Relist Watch (Updated)

John Elwood briefly reviews Monday’s relists.

Editor’s note: This post has been updated with a discussion and note of two additional new relists: Avery v. United States, 19-633, and Kelly v. White, 19-264.

For the second week running, the Supremes cleared out a metric ton of relists. Because we love success stories, in discussing last week’s relists, we of course start with the grants: two cases involving the Affordable Care Act (again!), one Freedom of Information Act case (again!), and the case that won the lottery to replace Walker v. United States, which was dismissed earlier this year after the petitioner died. A slew of other cases are being held for those new grants — so many that including all the hyperlinks would not seem funny at all, but just annoying. Finally, Justice Neil Gorsuch filed a statement respecting the denial of cert criticizing the idea of deferring to agency interpretations of a criminal statute.

This will be a quick post this week because all the new relists fall into (barely) three categories. Most of the new relists last week involved an effort to find a replacement for Walker. This week, most of the new relists are potential replacements for another recently dismissed case, Mathena v. Malvo, 18-217, involving the D.C. sniper.

The second issue presented by a new relist involves collateral review of criminal convictions. Edwin Avery had his federal firearms conviction enhanced under the much-litigated Armed Career Criminal Act. After the Supreme Court held that ACCA’s residual clause was unconstitutionally vague, Avery challenged his sentence under 28 U.S.C. § 2255. He lost and didn’t appeal. Then he filed another Section 2255 challenge. Again, the district court dismissed. And on appeal, the U.S. Court of Appeals for the 6th Circuit held it lacked jurisdiction over Avery’s case, because 28 U.S.C. § 2244(b) provides that “[a] claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.” The 6th Circuit was untroubled that Section 2244(b) textually applied only to the habeas petitions of state prisoners under Section 2254, and not to federal prisoners under Section 2255, saying in its unpublished opinion, “our cases teach that its bar on repetitive filings extends to federal prisoners’ §2255 motions.” The government now “agrees that Section 2244 does not apply to Section 2255 motions and … the court of appeals erred in concluding to the contrary.” But it notes that the 6th Circuit later recognized in a published opinion that Section 2244 does not apply to Section 2255 motions, and it argues that Avery would lose for other reasons.

The only other new case this week involves the standard for summary judgment, brought in the case of a contested encounter between a suspect and the police officer who shot him. I may be singing a different tune soon, but this one strikes me as fodder for one or more separate opinions rather than an outright grant.

The court will meet to consider new cases this Friday, then they’ll be off for a week until they meet again on March 20. We’ll be back next week to sort through the anticipated relists. Until next time!

New Relists

Newton v. Indiana, 17-1511
Issues: (1) Whether Miller v. Alabama applies to discretionary sentences of life without parole imposed for juvenile offenses, as 16 states have held, or whether it is limited to mandatory sentences of life without parole, as 10 others have found; and (2) whether an evidentiary hearing is required to assess whether juveniles sentenced before Miller are irreparably corrupt.
(rescheduled before the September 24 and November 30 conferences; relisted after the December 7, 2018, January 4, 2019, January 11, 2019, January 18, 2019, February 15, 2019, February 22, 2019, March 1, 2019, March 15, 2019, and February 28, 2020, conferences)

Jones v. Mississippi, 18-1259
Issue: Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole.
(relisted after the February 28 conference)

Oklahoma v. Johnson, 19-250
Issue:  Whether the Sixth Amendment requires that the individualized sentencing proceeding necessary to impose a life-without-parole sentence upon a juvenile homicide offender be a trial by jury.
(relisted after February 28 conference)

Kelly v. White, 19-264
Issue: Whether the Eighth Amendment, under Miller v. Alabama, which applies to mandatory sentences, requires invalidation of respondent Lydell White’s sentence.
(relisted after February 28 conference)

Kelly v. White, 19-265
Issue: Whether the Eighth Amendment, under Miller v. Alabama, which applies to mandatory sentences, requires invalidation of respondent Laycelle White’s sentence.
(relisted after February 28 conference)

