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Relist Watch

John Elwood reviews Monday’s relisted cases.

Well readers, it’s come and gone. This week’s Mad Men finale signified “the end of an era,” and was, depending on your point of view, ironic, clever, pat, ambiguous, happy and cynical, existentially brilliant, or disturbing, unsettling, and thrilling (presumably all at once). Or, if you didn’t see it at all, perplexing. (For those who missed Sunday night’s episode, you can watch an abridged version here.) That unhappy news, coupled with Letterman’s sign-off this week, is probably going to leave an entertainment void in your lives that we at Relist Watch very much hope to fill with, among other things, enough relists to make you ralph … or, “roger,” as the case may be.

Even with the two-week intermission since the last Conference, the Court didn’t clear out its lingering relists this week. Of last Conference’s eight relisted cases, the court granted one, denied one, and kept six as leftovers, to be boxed and bagged for next week’s consumption. Our lone grant has, much like its namesake, started from the bottom and earned a place at the table through persistence. Campbell-Ewald Co. v. Gomez, 14-857, which was once rescheduled before its relist, (fittingly) involves an ad agency that, after being sued for an ill-advised text-message campaign for the U.S. Navy, offered to pay the named plaintiff in a class action more money than he would have been able to gain from litigation. The respondent rebuffed the offer. Campbell-Ewald poses three questions: (1) whether a case becomes moot when the plaintiff receives an offer of complete relief on his claim; (2) whether a case becomes moot when the plaintiff has asserted a class claim but receives an offer of complete relief before any class is certified; and (3) whether the doctrine of sovereign immunity recognized in Yearsley v. W.A. Ross Construction Co. for government contractors is restricted to claims arising out of property damage caused by public works projects. Class-action types are watching this one closely.

Notwithstanding a quintet of relists since receiving the record, the Court denied cert. without comment in Larkin v. Florida, 14-7884, asking whether the Florida Supreme Court violated clearly established law by allowing a trial court that had found reasonable doubt regarding the defendant’s competency to then allow the defendant to represent himself at his own competency hearing. This means that, despite our attempt to hedge our bets by speculating that the Court would grant cert. or issue an opinion of unspecified type (summary reversal? dissent from denial of cert.?), the Court has outmaneuvered us once again. Thanks, Obama.

As for the remaining six relists, I’ve got, er, an “early dinner,” so let’s get through these quickly. First up, County of Maricopa, Arizona v. Lopez-Valenzuela, 14-825 (on its fourth relist), asks whether the Ninth Circuit erred in holding that a denial of bail is permissible only after individualized assessments of flight risk or future dangerousness. Manzano v. Indiana, 14-631 (third relist), asks whether, when a criminal defendant seeks to vacate a guilty plea on the ground that defense counsel rendered ineffective assistance, the defendant must establish prejudice by showing that he would have been acquitted. Taylor v. Barkes, 14-939 (also third), asks (1) whether 42 U.S.C. § 1983 authorizes the imposition of supervisory liability for a subordinate’s alleged constitutional violation and (2) whether there is a clearly established right under the Eighth Amendment to the proper implementation of adequate suicide prevention protocols. Then there’s Jackson v. City and County of San Francisco, 14-704 (third relist; rescheduled once), asking whether the Second Amendment bars a San Francisco ordinance requiring all residents who keep handguns in their homes to stow them in a lock box or disable them with a trigger lock whenever the owners are not carrying them on their persons. Jordan v. Fisher, 14-8035 (second post-record relist), asks (1) whether it is error to deny a habeas petitioner a certificate of appealability in a case in which the state supreme court was divided and another federal court of appeals would recognize the claim; and (2) whether the fact that the prosecutor did not expand the sentence to which the defendant was exposed prohibits a finding of prosecutorial vindictiveness. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.] Finally, Foster v. Humphrey, 14-8349 (second post-record relist), asks whether the “Georgia courts err[ed] in failing to recognize race discrimination under Batson in the extraordinary circumstances of this death penalty case.”

Now that we’ve got all the old stuff out of the way, let’s proceed with this week’s new business.

