Relist (and Hold) Watch

By John Elwood
on Nov 1, 2011 at 11:48 am

John Elwood reviews Monday’s relisted and held cases.

The Court had very little in the way of treats for petitioners on Monday’s order list, which contained no new grants or CVSGs. As (sorta) anticipated in last week’s update, the Court finally issued a summary reversal in Cavazos v. Smith, 10-1115, which had been relisted a whopping eleven times beginning on May 12, 2011. In a six-to-three per curiam opinion, the Court reversed (for the third time) the Ninth Circuit’s grant of habeas relief in a case involving contested expert evidence in a prosecution resulting from a newborn’s death attributed to “shaken baby syndrome.” The Ninth Circuit concluded there was “no evidence to permit an expert conclusion one way or the other,” but the Court held that the Ninth Circuit’s decision was “plainly wrong” under Jackson v. Virginia. Justice Ginsburg, joined by Justices Breyer and Sotomayor, dissented; she described the summary reversal as “a misuse of discretion,” saying that the Court’s time-intensive “error correction” in this case achieved nothing “other than to prolong Smith’s suffering and her separation from her family” by returning her to prison.

In a Halloween fizzle, the Court denied two thrice-relisted petitions involving Establishment Clause challenges to roadside crosses memorializing fallen state troopers, Utah Highway Patrol Ass’n v. American Atheists, 10-1276, and Davenport v. American Atheists, 10-1297. Justice Thomas issued a solo dissent from the denial of cert., criticizing his colleagues for passing up the opportunity to reconcile an Establishment Clause jurisprudence he characterized as being “in shambles.”

This week brought only two new relists, both involving capital defendants. The Court relisted for the first time since calling for the record in Wetzel v. Lambert, 11-38, a state-on-top habeas case alleging that the Third Circuit failed to give appropriate deference to state-court decisions rejecting a prisoner’s Brady claim involving material found in a police file. The Court has also relisted for the first time since calling for the record in Williams v. Roper, 11-5005, in which the habeas petitioner claims that (1) under Harbison v. Bell, he does not need a Certificate of Appealability (COA) to appeal a district court’s interlocutory order denying discovery and additional DNA testing; (2) the Eighth Circuit’s practice of denying a COA in a summary order violates 28 U.S.C. § 2253 and habeas precedents; and (3) that he was entitled to a COA on his Batson claim.

Moving slightly outside our usual bailiwick to note one “relist” of sorts in a granted case, the Court apparently did not resolve the respondent’s motion to dismiss as moot in Knox v. SEIU Local 1000, 10-1121, a case granted last June but not yet set for argument. As Lyle reported here, the motion represents the respondent labor union’s attempt to terminate the case, which involves the fees non-union workers must pay to unions representing them, by offering to refund fees previously assessed and pay each worker $1 in nominal damages. The motion was fully briefed two days before Conference, but there’s no ruling on it yet, so seems that the Court is probably still chewing on it. It’s likely a contentious matter, so it’s not surprising that they need a little bit of time.

The remaining relists on our usual cert. docket are all repeat players, including Magner v. Gallagher, 10-1032, Bobby v. Dixon, 10-1540, Miller v. Alabama, 10-9646, Jackson v. Hobbs, 10-9647, and Buck v. Thaler, 11-6391, all discussed in my October 5 post and all back for their fourth relist. The Court also relisted for the fourth time in Hardy v. Cross, 11-74, the state-on-top petition from the Seventh Circuit discussed in my October 5 post; that the Court called for the record on October 28 strengthens my suspicion that a summary reversal may be in the works. The Court relisted again while awaiting the record in KPMG LLP v. Cocchi, 10-1521, discussed last week. And the Court has now scheduled Cash v. Maxwell, 10-1548, for the November 4 Conference; after two prior relists beginning at the Long Conference, the Court called for the record, which arrived on October 19.

The Court appears to have accepted the SG’s recommendation to hold United States v. Hoang, 10-1544, for Reynolds v. United States, 10-6549, argued on October 3. Although Reynolds involves a threshold question of standing, Hoang’s conviction depends on a question that is part of the Reynolds standing analysis: whether the registration requirements in the Sex Offender Registration and Notification Act (SORNA) apply of their own force to persons convicted of sex offenses before SORNA’s effective date. The Court also appears to be holding Middlebrooks v. Bell, 11-5067, a capital case from the Sixth Circuit in which the petitioner asserts, among other things, that the State’s denial of funding to conduct radiological studies in post-conviction proceedings constituted “cause” for his procedural default of an ineffective assistance of counsel claim based on his trial counsel’s failure to order such studies; and that he had a right to, and was denied, the effective assistance of counsel in state postconviction proceedings. The Court potentially could be holding Middlebrooks (as the petitioner requested) for either Maples v. Thomas, No. 10-63, or Martinez v. Ryan, 10-1001, both argued on October 4. The Court is likely holding Lovell v. Duffey, 10-10543, for Lafler v. Cooper, 10-209, as both involve ineffective-assistance-of-counsel claims where a lawyer’s allegedly deficient advice led a defendant to reject a favorable guilty plea. And Torres-Alfaro v. United States, 11-5456, looks like a routine hold for Setser v. United States, 10-7387.

As both of the regular readers of this feature can probably recite by heart, if a case has been relisted once, it generally means the Court is paying close attention, increasing the chance of a grant. 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.

Wetzel v. Lambert (relisted after the 10/28 Conference)

Docket: 11-38

Issue: Did the Third Circuit fail to properly apply the habeas deference standard to the state court’s rejection of respondent’s Brady claim?