Petitions to watch | Conference of March 23

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.

Issues: (1) Whether a conviction for robbery under Florida law qualifies as a “violent felony” within the Armed Career Criminal Act’s elements clause simply because it requires overcoming victim resistance, as the U.S. Court of Appeals for the 11th Circuit has held, or whether such a conviction fails to qualify as an ACCA “violent felony” because Florida caselaw confirms that overcoming victim resistance does not invariably requires the use of “violent force” as the U.S. Court of Appeals for the 9th Circuit has held; and (2) whether a conviction for any state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” within the ACCA’s elements clause if the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.

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.

Issue: Whether a state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), if the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.

Issues: (1) Whether the U.S. Court of Appeals for the 2nd Circuit correctly held – contrary to several other courts of appeals – that the presumption against federal pre-emption of state law does not apply in the bankruptcy context; (2) whether the 2nd Circuit correctly held – following the U.S. Courts of Appeals for the 3rd, 6th, and 8th Circuits, but contrary to the U.S. Courts of Appeals for the 7th and 11th Circuits – that a fraudulent transfer is exempt from avoidance under 11 U.S.C. § 546(e) when a financial institution acts as a mere conduit for fraudulently transferred property, or whether instead the safe harbor applies only when the financial institution has its own beneficial interest in the transferred property; and (3) whether the 2nd Circuit correctly held – contrary to the Supreme Court’s decisions holding that it is for Congress, and not the courts, to balance the multiple purposes of the Bankruptcy Code, and that courts must therefore rely first and foremost on the text of the code – that 11 U.S.C. § 546(e) is properly construed to extend far beyond its text and impliedly pre-empt fraudulent-transfer actions brought by private parties (as opposed to the “trustee” expressly mentioned in the statute).

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.

Issue: Whether a conviction for armed robbery qualifies as a “violent felony” under the Armed Career Criminal Act’s elements clause where, as in Florida and several other states, the offense may be committed by using a de minimis amount of force.

Issue: Whether, under the Supreme Court’s opinions in United States v. Booker, Johnson 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.

Issues: (1) Whether a conviction for Florida robbery qualifies as a “violent felony” within the Armed Career Criminal Act’s elements clause simply because it requires overcoming victim resistance, as the U.S. Court of Appeals for the 11th Circuit has held, or whether such a conviction fails to qualify as an ACCA “violent felony” because Florida caselaw confirms that overcoming victim resistance does not invariably require the use of “violent force,” as the U.S. Court of Appeals for the 9th Circuit has held; and (2) whether a conviction for any state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” within the ACCA’s elements clause, if the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.

Issues: (1) Whether “violent force” is an element of robbery, as defined at common law, such that it constitutes a “violent felony” under the elements clause of the Armed Career Criminal Act, as the U.S. Courts of Appeals for the 10th and 11th Circuits have held, or whether the force necessary to commit common law robbery is too slight to qualify as violent force, as the U.S. Courts of Appeals for the 4th and 8th Circuits have held; and (2) whether, when a federal court applies Moncrieffe v. Holder, which states that whether an offense qualifies as a “violent felony” depends on whether “the minimum conduct criminalized by the state statute” measures up to the federal definition of a “violent felony,” it should consult common law authorities to determine the minimum conduct connoted by the common law term of art, as the U.S. Court of Appeals for the 5th Circuit has done, or whether federal courts should assume that “force” and “violence” carry the ordinary meanings given by general-usage dictionaries, as the U.S. Court of Appeals for the 10th Circuit did in this case.

Issues: (1) Whether the U.S. Court of Appeals for the 11th Circuit erroneously denied petitioner’s certificate of appealability on the issue of whether he was sentenced above the statutory maximum for his offense of conviction; and (2) whether reasonable jurists can, at a minimum, debate the issue of whether a Florida conviction for robbery qualifies as a “violent felony” under the elements clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e).

Issue: Whether, under the Supreme Court’s opinions in United States v. Booker, Johnson 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.

Issues: (1) Whether reasonable jurists can debate whether Florida armed robbery and attempted armed robbery qualify as “violent felon[ies]” under the Armed Career Criminal Act after Johnson v. United States; and (2) whether reasonable jurists can debate whether Florida attempted first-degree murder qualifies as a violent felony under the Armed Career Criminal Act after Johnson v. United States.

