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Relist Watch

Habeas restrictions, copyright and the potential return of the “community caretaking” exception

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The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

After the Supreme Court’s spring cleaning last week, the justices were down to just two relists on their rolls. Then on this week’s order list, the court denied cert on one of the remaining two, 10-time relist Johnson v. Precythe, 20-287, involving a death row prisoner’s method-of-execution claim under the Eighth Amendment. Three justices joined two separate opinions dissenting from the denial of review.

That means this is a rebuilding week. The Supreme Court relisted four cases this week.

One of the cases that intrigues me most is one that could be very interesting — but it could also totally fizzle. Sanders v. United States, 20-6400, concerns the so-called “community caretaking” exception to the Fourth Amendment warrant requirement. Just a couple weeks ago, in Caniglia v. Strom, the Supreme Court took just four pages to reject the idea that a non-investigative interest in “community caretaking” permitted warrantless entry into a house to respond to a heated domestic dispute. But Chief Justice John Roberts (joined by Justice Stephen Breyer), Justice Samuel Alito, and Justice Brett Kavanaugh all wrote separate concurrences to either hold open the possibility, or to specifically endorse the idea, that the Fourth Amendment would permit warrantless entry of a home if there was a belief that medical assistance was needed or that people inside were in danger.

Sanders was one of the many petitions the court put on hold while it decided Caniglia, and in the ordinary course, it would have been quickly considered and then summarily disposed of the week after that case was decided. But the court relisted Sanders instead. Perhaps the court just needs a little more time to consider whether to grant, vacate and remand for further consideration of the case in light of Caniglia. After all, the court ordinarily prefers to let the lower federal courts consider their new decisions for a while before weighing in again on the same issue. But once in a great while, the court immediately takes a follow-on case to clear up an issue left unresolved by a just-decided opinion. For instance, just a week after deciding Bullcoming v. New Mexico, involving the admissibility of expert reports under the Sixth Amendment’s confrontation clause, the court granted review in Williams v. Illinois, which had been held for Bullcoming, and which presented a related expert confrontation issue.

So there is some chance that the justices who concurred in Caniglia — there were four, the same number of votes necessary for the court to grant review — may be interested in using Sanders to clarify the ability of police to conduct warrantless entries of houses because of concerns that people inside are in danger. In Sanders, police responding to a child’s report that his mother and petitioner Kennedy Lamont Sanders were “fighting really bad” suspected Sanders had caused visible scratches to his “visibly upset and unstable” girlfriend’s face, an excited child was gesturing through an upstairs window, and children were heard crying inside.

Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 20-915, involves two copyright questions. Unicolors creates and markets fabric designs; some designs — called “confined” designs — are reserved for specific customers and not made public until the customer has had time to use the confined design exclusively. Unicolors registered with the U.S. Copyright Office a group of 31 designs all at once in a so-called “single-unit filing” (apparently, to save filing fees). The registration claimed a first publication date of Jan. 15, 2011, but it turns out that only 22 designs were made available for public viewing; the rest were “confined” for specific customers.

The well known Swedish clothing line H&M introduced a sweater that Unicolors believed infringed their registered design. H&M called the design “Xue Xu,” but “Cosby” might have been more apt. Unicolors sued for infringement, and a jury found H&M liable for willful infringement. The U.S. Court of Appeals for the 9th Circuit reversed. The court concluded that Unicolors had knowingly included false information on the registration application by saying that all of the designs had been first published on Jan. 15, 2011, when actually, nine of them had been confined. While the court held it could not invalidate the copyright in the first instance, it remanded to allow the district court to ask the register of copyrights to advise the court whether it would have refused registration if it had known of the inaccurate information. If the register indicates it would have refused registration, the district court should enter judgment for H&M.

In its petition, Unicolors argues that a copyright can be invalidated not on a showing of mere knowing falsity, but only upon a higher showing that the registrant acted in bad faith or intended to defraud the copyright office. It argues that Congress adopted the higher standard to avoid copyrights from being invalidated based on immaterial registration errors. It also argues that the 9th Circuit applied the wrong publication standard, because the designs were first published together on Jan. 15, 2011, and Unicolors argues it was irrelevant under the standard then in force that the design was later “confined” for specific customers.

Dunn v. Reeves, 20-1084, is the latest state-on-top petition in a habeas case alleging that a federal habeas court failed to defer to a state court decision affirming a criminal conviction, as required by the Antiterrorism and Effective Death Penalty Act. While cases from the U.S. Courts of Appeals for the 6th and 9th Circuits get the most attention, this case comes from the 11th Circuit. The state of Alabama contends that court was insufficiently deferential in reviewing the case of death-row prisoner Matthew Reeves, who claimed his trial counsel was constitutionally ineffective for failing to hire an expert to evaluate him for intellectual disability. The 11th Circuit concluded that the state court of criminal appeals had unreasonably applied governing law by adopting a per se rule that a habeas petitioner could not establish ineffective-assistance claims unless he questioned trial counsel regarding his or her actions and reasoning. And because the state court had unreasonably applied governing law, the 11th Circuit concluded that “we are unconstrained by [AEDPA] deference and must undertake a de novo review of the record” to determine whether trial counsel’s performance was deficient. Supported by 13 other states as amici, Alabama argues that the 11th Circuit erred under AEDPA by too readily attributing error to the state court. Alabama explicitly asks for summary reversal.

