John Elwood reviews Monday’s relisted cases.

Since everybody seems to be talking about endorsements these days, your Relist Watch correspondents would like to make one: preferably, on the back of one of these enormous checks they’re handing out to newly minted lawyers.  It’s fifteen-dollars-an-hour for the one-percent set!  Next fall, if you see the Justices silently scanning counsel’s table during a BigLaw argument, they’re probably just musing about how far down the table they have to go before they reach someone who earns less than them.

Monday’s order list brought good news for the petitioners in two of last week’s relists (with correspondingly bad news for the people on the other side of the “v.”).  The Court granted review in two-time relist (and thrice-rescheduled) Buck v. Stephens, 15-8049, a capital case asking whether the Fifth Circuit used an improper standard when it denied death-row inmate Duane Buck leave for review of his claim that his trial counsel was ineffective.   Buck’s trial counsel presented a “defense expert” who testified that Buck was more likely to be dangerous in the future because he is Black.  Because of a scheduling conflict during the trial’s guilt phase, the Court will not have to resolve whether it was ineffective assistance to call the same defense expert to testify that Buck’s melanin indicated he had probably killed a bunch of people.  The Court also granted cert. in five-time relisted capital case Moore v. Texas, 15-797.  There was a brief period on Monday when people thought the Court had granted on the oft-denied question whether excessive delay of an execution constitutes cruel and unusual punishment – known as a Lackey claim because of Justice Stevens’s dissent in a case that was the 1995 winner of the Schmuck v. United States Memorial Prize for the Worst Case Caption.  But the Court soon amended the order list to specify that it was limiting its grant to the first of Moore’s two questions presented: “[w]hether it violates the Eighth Amendment and the Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.”  Oh well.

Monday brought good news for the appellants in one-time relist Bethune-Hill v. Virginia State Board of Elections, 15-680. There the Court noted probable jurisdiction over a challenge to the Virginia General Assembly’s state districting plan, which created twelve majority-minority House of Delegates districts. The challengers’ jurisdictional statement claims that the three-judge district court for the Eastern District of Virginia erred in determining that race did not predominate as a redistricting criterion.  It is the first time the Supreme Court has confronted a case alleging racial gerrymandering in Virginia voting districts in nearly three weeks.

As for the residuum of last week’s relists, they’re all back for more action.  No, wait, the other thing — stasis.  Back for more of that.  Stormans, Inc. v. Wiesman, 15-862, on its fourth relist, challenges a Washington state regulation requiring pharmacies (though not individual pharmacists) to dispense lawfully prescribed drugs or devices to patients.  The challengers, pharmacists who oppose drugs they consider abortifacients for religious reasons, supported by a whopping fourteen amicus briefs, argue that the law’s lack of a religious exception to go with its numerous non-religious exceptions violates the Free Exercise Clause.

Also on its fourth relist is the petition for rehearing in Hawkins v. Community Bank of Raymore, 14-520. As you may recall, Hawkins was the first case affirmed by an equally divided Court after Justice Scalia’s death, and it asks (1) whether spousal guarantors are categorically excluded under the Equal Credit Opportunity Act from being “applicants” for credit, and (2) whether the Federal Reserve Board has authority by regulation to classify such guarantors as “applicants” to eliminate discrimination against married women. This is the part of the post where we’re obligated to mention the one token rescheduled case we habitually address, Friedrichs v. California Teachers Association, 14-915, another case affirmed by an equally divided Court. The Friedrichs petition for rehearing has now racked up a six pack of reschedulings.  If they keep this up until a successor to Justice Scalia is seated, Friedrichs’s counsel may have a Lackey claim of his own.

Rounding out the last of the old business is Elmore v. Holbrook, 15-7848, yet another a capital case that’s now on its second relist. It asks (1) whether, when trial counsel decided to present evidence of a single mitigating factor during the penalty phase of a criminal trial, it was deficient performance to fail to pursue alternative mitigating factors; and (2) whether, when a state court provides a reasoned decision denying relief, 18 U.S.C. § 2254(d) permits a federal court to ignore the reasoning of the state court and substitute its own reasons for denying relief.

