Relist (and hold) watch

JOHN ELWOOD

MAY 23, 2012 7:00 PM

John Elwood reviews Monday’s relisted and held cases.

Sure, your dreams of a Facebook-funded early retirement went up in a cloud of blue-chip smoke, and you’ve been reduced to alternating status updates between “IHML” and “BIH, Zuckerberg,” but fret not: the good folks at One First Street N.E. are more than meeting market projections for relists and holds. And like the low-yield CDs of the legal world that they are, they delivered their usual tiny dividends right on time.

If you somehow managed to make it through last week’s post, then you already know most of the next bit. Due to the Court’s proclivities (and, well, the barbed-wire fences and 200 miles of open sea surrounding their quarters), our Guantanamo friends didn’t go anywhere; all five of last week’s detainee cases will be relisted once again, as Lyle has already noted. Joining Al-Bihani v. Obama, 10-1383; Uthman v. Obama, 11-413; Almerfedi v. Obama, 11-683; Al-Madhwani v. Obama, 11-7020; and Al Alwi v. Obama, 11-7700, are first-time relists Latif v. Obama, 11-1027, and Al Kandari v. Obama, 11-1054, both mentioned last week. El Falesteny v. Obama, 11-9344, also mentioned last week, has yet to be scheduled for conference. Don’t be looking for the El Falesteny brief in opposition in this column; Uncle Sam filed it under seal, giving credence to rumors that it contains the formula for the Krabby Patty. (Those who have been “read in” to the program know it’s just extra love.)

In non-detainee news, the Court will relist for a second time (since calling for a response) in Comcast Corp. v. Behrend, 11-864. As you might recall, that case is a follow-on to Wal-Mart v. Dukes, raising the issue alluded to in that case of just how much consideration the trial court can give to merits arguments at the class-certification stage. Meanwhile, back for a third trip to the all-you-can-eat relist smorgasbord are Coleman, Superintendent v. Johnson, 11-1053, a state-on-top habeas case out of the Third Circuit; Parker, Warden v. Matthews, 11-845, a state-on-top habeas case out of the Sixth Circuit; and Fairey v. Tucker, Secretary, 11-7185, a state-not-on-top habeas case out of the Fourth Circuit. Surely we will be getting some sort of an opinion in those cases in the next four weeks or so.

Cue the bagpipes, though, because we did lose one from last week. The makers of the popular Almendarez-Torres action figure can breathe a sigh of relief; they won’t have to close up shop just yet. The Court released its kung fu grip on the once-relisted Staunton v. California, 11-8851, a case that teed up an opportunity to rethink (or carve out an exception from) the prior-conviction exception to the rule, recognized in Apprendi v. New Jersey, that a judge may increase a sentence only if the enhancement is based upon facts found by a jury beyond a reasonable doubt. Two sets of Almendarez-Torres relists have gone down the tubes after Justice Thomas observed (back in the Stevens/Souter days) that five members of the Court think it was wrongly decided. Maybe Justices Sotomayor and Kagan are not as eager to revisit that case as their predecessors were. Or maybe the vehicles just stunk like a New York cab on a Sunday morning. [/Raymond Chandler]

Our first new non-detainee relist isn’t really new at all. It’s actually a rehearing petition that is now being relisted for the second time. After dutifully collecting all the paperwork on May 14, I neglected to write the thing up for last week’s post. (To quote the sage Robbie from Lakehills, Texas, “Even the greatest pitchers have an ERA.”) But happily, my friends at the Court relisted it again this week to give me a chance to remedy my error. Anyhoo, Cook v. Schriro, 08-7229, is an AEDPA case out of Arizona concerning Cook’s allegedly ineffective trial counsel. After what appears to be a very rough life, Cook was sentenced to death for two murders he committed while high on crystal meth. We’ve all been there. Following the usual rounds of direct and collateral review, Cook’s claim for ineffective assistance of counsel made its way up to the Court, which denied cert. on his federal habeas petition back in January 2009. A subsequent state habeas petition from Cook, 10-9742, was then put on hold for Martinez v. Ryan, 10-1001, which asked whether ineffective assistance of state post-conviction counsel constitutes “cause” for procedural default of a claim of ineffective assistance of trial counsel. Martinez was decided in March, but because it decided only the AEDPA “cause and prejudice” issue without reaching the underlying constitutional claim at issue in Cook, the Court ultimately denied cert. Cook now seeks rehearing of the denial of his earlier federal habeas petition – more than three years ago – and wants the Court either to review the issue left open in Martinez or to GVR the case in light of Martinez. Rehearing petitions are granted once in a blue moon, particularly ones as belated as this one is, but something’s going on here.

