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Relist Watch

John Elwood reviews Tuesday’s relisted cases.

Since everyone else is doing it, Relist Watch is proud to officially announce our candidacy for the 2016 Republican presidential nomination. If selected, we promise to take the fight to the Democratic nominee (whoever she or she may be) running on a proven record of minimally insightful analysis, wince-inducing jokes and puns, and hopelessly outdated pop-culture references. RT if you agree that this is the kind of leadership America needs.

But before we hit the state fairs, we have some unfinished business to take care of. Three relists won their campaigns this week. Lockhart v. United States, 14-8358, won a grant after just one relist. After a long argument about grammar, the Court will decide whether a mandatory minimum ten-year sentence enhancement for a child-pornography conviction triggered by a prior state law conviction for sexual abuse applies even when the prior conviction did not “involv[e] a minor or ward.” Also succeeding after just one relist is Evenwel v. Abbott, 14-940, in which the Court will decide whether the “one-person, one-vote” principle under the Equal Protection Clause refers to total population or specifically to voters. Note that this is a relatively rare direct appeal from a three-judge district court because it is a redistricting case; more on that later. Meanwhile, it took Foster v. Humphrey, 14-8349, two relists after arrival of the record before it won its grant. The petition in that capital case asks whether the Georgia courts erred in failing to recognize race discrimination prohibited under Batson v. Kentucky.

The Court was feeling either generous (or indecisive) this week, so none of last week’s relists will be leaving the race to spend more time with their families. County of Maricopa, Arizona v. Lopez-Valenzuela, 14-825, has been relisted as often as Ralph Nader (and Eugene V. Debs) ran for president: five times. According to our statistics, the odds look better for the county. That case still 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. Close behind is Manzano v. Indiana, 14-631, which has been relisted as many times as Communist Gus Hall ran for president (four).   It 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. But that’s not the only four-time relist still on the docket. Taylor v. Barkes, 14-939, 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. Jackson v. City and County of San Francisco, 14-704, which in addition to the four relists also has been rescheduled once, asks 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, meanwhile, has been relisted as often as Alan Keyes has run for president (three times). Jordan 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.] Wonder if these veterans are jealous that the new guys are getting so much attention.

Two of last week’s newcomers join that crowded group of veteran hopefuls by picking up their second relists. Joyner v. Barnes, 14-395, is a state-on-top habeas case involving jurors in separate criminal cases who received religious advice on the death penalty from third parties. The 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[.]’” Luis v. United States, 14-419, also now has a pair of relists to go with its one-time rescheduling. That 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.”

The relists aren’t the only ones stuck on repeat. Dunn v. DeBruce, 14-807, was relisted once (likely due to a late-arriving record), then was rescheduled, and now has been rescheduled again. It is a state-on-top habeas case arguing that the Eleventh Circuit failed to apply the two levels of deference required for habeas challenges to state convictions involving ineffective assistance of counsel. Tune in next week to see what else the Court can do to prolong this petition’s tenure at the Court.

Now on to the new stuff. In a development almost as surprising as the FIFA scandal, Fisher v. University of Texas at Austin, 14-981, is back. Abigail Fisher applied to the University of Texas back when George W. Bush was president and the school was still good at football. She was rejected. Rather than being grateful for the misery the school spared her, she sued, claiming that the university’s admissions process used unconstitutional racial preferences. After Fisher lost at the district and circuit levels, the case went to the Court, which held that the Fifth Circuit applied an impermissibly deferential brand of strict scrutiny and sent it back. On remand, the Fifth Circuit, over a strongly worded dissent by Judge Garza, again sided with the university, holding that the school’s program is narrowly tailored to fulfill a compelling interest in fostering diversity. Fisher hopes to hand UT another loss on the big stage. Her petition asks whether the Fifth Circuit’s endorsement of the University of Texas at Austin’s use of racial preferences in undergraduate admissions decisions can be sustained under the Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including, um, Fisher v. University of Texas at Austin.

