John Elwood previews next Monday’s relists.

This week has seen monumental through-put and yet we end this edition of Relist Watch with only one new case to talk about. Or so we think: The justices are taking a week off between conferences, which means that the court probably won’t actually relist the cases until Monday at around noon. What follows is our best guess about what will happen.

The court moved the most freight on the Armed Career Criminal Act front: The Supremes selected their vehicle of choice from among the 19ish cases asking whether robbery (and, in particular, robbery under Florida law) constitutes a violent felony for purposes of the ACCA’s sentencing enhancements. Stokeling v. United States17-5554, won the lottery, and the many other relisted cases that remain on the docket (and many more in the pipeline behind them) will presumably be held pending its resolution. Not all the relisted ACCA robbery cases survived, however. The court denied certiorari in all the relisted cases that involved robbery statutes other than Florida’s, suggesting that the justices think those states’ robbery statutes are too dissimilar for those petitioners to benefit from a ruling in favor of Denard Stokeling. Thus, the court denied cert in Harris v. United States16-8616 (involving Colorado’s robbery statute), Matthews v. United States17-5876 (Michigan’s), and Weston v. United States17-5965 (South Carolina’s). The court also denied cert in an ACCA case involving the Michigan and Wisconsin burglary statutes, Lamb v. United States17-5152.

The court also summarily reversed in Kisela v. Hughes, 17-467, a state-on-top qualified immunity case, holding that Tucson police did not violate clearly established law when they shot a woman who was standing in her yard holding a kitchen knife and who had been reported to be acting erratically.

Lastly, a day after the regular order list, Justices Anthony Kennedy and Clarence Thomas issued a four-sentence statement respecting the petition for certiorari in Deutsche Bank Trust Company Americas v. Robert R. McCormick Foundation, 16-317. The two justices advised the parties that “consideration of the petition for certiorari will be deferred for an additional period of time” to “allow the Court of Appeals or the District Court to consider whether to recall the mandate, entertain a Federal Rule of Civil Procedure 60(b) motion to vacate the earlier judgment, or provide any other available relief in light of this Court’s decision in Merit Management Group, LP v. FTI Consulting, Inc.,” which involved the same issue. So why didn’t the Supreme Court just follow its usual practice of granting the petition, vacating the judgment below and remanding for further reconsideration in light of that intervening decision? Kennedy and Thomas noted that “[t]he Court of Appeals or the District Court could decide whether relief from judgment is appropriate given the possibility that there might not be a quorum in this Court,” suggesting that seven of the court’s nine members are recused and that the court thus cannot muster a quorum of six. If you’re wondering why, take a look at the corporate disclosure statement of the brief in opposition, which spans 37 pages and includes most common mutual-fund families.

That leads us to this week’s sole new relist: Trevino v. Davis, 17-6883, a Texas capital case that is on its second trip to the Supreme Court. Carlos Trevino’s first case involved whether Texas’ procedural framework provided a meaningful opportunity to raise on direct appeal his argument that counsel at his murder trial was constitutionally ineffective; if that issue sounds familiar, it’s because last week’s new relist, Brown v. Brown17-887, seeks to invoke the Supreme Court’s decision in Trevino’s case. In his current petition, Trevino argues that the U.S. Court of Appeals for the 5th Circuit erred in concluding that he had failed to show that he was prejudiced by his lawyer’s conduct because Trevino’s newly found mitigating evidence was “double-edged.” The 5th Circuit found that the evidence tended to show Trevino’s future dangerousness and thus did not outweigh the aggravating evidence against him.

That, mercifully, is all for this week — and next week. We’ll be back in mid-April to tell you all about the relists that come out of the Supreme Court’s next conference … which will take place on Friday the 13th.

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

 

New Relist

Trevino v. Davis, 17-6883

Issue: Whether — when the U.S. Court of Appeals for the 5th Circuit found that the new mitigating evidence discovered on federal habeas review was “double-edged” and could not outweigh the substantial aggravating evidence, and when it misapplied the standard for evaluating prejudice in a Wiggins claim — it denied the petitioner due process.

 

Returning Relists

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, October 27, November 3, November 9, November 21, December 1, December 8, January 5, January 12, January 19, February 16, February 23, March 2, March 16 and March 23 conferences; likely relisted after the March 29 conference)

 

Azar v. Garza, 17-654

Issue: Whether, pursuant to United States v. Munsingwear, Inc., the Supreme Court should vacate the U.S. Court of Appeals for the District of Columbia Circuit’s judgment and instruct that court to remand the case to the district court with directions to dismiss all claims for prospective relief regarding pregnant unaccompanied minors.

