RELIST WATCH

An appellate court’s claimed “defiance” in a death-penalty case

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

Welcome back! Since our last installment two weeks ago, the Supreme Court granted review of three of the relisted cases – one involving allegations that a city council member was arrested in retaliation for protected speech, one involving federal preemption of state consumer protection laws, and one involving what kinds of parties are entitled to file claims in bankruptcy cases. The court also declined without comment to take up two other petitions, seeking review of a ruling by a federal appeals court that invalidated on First Amendment grounds a North Carolina law that allows employers to sue employees who make undercover video or audio recordings.

This Friday, the Supreme Court will be considering 196 petitions and applications at its conference. While the court will be considering most of those cases for the first time, nine of those cases are still hanging around from the court’s end-of-summer “long conference” and have been repeatedly relisted ever since. Two more have been hanging around since the Oct. 6 conference. And the justices will discuss one case that is being considered for the second time: Stirling v. Stokes.

In Stirling, South Carolina seeks review of a decision by a divided panel of the U.S. Court of Appeals for the 4th Circuit granting habeas review to death-row prisoner Sammie Louis Stokes. A jury sentenced Stokes to death for raping and murdering Connie Snipes after being promised $2,000 for the killing by Snipes’ mother-in-law, who wanted custody of her grandchildren.

Stokes challenged his conviction and death sentence in habeas proceedings, raising an ineffective-assistance-of counsel claim that was procedurally defaulted because he had not raised it in state court. Over the state’s objection that the collection of new evidence violated 28 U.S.C. § 2254(e)(2), which sharply circumscribes federal courts’ ability to hold evidentiary hearings when the applicant failed to develop the factual basis for a claim in state court, the district court accepted evidence outside the state-court record but nonetheless denied Stokes relief, holding that the claim was defaulted.

Stokes appealed. A divided panel of the 4th Circuit excused the default and, based heavily on the new evidence, held that resentencing was warranted because Stokes’ trial counsel had given ineffective assistance by failing to develop and present mitigating evidence at sentencing.

Judge Marvin Quattlebaum dissented from the panel’s ruling. He wrote that the decision not to introduce mitigating evidence was “quintessentially strategic and informed by a thorough investigation.”

South Carolina sought Supreme Court review in May 2022. The Supreme Court granted the state’s petition and sent the case back for another look in light of its decision earlier that month in Shinn v. Ramirez, which held that a federal habeas court may not conduct an evidentiary hearing or otherwise consider evidence beyond the state-court record based on claims of ineffective assistance by a prisoner’s state postconviction counsel.

On remand, the same panel of the 4th Circuit again granted Stokes relief by a divided vote. The majority held that South Carolina had forfeited its reliance on Section 2254(e)(2) by not raising that argument during briefing before the first decision, though the state had argued for affirmance of the district court’s determination that the claim was defaulted.

In dissent, Quattlebaum argued that there was “simply no way to square the opinion the majority resinstates with Shinn.” Moreover, he added, the state did not forfeit the Section 2254(e)(2) issue by not raising it as an alternative basis for affirmance.

South Carolina seeks review again. This case does not seem to be a candidate for plenary review and oral argument; it does not raise any general question, and there is no claim that the courts of appeals are divided. Instead, the state seeks summary reversal, arguing that the 4th Circuit majority “def[ied] this Court’s remand instruction and circumvent[ed] 28 U.S.C. § 2254(e)(2)’s limitations on federal court authority.” The state also argues that the 4th Circuit erred in granting relief based on a defaulted ineffective-assistance-of-trial-counsel claim.

Stokes counters that the state forfeited reliance on Section 2254(e)(2) by failing to raise it on appeal and by affirmatively relying on the newly introduced evidence. And Stokes argues that the 4th Circuit acted properly in holding that his trial counsel had unreasonably failed to investigate or present compelling mitigation evidence.

The relist means the Supreme Court is taking a close look at this case with a view to possibly summarily reversing. We’ll know soon how persuaded they are by South Carolina’s argument.

That’s all for this week. Stay safe!