Monday brought us three brand-spankin’- new non-detainee relists. First up is the much anticipated City of New Haven v. Briscoe, 11-1024, the follow-up to Ricci v. DeStefano. Not only is New Haven the self-declared home of the hamburger, the preferred clothier of style-impaired WASPs, and one of America’s most celebrated universities, but also, it seems, a bounty of litigious firefighters. Briscoe presents the Title VII disparate impact claim the city of New Haven said it feared when it invalidated the firefighter test in Ricci. The petition challenges the decision of the Second Circuit to let the suit go forward. Briscoe has been relisted to the June 7 Conference, skipping two conferences in between. My guess is the Court wants to consider it alongside North Hudson Regional Fire & Rescue v. NAACP, 11-1247, a Third Circuit case set for the June 7 Conference that involved a Ricci defense to a residency requirement challenged under Title VII.

Next up is yet another state-on-top habeas case, Howes v. Walker, 11-1011. Walker was convicted of murder in a Michigan trial court. After initially sending the case back down for a deficiency determination, the Michigan Court of Appeals rejected Walker’s Strickland ineffective-assistance-of-counsel claim. On collateral review, the federal district court denied Walker’s habeas petition but issued a certificate of appealability on the issue whether the Michigan courts unreasonably applied clearly established Supreme Court precedent. A panel of the Sixth Circuit, over a lengthy dissent from Judge Cook, reversed, based in part on its conclusion that the Michigan courts’ factual determinations were unreasonable. In its petition, Michigan concedes that Walker’s trial counsel was ineffective, but maintains that that ineffectiveness was not prejudicial under Strickland. One of the more interesting issues it presents for review was left open by the Court in Wood v. Allen (2010), namely, whether Section 2254(e)(1)’s command that an underlying state-court fact determination is presumed correct applies in a case presenting a challenge to the reasonableness of the state court’s factual determinations under Section 2254(d)(2).

Now for Jennings v. Owens, 11-789. Jennings was convicted in Texas state courts of debit card abuse for teasing a Discover Card about being a loser. Upon release, the Texas Board of Parole imposed various “sex offender” conditions on Jennings based in part on an unrelated sex offense he committed over three decades earlier. Jennings filed a Section 1983 suit challenging the imposition of sex offender conditions and the federal district court granted him summary judgment. Texas appealed, and the Fifth Circuit reversed. Although that court tossed out some of the restrictions, it determined that the district court granted too broad relief to Jennings for purported procedural due process violations that had yet to occur. The district court subsequently granted summary judgment to the defendant Texas officials. In a short opinion, the Fifth Circuit affirmed. Because Jennings was a convicted sex offender who had the ability to challenge that status at the time it was imposed, the court reasoned, Jennings is not stigmatized by the imposition of sex offender parole conditions. Jennings’ petition challenges the imposition of the sex offender conditions without contemporaneous notice or opportunity to be heard.

Finally, we appear to have one new hold, though exactly what it’s on hold for is anyone’s guess. Dotson v. United States, 11-9873, raises the question whether the mandatory minimum for brandishing a firearm, 18 U.S.C. § 924(c)(1)(A)(ii), must be indicted and proven to a jury beyond a reasonable doubt. It is a direct challenge to Harris v. United States, which upheld mandatory minimums against an Apprendi challenge. Petitioner contends that Harris conflicts with a number of cases, Apprendi among them. (The Harris plurality purported to distinguish Apprendi.) To many observers, Almendarez-Torres and Harris are the sick men of American sentencing law, but suggesting that they are due to be overruled increasingly has the feel of predicting Keith Richards’ death circa 1977. I’ll just shut up, buy kohl futures, and wait for Some Girls to come out.

That was a long one! FB slid another 2.38in the time it took to write this post. Good thing my money is in the frozen orange juice market. And we all know that we can count on the certainty of the next relist (and hold) watch, and that it still won’t be funny. See you back here next week!

Thanks to Eric White for compiling and drafting this update.

City of New Haven v. Briscoe (relisted after the 5/17 Conference)

Docket: 11-1024

Issue(s): Whether a lower court may disregard this Court’s express guidance and create Title VII disparate-impact liability for actions this Court ordered an employer to undertake as a remedy for a Title VII disparate-treatment violation.