John Elwood reviews Monday’s relisted cases.

As enlightened citizens flock to the polls to express their views, we remain hard at work so we can bring you that best of bellwethers, your constant companion in times of constant change, Relist Watch:  Election Edition™.

First up are the winners and losers among our last installment of relists.  After three relists, the Court summarily reversed in Stanton v. Sims, 12-1217, concluding in eight brisk pages that the Ninth Circuit erred in denying a police officer qualified immunity for a warrantless entry in hot pursuit of a misdemeanant, which went slightly awry when the officer’s entry (achieved by kicking in the garden gate) apparently resulted in a rapidly moving gate striking the (innocent) homeowner in the forehead.  The Court denied cert. in Marek v. Lane, 13-136, the Facebook case concerning the propriety of cy pres class-action remedies, but not before the Chief Justice filed an opinion concurring in the denial which suggested that the Court may need to take up the issue in an appropriate case.

And now for the hanging chads from last time.  Martin v. Blessing, 13-169, involving the racially conscious class-certification order, has been relisted again as the Court awaits the record it requested.  Confirming the highly quantitative predictive methodology in our last column, the trio of state-on-top habeas cases are all back for a fourth relist:  Ryan v. Hurles, 12-1472 (whether it is per se unreasonable for a state not to provide an evidentiary hearing on a judicial-bias claim), Rapelje v. McClellan, 12-1480 (whether dismissal “for lack of merit in the grounds presented” is adjudication on the merits), and Unger v. Young, 13-95 (whether a state can forfeit application of the Stone v. Powell rule that Fourth Amendment claims aren’t cognizable on habeas).  The Court also relisted for a second time since calling for the record in Plumhoff v. Rickard, 12-1117, involving the Sixth Circuit’s denial of qualified immunity to an officer in vehicular hot pursuit of a suspect.  And the Court relisted for a second time in Woodward v. Alabama, 13-5380, involving an “evolving standards of decency” Eighth Amendment challenge to a judge “imposing the death penalty through [jury] override.”

This week’s freshman class is a lonely group, but one of them will be getting a close look.  Pruitt v. Nova Health Systems, 12-1170, concerns the constitutionality of the Oklahoma Ultrasound Act, which requires the performance and display of an ultrasound before an abortion is performed; the Oklahoma Supreme Court found the Act facially unconstitutional on the same day it struck down the RU-486 provision at issue in the just-DIG’ged Cline v. Oklahoma Coalition for Reproductive Justice, 12-1094Pruitt was relisted in June and then held over the summer for Cline.  Now that the Court has dismissed Cline, the question becomes what to do with Pruitt.

Howell v. Tennessee, 13-5086, is a capital case from Tennessee state court raising a number of challenges implicating issues already on the Court’s docket.  Howell asserts that the Hog and Hominy State’s approach to identifying mental retardation violates Atkins, suggesting in his reply that the case be held for Hall v. Florida, 12-10882.  Howell also raises a Ring v. Arizona claim, arguing that a jury was required to find, beyond a reasonable doubt, that he is not intellectually disabled before a death sentence could be imposed, seeking among other things vacatur and remand in light of Alleyne v. United States, and perhaps implicating the twice-relisted Woodward v. Alabama, 13-5380.

With uncharacteristic brevity but typical lack of wit, we have fulfilled our civic duty.  We’ll be back next week with another scintillating wrap-up.

Thanks to Jeremy Marwell and Conor McEvily for compiling and drafting this update.


Issue(s): Whether, under the Antiterrorism and Effective Death Penalty Act (AEDPA), state court adjudications are per se unreasonable and not entitled to deference under 28 U.S.C. § 2254(d)(2) merely because the state court does not conduct an evidentiary hearing.

(relisted after the September 30, October 11, October 18, and November 1 Conferences)


Issue(s): (1) Whether a state-court order denying a request for relief on a constitutional claim “for lack of merit in the grounds presented” constitutes a merits adjudication of that claim for purposes of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA); and (2) whether a federal habeas court may, consistent with AEDPA, delve into the internal procedures of a state court to support its speculation that an order denying relief “for lack of merit” is not, in fact, a merits adjudication.

