John Elwood reviews Monday’s relists.

This week finally answered our questions about what was going on with Azar v. Garza, 17-654, the closely watched case involving an unaccompanied minor alien’s efforts to obtain an abortion against the wishes of the government. After 14 relists, the court issued a short per curiam opinion granting the government its requested vacatur of the court of appeals’ decision under United States v. Munsingwear Inc. But the court did not act on the government’s allegations that the minor’s counsel had engaged in misconduct. The court has been relisting the case since mid-January. Because it doesn’t take four-plus months to write a unanimous five-page opinion, the odds are good that a lot of memoranda were exchanged about this case. Although the opinion was unsigned, eagle-eyed court-watchers looked to distinctive language like this for clues about its authorship: “The Court takes allegations like those the Government makes here seriously, for ethical rules are necessary to the maintenance of a culture of civility and mutual trust within the legal profession.”

After seven relists, the court also denied review in Trevino v. Davis, 17-6883. But Carlos Trevino got the petitioner’s consolation prize: Justice Sonia Sotomayor released a 13-page dissent from the court’s denial of cert in the case, joined by Justice Ruth Bader Ginsburg.

On to the new business. The big news is that the court has relisted North Carolina v. Covington, 17-1364, an appeal from a three-judge district court decision invalidating that state’s districting plan as an unlawful racial gerrymander. The court also has relisted yet another qualified immunity case, this one involving a police officer who shot a 13-year-old boy who was carrying an airsoft pellet gun resembling an AK-47 assault rifle, Gelhaus v. Estate of Andy Lopez, 17-1354. In Gelhaus, a divided panel of the U.S. Court of Appeals for the 9th Circuit held that the officer was not entitled to qualified immunity based on the pleadings and remanded the case for trial. In dissent, Judge Clifford Wallace concluded that precedent at the time did not clearly establish that the use of deadly force under the circumstances was objectively unreasonable.

The court also has relisted Armstead v. United States, 17-7941, but there’s no reason to get too excited about that. The case raises the same issue as Hughes v. United States, namely, whether a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C) (under which the prosecution and defense agree to a specific sentence) is “based on” the defendant’s Federal Sentencing Guidelines range if the guidelines range was part of the framework the district court relied on. Armstead went to conference the week before Hughes was decided. Because the Supreme Court held in Hughes that a similarly situated defendant was entitled to relief, it looks like Tremell Armstead will be getting good news on Monday’s order list.

That’s all for this week. We only have three more opportunities for relists. We’ll be back next week with more as October Term 2017 draws to a close.

Thanks once again to Kent Piacenti for compiling these cases.

 

New Relists

Gelhaus v. Estate of Andy Lopez, 17-1354

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit improperly departed from the Supreme Court’s decision in White v. Pauly and numerous other cases when it denied qualified immunity notwithstanding the absence of clearly established law imposing liability under circumstances closely analogous to those confronting the petitioner in this case; and (2) whether the lower court improperly departed from the Supreme Court’s decisions in Graham v. Connor and Plumhoff v. Rickard when it denied qualified immunity based on the absence of a constitutional violation given that the undisputed facts established that the petitioner acted reasonably in responding to the threat of a suspect turning towards him while raising the barrel of what appeared to be an assault rifle.

(relisted after the May 31 conference)

 

North Carolina v. Covington, 17-1364

Issues: (1) Whether the district court had jurisdiction to consider challenges to the new districting plan the North Carolina General Assembly enacted after North Carolina’s previous state districting plan was invalidated as a racial gerrymander; (2) whether the district court erred by finding that four districts were racially gerrymandered even though the legislature did not consider race; (3) whether the district court erred by considering and substantiating a state-law challenge to five districts in which no plaintiff resides; (4) whether the district court erred by refusing to allow the legislature to enact its own remedial plan; and (5) whether the district court erred by imposing a map that improperly considered race.

(relisted after the May 31 conference)

 

Armstead v. United States, 17-7941

Issue: Whether a defendant who enters into a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement is generally eligible for a sentence reduction if there is a later, retroactive amendment to the relevant sentencing guidelines range.

