John Elwood reviews Monday’s relisted cases.

Last week’s relists fared only slightly better than the Beltway’s home-town heros in early-season play, with only four of seven familiar faces returning to the on-deck circle this week:  the Ninth Circuit state-on-top habeas case Nevada v. Jackson, 12-694 (fourth relist since the record arrived); the Seventh Circuit Establishment Clause case Elmbrook School District v. Doe, 12-755 (fifth relist); and the two follow-on cases to Genesis HealthCare Corp. v. SymczykConvergent Outsourcing, Inc. v. Zinni, 12-744, and Cerdant, Inc. v. DHL Express (USA), Inc., 12-747 (second relist for both).

The Court denied cert. after a single relist in Alabama v. United States, 12-884, involving state authority in the field of immigration, without comment beyond a one-line notation that “Justice Scalia dissents.”  Showing that there’s nothing like a confident prediction about a forthcoming opinion in a serial relist to precipitate prompt denial, the Court denied cert. without comment in the Ninth Circuit state-on-top habeas case Chappell v. Phillips, 12-544 and its prisoner-on-top counterpart Phillips v. Chappell, 12-5890, despite having called for the record back in February and having relisted four times since the record arrived.  Perhaps a study of the record changed the mind of whoever was thinking about writing.

This week’s order list coughed up only one new offering:  Valenzuela v. Cliett, 12-773, another state-on-top habeas case from the Ninth Circuit.  California presents a (rather candidly formulated) question:  whether, when a custodial suspect “literally states that he chooses to remain silent” after having been read Miranda rights, a state court may consider objective evidence suggesting he did not, in fact, intend to invoke his rights, and officers may ask the suspect to “confirm his intent.”  The case arises from the following exchange between a police detective and the world’s least-decisive criminal suspect, which would be deemed implausible if it appeared in pulp fiction:  Suspect:  “Ahhh, you gonna let me stop talking when I want to stop talking, right? Ahhh [eleven seconds of silence].  Uhhh [three seconds of silence].  I choose to remain silent.” Detective:  “O.K., you don’t want to talk to us?  You don’t want to talk to me?” Suspect (wait for it . . .): “I’ll talk.”

The Court has likely now released any petitions it was holding for Boyer v. Louisiana, 11-9953, scheduling them for the May 9 Conference.  The Court dismissed the writ in Boyer as improvidently granted; in a concurrence, Justice Alito explained that the factual premise of the question presented – whether a state’s failure to fund counsel for an indigent defendant for five years, where the failure was the result of the prosecution’s decision to seek the death penalty, should be weighed against the prosecution for speedy trial purposes – was absent on the record of that case.  Given four dissenting votes in Boyer to decide the issue and their opinion’s stated concern about “larger, systemic problems in Louisiana,” the Court may be looking for a new vehicle.  (The one released hold of which we’re aware, Cano v. Texas, 12-5813, discussed here, seems like an unlikely Boyer substitute:  it is a non-capital case from Texas that apparently does not involve delay related to a lack of funding for counsel.)

Next week, the Justices get time off for good behavior, so you’ll have to find some other way of wasting a perfectly good tenth of a billable hour between now and May 14.

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


Issue(s): Whether, when a custodial suspect upon Miranda advice literally states that he chooses to remain silent, “clearly established Federal law” both (1) prohibits a state court from considering objective circumstances suggesting that the suspect did not intend to invoke his right; and (2) precludes the police from briefly asking the suspect to confirm his intent, so long as they commence any interrogation only after the suspect then explicitly agrees to talk.

(relisted after the April 26 Conference)



Issue(s): Does an offer to provide a plaintiff with all of the relief he has requested, including more than the legal amount of damages plus costs and reasonable attorney’s fees, fail to moot the underlying claim because the defendant has not also offered to agree to the entry of a judgment against it?

(relisted after the April 19 and April 26 Conferences)



Issue(s): Is a class representative in a putative class action faced with a Rule 68 offer of judgment in excess of its potential recovery that makes no reference to class claims required to reject said offer, proceed to trial, and bear all of the costs of continuing litigation in order to preserve its right to appellate review of a denial of class certification?

(relisted after the April 19 and April 26 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, April 12, April 19, and April 26 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, April 12, April 19, and April 26 Conferences)

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist watch, SCOTUSblog (May. 1, 2013, 11:06 AM),