RELIST WATCH

Borderlines, benchslaps, and burdens of proof

By John Elwood

on Nov 12, 2025

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.

The Supreme Court had some good news and some bad news for the petitioners in relisted cases this week. It was good news for the state of Mississippi in Watson v. Republican National Committee; as we predicted, the court agreed to revisit the decision of the U.S. Court of Appeals for the 5th Circuit holding that federal statutes establishing federal “election day“ preempt a state law permitting election officials to count absentee ballots cast before election day that arrive a few days after it. But it was bad news for Quentin Veneno, who in Veneno v. United States challenged (among other things) Congress’ constitutional authority to criminalize conduct between members of the same Indian tribe that occurs on tribal land. Justice Neil Gorsuch, joined by Justice Clarence Thomas, filed an opinion dissenting from the denial of certiorari, questioning precedent holding that Congress has plenary (that is, complete and absolute) authority over the internal affairs of Indian tribes. They argued that no such power resides within the language of the Indian commerce clause, which, they noted, involves the very same language as the commerce clause, which has been construed far more narrowly.

There are 149 cases under consideration for this week’s conference on Friday. Four of them have been relisted for the first time.

Borderlines

The Immigration and Nationality Act provides that an alien who “arrives in the United States” may apply for asylum and must be inspected by an immigration officer. In Noem v. Al Otro Lado, the Trump administration asks whether a noncitizen who is stopped on the Mexican side of the border has “arrive[d] in the United States” for purposes of asylum eligibility and inspection. A divided panel of the U.S. Court of Appeals for the 9th Circuit largely affirmed district-court relief aimed at unwinding the effects of the now-rescinded “metering” policy that sought to “meter” the flow of travelers by stopping aliens lacking valid travel documents before they entered the United States. The panel majority read language applying to those who are “physically present … or arrive[d] in the United States” to cover people who reach a port of entry and encounter U.S. officers, even if turned back at the border. Judge Ryan Nelson dissented, arguing that the majority had taken an unnatural reading of the statute. He also appended a lengthy table of examples representing the ordinary meaning of the term “arrives in.” A remarkable 12 judges dissented from the court’s denial of rehearing en banc.

The solicitor general argues that ordinary usage reserves “arrives in” for persons who have physically crossed the border into the United States. Respondents counter that the majority’s reading is sensible, that Congress has expressly covered those at a land border, and that the 9th Circuit’s reading avoids the “perverse incentive” to evade ports entirely. This seems like a likely grant.

Benchslaps

In Clark v. Sweeney, Maryland officials seek cert to undo the grant of habeas relief by a divided panel of the U.S. Court of Appeals for the 4th Circuit to respondent Jeremiah Sweeney, convicted of second-degree murder and related charges stemming from a 2010 shooting. In an unpublished opinion, the panel majority found a long list of errors that trial counsel had not raised must less exhausted that, in its view, “t[ook] this case beyond . . . traditional habeas review” and warranted conditional release pending retrial. Due to the “combination of extraordinary failures from juror to judge to attorney,” the majority invoked a number of decades-old cases predating adoption of the Antiterrorism and Effective Death Penalty Act (which narrowed the availability of habeas relief) and which recognized “special circumstances” that warrant “prompt federal intervention.” The majority concluded that those “special circumstances . . . require[] prompt federal intervention” even though counsel had not exhausted those claims (which it is typically required to do before seeking habeas review), and even though Sweeney’s appellate counsel had not invoked those “special circumstances” cases. In dissent, Judge Marvin Quattlebaum argued that the majority erred by relying on a ground not raised or argued by the parties. He also contended that the majority improperly reversed the lower courts’ denial of relief without giving meaningful deference to the state decision‐making and that the procedural posture of the case did not justify the federal court’s intervention.

Maryland’s petition blasts the 4th Circuit opinion as a threefold violation of AEDPA’s guardrails: first, for giving relief on claims Sweeney didn’t tee up; second, for invoking a “special circumstances” exception to exhaustion that Maryland argues AEDPA superseded; and third, by granting relief even though it was not required by clearly established Supreme Court case law. The opposition, filed by counsel Hogan Lovells, reframes the merits around a single question – whether AEDPA really overruled the hoary principle that federal courts may recognize “special circumstances requiring immediate action” from a line of cases dating back to Ex parte Royall. They argue that AEDPA still greenlights excusing exhaustion where state processes would be “ineffective to protect the rights of the applicant.” Maryland’s reply brief doubles down on AEDPA’s “rigorously enforced total exhaustion rule” and calls the case “an ideal candidate for summary reversal,” noting that no other court of appeals had invoked “special circumstances” since enactment of AEDPA.

