Petitions to watch | Conference of December 8

In its conference of December 8, 2017, the court will consider petitions involving issues such as whether  the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency; whether a court’s exercise of in rem jurisdiction overcomes the jurisdictional bar of tribal sovereign immunity when the tribe has not waived immunity, and Congress has not unequivocally abrogated it; and whether the rule of American Pipe and Construction Co. v. Utah tolls statutes of limitations to permit a previously absent class member to bring a subsequent class action outside the applicable limitations period.

Benisek v. Lamone
17-333
Issues: (1) Whether the majority of the three-judge district court erred in holding that, to establish an actual, concrete injury in a First Amendment retaliation challenge to a partisan gerrymander, a plaintiff must prove that the gerrymander has dictated and will continue to dictate the outcome of every election held in the district under the gerrymandered map; (2) whether the majority erred in holding that the Mt. Healthy City Board of Education v. Doyle burden-shifting framework is inapplicable to First Amendment retaliation challenges to partisan gerrymanders; and (3) whether, regardless of the applicable legal standards, the majority erred in holding that the present record does not permit a finding that the 2011 gerrymander was a but-for cause of the Democratic victories in the district in 2012, 2014 or 2016.

C.D., E.F., and G.H. v. United States
16-9672
Issues: (1) Whether the sentence-modification limits in 18 U.S.C. § 3582 are jurisdictional; and (2) whether a substantial-assistance departure from a statutory mandatory minimum sentence that is higher than the defendant’s guideline range categorically renders that defendant ineligible for an 18 U.S.C. § 3582(c)(2) sentence reduction.

China Agritech, Inc. v. Resh
17-432
Issue: Whether the rule of American Pipe and Construction Co. v. Utah tolls statutes of limitations to permit a previously absent class member to bring a subsequent class action outside the applicable limitations period.

Hidalgo v. Arizona
17-251
Issues: (1) Whether Arizona’s capital sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment; and (2) whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.

Kasowski v. United States
16-9649
Issue: Whether Amendments 780, 782 and 788 to the Federal Sentencing Guidelines, promulgated in 2014, provide for resentencing – and a potentially much lower sentence – for certain federal prisoners without regard to their prior statutory mandatory minimums, as the U.S. Courts of Appeals for the 4th, 7th and 11th Circuits have held, or whether the prisoners are ineligible for resentencing and the mandatory minimums remain dispositive, as the U.S. Courts of Appeals for the 8th, 9th and 1oth Circuits have held.

Koons v. United States
17-5716
Issue: (1) Whether the U.S. Court of Appeals for the 8th Circuit erred in holding, contrary to the opinion of the U.S. Court of Appeals for the 4th Circuit, that defendants whose initial advisory guideline sentencing range was below a statutory mandatory minimum and who were subsequently sentenced below that minimum after the district court granted a government motion for reduction in sentence for substantial assistance pursuant to 18 U.S.C. § 3553(e) are not eligible for further reduction in sentence under 18 U.S.C. § 3582(c)(2) and retroactive sentencing guideline Amendment 782, which lowered the base offense levels assigned to most drug quantities; and (2) whether Freeman v. United States supports the holding that there is a substantive limitation on the term “based on” in 18 U.S.C. § 3582(c)(2) that prohibits defendants whose initial advisory guideline range was below a statutory mandatory minimum, and who were subsequently sentenced below that minimum after the district court granted a government motion for reduction in sentence for substantial assistance pursuant to 18 U.S.C. § 3553(e), from being eligible for further reductions in sentence due to retroactive sentencing guideline Amendment 782.

Lindsey v. Virginia
17-132
Issue: Whether the jury instruction—that the defendant’s actions were “evidence of [the requisite intent] . . . unless there is believable evidence to the contrary”—violated due process by shifting to the defendant the burden of producing “believable evidence” to show that he lacked the requisite intent.

Richter v. United States
16-9695
Issue: Whether Amendments 780, 782 and 788 to the Federal Sentencing Guidelines, promulgated in 2014, provide for resentencing – and a potentially much lower sentence – for certain federal prisoners without regard to their prior statutory mandatory minimums, as the U.S. Courts of Appeals for the 4th, 7th and 11th Circuits have held, or whether the prisoners are ineligible for resentencing and the mandatory minimums remain dispositive, as the U.S. Courts of Appeals for the 8th, 9th and 1oth Circuits have held.

Serrano v. United States
17-5165
Issue: Whether Richardson v. United States precludes a double jeopardy appeal based on evidentiary insufficiency when the jury returns a guilty verdict that is set aside for a new trial.

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).

Tharpe v. Sellers
17-6075
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).

Upper Skagit Indian Tribe v. Lundgren
17-387
Issue: Whether a court’s exercise of in rem jurisdiction overcomes the jurisdictional bar of tribal sovereign immunity when the tribe has not waived immunity, and Congress has not unequivocally abrogated it.