Relist Watch
on Dec 5, 2017 at 11:31 am
John Elwood reviews Monday’s relists.
For a Supreme Court (and litigants) that remains a smidge light on grants, Zarathust No Diso is coming early this year: There are more relists on for this Friday’s conference than for all conferences since mid-October combined — nine of ‘em, versus a total of seven for the five conferences since October 23. To be fair, four of those involve a single issue, but this well-timed torrent of relists (and potential grants) is still a welcome development for those hoping to get more cases decided this term. As we approach the “cutoff date” in early to mid-January marking the point by which cases must be granted to be argued this term, we can expect the load of relists to remain heavy.
The best-known of this week’s relists is Hidalgo v. Arizona, 17-251, which presents two questions involving capital punishment. The first involves so-called “aggravator creep.” To “minimize the risk of wholly arbitrary and capricious” executions, the Supreme Court in Gregg v. Georgia wrote that the discretion of sentencing juries “must be suitably directed and limited” through legislatively prescribed aggravating circumstances – such as committing murders for hire or committing multiple murders. Since the Gregg era, the Arizona legislature has more than doubled its aggravating factors to 14 – and still doesn’t include driving slowly in the left lane. Hidalgo argues that as a result of Arizona’s long list of aggravating factors, 99 percent of those convicted of first-degree murder are eligible for execution, which does not do enough to perform the narrowing function that Gregg contemplated. The case also presents a far broader all-the-marbles issue: “whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.” In other words, the case seeks to answer Justice Stephen Breyer’s call to bring an end to capital punishment. Hmmm. This may not be the best time to raise a claim tied to contemporary standards of decency.
There’s plenty for nerds to love about the remaining eight cases. Benisek v. Lamone, 17-333, combines two of the best themes of October Term 2017: namely, political gerrymandering and First Amendment retaliation. Will Benisek become a legal Sharknado by combining two killer themes in one case, or will it wind up as a “hold” for Gill v. Whitford? Lindsey v. Virginia, 17-132, involves the burden of production for a crime and whether it violates the due process clause to instruct a jury that a criminal defendant’s actions are “evidence of [the requisite] intent … unless there is believable evidence to the contrary.” Upper Skagit Indian Tribe v. Lundgren, 17-387, involves whether an “in rem” action against real property owned by an Indian tribe implicates tribal sovereign immunity, and hopefully will also answer the question, “What happened to the Lower Skagit Tribe?” China Agritech, Inc. v. Resh, 17-432, follows up on American Pipe and Construction Co. v. Utah, which held that the timely filing of a defective class action tolled the limitations period as to “the individual claims of purported class members.” China Agritech asks whether two timely filed defective class actions tolled the limitations period for an untimely third class action of “absent” class members.
That brings us to the last four cases, which present a single question (along with some extra issues you’ll have to read the actual petitions to catch up on) – Kasowski v. United States, 16-9649, Richter v. United States, 16-9695, C.D., E.F., and G.H. v. United States, 16-9672, and Koons v. United States, 17-5716. These cases all involve 18 U.S.C. § 3582(c)(2), which permits a district court to reduce a previously imposed sentence “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” All four cases involve defendants whose sentences were based on a statutory mandatory-minimum sentence, or who were sentenced below the statutory mandatory minimum because they provided the government substantial assistance, as permitted by 18 U.S.C. § 3553(e). The government now maintains that such defendants’ sentences were based on statutes rather than the sentencing guidelines and that those defendants therefore are ineligible for sentence reductions because they were not “sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” Several courts of appeals have adopted that view. These four petitions seek to challenge that conclusion.
That is mostly it for the great year that was 2017. We should be back next week for the Zarathustra boosters with our best guesses about the first relists of 2018. Thanks to Kevin Brooks for compiling the cases in this post.
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New Relists
Kasowski v. United States, 16-9649
Issue: Whether Amendments 780, 782 and 788 to the Federal Sentencing Guidelines, promulgated in 2014, provide for resentencing – and a potentially much lower sentence – for certain federal prisoners without regard to their prior statutory mandatory minimums, as the U.S. Courts of Appeals for the 4th, 7th and 11th Circuits have held, or whether the prisoners are ineligible for resentencing and the mandatory minimums remain dispositive, as the U.S. Courts of Appeals for the 8th, 9th and 1oth Circuits have held.
(relisted after the December 1 conference)
Richter v. United States, 16-9695
Issue: Whether Amendments 780, 782 and 788 to the Federal Sentencing Guidelines, promulgated in 2014, provide for resentencing – and a potentially much lower sentence – for certain federal prisoners without regard to their prior statutory mandatory minimums, as the U.S. Courts of Appeals for the 4th, 7th and 11th Circuits have held, or whether the prisoners are ineligible for resentencing and the mandatory minimums remain dispositive, as the U.S. Courts of Appeals for the 8th, 9th and 1oth Circuits have held.