As for this week’s new relists, we’ve got a trio that tests our tremendous tolerance for tedium (and the appeal of our ardent affection for alliteration).

The petitioners in McCaffree v. BancInsure, Inc., 15-982, were the directors and officers of a bank that, after being declared insolvent, was placed into FDIC receivership. After the FDIC told the directors and officers that that it would likely sue them for lending mismanagement, the directors and officers sued BancInsure — the company with the painfully unimaginative name that issued the bank’s directors-and-officers-liability insurance policy — seeking a declaration that the policy had not terminated with the bank’s failure.  During discovery, BancInsure stated that its policy would cover the directors and officers for any of the FDIC’s claims. And, after the district court granted summary judgment for the directors and officers, the Tenth Circuit vacated the judgment sua sponte, determining that there was no justiciable controversy and specifically finding that there was “no reason to believe [] BancInsure would deny coverage.”  Then, when the FDIC sued the directors and officers for $52 million for breach of their fiduciary duties, BancInsure filed its own suit seeking a declaration that its policy did not cover the FDIC’s claims. Both the FDIC and the directors and officers argued that BancInsured’s position was inconsistent with the position taken in the suit the Tenth Circuit had already mooted. Nevertheless, the district court granted BancInsure summary judgment, declining to apply the judicial-estoppel doctrine to preclude BancInsure from contesting coverage based on its earlier representations. The Tenth Circuit affirmed, holding that judicial estoppel was a doctrine applicable only to facts, not law. McCaffree’s cert. petition asks “[w]hether judicial estoppel applies to inconsistent positions with respect to issues of law.”  The Solicitor General’s Office has filed another of its briefs saying that the decision below is wrong but not cert.-worthy.  We’ll find out soon how this one fares.

Our next new relist is Jones v. United States, 15-8629. No, not that one.  Not that one either.  Or that.  Now you’re trying my patience.  Can we just agree it’s a pretty common case caption?  And indeed, this case has been up to the Court once before.  The petitioner in Jones was sentenced to about twenty-one years’ imprisonment under the residual clause of the U.S. Sentencing Guidelines’ career-offender provision.  During its last trip to One First Street, the Court granted cert., vacated the judgment, and remanded (“GVR”) in light of Johnson v. United States, which declared an identically worded residual clause in the Armed Career Criminal Act (“ACCA”) unconstitutionally vague and therefore void.  On remand, the Third Circuit determined that Johnson was inapplicable because Jones’s career-offender designation relied not on the residual clause, but on its “Application Note,” which specifically lists robbery as a predicate offense.  During Jones’s stay in the Third Circuit, the Court held in Welch v. United States that Johnson announced a new substantive constitutional rule that applies retroactively to ACCA cases on collateral review.  Jones poses three questions: (1) whether Johnson applies retroactively to collateral cases challenging the residual clause of the Guidelines’ career-offender provision; (2) whether Johnson applies to and invalidates the Guidelines’ residual clause; and (3) whether Jones’s robbery conviction qualifies as a “crime of violence” under the residual clause based on the clause’s Application Note, “even though [the Note] does not interpret and conflicts with the text of the guideline.”

Jones, unsurprisingly, is not one of a kind: It has a doppelganger, Beckles v. United States, 15-8544, which is nearly identical right down to the GVR and raises the same three questions (except that Beckles’s third question presented involves possession of a sawed-off shotgun). Both the Jones and Beckles petitions assert urgency because of the Antiterrorism and Effective Death Penalty Act’s one-year bar: “Prompt resolution of these issues is required because the one-year statute of limitations governing collateral Johnson claims will expire on June 26, 2016,” the petitioners say, adding that “a per curiam opinion on these issues without full briefing or oral argument may be appropriate.” The government opposes cert. because, among other things, the Sentencing Commission has adopted a Guidelines amendment, likely taking effect on August 1, 2016, that deletes the residual clause from the guideline in light of the Court’s concerns in Johnson: “The question of Johnson’s application to the current career offender guideline is therefore likely to be of no continuing importance.”   Both cases got something of a late boost when the Fourth Circuit deepened the split on Wednesday.