(relisted after the May 31 conference)

 

Returning Relists

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, March 23, March 29, April 13, April 20, April 27, May 10, May 17, May 24 and May 31 conferences)

 

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, March 2, April 20, April 27, May 10, May 17, May 24 and May 31 conferences; rescheduled after the March 16 conference; rescheduled before the March 23, March 29 and April 13 conferences)

 

Gamble v. United States, 17-646

Issue: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24 and May 31 conferences)

 

Tyler v. United States, 17-5410

Issue: Whether the Supreme Court should overrule the dual sovereignty exception, which permits a successive federal prosecution after a defendant has been prosecuted for the same offense in state court.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24 and May 31 conferences)

 

Ochoa v. United States, 17-5503

Issues: (1) Whether the double jeopardy clause of the Fifth Amendment prohibits the federal government from charging, convicting and sentencing a person who has already been charged, convicted and sentenced in the court of a state for much of the same conduct; and (2) whether the seriousness of the offense conduct is an appropriate consideration for a district court when fashioning a sentence on revocation of supervised release.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24 and May 31 conferences)

 

Gordillo-Escandon v. United States, 17-7177

Issue: Whether, when a criminal defendant has already been convicted of an offense in a state criminal proceeding, the United States may thereafter prosecute the defendant for the same offense without violating the Fifth Amendment’s prohibition on double jeopardy.

(relisted after the April 13, April 20, April 27, May 10, May 17, May 24 and May 31 conferences)

 

Eaton v. United States, 17-6680

Issue(s): [Petitioner is a pro se prisoner and the government waived its right to respond, so we have been unable to obtain a copy of the petition.]

(relisted after the April 20, April 27, May 10, May 17, May 24 and May 31 conferences)

 

Bearcomesout v. United States, 17-6856

Issue: Whether the “separate sovereign” concept actually exists when Congress’s plenary power over Indian tribes and the general erosion of any real tribal sovereignty is amplified by the Northern Cheyenne Tribe’s constitution in such a way that the petitioner’s prosecutions in both tribal and federal court violate the double jeopardy clause of the Fifth Amendment to the U. S. Constitution.

(relisted after the April 20, April 27, May 10, May 17, May 24 and May 31 conferences)

 

Jordan v. Mississippi, 17-7153

Issue(s): (1) Whether incarcerating a prisoner over four decades awaiting execution, even after the state found at one point that a life without parole sentence was appropriate, violates the Eighth Amendment because it fails to serve any legitimate penological purpose; (2) Whether incarcerating a prisoner over four decades awaiting execution, with over half that time attributable to repeated constitutional violations in a succession of sentencing hearings, violates the Eighth Amendment because it fails to serve any legitimate penological purpose.

(relisted after the April 20, April 27, May 10, May 17, May 24 and May 31 conferences)

 

Quality Systems, Inc. v. City of Miami Fire Fighters and Police Officers’ Retirement Trust, 17-1056

Issue: Whether, or in what circumstances, a defendant must admit that non-forward-looking statements are false or misleading, in order to be protected by the Private Securities Litigation Reform Act safe-harbor provision for forward-looking statements.

(relisted after the April 20, April 27, May 10, May 17, May 24 and May 31 conferences)

 

Clark v. Louisiana, 16-9541

Issues: (1) Whether the Louisiana Supreme Court erred in upholding the petitioner’s death sentence when the jury made only one of the two statutory required jury findings beyond a reasonable doubt; (2) whether standards of decency have evolved to render the execution of a defendant prosecuted as a principal to first degree murder unconstitutional when, as the state conceded, jurors could not know who inflicted the blows that caused the victim’s death; (3) whether testimony establishing communications between a deputy monitoring the trial and an alternate juror in front of other jurors about the trial constitutes sufficient evidence to be presumptively prejudicial; and (4) whether the Louisiana Supreme Court’s rule, which requires an indigent defendant to accept his trial counsel’s decision to concede his guilt of second-degree murder over his express objections or represent himself, vitiates the voluntariness of the petitioner’s waiver of counsel.

(relisted after the May 17, May 24 and May 31 conferences)

 

Wood v. Oklahoma, 17-6891

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24 and May 31 conferences)

 

Jones v. Oklahoma, 17-6943

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24 and May 31 conferences)

Posted in Featured, Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Jun. 6, 2018, 1:17 PM), https://www.scotusblog.com/2018/06/relist-watch-127/