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in holding that Andrew Kisela, the police officer who found Amy Hughes walking down her driveway toward another woman while carrying a large kitchen knife, acted unreasonably when he shot and wounded Hughes after she ignored commands to drop the knife given Kisela’s well-founded belief that potentially lethal force was necessary to protect the other woman from an attack that could have serious or deadly consequences; and (2) whether the lower court erred—to the point of warranting summary reversal—in refusing qualified immunity in the absence of any precedent finding a Fourth Amendment violation based on similar facts and, indeed, ignoring a case with remarkably similar facts that found no constitutional violation.

Issues: (1) Whether the categorical approach, as detailed in Mathis v. United States, requires courts to determine whether an alternatively phrased statute presents alternative means or alternative elements; and whether, pursuant to this analysis, Michigan’s unarmed robbery statute is indivisible and overbroad because it does not require violent force, and therefore does not qualify as a predicate prior conviction under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1); and (2) whether, pursuant to Mathis, Wisconsin’s burglary statute is broader than generic burglary and therefore does not qualify as a predicate prior conviction under the ACCA.

Issue: Whether the Michigan unarmed robbery statute “has as an element, the use, attempted use, or threatened use of physical force against the person of another,” so as to constitute a “violent felony” under the federal Armed Career Criminal Act.

Issues: (1) Whether the U.S. Court of Appeals for the 11th Circuit erroneously denied petitioner’s certificate of appealability on the issue of whether he was sentenced above the statutory maximum for his offense of conviction; and (2) whether reasonable jurists can, at a minimum, debate the issue of whether a Florida conviction for robbery qualifies as a “violent felony” under the elements clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e).

Issues: (1) Whether the U.S. Court of Appeals for the 11th Circuit erroneously denied petitioner’s certificate of appealability on the issue of whether he was sentenced above the statutory maximum for his offense of conviction; and (2) whether reasonable jurists can, at a minimum, debate the issue of whether a Florida conviction for robbery qualifies as a “violent felony” under the elements clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e).

Issue: Whether, when the Supreme Court held in Johnson v. United States that the phrase “physical force” in the Armed Career Criminal Act requires “violent force – that is, force capable of causing physical pain or injury to another person,” the elements of a robbery offense satisfy the “violent force” threshold if state law requires only that the robber use “any degree” of force to overcome the victim’s resistance, such as the force exerted by a “bump” of the victim’s shoulder while snatching her purse or the force needed to snatch cash from the victim’s grasp.

Issues: (1) Whether any conviction for robbery qualifies as a “violent felony” under Armed Career Criminal Act’s elements clause where, as in Florida and several other states, the offense may be committed by using a de minimis amount of force; and (2) whether the U.S. Court of Appeals for the 11th Circuit’s rule that reasonable jurists could not debate an issue foreclosed by binding circuit precedent for determining whether a movant has made the threshold showing necessary to obtain a certificate of appealability, even when a judge on the panel who issued the binding precedent subsequently stated that the panel’s decision may be erroneous, misapplies the standard articulated by the Supreme Court in Miller-El v. Cockrell and Buck v. Davis.

Issue: Whether reasonable jurists could debate whether petitioner was denied his due process rights under the Fifth Amendment when he was sentenced as an armed career criminal to an 188-month term of imprisonment pursuant to 18 U.S.C. § 924(e) for possessing a gun after three Florida state armed robbery convictions, when such offenses are not violent felonies after Johnson v. United States.

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.

Issue: Whether the U.S. Court of Appeals for the 10th Circuit’s holding—granting qualified immunity to law-enforcement officers who stopped the petitioner from praying silently in her own home 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.”

Issue: Whether petitioner’s prior convictions for armed robbery, in violation of Fla. Stat. § 812.13, were convictions for “violent felon[ies]” under the elements clause of the Armed Career Criminal Act, 18 U.S.C. 924(e)(2)(B)(i).

Issue: Whether a state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.

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).

Issues: (1) Whether robbery, as defined at common law, has violent force as an element, as the U.S. Courts of Appeals for the 10th and 11th Circuits have held, and as the U.S. Court of Appeals for the 4th Circuit have held in this case, or whether the force necessary to commit common law robbery is too slight to qualify as violent force, as the U.S. Courts of Appeals for the 8th, 9th and District of Columbia Circuits have held, and as the U.S. Court of Appeals for the 4th Circuit has held in the past; and (2) whether, after Parke v. Raley, defendants bear a burden to show that the presumption of regularity that attaches to final judgments should be suspended, and, if so, what that burden is.

Issue: Whether petitioner’s prior conviction for robbery under Florida law was a conviction for a “violent felony” under the elements clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i).

Issues: (1) Whether the district court erred when it ruled that a Florida “strong-armed robbery” is a crime of violence under the Armed Career Criminal Act; and (2) whether the district court erred when it denied defendant’s motion to suppress physical evidence.