without an evidentiary hearing and (2) whether the Fourth Circuit wrongly ignored 28 U.S.C. § 2254(d) and Strickland v. Washington in concluding as a de novo matter, and contrary to the Virginia Supreme Court and Strickland, that trial counsel were ineffective for deciding not to argue mental retardation at sentencing?

(relisted after the January 18 Conference)


Issue(s): Whether the Driver’s Privacy Protection Act (18 U.S.C. §§ 2721-2725) interferes with such quintessentially local government functions as a municipality’s decision concerning how much information to include on a parking ticket.

(relisted after the January 18 Conference)


Issue(s): Whether the court of appeals erred in holding, in contrast with the decisions of other circuits, that respondent’s implied covenant of good faith and fair dealing was not preempted under the Airline Deregulation Act because such claims are categorically unrelated to a price, route, or service, notwithstanding that respondent’s claim arises out of a frequent-flyer program (the precise context of American Airlines, Inc. v. Wolens ) and manifestly enlarged the terms of the parties’ undertakings, which allowed termination in Northwest’s sole discretion.

(relisted after the January 11 and January 18 Conferences)


Issue(s): (1) Whether this court should grant certiorari to resolve the circuit split regarding what a sentencing court can consider when applying the modified categorical Approach? Specifically, some courts of appeals have held that sentencing courts can consider charging documents and plea colloquies only to determine which crime the defendant committed when his prior offense Occurred. Others have held that sentencing courts can also consider those documents to determine how the defendant committed the prior offense and (2) whether after the Supreme Court’s decision in Begay v. United States, the question of whether a crime is a crime of violence depends upon whether the elements require Conduct which is “violent, purposeful, and aggressive.” Should the analysis of Begay apply, even if an offense is enumerated in application note 1 to U.S.S.G. § 4b1.2, the definition section of the career offender guidelines?

(relisted after the January 11 and January 18 Conferences)


Issue(s): Whether Faretta v. California "clearly establish[es]," for purposes of habeas corpus review of state-court judgments under 28 U.S.C. § 2254(d), that a defendant retains a constitutional right to revoke his prior waiver of counsel at trial and require re-appointment of counsel to file a new-trial motion.

(relisted after the January 4, January 11, and January 18 Conferences)


Issue(s): (1) Whether the Sixth Circuit failed to give appropriate deference to a Michigan state court under Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) in holding that defense counsel was constitutionally ineffective for allowing respondent to maintain his claim of innocence; (2) whether a convicted defendant’s subjective testimony that he would have accepted a plea but for ineffective assistance, is, standing alone, sufficient to demonstrate a reasonable probability that defendant would have accepted the plea; and (3) whether Lafler v. Cooper always requires a state trial court to resentence a defendant who shows a reasonable probability that he would have accepted a plea offer but for ineffective assistance, and to do so in such a way as to “remedy” the violation of the defendant’s constitutional right.

(relisted after the January 4, January 11, and January 18 Conferences)


Issue(s): (1) Whether it is fundamental or structural error not amenable to meaningful review for the government to resort to racial prejudice or stereotypes as an indicia of guilt; (2) If it is not structural error, is it always plain error for the government to interject racial stereotypes into a trial in order to show the defendant’s guilt?

 (relisted after the January 4, January 11, and January 18 Conferences)


Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist (and Hold) Watch, SCOTUSblog (Jan. 23, 2013, 2:43 PM),