(relisted after the September 30, October 11, October 18, and November 1 Conferences)


Issue(s): (1) Whether the state forfeits an argument that Stone v. Powell bars habeas relief if the state fails to raise Stone in the district court, or whether Stone announced a categorical rule that Fourth Amendment claims are not cognizable on habeas review absent a showing that the state prisoner was denied a full and fair opportunity to litigate the issue in state court; (2) whether the decision of the United States Court of Appeals for the Second Circuit, in relying on studies that were not part of the state court record, conflicts with this Court's decision in Cullen v. Pinholster, which held that habeas review is limited to the record that was before the state court; and (3) whether the decision of the Second Circuit affords the state court the deference required by 28 U.S.C § 2254(d), as interpreted by this Court in Harrington v. Richter.

(relisted after the September 30, October 11, October 18, and November 1 Conferences)


Issue(s): (1) Whether the Sixth Circuit wrongly denied qualified immunity to the petitioners by analyzing whether the force used in 2004 was distinguishable from factually similar force ruled permissible three years later in Scott v. Harris. Stated otherwise, the question presented is whether, for qualified immunity purposes, the Sixth Circuit erred in analyzing whether the force was supported by subsequent case decisions as opposed to prohibited by clearly established law at the time the force was used; and (2) whether the Sixth Circuit erred in denying qualified immunity by finding the use of force was not reasonable as a matter of law when, under the respondent's own facts, the suspect led police officers on a high-speed pursuit that began in Arkansas and ended in Tennessee, the suspect weaved through traffic on an interstate at a high rate of speed and made contact with the police vehicles twice, and the suspect used his vehicle in a final attempt to escape after he was surrounded by police officers, nearly hitting at least one police officer in the process.

(relisted after the September 30, October 11, October 18, and November 1 Conferences)


Issue(s): (1) Whether the increasingly rare and geographically isolated practice of imposing the death penalty through override violates the nation's evolving standards of decency and the Eighth Amendment; and (2) whether, when the jury determines that aggravation does not outweigh mitigation, the trial judge's override of that determination based on evidence not considered by the jury violates the defendant's Sixth Amendment right to a jury under Ring v. Arizona.

(relisted after the September 30, October 11, October 18, and November 1 Conferences)


Issue(s): Whether an objecting class member – whose antitrust claims have been waived by a settlement negotiated by class counsel appointed by a racially conscious class-certification order – has standing to challenge the class-certification order and, through it, the antitrust settlement.

(relisted after the October 11, October 18, and November 1 Conferences)


Issue(s): (1) Whether, in proceedings under Atkins v. Virginia , the Sixth Amendment requires a state to prove the absence of mental retardation (intellectual disability) beyond a reasonable doubt to a jury, because death is not within the permissible range of sentences for a person who is intellectually disabled; (2) whether this Court should grant certiorari, vacate, and remand for further consideration of Howell's Sixth Amendment claim in light of Alleyne v. United States ; (3) whether it violates the Eighth Amendment and Atkins for a state court to determine a petitioner's I.Q. without appropriately applying scientifically reliable standards for the assessment of intellectual functioning such as the Standard Error Of Measurement (SEM) of I. Q. tests or the "Flynn Effect," a recognized phenomenon requiring the downward adjustment of raw I.Q. scores to reflect the petitioner's actual I.Q.; (4) whether the Eighth Amendment and Atkins allow a state to use standards for assessing adaptive deficits that contravene scientifically accepted clinical practice and that focus on an individual's abilities rather than his actual deficits, when such deficits satisfy clinical standards for intellectual disability; and (5) whether it violates due process and/or equal protection under the Fourteenth Amendment for a state supreme court to require consideration of SEM and the Flynn Effect in some Atkins cases but to refuse their consideration to the petitioner.

(relisted after the November 1 Conference)


Issue(s): (1) Whether the Oklahoma Supreme Court erred in declaring the Oklahoma Ultrasound Act, which requires the performance, display, and explanation of a pre-abortion ultrasound, to be facially unconstitutional under Planned Parenthood of Southeastern Pennsylvania v. Casey in light of this Court’s ruling that informational requirements further "the State’s legitimate interest of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed;" (2) whether the Oklahoma Supreme Court erred in interpreting Casey as prohibiting informed consent laws requiring the performance, display and explanation of pre-abortion ultrasounds – an interpretation that directly conflicts with that of the Fifth Circuit in Texas Medical Providers Providing Abortion Services v. Lakey and the interpretation of Casey in the Eighth Circuit’s recent decisions reviewing other informed consent requirements; and (3) whether Casey requires state courts to presume all state regulations of abortion are unconstitutional under federal law, absent controlling authority from this Court.

(relisted after the June 20 and November 1 Conferences)

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Nov. 6, 2013, 9:31 AM),