John Elwood reviews Monday’s relisted cases.

Now that we’ve all finished up calculating how much we need to pay for civilized society this year (and taken a hard look at precisely how many of life’s bare essentials we can afford in the coming year, assuming that our rock-solid investments in gold and bitcoin pan out), we can turn back to life’s third certainty: Relist Watch.

Since it’s a wellknown fact that high-ranking government officials don’t need to file tax returns, the Justices were free to devote their time before April 15 to other pressing matters.  That did not include disposing of any pending relists:  all four from our last installment are back for another spin in the  This includes Ninth Circuit state-on-top habeas case Nevada v. Jackson, 12-694; Ninth Circuit state-on-top habeas case Chappell v. Phillips, 12-544; Chappell’s Doublemint twin, Phillips v. Chappell, 12-5890; and Seventh Circuit Establishment Clause case Elmbrook School District v. Doe, 12-755 (now with improved visual aids).  In extra-relist news, the Justices did, however, finally resolve the hundred-odd Florida criminal cases involving the constitutionality of removing the nature of an illegal substance as an element of the offense of possessing it, which had been hanging around the docket for a while (previously discussed here, here, here, and here).

Three new relists join the mix this week.  First up is Strouth v. Colson, 12-7720, yet another habeas case out of the Sixth Circuit, this time with the prisoner on top.  The now-comfortably-over-the-hill Strouth was just nineteen years old when, in 1978, he was sentenced to death in a Tennessee court for the robbery and murder of a used-clothing store merchant.  According to the petition, Strouth’s counsel was inexperienced and did not pursue relevant evidence such that it was only on collateral review that Strouth was found to be brain damaged and suffering from schizophrenia.  But the Sixth Circuit denied habeas relief, reasoning that, under 28 U.S.C. § 2254(d)(1) as interpreted in Cullen v. Pinholster, it could only consider the then-existing record when reviewing the state court’s resolution of Strouth’s claim.  Strouth claims he should be able to prevail based on the newly discovered evidence, or on an ineffective-assistance of counsel claim not raised below, because his failure to present those arguments in the best possible light was the “consequence of [a] constrained process that is inadequate to develop the factual record,” i.e., the Tennessee courts did not provide him sufficient moola.

The Court appears close to going to an all-habeas, all-the-time format, because the other two newbies are also of that ilk.  In fact, Hammond v. Sheets, 12-691, out of the Sixth Circuit, and Gallow v. Cooper, 12-7516, out of the Fifth, raise nearly identical Cullen and Martinez v. Ryan issues as Strouth, just in different factual contexts.  Hammond was convicted of rape in Ohio state court, which carried a mandatory life sentence because the victim was under the age of ten.  The defendant in Gallow is currently serving a thirty-year sentence in a Louisiana state prison after pleading guilty to aggravated battery – a plea he says he made only because of his trial attorney’s errors.

The Court will be in Conference again this Friday, so unless Uncle Sam mixes up my tax refund with Facebook’s, we’ll be back here next week with another vain attempt at feigning insight.

Thanks to Conor McEvily and Eric White for compiling and drafting this update.


Issue(s): (1) Whether the federal courts below correctly decided to exclude Petitioner’s evidence provided in support of the factual basis of his claim that ineffective assistance of counsel violated his Sixth Amendment rights during his state trial; (2) whether Ohio law operated to establish a right to assistance of counsel in post-conviction proceedings, as well as a right to effective assistance of counsel through the Sixth Amendment, or whether it operates to excuse procedural defaults bringing a substantive claim of ineffective assistance of counsel in an initial-review collateral proceeding where there was either no counsel or ineffective counsel; (3) whether the federal courts below correctly decided that sufficient evidence supports Petitioner’s conviction for rape as required by due process guaranteed by the Fifth Amendment.

(relisted after the April 12 Conference)



Issue(s): Whether a federal court can consider new evidence to support a state prisoner’s application for habeas relief under 28 U.S.C. § 2254(d), when the state court record was not developed as a result of incompetent and likely conflicted post-conviction counsel.

(relisted after the April 12 Conference)



Issue(s): (1) Whether this Court’s decision in Cullen v. Pinholster (2011), permits an exception whereby federal courts may consider newly developed evidence when the failure to develop that evidence in state court is a consequence of constrained process that is inadequate to develop the factual record; (2) whether this Court’s decision in Martinez v. Ryan (2012), applies to substantial ineffective-assistance-of-counsel claims that were not raised in state court because constrained state court process prohibited development of the evidence that gives rise to the claim?

(relisted after the April 12 Conference)



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 and April 12 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?

(relisted after the March 29 and April 12 Conferences)



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, March 29, and April 12 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, March 29, and April 12 Conferences)

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist watch, SCOTUSblog (Apr. 16, 2013, 3:50 PM),