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Relist watch

John Elwood reviews Monday’s relisted cases.

In contrast to the torpor reflected in last week’s post-Presidents’ Day order list, the Court moved briskly this week to clear out some of the oldies-but-goodies loitering around One First Street.

Both of Monday’s grants came in relisted cases:  the once-relisted Kansas v. Cheever, 12-609, involving a Fifth Amendment challenge to a Kansas prosecutor’s use of the defendant’s court-ordered mental evaluation; and from the Ninth Sixth Circuit, the quarce-relisted, state-on-top Burt v. Titlow, 12-414, involving ineffective assistance claims.

From last week’s other offerings, only the (quince-relisted) Ninth Circuit state-on-top, Marshall v. Rodgers, 12-382, remains in the marinating pan for this Friday’s Conference.  The Court denied cert. in the serial relist Calhoun v. United States, 12-6142, in which a federal prisoner had sought relief based on the prosecutor’s race-based statements.  Justice Sotomayor, joined by Justice Breyer, issued a statement respecting the denial of cert. criticizing the remarks and taking the SG’s office to task for initially waiving a response, only conceding that the statements were improper after the Court CFR’ed (perhaps courtesy of its second-most-junior Justice).  Proving that state-on-top habeas petitions are not always a go-back-to-jail-free card, the Court denied cert. in the twice-relisted Pearson v. Winston, 12-492.

Apparently having filled up its punchcard of all 31 flavors of campaign-finance cases, the Court denied cert. in Danielczyk v. United States, 12-579, involving the Federal Election Campaign Act’s ban on corporate contributions to candidates for federal office.  And it was likewise the end for Butt v. Utah, 12-348, an obscenity case from Utah that is this Term’s odds-on favorite for the coveted Schmuck v. United States Memorial Worst-Case-Caption Award.

This week brought five (count ‘em) new contestants on the Relist Watch Wheel ‘o Fortune.

The Court relisted in a personal jurisdiction case from the Ninth Circuit, Walden v. Fiore, 12-574, involving the so-called “expressly aimed” test from Calder v. Jones.  Walden, a deputized U.S. Drug Enforcement Administration Officer in Georgia, confiscated cash from Gina Fiore and Keith Gipson at the Atlanta airport, on suspicion it was implicated in contraband.  Turns out they were just professional gamblers on their way from Puerto Rico to Vegas with $97,000 in working capital.  As hard as it is to believe, the government did not act with great alacrity in returning the cash, so respondents brought a Bivens suit in Nevada, alleging (among other things) that several weeks after the airport incident, Walden submitted  a false affidavit in an unsuccessful effort to seek forfeiture of the dough.  The Ninth Circuit upheld personal jurisdiction in Nevada, on the ground that Walden (despite otherwise having no connections to the state) had “expressly aimed” conduct at individuals with connections to Nevada.  Petitioner alleges a split about whether, under Calder, a court may constitutionally exercise personal jurisdiction over a defendant whose sole “contact” with the forum state is knowledge that the plaintiff had connections there.  Petitioner also alleges a split about whether, as the Ninth Circuit held, the district where a plaintiff suffered injury is proper venue even if the defendant’s acts occurred elsewhere.

The Court also relisted for the first time in Crawley v. Minnesota, 12-698, a First Amendment challenge to a Minnesota statute that criminalizes knowingly false reports of police misconduct.  The Minnesota Supreme Court acknowledged that the statute is a content-based restraint on speech, in that it applies only to false reports that assert misconduct, not false statements that absolve an officer of wrongdoing.  The court nonetheless upheld the statute under R.A.V. v. St. Paul.  It first narrowly construed the statute to apply only to defamation, and then concluded that two of R.A.V.’s exceptions apply:  the law applies to a subclass of speech associated with “secondary effects,” and the nature of the restriction left no realistic possibility of official suppression of ideas.

The three remaining morsels are habeas fare.

The Court relisted in Wolfenbarger v. Foster, 12-420, a state-on-top habeas case from the Sixth Circuit.  Michigan asserts that, following Harrington v. Richter (and notwithstanding Wiggins v. Smith), a federal habeas court must defer to a state court’s rejection of an ineffective assistance of counsel claim, even when the state court reached only one of the two prongs of Strickland v. Washington.  Among other things, respondent asserts that the state “waived” its argument for a deferential standard of review by not raising it in the court of appeals.

The Foster relist may shed some light on the Court’s relist in Ryan v. James, 12-11, a state-on-top habeas petition from the Ninth Circuit that appears to have been previously held for Johnson v. Williams, 11-465, decided on February 20.  Ryan involves a Williams-like question about whether a federal habeas court owes deference where a state court did not explicitly resolve one of the petitioner’s federal claims.  (In Ryan, the state court opinion contained a blanket statement that there were “no colorable claims” in petitioner’s “entire petition.”)  But with shades of Wolfenbarger (I think I just found my new band name), the warden in Ryan asserts that the lower court erred in treating AEDPA’s deferential standard of review as a waivable defense.

The last “new” relist is Lyons v. Mitchell, 11-9843, which, as noted here, is another former hold for Williams.  As in Williams, Mr. Lyons contends the state court adjudicated a state-law issue (i.e., an evidentiary challenge to admission of autopsy photos) but “simply ignored” a related federal claim (i.e., due process).  Massachusetts’s brief in opposition agreed the question in Lyons “is essentially the same” as Williams.  Perhaps the Justices needed more time to chew on the state’s argument that Mr. Lyons’ claim fails even on de novo review.  Or perhaps the Court sees overlap with the waiver issue; in Lyons, the First Circuit applied a deferential standard of review even though the parties briefed the case on a de novo standard.

With that, you’ve squandered another perfectly good two-tenths of a billable hour reading something with the shelf life of an overripe banana.  On the bright side, you are that much closer to one of this year’s most eagerly anticipated and laudable of public celebrations, National Pig Day (as well as Self-injury Awareness Day, which will make sense to anyone who has eaten an entire bag of pork rinds).

Thanks to Conor McEvily and Jeremy Marwell for compiling and drafting this update.

[page]12-574 [/page] (relisted after the February 22 Conference)
[page]12-698[/page] (relisted after the February 22 Conference)
[page]12-420[/page] (relisted after the February 22 Conference)
[page]12-11[/page] (relisted after the February 22 Conference)
[page]11-9843[/page] (relisted after the February 22 Conference)
[page]12-382[/page] (relisted after the January 4, January 11, January 18, February 15, and February 22 Conferences)

Recommended Citation: John Elwood, Relist watch, SCOTUSblog (Feb. 27, 2013, 10:34 AM),