Lastly, Hernandez v. Peery, 20-6199, involves a state prisoner’s effort to challenge his attempted-murder conviction on federal habeas review. The state-court trial judge prohibited the lawyer for petitioner Jacob Townley Hernandez from sharing a trial witness’ written declaration with Hernandez, although the lawyer was permitted to review the declaration and use it to cross-examine the witness when he testified. On appeal, the California Court of Appeals reversed Hernandez’s conviction, holding that the restriction had violated his Sixth Amendment right to the effective assistance of counsel, and concluded the error was structural and his conviction had to be set aside. But the California Supreme Court reversed, holding that any error was not structural and Hernandez had to prove prejudice to obtain relief. The lower courts then concluded he had not.

Hernandez sought to challenge that conclusion on federal habeas review, but he lost in district court, and the district court refused to give him the necessary “certificate of appealability,” reasoning that under AEDPA, the state court’s resolution of his structural-error claim could be set aside in federal habeas only if its ruling violated “clearly established federal law, as determined by the Supreme Court of the United States,” and it didn’t. The U.S. Court of Appeals for the 9th Circuit also denied his request for a certificate of appealability.

In his cert petition, Hernandez argues that he is entitled to a certificate of appealability because the Supreme Court has said those should issue when a petitioner shows that “reasonable jurists could debate … whether the petition should have been resolved in a different matter.” He notes that the California Court of Appeals and Supreme Court disagreed on whether any error in his case constituted structural error, and cites circuit precedent — cited favorably in an opinion dissenting from denial of cert written by Justice Sonia Sotomayor and joined by Justices Ruth Bader Ginsburg and Elena Kagan — that when state appellate judges are “divided on the merits of a constitutional question, issuance of a certificate of appealability should ordinarily be routine.”

That’s all for this week. Stay safe! 

New Relists

Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 20-915
Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in breaking with its own prior precedent and the findings of other circuits and the Copyright Office in holding that 17 U.S.C. § 411 requires referral to the Copyright Office where there is no indicia of fraud or material error as to the work at issue in the subject copyright registration; and (2) whether the 9th Circuit misapplied the publication standard by both applying Copyright Office requirements that were not in place at the time of registration and analyzing publication as of the date of registration as opposed to the later registration application date, and, if so, whether the evidence supported referral to the Copyright Office.
(relisted after the May 20 conference)

Dunn v. Reeves, 20-1084
Issue: Whether the U.S. Court of Appeals for the 11th Circuit violated 28 U.S.C. § 2254(d) by readily attributing error to the state court in violation of Woodford v. Visciotti.
(relisted after the May 20 conference)

Hernandez v. Peery, 20-6199
Issues: (1) Whether a Certificate of Appealability (“COA”) should routinely be granted where the state courts and state judges have divided on the merits of the constitutional question as held by the 5th and 7th Circuits, several District Courts and three justices of this Court, or should courts deny a COA despite the dispute among reasonable state jurists as held by the 9th Circuit and District Court below; (2) whether, as a threshold matter, Petitioner made a showing that reasonable jurists could debate whether his petition should have been resolved in a different manner where the California Supreme Court’s published opinion created a split with every state and lower federal court since Perry v. Leeke, which have held that a trial court order that violates the “defendant’s right to unrestricted access to his lawyer for advice on a variety of trial-related matters” is structural error, reversible per se; and (3) whether the 9th Circuit improperly looked beyond the threshold inquiry of whether a COA is merited and decided the merits without jurisdiction in contravention of this Court’s holding in Buck v. Davis, where different state court judges reached opposite conclusions on Petitioner’s constitutional claim and where all lower federal and state court authority disagrees with the California Supreme Court’s holding on this constitutional claim.
(relisted after the May 20 conference)

Sanders v. United States, 20-6400
Issue: Whether the community caretaker exception to the Fourth Amendment allows law enforcement to make warrantless entry into the home of Petitioner Kenneth Lamont Sanders, his girlfriend, and three children less than fifty seconds after their initial knock for a welfare check, where police suspected he had fought with and caused minor scratches to the face of his girlfriend, who assured officers that she and her 11, 7 and 1 year-old children were all fine, and police heard a child crying inside the home after expressly assenting to the girlfriend reentering the house to ask Sanders to come out.
(relisted after the May 20 conference)

Returning Relists

Chipotle Mexican Grill v. Scott, 20-257
Issue: Whether a district court may consider factors other than the presence of a single material question of law or fact common to a group of employees when assessing whether the employees are “similarly situated” for purposes of the collective-action provision of the Fair Labor Standards Act.
(relisted after the Dec. 4, Dec. 11, Jan. 8, Jan. 15 and Jan. 22 conferences) [NB: the parties have reached an agreement in principle to settle and the court now appears to be holding the case]

Lombardo v. City of St. Louis, Missouri, 20-391
Issue: Whether a reasonable jury could find that officers used excessive force when they put a handcuffed and shackled person face-down on the ground and pressed into his back until he suffocated.
(rescheduled before the Dec. 4, Dec. 11, Jan. 8, Jan 15, Jan. 22, Feb. 19, Feb. 26, March 5, March 19, March 26, April 1, April 16 and April 23 conferences; relisted after the April 30, May 13 and May 20 conferences)

Recommended Citation: John Elwood, Habeas restrictions, copyright and the potential return of the “community caretaking” exception, SCOTUSblog (May. 28, 2021, 9:39 AM),