Finally, some odds and endsLongtime readers are doubtless familiar with Hernández v. Mesa, 15-118., a/k/a, the cross-border shooting case, a/k/a Jesus v. Jesus.  The petitioners are the parents of a Mexican teenager who was fatally shot by a U.S. Border Patrol agent from across the border; and their petition asks whether the Fourth Amendment applies to this situation and whether qualified immunity may be granted based on facts unknown to the officer at the time of the incident.  Hernández was relisted repeatedly last fall before the Court asked the Solicitor General to weigh in; the SG advised the Court to deny review, or at the most hold the case for Simmons v. Himmelreich, saying, “If the Court agrees with the government’s position in Simmons” – that the Federal Tort Claims Act’s judgment bar would apply in cases like Hernández – “that would provide an independent basis for dismissing the [] claim against  [the Border Patrol Agent].” As it turns out though, the Court didn’t agree with the government’s position in Simmons.  The Court has now released the hold on Hernández and put it back on for yesterday’s Conference.  Ordinarily, “released holds” are GVR bait that usually we don’t cover, but this case stands a chance of a real live plenary grant.

Finally, last week the Court released its hold on a group of cases it was holding for Foster v. Chatman, in which the Court determined that the Georgia Supreme Court erred in rejecting a Batson v. Kentucky challenge.  This week those cases have been relisted in earnest: Floyd v. Alabama, 15-7553; Flowers v. Mississippi, 14-10486; and Williams v. Louisiana, 14-9409.  We think these are likely GVR candidates, but perhaps someone is preparing separate opinions addressing procedural bars or cautioning the lower court against reading too much into the GVRs.  Time will tell.

We’ll let you return to less childish pursuits.

Thanks to Bryan U. Gividen and Conor McEvily for compiling and drafting this update.


(relisted after the May 12, May 19, May 26, and June 2 Conferences)



Issue(s): Whether a law prohibiting religiously motivated conduct violates the Free Exercise Clause when it exempts the same conduct when done for a host of secular reasons, has been enforced only against religious conduct, and has a history showing an intent to target religion.

(relisted after the May 12, May 19, May 26, and June 2 Conferences)



Issue(s): (1) Whether capital defense counsel may decide to present evidence of a single mitigating factor without having first conducted a thorough investigation of other potential mitigating factors and whether counsel's post-hoc concern about possible rebuttal evidence justifies the failure to investigate; and (2) whether, where a state court provides a reasoned decision denying relief, 18 U.S.C. Section 2254(d) permits a federal court to ignore the reasoning of the state court and substitute its own reasons for denying relief and whether the violent nature of the crime lessens the prejudice from unconstitutional shackling.

(relisted after the May 26 and June 2 Conferences)



Issue(s): Whether judicial estoppel applies to inconsistent positions with respect to issues of law.

(relisted after the June 2 Conference)



Issue(s): (1) Whether Johnson v. United States announced a new substantive rule of constitutional law that applies retroactively on collateral review to challenges of sentences imposed under the residual clause in United States Sentencing Guidelines career offender provision, U.S.S.G. § 4B1.2(a)(2); (2) whether Johnson's constitutional holding applies to U.S.S.G. § 4B1.2(a)(2)'s identical residual clause thus rendering that provision void; and (3) whether Petitioner's Pennsylvania conviction for robbery by force however slight is a “crime of violence” because it is listed in the commentary to U.S.S.G. § 4B1.2, even though it does not interpret and conflicts with the text of the guideline, after Johnson.

(relisted after the June 2 Conference)



Issue(s): (1) Whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a)(2) (defining “crime of violence”); (2) whether Johnson's constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review; and (3) whether mere possession of a sawed-off shotgun, an offense listed as a “crime of violence” only in commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson.

(relisted after the June 2 Conference)


Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Jun. 10, 2016, 12:32 PM),