From affirmative action, we’re grateful to move to a much less controversial issue: abortion. Currier v. Jackson Women’s Health Organization, 14-997, is a challenge to a Mississippi law which requires that doctors who perform abortions must have admitting privileges at a local hospital. The district court determined that the bill imposed an undue burden on access to abortion and therefore that it was unconstitutional under Planned Parenthood of Southeastern Pennsylvania v. Casey. The Fifth Circuit (which wrote that the law “effectively will close [the] only abortion clinic” in Mississippi) affirmed over a dissent from Judge (wait for it . . .) Garza. In its petition, the state asks (1) whether the Due Process Clause requires Mississippi to exempt physicians at its lone abortion clinic from complying with a health regulation that applies to physicians at all other outpatient surgical facilities and (2) whether the bill imposes an undue burden under Casey regardless of the availability of abortion services in adjoining states.

Remember the three-judge district court we mentioned above? Shapiro v. Mack, 14-990, asks when three is a crowd. Under 28 U.S.C. § 2284, cases challenging the constitutionality of the apportionment of congressional districts must be heard by a three-judge district court unless the single judge to whom the case is initially referred determines that three judges are not required. In Goosby v. Osser, the Court held that a three-judge court is not required when a claim is insubstantial. The judge who was assigned this case, which challenges Maryland’s reapportionment, decided that a three-judge panel was not required because the complaint failed to state a claim under Federal Rule of Civil Procedure 12(b)(6). The Fourth Circuit summarily affirmed.   According to the petition, this was in conflict with the D.C., Fifth, and Seventh Circuits, which have a higher standard for declaring a claim insubstantial. The petition asks whether a single judge can determine that a complaint covered by 28 U.S.C. § 2284 is insubstantial not because it is wholly frivolous but because it fails to state a claim.

Last week we told you that the newly rescheduled Hittson v. Chatman, 14-8589, presented a knotty (read: boring) issue of habeas procedure. So now we have to write about it again as a new relist. Thanks karma. 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 – 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.’”

A pair of newly rescheduled petitions hope to follow in Hittson’s footsteps and work their way up to relist status. Wal-Mart Stores, Inc. v. Braun, 14-1123, and Wal-Mart Stores, Inc. v. Braun, 14-1124, which, respectively, arise from separate Pennsylvania Superior Court and Supreme Court decisions, concern a class action lawsuit involving 187,000 Wal-Mart employees who allege being denied paid rest breaks and being required to work off the clock. The class plaintiffs based their claim on formulas created by their experts based on the testimony of a small number of plaintiffs and calculations from only part of the relevant period (a policy change by Wal-Mart made calculations for other years impossible). Wal-Mart countered that such a formula-based calculation violated its Due Process rights because it prevented the company from raising individualized defenses. The trial court didn’t buy this argument (even when the price was on rollback) and a jury found against Wal-Mart to the tune of $187 million. The Pennsylvania Superior Court and the state’s supreme court both affirmed. The petitions ask whether the Due Process Clause of the Fourteenth Amendment prohibits a state court from certifying a class action, and entering a monetary judgment in favor of the class, when the court permits the use of extrapolation to relieve individual class members of their burden of proof and forecloses the defendants from presenting individualized defenses.

The Wal-Mart cases will be joined this week by Tyson Foods v. Bouaphakeo, 14-1156, which presents that issue. Two cases presenting that issue (and others), Dow Chemical v. Industrial Polymers, 14-1091, and Allstate Insurance Co. v. Jimenez, 14-910, are set for the June 11 Conference, so the Court might reschedule the whole lot again for consideration together then.

And with that, we’re off to spend more time with our families. We’ll be back next week.

Thanks to Ralph Mayrell and Dmitry Slavin for compiling and drafting this update.



(relisted after the April 17, April 24, May 1, May 14 and May 21 Conferences)


(relisted after the April 17, April 24, May 1, May 14 and May 21 Conferences)


(relisted after the April 24, May 1, May 14 and May 21 Conferences)


(relisted after the April 24, May 1, May 14 and May 21 Conferences)


(relisted after the April 24, May 1, May 14 and May 21 Conferences)


(relisted after the May 14 and May 21 Conferences)


(relisted after the May 14 and May 21 Conferences)


(relisted after the May 21 Conference)


(relisted after the May 21 Conference)


(relisted after the May 21 Conference)


(relisted after the May 21 Conference)

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (May. 29, 2015, 5:24 PM),