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The Greatest Relist Watch Ever

A guest blogger* reviews Monday’s relisted cases.

John Elwood asked me to guest-write this post. John is a beautiful man and a very good friend but I told him no – Relist Watch is very very boring. But when he pointed out to me all the big names who have posted on this site recently, and that for a key part of the Friday news cycle I would be on the “cover” of SCOTUSblog, I caved. I can’t resist a cover. And after you read my post, it’s going to be so good you’ll never want to read one by John again. I love you John but it’s the truth. Anyway John tells me he usually uses some theme relating to the news or time of year. So this week will be March Madness. And let me tell you, I have the best bracket. All winners in my bracket. My teams are going to win so much that you are going to get bored of all the winning and you’re going to ask me – Donald, can’t one of your teams lose just for something different? And I will say no because it’s all about winning.

Speaking of winners, let’s talk about the cases that had a great week. I had a great week. I won a bunch of states – ten, twelve, sixty states. That’s like every week for me. But these cases had good weeks too. Caetano v. Massachusetts, 14-10078, is a huge winner after nine relists. Taking nine relists to get summary vacatur is kind of low energy. I like cases that get summary vacatur after one relist, but it worked out in the end. The Court issued a per curiam opinion vacating the decision of the Supreme Judicial Court of Massachusetts, saying it messed up when it said the Second Amendment doesn’t protect the use of stun guns. The Supreme Court’s opinion was like five paragraphs long, and most of it boiled down to the idea that the Second Amendment isn’t limited to the kinds of weapons that Aaron Burr and that guy Hamilton who is so hot right now dueled with. Nobody dissented on this one. Nobody! That’s a strong opinion. And just like I said all along, Justices Alito and Thomas wrote to explain how totally wrong the Massachusetts court was. Some people are saying I predicted they’d dissent from the denial of cert., but trust me, that opinion started out as a dissent from denial and it was just so right that everybody went along with it. Nobody supports and backs up the Second Amendment like I do.

Samsung Electronics Co. v. Apple, 15-777, is another winner. The Court granted cert. after one relist, but only on the second question, which is about whether, when a design patent is applied to only one component of a product, an award of infringer’s profits should be limited to those profits attributable to the component. I like cert. petitions where all the questions get granted, and trust me, with my petitions, the most terrific and luxurious petitions in the world, every question gets granted. But that question has the word “profits” right in it, so I’m a huge fan.

We have two losers to talk about. They’re wonderful cases and I love them and they love me but they ran terrible campaigns so they lost. The first loser is Cook v. Barton, 15-580, a state-on-top habeas case that couldn’t get granted even with two relists. I can see why the Court didn’t take that one. It was about a really tricky habeas question, about figuring out whether a state court decided a case on a procedural or substantive ground. Not exciting stuff. The second loser is Nebraska and Oklahoma v. Colorado, 22-O-144, an original jurisdiction case. Nebraska and Oklahoma wanted to bring a suit in the Supreme Court against Colorado because they said the bad effects from commercial pot sales in Colorado were spilling over into their states.  But even after three relists, the Court wouldn’t let them file their bill of complaint. Poor work ethic! At least Justice Thomas and Justice Alito dissented.

Two relists are back again this week. Clean Air Act case Ohio v. Sierra Club, 15-684, was relisted a third time. Ohio says the Sixth Circuit messed up when it reversed the EPA’s approval of Cincinnati’s plan to maintain its attainment status under the Clean Air Act. This is one of those environmental cases where the government agrees that the court of appeals got it wrong but still opposes cert. because it thinks the case isn’t important enough. This is a very tough situation, but I could put together a deal that everyone would love – the EPA, Ohio, the Sierra Club, even the air. Woods v. Etherton, 15-723, is also from the Sixth Circuit and also got its third relist. It asks whether the Sixth Circuit didn’t give enough deference to the state court when it decided that a criminal defendant’s counsel was ineffective because he failed to raise a Confrontation Clause issue.

There are like eight more returning relists, and seven of those end with the words “v. Alabama.” They all involve the same issue as Montgomery v. Louisiana, which held that that the Supreme Court’s decision prohibiting sentences of life without parole for juveniles applies retroactively to cases on collateral review. Usually, you’d expect the Court to grant, vacate, and remand (“GVR”) these cases and let the lower courts sort out what happens next. Why haven’t these cases been GVR’d yet? This could be a clue: Justice Thomas wrote many, many concurring opinions, unusual opinions, for the last group of Montgomery GVRs, joined by Justice Alito, saying the petitioners could still lose on procedural grounds. Could be the two of them are trying to sort out which of those petitioners’ claims are procedurally barred. Something’s going on. Could be a big problem for those petitioners.