Returning Relists 

Johnson v. Prentice, 22-693
Issue: Whether punitively depriving a prisoner in solitary confinement of virtually all exercise for three years notwithstanding the absence of a security justification violates the Eighth Amendment, or whether such a denial only violates the Eighth Amendment if it is imposed in response to an “utterly trivial infraction.”
(relisted after the Sept. 26, Oct. 6 and Oct. 13 conferences)

King v. Brownback, 22-912 
Issue: Whether the Federal Tort Claims Act’s judgment bar, which this court has repeatedly said functions in much the same way as the common-law doctrine of res judicata, nevertheless operates to bar claims brought together in the same action.
(relisted after the Sept. 26, Oct. 6 and Oct. 13 conferences) 

Tingley v. Ferguson, 22-942
Issues: (1) Whether a law that censors conversations between counselors and clients as “unprofessional conduct” violates the free speech clause of the First Amendment; and (2) whether a law that primarily burdens religious speech is neutral and generally applicable, and if so, whether the court should overrule Employment Division v. Smith.
(relisted after the Sept. 26, Oct. 6 and Oct. 13 conferences)

Thornell v. Jones, 22-982
Issue: Whether the U.S. Court of Appeals for the 9th Circuit violated this court’s precedents by employing a flawed methodology for assessing prejudice under Strickland v. Washington when it disregarded the district court’s factual and credibility findings and excluded evidence in aggravation and the state’s rebuttal when it reversed the district court and granted habeas relief.
(relisted after the Sept. 26, Oct. 6 and Oct. 13 conferences)

74 Pinehurst LLC v. New York, 22-1130
Issues: (1) Whether a law that prohibits owners from terminating a tenancy at the end of a fixed lease term, except on grounds outside the owner’s control, constitutes a physical taking; and (2) whether allegations that such a law conscripts private property for use as public housing stock, and thereby substantially reduces its value, state a regulatory takings claim.
(relisted after the Sept. 26, Oct. 6 and Oct. 13 conferences)

335-7 LLC v. City of New York, NY, 22-1170
Issues: (1) Whether New York’s Rent-Stabilization Laws and accompanying regulations effect a per se physical taking by expropriating petitioners’ right to exclude; (2) whether the laws effect a confiscatory taking by depriving petitioners of a just and reasonable return; and (3) whether the laws effect a regulatory taking as an unconstitutional use restriction of petitioners’ property.
(relisted after the Sept. 26, Oct. 6 and Oct. 13 conferences)

Glossip v. Oklahoma, 22-6500
Issues: (1) Whether a court may require a defendant to demonstrate by clear and convincing evidence that no reasonable fact finder would have returned a guilty verdict to obtain relief for a violation of Brady v. Maryland; and (2) whether suppressed impeachment evidence of the state’s key witness is per se non-material under Brady because that witness’ credibility had been otherwise impeached at trial.
(rescheduled before the Mar. 17, Mar. 24, Mar. 31, Apr. 14, Apr. 21, Apr. 28, and May 11 conferences; relisted after the Sept. 26, Oct. 6 and Oct. 13 conferences)

Glossip v. Oklahoma, 22-7466 
Issues: (1) Whether the state’s suppression of the key prosecution witness’ admission that he was under the care of a psychiatrist and failure to correct that witness’ false testimony about that care and related diagnosis violate the due process of law under Brady v. Maryland and Napue v. Illinois; (2) whether the entirety of the suppressed evidence must be considered when assessing the materiality of Brady and Napue claims; and (3) whether due process of law requires reversal where a capital conviction is so infected with errors that the state no longer seeks to defend it.
(relisted after the Sept. 26, Oct. 6 and Oct. 13 conferences)

E.I. du Pont de Nemours & Co. v. Abbott, 23-13
Issue: Whether nonmutual offensive collateral estoppel can be applied to make the results of a handful of unrepresentative bellwether trials binding on the defendant in all pending and future cases in a multi-district litigation.
(relisted after the Sept. 26, Oct. 6 and Oct. 13 conferences)

Payne v. Biden, 22-1225
Issues: (1) Whether the judgment below should be vacated and the case remanded for dismissal as moot under United States v. Munsingwear, Inc; and (2) alternatively, whether the judgment below should be vacated and the case remanded for further consideration in light of Axon Enterprise v. Federal Trade Commission.
(relisted after the Oct. 6 and Oct. 13 conferences)

Biden v. Feds for Medical Freedom, 23-60
Issue: Whether, pursuant to United States v. Munsingwear, Inc., this court should vacate the court of appeals’ judgment and remand with instructions to direct the district court to vacate its order granting a preliminary injunction as moot.
(rescheduled before the Sept. 26 conference; relisted after the Oct. 6 and Oct. 13 conferences)