In Lockhart v. United States, 14-8358, the petitioner, a forty-six-year-old former aerobics instructor who claimed he became addicted to online porn while convalescing from a kidney transplant (it’s a familiar story), pleaded guilty to possession of child pornography. The offense ordinarily carries an imprisonment range of zero to ten years, but when a defendant “has a prior conviction … relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward,” 18 U.S.C. § 2252(b)(2), the sentencing range jumps up to a ten-year mandatory minimum and a twenty-year maximum. Because Lockhart had previously pled guilty to the attempted rape of his then fifty-three-year-old girlfriend (sexual abuse under New York law), a federal judge imposed the ten-year mandatory minimum. The Second Circuit affirmed, concluding that the clause “involving a minor or ward” in Section 2242(b)(2) modified only prior state convictions for “abusive sexual conduct,” not for “sexual abuse” or “aggravated sexual abuse.” Lockhart’s petition asks “whether § 2252(b)(2)’s mandatory minimum sentence is triggered by a prior conviction … that did not ‘involv[e] a minor or ward.’” Ah – the rule of the last antecedent.

Evenwel v. Abbott, 14-940, is a direct appeal from a three-judge district court decision dismissing the appellants’ challenge to a Texas Senate apportionment plan. Though the plan created districts roughly equal in total population, the appellants contend that it nevertheless contains “gross disparities in voters or potential voters,” and thereby runs afoul of the Fourteenth Amendment’s “one person, one vote” principle under Reynolds v. Sims. The three-judge district court dismissed the suit, holding that the choice of which population base to use in apportioning districts is “left to the states absent the unconstitutional inclusion or exclusion of specific protected groups of individuals.” In its jurisdictional statement, the appellants ask “whether the ‘one-person, one-vote’ principle of the Fourteenth Amendment creates a judicially enforceable right ensuring that the districting process does not deny voters an equal vote.” The challengers are represented by the appellate team who won Shelby County v. Holder and who represent the challenger in Fisher v. University of Texas.

Joyner v. Barnes, 14-395, is a state-on-top habeas case from the Fourth Circuit involving two North Carolina defendants who were separately convicted of unrelated capital crimes. After being charged with robbing and killing two people, the first defendant, William Leroy Barnes, “wore the fruits of [his] robbery – a gold necklace and a watch belonging to [one of his victims] – at an early court appearance.” Perhaps unsurprisingly, Barnes was found guilty of, among other things, two counts of first-degree murder. During the sentencing phase, counsel for one of Barnes’s co-defendants “argued that jurors would violate God’s law if they recommended the death penalty.” This prompted one juror to “take[] a Bible into the jury room” to conduct his own research, and prompted another juror to call a minister to ask about the death penalty. After the jury recommended, and the trial court imposed, a death sentence, Barnes’s counsel moved for a mistrial on grounds of the minister’s improper third-party communication with a juror. That argument was rejected by both the state trial and appellate courts on direct and post-conviction review, and by a federal district court on habeas review. The Fourth Circuit, however, vacated the sentence and remanded the case for an evidentiary hearing, concluding that the state court’s failure to apply Remmer v. United States – holding that where a juror has communicated with a third party “about the matter pending before the jury,” an evidentiary hearing must be held to determine the prejudicial impact of the communication – was an unreasonable application of the Supreme Court’s clearly established law. The second defendant, Jason Wayne Hurst, confessed to luring his victim to a field where, “unprovoked, [Hurst] shot him while [he] begged for his life.” After being convicted and sentenced to death, Hurst unsuccessfully sought post-conviction relief in state court, alleging that a juror had improperly communicated with her father about “where she could look in the Bible for help and guidance” in making her sentencing decision. In response, the juror’s father “directed her to one of the Bible verses which contained the phrase ‘an eye for an eye.’” (That’s Exodus 21:23-25 for those of you following along at home. But see Matthew 5:38-42 and John 8:2-9. See generally Exodus 20:26.) Like Barnes, Hurst unsuccessfully raised an improper-juror-communication claim in his habeas petition before a federal court, which denied relief concluding that the record “actually reflects that the juror used her father like a neutral index, i.e., one who would simply point her to where in the Bible material related to capital punishment appeared.” However, on appeal, the Fourth Circuit, citing its Barnes decision, reversed and remanded for an evidentiary hearing. The state’s joint cert. petition asks whether “the Fourth Circuit contravene[d] § 2254 (d)(1) when it granted habeas relief on the ground that the North Carolina state courts unreasonably applied ‘clearly established’ law when they held that third-party religious discussions with jurors did not concern ‘the matter[s] pending before the jury[.]’”