The justices are undoubtedly giving this case a close look. They usually examine with care grants of habeas relief that states claim to be abusive under AEDPA. And Thomas specifically has criticized the 4th Circuit for using unpublished opinions for important decisions to evade review.

Burdens of proof

In Bartunek v. United States, self-represented federal prisoner Gregory Bartunek – serving 17 years for child porn distribution and possession offenses – urges the court to finally confront whether due process and jury-trial rights prohibit judges from increasing sentences based on facts they find by a preponderance of the evidence, specifically based on uncharged, dismissed, or acquitted conduct that the jury never found to have been proven. A few years back, several members of the court expressed unease about the constitutionality of sentencing defendants based on conduct juries acquitted them of, but decided to not to grant review at that time because the U.S. Sentencing Commission was slated to take up the issue. The Commission did address the issue prospectively for federal defendants under some circumstances, but its Sentencing Guidelines amendments have not been made retroactive, meaning that most federal defendants (and all state defendants) will not benefit from their modest steps. It’s conceivable that one of the justices may use the case to comment on that state of affairs.

Lastly, Indiana, ex rel. Howell v. Circuit Court of Indiana, Wells County involves a type of case that we have previously called a “lost cause,” because the party who won below has not been required to file a response to the cert petition. As a practical matter, the Supreme Court always requires such a brief to be filed before granting review, so its absence is mostly viewed as the kiss of death. If the past is any guide, this may mean that the court is considering barring petitioner Danny Howell from submitting future filings on an in forma pauperis basis (“paupers” are excused from paying filing fees) – a common sanction for persons who have a history of submitting a large number of pleadings that the court has held to be meritless. Howell has a significant history of submitting IFP filings that have never won him relief.

Finally, I feel compelled to note that we still have eight petitions pending from the end-of-summer long conference. Surely, those cases will at least occasion some dissents if they’ve been pending this long.

New Relists

Noem v. Al Otro Lado, 25-5

Issue: Whether an alien who is stopped on the Mexican side of the U.S.-Mexico border “arrives in the United States” within the meaning of the Immigration and Nationality Act, 8 U.S.C. 1101 et seq., which provides that an alien who “arrives in the United States” may apply for asylum and must be inspected by an immigration officer.

(Relisted after the Nov. 7 conference.)

Clark v. Sweeney, 25-52

Issue: (1) Whether the Fourth Circuit violated the party-presentation principle by granting federal habeas relief based on putative errors in the state trial proceedings that the respondent never alleged; (2) whether the U.S. Court of Appeals for the 4th Circuit improperly circumvented the Antiterrorism and Effective Death Penalty Act’s exhaustion requirement by applying a “special circumstances” exception derived from Frisbie v. Collins and Granberry v. Greer; and (3) whether the Fourth Circuit flouted the AEDPA merits standard by granting federal habeas relief in the absence of clearly established federal law as determined by the holdings of the Supreme Court.

(Relisted after the Nov. 7 conference.)

Indiana, ex rel. Howell v. Circuit Court of Indiana, Wells County, 25-5557

Issues: (1) Whether petitioner made a sufficient factual showing to establish “good cause” for discovering actual judicial bias by showing that the trial judge had made specific allegations as to how his case was affected; (2) whether the Indiana Supreme Court erred in holding that every Indiana Post-Conviction Remedies Rule 1, Section 12 motion constitutes a prohibited “second or successive” petitione as a matter of law; (3) whether a prosecutor’s failure to correct testimony of a witness that he knew to be false was used to obtain a conviction, even though other testimony regarding the witness’s credibility was introduced.

(Relisted after the Nov. 7 conference.)

Bartunek v. United States, 25-5720

Issue: Whether the rights of due process and to a jury trial are violated when courts impose sentences that, but for a judge-found fact, including, but not limited to, uncharged, dismissed, or acquitted conduct, would be higher then they would otherwise impose.

(Relisted after the Nov. 7 conference.)

Returning Relists

Hutson v. United States, 24-1022

Issue: Whether a state or local official who moves to terminate prospective relief under 18 U.S.C. § 3626(b)(1)(A) bears any affirmative burden beyond demonstrating that the requisite amount of time has passed.