(relisted after the December 1 conference)
C.D., E.F., and G.H. v. United States, 16-9672
Issues: (1) Whether the sentence-modification limits in 18 U.S.C. § 3582 are jurisdictional; and (2) whether a substantial-assistance departure from a statutory mandatory minimum sentence that is higher than the defendant’s guideline range categorically renders that defendant ineligible for a 18 U.S.C. § 3582(c)(2) sentence reduction.
(relisted after the December 1 conference)
Issue: Whether the jury instruction—that the defendant’s actions were “evidence of [the requisite intent] … unless there is believable evidence to the contrary”—violated due process by shifting to the defendant the burden of producing “believable evidence” to show that he lacked the requisite intent.
(relisted after the December 1 conference)
Issues: (1) Whether Arizona’s capital sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment; and (2) whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.
(relisted after the December 1 conference)
Issues: (1) Whether the majority of the three-judge district court erred in holding that, to establish an actual, concrete injury in a First Amendment retaliation challenge to a partisan gerrymander, a plaintiff must prove that the gerrymander has dictated and will continue to dictate the outcome of every election held in the district under the gerrymandered map; (2) whether the majority erred in holding that the Mt. Healthy City Board of Education v. Doyle burden-shifting framework is inapplicable to First Amendment retaliation challenges to partisan gerrymanders; and (3) whether, regardless of the applicable legal standards, the majority erred in holding that the present record does not permit a finding that the 2011 gerrymander was a but-for cause of the Democratic victories in the district in 2012, 2014 or 2016.
(relisted after the December 1 conference)
Upper Skagit Indian Tribe v. Lundgren, 17-387
Issue: Whether a court’s exercise of in rem jurisdiction overcomes the jurisdictional bar of tribal sovereign immunity when the tribe has not waived immunity and Congress has not unequivocally abrogated it.
(relisted after the December 1 conference)
China Agritech, Inc. v. Resh, 17-432
Issue: Whether the rule of American Pipe and Construction Co. v. Utah tolls statutes of limitations to permit a previously absent class member to bring a subsequent class action outside the applicable limitations period.
(relisted after the December 1 conference)
Koons v. United States, 17-5716
Issues: (1) Whether the U.S. Court of Appeals for the 8th Circuit erred in holding, contrary to the opinion of the U.S. Court of Appeals for the 4th Circuit, that defendants whose initial advisory guideline sentencing range was below a statutory mandatory minimum and who were subsequently sentenced below that minimum after the district court granted a government motion for reduction in sentence for substantial assistance pursuant to 18 U.S.C. § 3553(e) are not eligible for further reduction in sentence under 18 U.S.C. § 3582(c)(2) and retroactive sentencing guideline Amendment 782, which lowered the base offense levels assigned to most drug quantities; and (2) whether Freeman v. United States supports the holding that there is a substantive limitation on the term “based on” in 18 U.S.C. § 3582(c)(2) that prohibits defendants whose initial advisory guideline range was below a statutory mandatory minimum, and who were subsequently sentenced below that minimum after the district court granted a government motion for reduction in sentence for substantial assistance pursuant to 18 U.S.C. § 3553(e), from being eligible for further reductions in sentence due to retroactive sentencing guideline Amendment 782.
(relisted after the December 1 conference)
Returning Relists
Sykes v. United States, 16-9604
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).
(relisted after the October 6, October 13, October 27, November 3, November 9, November 21 and December 1 conferences)
Issues: (1) Whether reasonable jurists could disagree with the district court’s rejection of the petitioner’s Rule 60(b) motion, and, accordingly, whether the U.S. Court of Appeals for the 11th Circuit erred in denying a certificate of appealability; (2) whether, given the petitioner’s credible evidence that a juror voted for the death penalty because the petitioner is a “nigger,” the lower court erred in ruling that he failed to make “a substantial showing of the of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2); and (3) whether Pena-Rodriguez v. Colorado created a new constitutional claim, and, if not, whether the lower courts erred in denying the petitioner’s motion for relief from judgment under Rule 60(b)(6).
(relisted after the October 6, October 13, October 27, November 3, November 9, November 21 and December 1 conferences)
Serrano v. United States, 17-5165
Issue: Whether Richardson v. United States precludes a double jeopardy appeal based on evidentiary insufficiency where the jury returns a guilty verdict that is set aside for a new trial.
(relisted after the November 21 and December 1 conferences)
