Re-list (and hold) watch
on Jun 14, 2011 at 2:21 pm
The Court granted cert. Monday in Gonzalez v. Thaler, 10-895, previously relisted after the June 2 Conference and noted in last week’s post. (The Court now appears to be holding Innis v. Buss, 10-8952, also mentioned last week, probably for Gonzalez.) The Court also granted cert. in Smith v. Louisiana, 10-8145, raising Brady and due process claims and previously relisted once, and in Setser v. United States, 10-7387, discussed previously, to address the longstanding split over whether a district court may direct a sentence be imposed consecutively to a not-yet-imposed state sentence. The Court now appears to be holding Reynolds v. Thomas, 10-7502 (previously relisted a whopping eight times), Bustos v. United States, 10-8659, and Vargas-Solis v. United States, 10-6866, for Setser.
The Court GVR’ed with instructions to dismiss as moot in Eisai Co. v. Teva Pharmaceuticals USA, Inc., 10-1070, in which the Court had relisted twice and called for a response. For those following the Federal Circuit’s track record at One First Street, the GVR and mootness dismissal in Eisai is somewhat akin to a summary reversal, as the petitioners sought that relief after the Federal Circuit refused to vacate its own opinion and judgment when the case became moot while a rehearing petition was pending, per United States v. Munsingwear, Inc., 340 U.S. 36 (1950).
The Court relisted for the first time in four new cases. Knox v. Service Employees International Union Local 1000, 10-1121, involves two First Amendment challenges to a labor union’s special assessment to fund political activity. King v. United States, 10-10489, presents the question whether a defendant’s maximum term of supervised release serves as a cumulative maximum for the length of imprisonment available following revocation of supervised release. The SG waived a response in King, and the Court has not called for a response, suggesting the relist may actually be a temporary rescheduling—possibly so the Court can consider King with Hampton v. United States, 10-10554, a petition seeking review of an earlier Fifth Circuit decision on which the King panel relied, which is scheduled for the June 16 Conference. And the Court relisted for the first time in two capital cases: Russell v. California, 10-10201, on direct review from the Supreme Court of California, raises constitutional challenges to the exclusion of mitigating evidence from the penalty phase of a capital trial under a state’s hearsay rule. The Court also relisted in Spencer v. Alabama, 10-9085, a capital case from the Alabama state courts, which involves a claim that the trial court erred by not instructing the jury that it could find the defendant guilty of a crime other than capital murder, and an Apprendi challenge to the state’s sentencing system. The Court requested the record in Spencer and is now reviewing it.
The Court relisted for a fifth time in both Messerschmidt v. Millender, 10-704, and Cavazos v. Smith, 10-1115. We should be seeing an opinion in either or both of these cases soon. And the Court appears to have released holds on a number of petitions that it had held routinely pending the Court’s recently issued opinions in Janus Capital Group, Inc. v. First Derivative Traders, 09-525, Sykes v. United States, 09-11311, Microsoft Corp. v. i4i Ltd. Partnership, 10-290, and Talk America, Inc. v. Michigan Bell Telephone Co., 10-313.
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: Knox v. Service Employees International Union Local 1000 (Relisted after the 6/9 Conference)
Docket: 10-1121
Issue(s): (1) May a state, consistent with the First and Fourteenth Amendments, condition employment on the payment of a special union assessment intended solely for political and ideological expenditures without first providing a notice that includes information about that assessment and provides an opportunity to object to its exaction? (2) May a state, consistent with the First and Fourteenth Amendments, condition continued public employment on the payment of union agency fees for purposes of financing political expenditures for ballot measures?
Certiorari-stage documents
Title: King v. United States (Relisted after the 6/9 Conference)
Docket: 10-10489
Issue(s): Whether a defendant’s maximum term of supervised release serves as a cumulative maximum on the length of imprisonment available following revocation of supervised release?
Certiorari-stage documents
- Opinion below (5th Cir.)
- Petition for certiorari
Title: Russell v. California (Relisted after the 6/9 Conference)
Docket: 10-10201
Issue(s): Whether application of a state hearsay rule to deny a capital defendant’s request to present mitigating evidence at the penalty phase of a capital trial violates the Eighth and Fourteenth Amendments.
Certiorari stage documents:
Title: Spencer v. Alabama (Relisted after the 6/9 Conference)
Docket: 10-9085
Issue(s): 1) Whether the trial court violated Beck v. Alabama, 447 U.S. 625 (1980), by refusing to provide the jury with an option besides conviction of capital murder or acquittal; 2) whether a sentencing scheme that allows a death sentence to be imposed based on a judge’s determination that aggravating circumstances outweigh mitigating ones and without an explicit jury finding of a statutory aggravating circumstance violates the Sixth Amendment as interpreted by this Court in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002).
Certiorari stage documents:
Title: Messerschmidt v. Millender (Relisted after the 5/12, 5/19, 5/26, 6/2, and 6/9 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? Â (2)Â 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, 5/19, 5/26, 6/2, and 6/9 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:
