John Elwood reviews Tuesday’s relisted cases.

Highly scientific studies conclusively show that when human beings endure long periods without intellectual stimulation, their minds atrophy and they might, if deprived for long enough, have a reduced life expectancy – like smokers, Russians, and poets (particularly Russian smoker poets).  So the Court’s return to regular order releases after its excruciating twenty-eight-day break not only saves yours truly from assembling yet another five-thousand-piece kitten puzzle; it is quite literally a life-saver.

Just how did the Court spend its month-long hiatus?  Apparently not resolving relists.  It neither granted nor denied cert. in any of mid-January’s relists.  Three habeas relists are back for a third round of seconds (i.e., fourths).  This includes two state-on-tops – one from the Ninth Circuit, Marshall v. Rodgers, 12-382, and one from its kissing cousin, the Sixth Circuit, Burt v. Titlow, 12-414 – as well as one federal-prisoner-on-top, Calhoun v. United States, 12-6142, which comes from the Fifth.  Back for a second relist is the Fourth Circuit state-on-top habeas case Pearson v. Winston, 12-492.

Our last installment was made before the Clerk’s Office had updated the docket (it tends to let that slide when there are many weeks before the next Conference).  One of the suspected relists turns out on closer inspection to be a hold dressed in relist clothing.  Village of Palatine v. United States, 12-573, the case of the errant parking ticket, now looks like a hold, most likely for Maracich v. Spears, 12-25.  Though they do not appear to be closely related, both cases concern the Driver’s Privacy Protection Act, 18 U.S.C. §§ 2721-25, and the petitioner in Palatine asked for his petition to be held for Maracich as a fallback.  Two other cases were relisted after the January 11 Conference but now, oddly, appear to have been held after the January 18 Conference:  Northwest, Inc. v. Ginsberg, 12-462, which asks whether the Airline Deregulation Act of 1978 preempts frequent-flyer-program contract claims; and Marrero v. United States, 12-6355, which asks whether courts employing a modified categorical approach can look to documents of a prior offense to determine how that prior offense was committed.  If’n I were a bettin’ man, I’d say Marrero is being held for Descamps v. United States, 11-9540, which asks whether courts may employ the modified categorical approach to a statute missing an element of the generic crime.

This week’s three newbies are a testament to the stunning mosaic that is the OT2012 commemorative edition patchwork relist quilt.  First up out of the Fourth Circuit is Danielczyk v. United States, 12-579, concerning the Federal Election Campaign Act’s ban on corporate contributions to candidates for federal office.  The district court struck down that section of the Act (2 U.S.C. § 441(b)(a)) as unconstitutional under the First Amendment following the Court’s 2010 decision in Citizens United v. FEC.  The Fourth Circuit reversed, holding that pre-Citizens United precedent, namely FEC v. Beaumont (2003), supported the Act’s ban.  In his petition, William Danielczyk, whose grandfather was “Daniels” before a horrible typewriter accident at Ellis Island, says that strict scrutiny should apply to restrictions on the right to make campaign contributions, and that the ban in Section 441(b) unconstitutionally abridges corporations’ free speech rights.

Moving west, we encounter Kansas v. Cheever, 12-609, which comes to us out of the highest court of the state with the same name (Kansas, that is, not Cheever).  Not to be confused with the American novelist and clandestine lover of George Costanza’s father-in-law-to-be, this Mr. Cheever holed himself up in his house/meth lab during a police raid, spraying bullets at officers and in the process killing the sheriff of Greenwood County.  At trial, Cheever argued that he lacked the requisite mens rea to commit premeditated murder because he was voluntarily intoxicated on methamphetamine.  He called an expert witness to testify to the effects of meth on a user.  The state then called its own rebuttal expert witness, a psychiatrist who had evaluated Cheever as part of a court-ordered mental evaluation during an earlier aborted federal trial of the matter, who testified that meth did not have the effect on Cheever that he claimed.  A jury convicted Cheever, and he was sentenced to death for capital murder.  But the Kansas Supreme Court reversed, holding that the state’s use of rebuttal testimony violated Cheever’s Fifth Amendment privilege against self-incrimination, reasoning that Cheever’s defense of “voluntary intoxication” due to meth use was not equivalent to a claim of a “mental disease or defect,” which would have opened the door to the state’s use of rebuttal testimony.  In its petition, Kansas maintains that Cheever’s I-was-on-meth defense allowed the introduction of impeachment testimony.

Bringing up the rear is Butt v. Utah, 12-348, an obscenity case out of Utah, that Den of Depravity – which incidentally was the state motto before the beekeepers’ union horned in.  Anyway, Mr. Butt, in jail on an unrelated charge, says he complied with his five-year-old daughter’s request to “draw [him]self naked,” and included with the crude drawing a letter alluding to an earlier joke about “bit[ing] [her] butt cheek.”   The cops who read his mail decided this correspondence (which was interspersed with a pep talk to his son about basketball) was not only inappropriate, but criminally so, and Mr. Butt soon found himself convicted by a jury of the state crime of distributing material “harmful to minors.”  His conviction was affirmed up through the Utah Supreme Court.  In his petition, filed by my co-conspirator and First Amendment expert Eugene Volokh, Butt argues that the Court should resolve a split over whether those convicted of obscenity charges are entitled to independent appellate review of their convictions; here, Butt claims Utah’s highest court never explicitly addressed whether his actions fit the test of showing the requisite “prurient interest in sex of minors.”

And with that, we’ve come to the end of this first February installment of Relist Watch.  It’s a little too late to wring any cringe-inducing humor from the many holidays we missed during the Court’s long break – such as Groundhog Day, National Weatherperson’s Day, and Thoughtless Last-Minute Gift Day.  But because the order list was delayed twenty-four hours by Presidents’ Day, we will end with a little – very little – presidential humor, courtesy of my seven-year-old:

Q: What would George Washington be if he were alive today?

A: Really old.

Thanks to Eric White for compiling and drafting this update.


Issue(s): (1) Whether jury decisions that material is obscene – either obscene for all viewers or just for minors – should be reviewed using the independent appellate review mandated by Bose Corp. v. Consumers Union of U.S., Inc. and Jenkins v. Georgia, as there is a split on this question among state courts of last resort and federal circuit courts; and (2) whether this Court should provide lower courts with a benchmark precedent about what material is “obscene as to minors” or “harmful to minors,” by deciding whether roughly drawn pictures, lacking in sexual content, sent by a father to his wife to be shown to his young child are properly viewed as “obscene as to minors.”

(relisted after the February 15 Conference)


Issue(s): (1) Whether the ban on campaign contributions by corporations in the Federal Election Campaign Act, 2 U.S.C. §441b, violates the First Amendment; and (2) whether restrictions or bans on the right to make campaign contributions should be reviewed under strict scrutiny, as other restrictions on political expression are, or instead under a less protective standard.

(relisted after the February 15 Conference)


Issue(s): Whether, when a criminal defendant affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law enforcement officer due to the alleged temporary and long-term effects of the defendant’s methamphetamine use, the state violates the defendant’s Fifth Amendment privilege against self-incrimination by rebutting the defendant’s mental state defense with evidence from a court-ordered mental evaluation of the defendant.

(relisted after the February 15 Conference)


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 and February 15 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, January 18, and February 15 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, January 18, and February 15 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, January 18, and February 15 Conferences)

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist watch, SCOTUSblog (Feb. 20, 2013, 1:19 PM),