John Elwood reviews Monday’s relisted cases.

With even the most stalwart of those gathered to observe last week’s festivities filtering away from One First Street, it’s shaping up as a mercifully quiet week in Lake Wobegon.

For those of you who think that these missives are like watching (a third coat of beige) paint dry, at least it’s finally dry: After a total of eight relists stretching back to January 4, the Court summarily reversed in Marshall v. Rodgers, 12-382.  While some may claim to have foreseen this outcome, six-plus relists is usually about the point at which the Court makes me look like a pinhead by granting (think Bond v. United States, 12-158, or the recently decided Comcast v. Behrend, 11-864).  The Court held that giving trial courts discretion over a criminal defendant’s post-waiver request for counsel is not contrary to or an unreasonable application of clearly established law, as determined by the Supreme Court, under 28 U.S.C. § 2254(d).  The Court concluded the Ninth Circuit erred in granting relief to the vacillating Mr. Rodgers by relying on court of appeals cases to “gloss” Supreme Court precedent.  However, perhaps indicating one of the left-leaning Justices had a hand in its writing (if only as a commenter), the Court cautioned that its opinion should not be read to imply that the underlying constitutional question “would be insubstantial” on direct review.

Last week’s other recidivists are back for another dip in the cert. pool:  the Ninth Circuit state-on-top habeas case (and three-time relist) Nevada v. Jackson, 12-694; and the Establishment Clause challenge to a school district’s decision to hold its graduation ceremonies in a local church auditorium (and two-time relist), Elmbrook School District v. Doe, 12-755.

The only “new” offering is a pair of petitions discussed back in October:  another Ninth Circuit state-on-top habeas case, Chappell v. Phillips, 12-544, and its prisoner-on-top doppelganger, Phillips v. Chappell, 12-5890.  The Court called for the record back on February 20, and the final portion arrived on March 4.  Applying pre-AEDPA law, the Ninth Circuit held that the prosecution violated Mr. Phillips’s due process rights by withholding information material to a special-circumstances finding.  In particular, the prosecutor told the jury that a government witness had received no promise of benefit from her testimony, but had in fact reached an immunity agreement with the witness’s lawyer (while forbidding that lawyer from disclosing the agreement to the witness until after her testimony).  Although a first relist often increases the chance of a grant, the fact that the Court called for the record back in February may suggest a writing of some sort is in the works.  Keen-eyed observers will note that the panels in Rodgers, Jackson, and the Phillips cases have some overlap.

One other development not really involving a relist: as we’ve noted previously, there is a big knot of over one hundred cases out of the Florida courts stemming from the Florida Supreme Court’s 2012 ruling in State v. Atkins, upholding the constitutionality of a statutory amendment removing knowledge of the nature of a substance as an element of the crime of possession of an illegal substance and creating instead an affirmative defense that the defendant lacked knowledge.  The state (and its subdivisions) mostly waived response, but the Court called for a response and later requested the record in some cases; the response arrived January 28 and the record arrived March 19.  It appears those cases are now on for the April 12 Conference, so we should soon be closer to knowing how the Court will handle those.

That’s it for now.  With more pressing matters at hand, the Court won’t be Conferencing again until April 12.  You might still waste your time, but you won’t have my help doing it.

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


Issue(s): Whether the Ninth Circuit conflicted with the “reasonable likelihood” materiality standards of Napue v. Illinois and Brady v. Maryland by substituting a standard based on “any conceivable, speculative possibility” of a different result.

(relisted after the March 29 Conference)



Issue(s): (1) Whether the Establishment Clause prohibits the government from conducting public functions such as high school graduation exercises in a church building, where the function has no religious content and the government selected the venue for reasons of secular convenience; (2) whether the government “coerces” religious activity in violation of Lee v. Weisman and Santa Fe Independent School District v. Doe where there is no pressure to engage in a religious practice or activity, but merely exposure to religious symbols; and (3) whether the government “endorses” religion when it engages in a religion-neutral action that incidentally exposes citizens to a private religious message.

(relisted after the March 22 and March 29 Conferences)



Issue(s): Whether the Ninth Circuit exceeded its authority under the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d)(1), by granting habeas relief on the ground that the Nevada Supreme Court unreasonably applied “clearly established Federal law, as determined by” this Court when it held that respondent’s right to present a defense was not violated by the exclusion of extrinsic evidence through which he sought to impeach a prosecution witness on a collateral matter.

(relisted after the March 15, March 22, and March 29 Conferences)



Issue(s): (1) In Strickland v. Washington, this Court held there exists a Sixth Amendment constitutional right to effective assistance of counsel at all stages of criminal trials, including the obligation to investigate before selecting a defense. In Cullen v. Pinholster, this Court reiterated Strickland controls for trial counsel’s obligation to investigate all phase of a capital case. Did the Ninth Circuit err in creating a new law of the Circuit that held, pursuant to the Ninth’s reading of Pinholster, trial counsel has no constitutional duty to conduct any investigation into police reports, ballistics, and crime scene photos before selecting a defense? (2)This Court has established a clear “law of the case doctrine.” In 2001 the Ninth Circuit held Phillips’s right to effective assistance of counsel, within the meaning of Strickland, had been violated because counsel conducted no investigation before selecting a defense. In its latest decision the Ninth Circuit found it was “compelled” to overturn the 2001 decision in light of this Court’s ruling in Pinholster that the Sixth Amendment does no impose a “constitutional duty to investigate” in capital cases. Was it a violation of Phillips’s constitutionally protected right to Due Process under the Fourteenth Amendment when the Ninth Circuit declined to follow this Court’s law of the case doctrine?


Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist watch, SCOTUSblog (Apr. 2, 2013, 1:05 PM),