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Relist watch

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.

[page]12-773[/page] (relisted after the April 26 Conference)


[page]12-744[/page] (relisted after the April 19 and April 26 Conferences)


[page]12-747[/page] (relisted after the April 19 and April 26 Conferences)


[page]12-755[/page] (relisted after the March 22, March 29, April 12, April 19, and April 26 Conferences)


[page]12-694[/page] (relisted after the March 15, March 22, March 29, April 12, April 19, and April 26 Conferences)

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