Pittman v. Harris, 19-466
Issues: (1) Whether in Scott v. Harris the Supreme Court announced an “exception” to the summary-judgment standard in cases commenced under 42 U.S.C. § 1983, and if not, whether the U.S. Court of Appeals for the 4th Circuit erred when it deviated from other circuit holdings and announced that Scott directs the lower courts to examine whether a self-serving narrative is contradicted by individual pieces of the record, as opposed to the entire record, to discern if a genuine dispute of material fact exists; and (2) whether the respondent, Herman Harris, “clearly established” his right to be free from excess force when Harris assaulted the petitioner, Zachery Pittman, in a wooded area, attempted to murder Pittman with his service weapon and presented a lethal threat until Pittman fired in rapid succession.
(relisted after February 28 conference)

Avery v. United States, 19-633
Issue: Whether 28 U.S.C. § 2244(b)(1) applies to federal prisoners seeking relief under 28 U.S.C. § 2255.
(relisted after February 28 conference)

Returning Relists

Andrus v. Texas, 18-9674
Issue: Whether the standard for assessing ineffective assistance of counsel claims, announced in Strickland v. Washington, fails to protect the Sixth Amendment right to a fair trial and the 14th Amendment right to due process when, in death-penalty cases involving flagrantly deficient performance, courts can deny relief following a truncated “no prejudice” analysis that does not account for the evidence amassed in a habeas proceeding and relies on a trial record shaped by trial counsel’s ineffective representation.
(rescheduled before the November 1, 2019, and November 8, 2019, conferences; relisted after the November 15, 2019, November 22, 2019, December 6, 2019, December 13, 2019, January 10, January 17, January 24, February 21 and February 28 conferences)

Cannon v. Seay, 19-311
Issues: (1) Whether, in review of a state decision under 28 U.S.C. § 2241, when a federal appellate court must determine if double-jeopardy protection bars retrial after a mistrial is granted over a defendant’s objection based upon the absence of a critical prosecution witness, the required strict scrutiny applied to the legal determination of manifest necessity constrains in equal or greater measure the deference universally accorded a trial court’s fact-finding; and (2) whether, in granting relief under 28 U.S.C. § 2241, the U.S. Court of Appeals for the 4th Circuit egregiously failed to apply clearly established federal law as determined by the Supreme Court in Arizona v. Washington and accord deference to the state court’s ruling finding manifest necessity for mistrial when it resolved that omission of a reference to consideration of alternatives in the court’s oral ruling made the ruling fatally insufficient, even though the record shows the state court did not act rashly in granting a mistrial, but pursued a cautious approach that included suspending the trial to allow a search for the missing witness prior to considering and granting the state’s mistrial motion.
(relisted after the January 10, January 17, January 24, February 21 and February 28 conferences)

The Rams Football Company, LLC v. St. Louis Regional Convention and Sports Complex Authority, 19-672
Issue: Whether the Federal Arbitration Act permits a court to refuse to enforce the terms of an arbitration agreement assigning questions of arbitrability to the arbitrator if those terms would be enforceable under ordinary state-law contract principles in a non-arbitration context.
(relisted after the January 24 January 24, February 21 and February 28 conferences)

VF Jeanswear LP v. Equal Employment Opportunity Commission, 19-446
Issues: (1) Whether Title VII authorizes the Equal Employment Opportunity Commission to continue investigating a charge of discrimination after the commission issues the charging party a right-to-sue notice and after the charging party pursues private litigation; and (2) whether the EEOC can rely on a charge of discrimination to demand information from an employer about acts or practices not affecting the charging party.
(relisted after the February 21 and February 28 conferences)

Davis v. United States, 19-5421
Issue: Whether factual error is categorically immune from plain error review.
(rescheduled before the January 10, 2020 conference; relisted after the February 21 and February 28 conferences)

Bazan v. United States, 19-6113
Issue: Whether factual error is categorically immune from plain error review.
(relisted after the February 21 and February 28 conferences)

Bazan v. United States, 19-6431
Issue: Whether factual error is categorically immune from plain error review.
(relisted after the February 21 and February 28 conferences)

Halprin v. Davis, 19-6156
Issue: Whether Randy Halprin’s second federal petition raising a judicial bias claim is “second or successive” under 28 U.S.C. § 2244(b)(2) if the judge concealed his bias by failing to recuse himself, and the public exposure of his bigotry after the conclusion of Halprin’s initial habeas proceedings in the district court created Halprin’s first fair opportunity to present his claim.
(relisted after the February 21 and February 28 conferences)