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Relist Watch

John “The Relist Man” Elwood reviews Monday’s relists.

There are classic blunders that Relist Watch readers would never commit: Never get involved in a land war in Asia. Don’t punch a kangaroo in the face. But only slightly less well-known is this: Don’t go in against a relist when cert is on the line. That was certainly illustrated Friday, when the court immediately snapped up seven of the nine new relists on a range of scintillating topics from the Uniformed Services Former Spouses Protection Act to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.

Clearly, the justices are feeling more abstemious after gorging last week, because we have only one new relist this week: Honeycutt v. United States, 16-142. Petitioner Terry Honeycutt worked as an employee in his brother Tony’s hardware store, where they sold iodine water purification supplies used by hikers and Walter White. After hearing from the police that the “edgy looking folks” buying large quantities of the purifiers could use the iodine for cooking meth, the brothers continued to sell the product, including to police in a sting operation. The government prosecuted the brothers for conspiracy related to the distribution of iodine while knowing, or having reason to know, it might be used to produce meth. The government also sought civil forfeiture of all proceeds ($269,751.98) from the sale of the iodine. Tony pleaded guilty and agreed to pay $200,000 of the forfeiture. Terry chose to go to trial. After Terry was found guilty, the government sought to hold him jointly and severally liable for the remainder of the forfeiture amount as a member of the drug conspiracy. But “[H]oney[cutt] don’t care.” Terry argued that because his brother owned the store, Terry did not profit from the sale of the iodine and so it would be improper to hold him liable for the remainder of the forfeiture of the drug proceeds. The district court agreed. The U.S. Court of Appeals for the 6th Circuit reversed, following circuit precedent requiring joint and several liability, but one judge noted in concurrence that en banc review would be appropriate to reconsider that precedent. After the 6th Circuit denied rehearing, Honeycutt fights on, seeking certiorari to resolve what the government concedes is a “newly minted split” with the U.S. Court of Appeals for the District of Columbia Circuit on the question of joint and several liability for civil forfeiture.

That’s it for the new relists, and for this week’s Relist Watch. Only one more of these and then everyone gets to forget that this year ever happened. Well, until2016becomes the answer to every bar trivia question for the next century.


Returning Relists


Issue: Whether a state court violates a petitioner’s federal due process rights when it denies a new trial and DNA testing in an actual innocence case in which newly discovered evidence demonstrates that the only physical evidence linking the petitioner to the crime scene was based upon inaccurate forensic science and false expert testimony.

(relisted after the September 26, October 7, October 14, October 28, November 4, November 10, November 22 and December 2 conferences; as we said three weeks ago and the week before that andlast week too, it seems like we should be getting an opinion in this case soon)



Issues: (1) Whether police officers who found late-night partiers inside a vacant home belonging to someone else had probable cause to arrest the partiers for trespassing under the Fourth Amendment, and in particular whether, when the owner of a vacant home informs police that he has not authorized entry, an officer assessing probable cause to arrest those inside for trespassing may discredit the suspects’ questionable claims of an innocent mental state; and (2) whether, even if there was no probable cause to arrest the apparent trespassers, the officers were entitled to qualified immunity because the law was not clearly established in this regard.

(relisted after the October 28, November 4, November 10, November 22 and December 2 conferences)



Issues: (1) Whether it is a violation of the Sixth Amendment guarantee of conflict-free counsel for a lawyer who previously prosecuted a defendant to represent that same defendant in a subsequent and related capital trial; and (2) whether a valid waiver of the right to conflict-free counsel can be found when the trial record contains no mention of a conflict or waiver, and the post-conviction record does not address, let alone satisfy, the constitutionally required elements of a valid waiver.

(relisted after the October 28, November 4, November 10, November 22 and December 2 conferences)



Issues: (1) Whether the U.S. Court of Appeals for the 10th Circuit’s panel opinion improperly denied qualified immunity to the officers by considering the validity of the use of force from the perspective of the suspects rather than from the perspective of a reasonable police officer on the scene; and (2) whether the panel opinion considered clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case.

(relisted after the November 4, November 10, November 22 and December 2 conferences)



Issues: (1) Whether the first attempt to execute the petitioner was cruel and unusual under the Eighth and 14th Amendments to the United States Constitution and if so, whether the appropriate remedy is to bar any further execution attempt on the petitioner; (2) whether a second attempt to execute the petitioner will be a cruel and unusual punishment and a denial of due process in violation of the Eighth and 14th Amendments to the United States Constitution; and (3) whether a second attempt to execute the petitioner will violate double jeopardy protections under the Fifth and 14th Amendments to the United States Constitution.

(relisted after the November 4, November 10, November 22 and December 2 conferences)



Issues: (1) Whether, when counsel fully concedes the client’s guilt to all charges over the client’s express objection, counsel’s performance amounts to a complete failure to subject the prosecution’s case to meaningful adversarial testing so that the United States v. Cronic prejudice standard applies (as every other state and federal court to consider the question has held), or whether the Strickland v. Washington prejudice standard applies (as the lower court in this case held); (2) whether the petitioner’s 14th Amendment rights under Boykin v. Alabama and Brookhart v. Janis were violated when his counsel entered the “functional equivalent of a guilty plea” to first-degree murder over his objections; (3) whether the petitioner’s Sixth Amendment right to self-representation under Faretta v. California was violated when the trial court did not explain that the petitioner had the right to represent himself when he tried unsuccessfully to fire his attorneys; and (4) whether, in a capital case, the defense counsel who concedes guilt after failing to investigate and present a readily available innocence defense against his client’s express wishes renders ineffective assistance under Strickland.

(relisted after the November 22 and December 2 conferences)


New Relists


Issue: Whether 21 U.S.C. § 853(a)(1) mandates joint and several liability among co-conspirators for forfeiture of the reasonably foreseeable proceeds of a drug conspiracy.

(relisted after the December 2 conference)


Thanks to Bryan U. Gividen and Ralph Mayrell for compiling and drafting this update.

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Dec. 7, 2016, 2:20 PM),