John Elwood reviews Tuesday’s relisted cases.

With anticipation of the Term’s final hand-downs reaching a fevered pitch, the steady pace and familiar rhythms of Relist Watch offer a balm for frayed nerves.

Speaking of stasis, both of last week’s relists remain stalled in the antechamber of One First Street, with the Court relisting for a seventh time (since the record arrived) in the Ninth Circuit’s Nevada v. Jackson, 12-694, and for the second time (ditto) in the Sixth Circuit’s White v. Woodall, 12-794, both state-on-top habeas cases.  (Some people might jump to conclusions seeing a state-on-top habeas case relisted for a seventh time, but not us.)

The Court did, however, relist in three new cases.

First is the name-straight-from-a-law-school-exam Limited Liability Company v. Doe, 12-855, in which petitioners seek review of a decision of a Puerto Rico court declining to enforce an arbitration provision in the LLC agreement of the Enchanted Isle’s largest law firm, or to apply the Federal Arbitration Act to preempt Puerto Rico law that (in petitioners’ view) is restrictive of arbitration.  The petition and brief in opposition disagree about basically everything, including what court petitioners are seeking cert. from, whether the Supreme Court even has jurisdiction under 28 U.S.C. § 1258, and even whether Puerto Rico Does it Better.  Petitioners argue that the Puerto Rico court of appeals declined to enforce a provision requiring arbitration of claims of “whatever nature and for whatever relief or remedy against the firm or any of its members or employees,” based on its erroneous conclusions that the LLC agreement did not govern employment and was not (!) a contract affecting interstate commerce.  Petitioners allege a conflict with the Court’s pro-arbitration cases (e.g., Nitro-Lift Technologies, LLC v. Howard and Marmet Health Care Center, Inc. v. Brown), and a circuit split about whether the court or arbitrator decides arbitrability (i.e., whether the parties agreed to arbitrate the merits of a particular dispute), seeking either a grant or summary reversal.

The Court also relisted in Thompson v. Harris, 12-885, a state-on-top habeas case from the Seventh Circuit involving Sixth Amendment claims of compulsory process and ineffective assistance of counsel.  A jury convicted Ms. Harris of murdering her four-year-old son by strangling him in his bed, after the trial court (erroneously, under Illinois law) excluded exculpatory testimony of the victim’s six-year-old brother, who was in the top bunk.  The court of appeals held that the evidentiary exclusion violated the Sixth Amendment’s Compulsory Process Clause (under either de novo review or AEDPA’s deferential standard) and that counsel’s errors in the competency hearing deprived Ms. Harris of her right to effective counsel.  The Prairie State now argues that the panel erred in applying a new Sixth Amendment rule on federal habeas, and in rejecting the state court’s factual determination that the older brother was asleep at the time.

This week’s third new relist may be short-lived:  the Court relisted in Sims v. Houston, 12-8906, involving a pro se habeas petitioner from Nebraska who may have won himself a shiny new GVR in light of yesterday’s opinion in Trevino v. Thaler, 11-10189.  Although we don’t have all the papers yet, Mr. Sims may have asserted (albeit in the context of a Rule 60(b) motion) ineffective-assistance-of-counsel claims that the district court treated as procedurally barred for failure to raise them on direct appeal.  The warden frames the question as whether “Martinez v. Ryan ha[s] any application in a jurisdiction which, under the facts of petitioner’s case, mandates that claims of ineffective assistance of counsel be raised in the course of direct appellate review.”  There are several released holds on for Thursday’s Conference for consideration in light of this week’s decisions in Trevino and McQuiggin v. Perkins, but I won’t subject you to a discussion of those.

That’s it for this week’s ready-made-classic, Relist Watch: Ultrapreantepenultimate Edition™.  Be sure to tune in next week for the stirring dénouement of all your favorites from this week’s show . . . or, more likely, a couple serial relists and routine denials.

Thanks to Jeremy Marwell and V&E summer associate Varun Jain for compiling and drafting this update.


Issue(s): (1) Is the contract for operation of an interstate business “a contract evidencing a transaction involving commerce” governed by the Federal Arbitration Act (FAA); (2) are arbitration-specific rules under Puerto Rico law that limit an arbitration clause to the subject matter of the underlying agreement and entitle a person to judicial enforcement of discrimination and retaliation claims preempted by the FAA; and (3) should questions of arbitrability be decided by the arbitrator when the parties select commercial arbitration rules that so provide?

(relisted after the May 23 Conference)



Issue(s): (1) Whether the Seventh Circuit contravened either the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) or Teague v. Lane by announcing and applying a new rule that excluding a witness who is incompetent to testify under state law may violate a defendant’s Sixth Amendment right to compulsory process; and (2) whether the Seventh Circuit contravened AEDPA by rejecting the state appellate court’s factual determination that the child witness was sleeping when the victim died, as the child himself claimed, in the absence of clear and convincing evidence to the contrary.

(relisted after the May 23 Conference)



Issue(s): (1) Does this Court’s opinion in Martinez v. Ryan have any application in a jurisdiction which, under the facts of petitioner’s case, mandates that claims of ineffective assistance of counsel be raised in the course of direct appellate review; and (2) if so, does this Court’s opinion in Martinez represent an “extraordinary circumstance” which might entitle a movant to relief under Rule 60(b)(6)?

(relisted after the May 23 Conference)



Issue(s): (1) Whether the Sixth Circuit violated 28 U.S.C. 2254(d)(1) by granting habeas relief on the trial court's failure to provide a no adverse inference instruction even though the Supreme Court has not "clearly established" that such an instruction is required in a capital penalty phase when a non-testifying defendant has pled guilty to the crimes and aggravating circumstances; and (2) whether the Sixth Circuit violated the harmless error standard in Brecht v. Abrahamson in ruling that the absence of a no adverse interference instruction was not harmless in spite of overwhelming evidence of guilt and in the face of a guilty pleas to the crimes and aggravators.

(relisted after the May 16 and May 23 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, April 26, May 9, May 16, and May 23 Conferences)

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist watch, SCOTUSblog (May. 29, 2013, 2:36 PM),