In its Conference of November 13, 2015, the Court will consider petitions seeking review of issues such as whether Texas’s standard for determining if a capital defendant meets the definition of intellectual disability violates the Eighth Amendment, what type of analysis governs the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, and whether the ban on “assault weapons” in Highland Park, Illinois, violates the Second Amendment.

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): (1) Whether Miller v. Alabama adopts a new substantive rule that applies retroactively on collateral review to juveniles sentenced to life without parole; and (2) whether Miller requires individualized sentencing for marginally older teenage offenders who were severely mentally disabled at the time of their crimes.


Issue(s): (1) Whether a claims administrator with no obligation to pay benefits under an Employee Retirement Income Security Act plan is a proper defendant in a Section 502(a)(1)(B) action for benefits due under that plan; and (2) whether a Section 502(a)(3) claim can be dismissed on the pleadings because a proper Section 502(a)(1)(B) claim would fully remedy the plaintiff's injury.


Issue(s): (1) Whether a federal court of appeals is authorized to review sua sponte and invalidate an order reopening the time to appeal under Federal Rule of Appellate Procedure 4(a)(6), when the appellee never appealed the order; (2) whether attorney abandonment, which Maples v. Thomas held is an “extraordinary circumstance” equitably excusing a resulting failure to appeal a denial of state habeas relief, is likewise an “extraordinary circumstance” warranting reentry of a judgment under Federal Rule of Civil Procedure 60(b) to reopen the time to appeal when the abandonment caused the failure to appeal a denial of federal habeas relief; and (3) whether notice of the entry of a judgment is imputed to a party for purposes of Federal Rule of Appellate Procedure 4(a)(6) when the party's lawyer receives notice of the judgment, but, instead of notifying the party, abandons him.




Issue(s): (1) Whether the Due Process Clause of the Fourteenth Amendment requires Mississippi to exempt physicians at the State’s only abortion clinic from complying with a medically legitimate health and safety regulation that applies to physicians at all other outpatient surgical facilities; and (2) whether Mississippi House Bill 1390, which requires that abortion physicians have admitting privileges at a local hospital to handle complications that require emergency hospitalization, imposes an undue burden under Planned Parenthood v. Casey regardless of the geographical availability of abortion services in adjoining states in light of the equal protection principle articulated in Missouri ex rel. Gaines v. Canada.


Issue(s): (1) Whether exemption 4 of the Freedom of Information Act permits nondisclosure due to speculative future competition and likelihood that disclosure would substantially harm the competitive position of a grant applicant; and (2) whether exemption 5 of the Freedom of Information Act shields documents and discussions about an agency’s public justification for prior decisions.


Issue(s): (1) Whether the Sixth Circuit disregarded the highly deferential standards Congress imposed in 28 U.S.C. §§2254(d)(1), (d)(2) and (e)(1), and the deference owed to trial court’s factual finding of juror bias required by Wainwright v. Witt, when it granted habeas relief on Wheeler’s Witherspoon/Witt claim; and (2) whether a violation of Witherspoon/Witt should be subject to harmless error analysis.


Issue(s): (1) Whether a contractor’s knowing failure to comply with a contractual, statutory, or regulatory provision, without payment being conditioned on that provision, results in a false claim that violates Section 3729(a)(1)(A) of the False Claims Act under the “implied certification” theory of liability; (2) whether “implied certification” is a valid theory of liability under Section 3729(a)(1)(A) of the False Claims Act; and (3) whether, given Federal Rule of Civil Procedure 9(b)’s requirement that all fraud claims be pleaded with particularity, a “false record or statement” claim under Section 3729(a)(1)(B) of the False Claims Act obliges a plaintiff to plead actual reliance by the government on the false record or statement in question.


Issue(s): (1) Whether the court below erred in failing to make the required finding that race rather than politics predominated in District 3, where there is no dispute that politics explains the Enacted Plan; (2) whether the court below erred in relieving plaintiffs of their burden to show an alternative plan that achieves the General Assembly's political goals, is comparably consistent with traditional districting principles, and brings about greater racial balance than the Enacted Plan; (3) whether, regardless of any other error, the finding of a Shaw violation by the court below was based on clearly erroneous fact-finding; (4) whether the majority erred in holding that the Enacted Plan fails strict scrutiny because it increased District 3's black voting-age population percentage above the benchmark percentage, when the undisputed evidence establishes that the increase better complies with neutral principles than would reducing the percentage and no racial bloc voting analysis would support a reduction capable of realistically securing Section 5 preclearance.


Issue(s): (1) Whether the Sixth Circuit’s ruling – that the lack of Supreme Court case law holding that references to a victim’s pregnancy when the pregnancy is not an issue at trial violates due process means no “clearly established” law exists for purposes of 28 U.S.C. §2254(d) – conflicts with this Court’s rulings holding that “clearly established” law does not require a case with an identical fact pattern but instead includes legal principles and standards flowing from precedent and general standards designed to apply to a myriad of factual situations; and (2) whether this Court’s standard that a state evidentiary ruling can be so egregious as to deny a defendant fundamental fairness and thus violate the federal due process clause is broad enough to constitute “clearly established” law that applies when the prosecution introduces irrelevant evidence of a victim’s pregnancy; and, if so, whether the evidence regarding the victim’s pregnancy and the prosecutor’s ensuing argument are “contrary to” or an “unreasonable application of” this “clearly established” law.


Issue(s): (1) Whether a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States; (2) whether qualified immunity may be granted or denied based on facts – such as the victim’s legal status – unknown to the officer at the time of the incident; and (3) whether the claim in this case may be asserted under Bivens v. Six Unknown Federal Narcotics Agents. CVSG: 03/01/2016.


Issue(s): (1) Whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes with a class of constitutionally protected “arms” that includes the most popular rifles in the nation; and (2) whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes with ammunition magazines that number in the tens of millions and make up nearly half of the nation’s total stock of privately owned ammunition magazines for handguns and rifles.


Issue(s): (1) Whether the Sixth Circuit erred when it granted habeas relief based on the theory that respondent was denied the right to confront the two witnesses when the state courts did not allow him to introduce their post-testimony written recantations to impeach their former testimony; (2) whether the Sixth Circuit erred in holding that a written statement recanting former testimony is not “extrinsic” to that testimony and that such statements may be admitted by merely “recit[ing] [them] to the jury” without an authenticating witness; and (3) whether the Sixth Circuit erred in concluding that the state court’s determination that any error was harmless beyond a reasonable doubt was objectively unreasonable, where there was other substantial evidence of respondent’s guilt and the evidence was interlocking and not dependent on the credibility of any single witness.


Issue(s): (1) Whether, when applying the “undue burden” standard of Planned Parenthood v. Casey, a court errs by refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health; and (2) whether the Fifth Circuit erred in concluding that this standard permits Texas to enforce, in nearly all circumstances, laws that would cause a significant reduction in the availability of abortion services while failing to advance the State’s interest in promoting health - or any other valid interest.

Posted in Cases in the Pipeline

Recommended Citation: John Ehrett, Petitions to watch | Conference of November 13, SCOTUSblog (Nov. 10, 2015, 11:00 PM),