Our last installment provided a quick rundown of this week’s last new relist, Luis v. United States, 14-419, back when it was “just” a rescheduled case. But because intervening trauma has probably impaired your memory (and since we get paid by the word), we’ll provide a recap. On the same day that Luis was indicted for health care fraud, the government instituted a separate civil complaint and emergency ex parte motion for a temporary restraining order, asking a federal district court to freeze up to $45 million of Luis’s assets “to preserve the status quo and ensure that sufficient assets are available to satisfy any judgment requiring restitution or forfeiture.” Without giving notice to Luis, the court entered the temporary restraining order, and later denied petitioner’s motion to modify it to release untainted assets for the defense of her criminal case. Granting the government’s preliminary injunction, the trial court held that “there is no Sixth Amendment right to use untainted, substitute assets to hire counsel” – a holding which the Eleventh Circuit later affirmed. On cert., Luis’s petition asks whether “the pretrial restraint of a criminal defendant’s legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violates the Fifth and Sixth Amendments.”

On the topic of rescheduled cases, this week the Court denied twice-rescheduled O’Keefe v. Chisholm, 14-872. O’Keefe, which arose from a Section 1983 suit brought by supporters of Wisconsin Governor Scott Walker against the Milwaukee district attorney, asked: (1) “whether considerations of ‘equity, comity, and federalism’ insufficient to support abstention can override Mitchum [v. Foster]’s holding that 42 U.S.C. § 1983 is an ‘expressly authorized’ statutory exception to the Anti-Injunction Act;” and (2) whether “government officials may be held liable for subjecting citizens to investigation in retaliation for First Amendment-protected speech and association, particularly where non-retaliatory grounds are insufficient to support the investigation.”

The court also rescheduled two new matters, both capital habeas cases from the Eleventh Circuit. The first, Dunn v. DeBruce, 14-807, is a state-on-top habeas case that, as we noted a few weeks ago, had likely been relisted because the record arrived only shortly before the relevant Conference. After DeBruce had been convicted of capital murder, he sought post-conviction relief on the grounds that his counsel was ineffective at the penalty phase of his trial by failing to investigate and present additional mitigation evidence. The Alabama courts rejected the petition, noting that DeBruce presented very little evidence of what his attorneys did in preparation for trial. And the district court found this judgment not unreasonable under 28 U.S.C. § 2254. However, the Eleventh Circuit reversed and granted habeas relief. Alabama’s cert. petition argues that the Eleventh Circuit failed to apply the double dose of deference required for habeas challenges involving ineffective assistance of counsel.

This week’s other new rescheduled case, Hittson v. Chatman, 14-8589, involves a somewhat knotty habeas procedural issue. After Travis Hittson unsuccessfully petitioned a Georgia superior court for habeas relief from his death sentence, the state supreme court denied Hittson’s application for a certificate of probable cause. On federal habeas however, the federal district court agreed with Hittson’s claim that the trial court erroneously admitted expert testimony regarding statements that were obtained in violation of his Fifth and Sixth Amendment rights, and consequently vacated Hittson’s death sentence. The Eleventh Circuit reversed. Expressly declining to follow Ylst v. Nunnemaker – holding that a state court’s last summary affirmance of a lower court ruling is presumed to rest on the reasons set forth in the last-reasoned state court decision on the claim – the Eleventh Circuit concluded that the Georgia Supreme Court’s one-sentence denial of a certificate of probable cause to review the superior court’s decision was a “merits decision,” and that, under Harrington v. Richter, it was required to ignore the superior court’s reasoning and instead determine what arguments (if any) could have supported the Georgia Supreme Court’s decision. Among other things, Hittson’s cert. petition asks “[w]hether the Eleventh Circuit has correctly determined that this Court’s decision in Harrington v. Richter overruled sub silentio the holding of Ylst v. Nunnemaker, that ‘where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.’” If the Hittson petition piques your interest, we recommend that you badly need a new hobby.

That’ll do it for this week! Tune in next week where we’ll have singing, dancing, repartee, and perhaps a bad idea or two.

Thanks to Stephen Gilstrap and Conor McEvily for compiling and drafting this update. Job 24:5, loosely.



(relisted after the April 17, April 24, May 1, and May 14 Conferences)


(relisted after the April 17, April 24, May 1, and May 14 Conferences)


(relisted after the April 17, April 24, May 1, and May 14 Conferences)


(relisted after the April 24, May 1, and May 14 Conferences)


(relisted after the April 24, May 1, and May 14 Conferences)


(relisted after the April 24, May 1, and May 14 Conferences)


(relisted after the May 14 Conference)


(relisted after the May 14 Conference)


(relisted after the May 14 Conference)


(relisted after the May 14 Conference)

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (May. 21, 2015, 1:19 PM),