At its Conference on March 27, 2015, the Court will consider petitions seeking review of issues such as equitable tolling in habeas proceedings, First Amendment rights of students, and a court’s denial of a criminal defendant’s constitutional right to testify.

This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.  Our policy is to include and disclose all cases in which Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, represents either a party or an amicus in the case, with the exception of the rare cases in which Goldstein & Russell represents the respondent(s) but does not appear on the briefs in the case.


Issue(s): Whether, after granting a state habeas corpus petitioner 161 days of equitable tolling for the extraordinary circumstance of attorney abandonment which led to the expiration of the one-year limitation period, thereby restoring the inmate to his pre-abandonment legal position, the Ninth Circuit applied a novel and unauthorized standard to grant a second period of equitable tolling that required neither extraordinary circumstances nor post-notice due diligence, creating an intra-circuit split of authority with Rudin v. Myles, and a split of authority between the Ninth Circuit and sister circuits in decisions that apply both prongs of Holland v. Florida, including the Second, Third, Fifth, Eighth, Tenth and Eleventh Circuits.


Issue(s): Whether the Ninth Circuit erred by allowing school officials to prevent students from engaging in a silent, passive expression of opinion by wearing American flag shirts because other students might react negatively to the pro-America message, thereby incorporating a heckler's veto into the free speech rights of students contrary to Tinker v. Des Moines Independent Community School District and the decisions of other United States courts of appeals.




Issue(s): Whether, under the Employee Retirement and Income Security Act of 1974 (ERISA), a lawsuit by an ERISA fiduciary against a participant to recover an alleged overpayment by the plan seeks “equitable relief” within the meaning of ERISA Section 502(a)(3), 29 U.S.C. § 1132(a)(3), if the fiduciary has not identified a particular fund that is in the participant's possession and control at the time the fiduciary asserts its claim.


Issue(s): (1) Whether the Michigan courts' decision not to extend United States v. Cronic to cover counsel's brief absence from trial was an “extreme malfunction” entitling the petitioner to habeas relief; and (2) whether the Michigan courts reasonably determined that Donald had not shown Strickland v. Washington prejudice flowing from his counsel's brief absence in a multi-defendant case during the taking of evidence that did not inculpate his client.


Issue(s): Whether the state of North Carolina performs an unconstitutional search when it requires a citizen to wear a GPS monitoring ankle bracelet for the rest of his life based only on the citizen's status as a recidivist sex offender and where there is no finding that he is a threat to society.


Issue(s): Whether a trial court's complete denial of a criminal defendant's constitutional right to testify is amenable to harmless-error analysis.


Issue(s): Whether the Eighth Amendment requires that a capital-sentencing jury be affirmatively instructed that mitigating circumstances “need not be proven beyond a reasonable doubt,” as the Kansas Supreme Court held in this case, or instead whether the Eighth Amendment is satisfied by instructions that, in context, make clear that each juror must individually assess and weigh any mitigating circumstances.


Issue(s): (1) Whether a government policy expressly excluding “religious worship services” from a broadly open forum violates the Free Exercise Clause and Establishment Clause; and (2) whether a government policy expressly excluding “religious worship services” from a broadly open forum violates the Free Speech Clause.




Posted in Everything Else

Recommended Citation: Maureen Johnston, Petitions to watch | Conference of March 27, SCOTUSblog (Mar. 27, 2015, 11:44 AM),