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Relist Watch

John Elwood reviews Monday’s relists.

We can all agree that it’s a scary time of year. And from the looks of things, the horrors are just beginning. But at least my upcoming court dates will soon be in the past, and my strained efforts at humor will stop being so abbreviated. (Such bad food! And such small portions!)

Our sole new relist this week is a capital case out of Alabama in which the condemned prisoner contends his trial was fundamentally unfair. Oh, sorry – we already did that story last week.

Wait, do you mean to tell me there’s another one? Floyd v. Alabama, 16-9304, concerns petitioner Christopher Floyd’s claims that the prosecution unlawfully excluded both African-Americans and women from the jury during his 2005 trial for the cold-case murder of a store clerk 13 years earlier. Floyd was convicted by an all-white jury after the prosecutor – who identified African-American venire members in his notes with a “B” – struck 10 of 11 black potential jurors, and also used 12 of his 18 strikes to remove women. During the case’s first trip to the Supreme Court in October Term 2015, the court vacated and remanded for further consideration in light of its then-recent decision in Foster v. Chatman, which granted another death-row prisoner relief based on a not-dissimilar claim involving a prosecutor’s not-dissimilar notations. On remand in Floyd, the Alabama Supreme Court reinstated the conviction and sentence, suggesting that inconsistencies in testimony resulted from failure of memory rather than wrongdoing, and argued that Floyd had failed to timely raise his Batson v. Kentucky and J.E.B. v. Alabama claims at trial. Although someone at the Supreme Court is clearly taking a close look at this case — the court has already called for (and received) the record — the issue strikes me as a bit too fact-intensive and narrow for a plenary grant. But I’ve been wrong before.

And that brings us to the end of this installment. We’ll be back next week – which will be cut a day short by Veterans Day – with more half-cooked speculation.

Thanks to Kent Piacenti and Kevin Brooks for compiling the cases in this post.


New Relists

Floyd v. Alabama, 16-9304

Issue: Whether, when the Alabama Supreme Court failed to apply the reasoning and analysis mandated by the Supreme Court’s decision in Foster v. Chatman, the U.S. Supreme Court should intervene to enforce its precedents following Batson v. Kentucky, which prohibit discrimination in jury selection on the basis of race or gender.

(Relisted after the October 27 conference)


Returning Relists

National Institute of Family and Life Advocates v. Becerra, 16-1140

Issue: Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

(relisted after the October 6, October 13 and October 27 conferences)


A Woman’s Friend Pregnancy Resource Clinic v. Becerra, 16-1146

Issues: (1) Whether a determination that a law is content-based leaves room for a court to apply something less than strict scrutiny, specifically (a) whether the court’s decision in Reed v. Town of Gilbert establishes a bright-line rule for content-based speech, (b) whether content-based, compelled speech is subject to lower scrutiny if it is deemed to be an abortion-related disclosure, and (c) whether the First Amendment permits lower scrutiny for content-based restrictions on professional speech or professional facilities; and (2) whether a law requiring religious nonprofits to post a government message antithetical to their beliefs triggers heightened or minimal scrutiny under the free exercise clause.

(relisted after the October 6, October 13 and October 27 conferences)


Livingwell Medical Clinic, Inc. v. Becerra, 16-1153

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred, in conflict with the U.S. Courts of Appeals for the 2nd and 4th Circuits, in holding that the petitioners can be compelled to advertise free or low-cost abortion services to all clients; and (2) whether the 9th Circuit erred in not applying strict scrutiny to a law that compels speech and is content-based, in conflict with the decisional law of the Supreme Court.

(relisted after the October 6, October 13 and October 27 conferences)


Minnesota Voters Alliance v. Mansky, 16-1435

Issue: Whether Minnesota statute Section 211B.11, which broadly bans all political apparel at the polling place, is facially overbroad under the First Amendment.

(relisted after the October 6, October 13 and October 27 conferences)


Kernan v. Cuero, 16-1468

Issue: Whether the U.S. Court of Appeals for the 9th Circuit exceeded the proper scope of federal habeas review by setting aside a state criminal sentence based on a putative federal due-process right to specific performance of a plea agreement that was superseded and withdrawn, in accordance with state law, before the entry of judgment.

(relisted after the October 6, October 13 and October 27 conferences)


Sykes v. United States, 16-9604

Issue: Whether Missouri’s second-degree burglary statute is divisible into two offenses with separate elements for the purpose of analyzing whether a conviction under that statute qualifies as a conviction for a “violent felony” as defined in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

(relisted after the October 6, October 13 and October 27 conferences)


Dunn v. Madison, 17-193

Issues: (1) Whether the Supreme Court’s precedents clearly establish that a prisoner is incompetent to be executed for a murder because he does not remember or acknowledge committing it; and (2) whether the state court was objectively unreasonably in concluding that Madison was competent to be executed.

(relisted after the October 6, October 13 and October 27 conferences)


Tharpe v. Sellers17-6075

Issues: (1) Whether reasonable jurists could disagree with the district court’s rejection of the petitioner’s Rule 60(b) motion, and, accordingly, whether the U.S. Court of Appeals for the 11th Circuit erred in denying a certificate of appealability; (2) whether, given the petitioner’s credible evidence that a juror voted for the death penalty because the petitioner is a “nigger,” the lower court erred in ruling that he failed to make “a substantial showing of the of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2); and (3) whether Pena-Rodriguez v. Colorado created a new constitutional claim, and, if not, whether the lower courts erred in denying the petitioner’s motion for relief from judgment under Rule 60(b)(6).

(relisted after the October 6, October 13 and October 27 conferences)


Reeves v. Alabama, 16-9282 

Whether, when trial counsel does not testify about his or her own strategic decisions as part of a claim under Strickland v. Washington, a defendant may establish ineffective assistance of counsel using other evidence, as most circuit and state courts hold; or whether the presumption of sound strategy is categorically irrebuttable in the absence of trial counsel’s testimony, as the Alabama Court of Criminal Appeals held here.

(relisted after the October 13 and October 27 conferences)

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Nov. 2, 2017, 11:28 AM),