Petitions to watch | Conference of December 2

Issue: Whether the Uniformed Services Former Spouses’ Protection Act pre-empts a state court’s order directing a veteran to indemnify a former spouse for a reduction in the former spouse’s portion of the veteran’s military retirement pay, when that reduction results from the veteran’s post-divorce waiver of retirement pay in order to receive compensation for a service-connected disability. CVSG: 10/17/2016.

Issue: Whether the Arizona Supreme Court erred in circumventing Mansell v. Mansell under the guise that post-divorce waivers of retired pay are different from pre-divorce waivers.

Issues: (1) Whether a “conditional sale” that transfers title to the patented item while specifying post-sale restrictions on the article’s use or resale avoids application of the patent-exhaustion doctrine and therefore permits the enforcement of such post-sale restrictions through the patent law’s infringement remedy; and (2) whether, in light of this court’s holding in Kirtsaeng v. John Wiley & Sons, Inc. that the common-law doctrine barring restraints on alienation that is the basis of exhaustion doctrine “makes no geographical distinctions,” a sale of a patented article – authorized by the U.S. patentee – that takes place outside the United States exhausts the U.S. patent rights in that article. CVSG: 10/12/2016.

Issues: (1) Whether police officers who found late-night partiers inside a vacant home belonging to someone else had probable cause to arrest the partiers for trespassing under the Fourth Amendment, and in particular whether, when the owner of a vacant home informs police that he has not authorized entry, an officer assessing probable cause to arrest those inside for trespassing may discredit the suspects’ questionable claims of an innocent mental state; and (2) whether, even if there was no probable cause to arrest the apparent trespassers, the officers were entitled to qualified immunity because the law was not clearly established in this regard.

Issues: (1) Whether, when counsel fully concedes the client’s guilt to all charges over the client’s express objection, counsel’s performance amounts to a complete failure to subject the prosecution’s case to meaningful adversarial testing so that the United States v. Cronic prejudice standard applies (as every other state and federal court to consider the question has held), or whether the Strickland v. Washington prejudice standard applies (as the lower court in this case held); (2) whether the petitioner’s 14th Amendment rights under Boykin v. Alabama and Brookhart v. Janis were violated when his counsel entered the “functional equivalent of a guilty plea” to first-degree murder over his objections; (3) whether the petitioner’s Sixth Amendment right to self-representation under Faretta v. California was violated when the trial court did not explain that the petitioner had the right to represent himself when he tried unsuccessfully to fire his attorneys; and (4) whether, in a capital case, the defense counsel who concedes guilt after failing to investigate and present a readily available innocence defense against his client’s express wishes renders ineffective assistance under Strickland.

Issues: (1) Whether it is a violation of the Sixth Amendment guarantee of conflict-free counsel for a lawyer who previously prosecuted a defendant to represent that same defendant in a subsequent and related capital trial; and (2) whether a valid waiver of the right to conflict-free counsel can be found when the trial record contains no mention of a conflict or waiver, and the post-conviction record does not address, let alone satisfy, the constitutionally required elements of a valid waiver.

Issues: (1) Whether the U.S. Court of Appeals for the 10th Circuit’s panel opinion improperly denied qualified immunity to the officers by considering the validity of the use of force from the perspective of the suspects rather than from the perspective of a reasonable police officer on the scene; and (2) whether the panel opinion considered clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case.

Issue: Whether the Employee Retirement Income Security Act of 1974’s church-plan exemption applies so long as a pension plan is maintained by an otherwise-qualifying church-affiliated organization, or whether the exemption applies only if, in addition, a church initially established the plan.

Issue: Whether the ERISA’s church-plan exemption applies so long as a pension is maintained by an otherwise-qualifying church-affiliated organization, or whether the exemption applies only if, in addition, a church initially established the plan.

Issue: Whether the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters authorizes service of process by mail.

Issue: Whether ERISA’s church-plan exemption applies so long as a pension plan is maintained by an otherwise-qualifying church-affiliated organization, or whether the exemption applies only if, in addition, a church initially established the plan.

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit’s “provocation” rule should be barred as it conflicts with Graham v. Connor regarding the manner in which a claim of excessive force against a police officer should be determined in an action brought under 42 U.S.C. § 1983 for a violation of a plaintiff’s Fourth Amendment rights, and has been rejected by other courts of appeals; (2) whether, if the “provocation” rule is upheld, the qualified-immunity analysis must be tailored to require a reviewing court to determine whether every reasonable officer in the position of the defendant would have known his unlawful conduct would provoke a violent confrontation under the specific facts of the case, as this is the conduct for which the 9th Circuit imposes a constitutional liability despite a reasonable use of force under the Fourth Amendment; and (3) whether, in an action brought under Section 1983, an incident giving rise to a reasonable use of force is an intervening, superseding event which breaks the chain of causation from a prior, unlawful entry in violation of the Fourth Amendment.

Issue: Whether a state court violates a petitioner’s federal due process rights when it denies a new trial and DNA testing in an actual innocence case in which newly discovered evidence demonstrates that the only physical evidence linking the petitioner to the crime scene was based upon inaccurate forensic science and false expert testimony.

Issues: (1) Whether the first attempt to execute the petitioner was cruel and unusual under the Eighth and 14th Amendments to the United States Constitution and if so, whether the appropriate remedy is to bar any further execution attempt on the petitioner; (2) whether a second attempt to execute the petitioner will be a cruel and unusual punishment and a denial of due process in violation of the Eighth and 14th Amendments to the United States Constitution; and (3) whether a second attempt to execute the petitioner will violate double jeopardy protections under the Fifth and 14th Amendments to the United States Constitution.