Re-list (and hold) watch

By John Elwood
on May 25, 2011 at 8:02 am

Monday was a relatively quiet day on the relist and hold front.  The Court granted cert. limited to the first question presented in Kawashima v. Holder, 10-577, which it relisted last week.  The Court relisted in one new case, Martinez v. Regents of the University of California, 10-1029, which was included in last week’s Petitions to Watch.  The Court relisted for a second time in two Ninth Circuit cases from last week’s post:  Messerschmidt v. Millender, 10-704, the qualified immunity case, and Cavazos v. Smith, 10-1115, the habeas case back at the Court after two prior GVRs.  The Court also relisted for a sixth time in Reynolds v. Thomas, 10-7502.  A summary reversal or dissent from (or statement respecting) the denial of cert. may be in the works for any of these three.  The Court denied cert. without comment in Rosario v. Griffin, 10-854, which had been relisted after the May 12 Conference, and in Khadr v. Obama, 10-751, which it had previously relisted four times, with Justices Breyer and Sotomayor noting they would vote to grant; given the number of times that the Court had relisted Khadr, it was mildly surprising they did not say more.

The Court appears to be holding Grand Trunk Western Railroad v. Shepard, 10-925, for CSX Transportation, Inc. v. McBride, 10-235, argued on March 28; both cases present the question whether the Federal Employers’ Liability Act requires proof of proximate causation as an element of a claim for damages.  And the Court appears to be holding (but in any event has not yet updated its docket for) Martinez v. Ryan, 10-1001, which was relisted after the May 12 Conference and discussed at length in last week’s post.  The absence of any sign that Martinez has been relisted for the May 26 Conference may suggest the Court decided to hold it for Maples v. Thomas, 10-63.  Or the Court may be teeing up Martinez (along with Smith v. Bell, 10-8629) for consideration at a future Conference.  But the Court does not appear to have scheduled Martinez or Smith for the May 26 Conference, at which it will consider Foster v. Texas, 10-8317 and Bradford v. Thaler, 09-11519, discussed in last week’s post.

If a case has been relisted once, it generally means that the Court is paying close attention to the case, and the chances of a grant are higher than for an average case.  But once a case has been relisted more than twice, it is generally no longer a likely candidate for plenary review, and is more likely to result in a summary reversal or a dissent from the denial of cert.

Title: Martinez v. Regents of the University of California (relisted after the 5/19 Conference)

Docket: 10-1029

Issue(s): (1) Whether a state statute that provides resident tuition rates at public postsecondary institutions to illegal aliens, based on their attendance at high schools in the state, is preempted by 8 U.S.C. § 1623; (2) whether a court must undertake conflict preemption analysis after concluding that an express preemption provision does not apply in a case involving both types of preemption claims.

Certiorari stage documents:

• Opinion below (California Supreme Court)
• Petition for certiorari
• Brief of the Regents of the University of California et al. in opposition
• Brief of the Board of Governors of the California Community Colleges et al. in opposition
• Petitioners’ reply (forthcoming)
• Amicus brief of the Eagle Forum Education and Legal Defense Fund, Inc.
• Amicus brief of U.S. Reps. Lamar Smith et al.

Title: Messerschmidt v. Millender (Relisted after the 5/12 and 5/19 Conferences)

Docket: 10-704

Issue(s): (1) Whether police officers are entitled to qualified immunity when they obtained a facially valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her?  (2)  Whether United States v. Leon, 468 U.S. 897 (1984), and Malley v. Briggs, 475 U.S. 335 (1986), should be reconsidered or clarified?

Certiorari stage documents:

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Title: Cavazos v. Smith (Relisted after the 5/12 and 5/19 Conferences)
Docket: 10-1115
Issue(s): Did the Ninth Circuit exceed its authority under 28 U.S.C. § 2254(d) by granting relief for insufficient evidence based on its acceptance of the cause-of-death testimony of defense experts over the contrary opinion testimony of prosecution experts?

Certiorari stage documents:

• Opinion Below (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Title: Martinez v. Ryan (Relisted after the 5/12 Conference)
Docket: 10-1001
Issue(s): Whether a federal habeas petitioner can establish “cause” for the procedural default of an ineffective-assistance-of-trial-counsel claim by alleging ineffective assistance of state-collateral-review counsel.

Certiorari stage documents:

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Title: Reynolds v. Thomas (Relisted after the 4/1, 4/15, 4/22, 4/29, 5/12, and 5/19 Conferences)

Docket:  10-7502

Issue(s): Whether, under 18 U.S.C. § 3584(a), 3585(b), and 3621(b), the Bureau of Prisons must administer the sentence of a federal prisoner in a manner that effectuates the subsequent judgment of the state judiciary that the state sentence run concurrently with the previously imposed federal term of imprisonment?

Certiorari stage documents:

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Amicus brief of the Ninth Circuit Public and Community Defenders et al.
• Petitioner’s reply