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Relist watch

John Elwood reviews Monday’s relisted cases.

If you’re reading this post, presumably your early retirement plans didn’t pan out either, meaning you’re probably not in Jamaica preparing for a fulfilling life of lobster shooters and mountains of ganja piña coladas.  But luckily, for the rest of us, there’s still Relist Watch, which is now empirically proven to be of at least some marginal utility to your life – to wit, of the five cases granted yesterday, four were featured in last week’s post, giving us the same authoritative heft as sugarless-gum-recommending dentists.  (Meanwhile, Tumblr had zero.  Just sayin’, Marissa.)

Break out the Sarbanes-Oxley treatise:  The grant in “one-time” relist Lawson v. FMR, 12-3, means the Court will soon be considering the First Circuit’s narrow interpretation of SOX’s employee-retaliation protections.  And you can hear the sound of Bouzouki and breaking plates all the way in Athens following the cert. grant in one-time relist Town of Greece, New York v. Galloway, 12-696, which considers the propriety of a town council’s legislative prayers.  Opa!  (Sadly, it looks like summer school for fellow Establishment-Clause-case Elmbrook School District v. Doe, 12-755, which after six relists appears now to be on hold for Greece.)  Celebrations are probably a little more subdued over on the Left Coast following the grant in one-time relist Fernandez v. California, 12-7822, which asks whether an absent co-tenant’s prior refusal invalidates a physically present co-tenant’s consent to a search.  So liberally were the grants given yesterday that even released holds got a star turn:   Northwest, Inc. v. Ginsberg, 12-462, which was released from its slumbers just last week following the opinion in Dan’s City Used Cars, Inc. v. Pelkey, 12-52, is now on the Court’s merits docket, meaning we might soon know whether the Airline Deregulation Act preempts certain kinds of disputes over frequent-flier miles and their promises of free fares, fine refreshments, and a curtain between you and the huddled masses.

Seeing cert. grants handed out like so many flaxseed cupcakes at a Subaru dealership couldn’t have been easy for the petitioner in Nevada v. Jackson, 12-694, the Ninth Circuit state-on-top habeas case that was relisted for a sixth time (since the record came in).  But it could have been worse.  In Valenzuela v. Cliett, 12-773, a fellow Ninth Circuit state-on-top habeas case that involved Miranda, the Justices exercised their right to remain silent, denying cert. without a dissenting voice.

Amid the flurry of activity, there was but one new relist:  White v. Woodall, 12-794, comes to us out of the Sixth Circuit, meaning it’s yet another state-on-top habeas case.  This time, the Ninth on the Ohio granted habeas relief to Robert Keith Woodall, sentenced to death after pleading guilty to kidnapping, raping, and murdering a sixteen-year-old girl he spotted at the local Minit Mart – Kentuckian for “Minute Mart” – and then dumping her in an icy lake before returning “to his mother’s house where he fell asleep in a recliner watching television.”  At the penalty phase of his state-court trial, Woodall unsuccessfully sought an instruction that the jury not draw any adverse inference from the fact that he’s a horrible person his decision not to testify.  The panel majority found that the failure to include an adverse-inference instruction violated Woodall’s Fifth Amendment right against self-incrimination.  Kentucky’s petition says the result runs afoul of 28 U.S.C. § 2254(d)(1) – the same provision at issue in Jackson and, for that matter, yesterday’s Sixth Circuit reversal in Metrish v. Lancaster – because no clearly established law required an adverse-interest instruction, and the court of appeals applied too lenient a test for overcoming harmless error.

That’s all for this week.  The Justices are meeting again this Thursday, so we’ll be back here after Memorial Day with another update.  Until then, dust off your natty summer attire!

Thanks to Eric White (who is of no relation to the warden at Kentucky State Penitentiary) for compiling and drafting this update.


[page]12-794[/page] (relisted after the May 16 Conference)


[page]12-694[/page] (relisted after the March 15, March 22, March 29, April 12, April 19, April 26, May 9, and May 16 Conferences)



Recommended Citation: John Elwood, Relist watch, SCOTUSblog (May. 21, 2013, 10:18 AM),