(relisted after the January 12, January 19, February 16, February 23, March 2, March 16 and March 23 conferences; likely relisted after the March 29 conference)

 

Allen v. United States, 17-5864

Issues: (1) Whether the petitioner’s mandatory guidelines sentence, which was enhanced under the residual clause of U.S.S.G. § 4B1.2, is unconstitutional in light of the Supreme Court’s decision in Johnson v. United States, and whether a conviction for burglary of a dwelling under Florida law qualifies as a “crime of violence” under U.S.S.G. § 4B1.2’s elements clause; and (2) whether published orders issued by a circuit court of appeals under 28 U.S.C. § 2244(b)(3), and in the context of applications to file second or successive 28 U.S.C. § 2255 motions, constitute binding precedent outside of that context.

(relisted after the February 16, February 23, March 2, March 16 and March 23 conferences; likely relisted after the March 29 conference)

 

James v. United States, 17-6769

Issues: Whether, under the Supreme Court’s opinions in United States v. BookerJohnson v. United States and Beckles v. United States, which depended heavily upon the distinction between advisory and mandatory sentencing schemes, the residual clause of the mandatory sentencing guidelines is unconstitutionally vague.

(relisted after the February 16, February 23, March 2, March 16 and March 23 conferences; likely relisted after the March 29 conference)

 

Sause v. Bauer, 17-742

Issue: Whether the U.S. Court of Appeals for the 10th Circuit’s holding that law-enforcement officers who stopped the petitioner from praying silently in her own home were entitled to qualified immunity because there was no prior case law involving similar facts conflicts with Hope v. Pelzer, which “expressly rejected a requirement that previous cases be ‘fundamentally similar’” or involve “‘materially similar’” facts.

(relisted after the February 23, March 2, March 16 and March 23 conferences; likely relisted after the March 29 conference)

 

Gates v. United States, 17-6262

Issues: Whether, under the Supreme Court’s opinions in United States v. BookerJohnson v. United States and Beckles v. United States, which depended heavily upon the distinction between advisory and mandatory sentencing schemes, the residual clause of the mandatory sentencing guidelines is unconstitutionally vague.

(relisted after the February 23, March 2, March 16 and March 23 conferences; likely relisted after the March 29 conference)

 

Evans v. Mississippi, 17-7245

Issue: Whether the death penalty in and of itself violates the Eighth Amendment in light of contemporary standards of decency and the geographic arbitrariness of its imposition.

(relisted after the February 23 and March 2 conferences; rescheduled after the March 16 conference; rescheduled before the March 29 and April 13 conferences)

 

Robinson v. United States, 17-6877

Issue: Whether, following Johnson v. United States, in which the Supreme Court invalidated the Armed Career Criminal Act’s residual clause as unconstitutionally vague, identical language in the residual clause of the previously-mandatory sentencing guidelines is likewise unconstitutional.

(relisted after the March 2, March 16 and March 23 conferences; likely relisted after the March 29 conference)

 

Brown v. Brown17-887

Issue: Whether the Indiana procedure that allows trial-counsel Strickland v. Washington claims on direct appeal in one of two ways–defendants may assert the claims in their brief on direct appeal if they choose to make no further record in support of their claims or, if they wish to develop a record, defendants may suspend their direct appeal while they develop the factual record in the trial court–satisfies the MartinezTrevino doctrine, which allows a federal habeas court to hear a substantial claim of ineffective assistance of trial counsel if a state denies a meaningful opportunity to raise the claim on direct appeal.

(relisted after the March 23 conference; likely to be relisted after the March 29 conference)

 

Brown v. United States, 17-6344

Issues: (1) Whether a certificate of appealability should be issued to determine whether a predicate conviction that requires merely “physical force that overcomes reasonable resistance” satisfies the force clause of the Armed Career Criminals Act; and (2) whether a certificate of appealability should be issued to determine whether a Missouri burglary conviction from 1969 is a violent felony because, like the contemporary Missouri burglary statute, it is a fatally overbroad and indivisible statute.

(relisted after the March 16 conference; likely to be relisted after the March 29 conference)

Posted in Featured, Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Apr. 6, 2018, 4:21 PM), https://www.scotusblog.com/2018/04/relist-watch-121/