Now for the new relists. I love relists and relists love me. Let me tell you something about relists. Relists are cases that could have given up. But instead they are fighting all the way to the Supreme Court, and then some. That’s just like me. I get sued a lot, okay? A lot. And I could settle all these cases against me. They’re tiny cases. I could settle them for very little money. But I never settle and neither do these guys so they’re all winners. The first new relist is Bravo-Fernandez v. United States, 15-537. Juan Bravo-Fernandez, the president of a security firm, and Hector Martínez-Maldonado, a senator in Puerto Rico, were charged with committing two crimes on a weekend trip to Las Vegas, where I hope they stayed at the Trump International Hotel. It’s the most beautiful, most luxurious hotel in Vegas. I’m talking sixty-four stories and it looks like it’s made of gold. The most beautiful people stay there. So allegedly, Bravo-Fernandez paid for Martínez-Maldonado’s trip to Vegas and for boxing tickets a day after Bravo-Fernandez testified in front of Martínez-Maldonado about a bill he wanted passed. The two men were charged with (1) federal program bribery under 18 U.S.C. § 666 and (2) conspiring and traveling to violate 18 U.S.C. § 666. The jury acquitted them of the charge of conspiring and traveling but convicted them of the bribery offense itself. Which makes no sense – I’m not saying it was a stupid jury, but I hear other people saying that. The Section 666 convictions were thrown out on appeal because of a mess-up in the jury instructions. Then prosecutors wanted to try the two men again, but the defendants argued that since they were acquitted of conspiring and traveling to commit a Section 666 offense, double jeopardy kept the prosecutors from re-trying them on the Section 666 charge. They cited Yeager v. United States, where the Court held that double jeopardy applies when the court acquits on one count and hangs on another. The district court and First Circuit disagreed, citing United States v. Powell, where the Court held that a jury could acquit on one charge and convict on another even if the two verdicts are logically inconsistent. The First Circuit held that because the two men were convicted of the Section 666 charge before it was vacated, their case is more like Powell than Yeager. The petitioners argue that there is a five-to-three circuit split on this issue. They also argue that the Double Jeopardy Clause was violated when the district court withdrew a judgment of acquittal it entered by mistake on remand from the original First Circuit decision. A lot is going on in that case.

The second new relist is Beckworth v. Alabama, 15-7451, a capital murder case from one of my favorite states. Rex Allen Beckworth was convicted of capital murder and sentenced to death. Beckworth says that his half-brother and co-defendant was the actual murderer, that his half-brother admitted that to a cellmate, and that the lyin’ prosecution withheld that information from the defense. The Alabama courts totally rejected that argument, saying that Beckworth didn’t plead that claim specifically enough and that he had to allege enough facts to establish that the defense didn’t know that information. Beckworth’s petition asks whether the defendant’s lawyer can be presumed to know about exculpatory information withheld by the prosecution. Something weird about that case – the Court didn’t relist it for the next Conference, like they usually do. It relisted it for the April 1 Conference instead. Very strange.

The Court also rescheduled two cases again: Arrigoni Enterprises, LLC v. Town of Durham, Connecticut, 15-631, and Kakarala v. Wells Fargo Bank, N.A., 15-712. Nobody cares.

I’m off to make America great again. The usual losers who do this thing will be back next week with more of this crap. Whose idea was it that I do this? They’re fired.

* In the interests of accuracy, we note that this post was entirely written by the same idiots as always. Thanks to Bryan U. Gividen for using his beautiful hands to compile the cases in this post, and Dmitry Slavin, who got so into character drafting it that his hair may never recover.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in Samsung Electronics Co. v. Apple. The authors of this post, however, are not affiliated with the firm.]


[page]15-684[/page] (relisted after the February 26, March 4 and March 18 Conferences)


[page]15-723[/page] (relisted after the February 26, March 4 and March 18 Conferences)


[page]15-537[/page] (relisted after the March 18 Conference)


[page]15-7451[/page] (relisted after the March 18 Conference)


Recommended Citation: John Elwood, The Greatest Relist Watch Ever, SCOTUSblog (Mar. 25, 2016, 10:36 AM),