Category Archives: Judiciary

Relist (and Hold) watch

John Elwood reviews Monday's relisted and held cases. I mentioned at the end of last week's relist (and hold) watch that my next post would likely be delayed because of a (still ongoing) trial in Madison, Wisconsin. Turns out I'm not the only one doing things a little slow, as the powers that be over at One First Street are taking their time updating the docket. They're likely in no hurry because the Court won't be holding its next Conference until October 28. In any event, in keeping with the recent trend, most of last week's relists appear to be back for another relist this week. And surely it is time for an opinion of some sort in Cavazos v. Smith, 10-1115, the state petition in the habeas case out of the Ninth Circuit that has now been relisted eleven times. There are a few notable exceptions. All the talk on cable news may be about "9-9-9," but in the nerdosphere, it's all "2-2-2"-the 222-year-old Alien Tort Statute, that is. (Pause for laughter that will never come.) After two relists, the third time at Conference proved to be the charm for Kiobel v. Royal Dutch Petroleum, 10-1491, in which the Court will consider whether an alien claimant can sue a U.S. corporation under the Statute, and for the related case Mohamad v. Rajoub, 10-88, involving the Torture Victim Protection Act of 1991. More from Kevin Russell about those grants here. We assume (but do not know) that Bowoto v. Chevron Corp., 10-1536 (also on its second relist) is now being held for Kiobel. Also good news for the petitioner in Elgin v. Department of Treasury, 11-45, which was relisted after the October 7 Conference. More on that grant can be found here. The gavel came down on three petitions out of the Fifth Circuit-Pachecho-Garcia v. United States, 10-9445 (three relists); Guerrero-Campos v. United States, 10-9746 (ditto); and Wesevich v. United States, 10-10340 (two relists) – all of which raised third-prong plain error sentencing issues. And we will have to wait a while longer to know definitively whether the U.S. District Court for the Northern Mariana Islands has jurisdiction to hear criminal cases arising under the laws of the United States even though its judges do not enjoy Article III protections, because the Court denied cert. in the twice-relisted Sun v. United States, 10-9333. And despite the presence of virtually every predictor of a grant in the case (SG petition, Seth Waxman petition, and a couple of amicus briefs), the Court turned down United States v. New York, 10-1404, and Oneida Indian Nation of New York v. County of Oneida, New York, 10-1420, which concerned claims of land transactions in New York State between 1795 and 1846 that violated the Nonintercourse Act; Justices Ginsburg and Sotomayor summarily noted that they would have granted the petitions. At long last, there appears to be only one new relist to report (and a slightly unusual one at that), along with two holds. Not exactly the poster children of geographic diversity, two of these cases are out of the Fifth Circuit and one is from Texas state court. Our sole relist is Medina v. Texas, 10-10838, a capital case in which the Texas Court of Criminal Appeals issued a forty-page unpublished opinion affirming the trial court's judgment on direct appeal. Medina's petition raises a litany of constitutional violations. In it, he argues that he was deprived of his rights to due process, a meaningful opportunity to be heard, a fair opportunity to present a defense, a fundamentally fair trial, right to counsel, and right to a reliable and individualized capital sentencing in violation of the Sixth, Eighth, and Fourteenth Amendments. One of the main issues is the prejudice caused to Medina, who was charged with killing his two children, by a number of court-ordered delays because of jury conflicts (including, supposedly, induced labor and fishing (!) during the punishment phase of his trial). Medina argues that those delays, coupled with other errors, ultimately prevented a number of witnesses from Medina's native El Salvador from testifying on his behalf. The relist is slightly unusual because the Court scheduled Medina for the November 4 (rather than October 28) Conference, perhaps because the record (which the Court requested back on October 6) arrived at One First Street the same day the petition was on for the October 14 Conference. Cotroneo v. Shaw Environmental, 11-71, is almost certainly being held for the Solicitor General's brief in Cook v. Rockwell International, 10-1377, which presents a nearly identical issue. (The Court CVSG'ed in Cook after the Long Conference.) Cotroneo is a curious case out of the Fifth Circuit in which Judge James L. Dennis authored the panel's opinion and then went on to file a separate solo opinion concurring in part with, and dissenting in part from, the majority (read: his) opinion. At any rate, Cotroneo involves the interrelation of Texas state law and the federal Price-Anderson Act, 42 U.S.C. § 1011 et seq., with regard to plaintiffs bringing tort claims for exposure to radioactivity. The Fifth Circuit concluded that the plaintiffs' state-law claims were preempted by the Price-Anderson Act, and a majority of the court found that the plaintiffs failed to satisfy the Act's requirements. Seizing on some of the language in Judge Dennis's dissent from his own majority opinion, petitioners argue that the Fifth Circuit botched its interpretation of the Act. Finally, if you're a tax junkie or just a fan of George Harrison circa 1966, get ready to be excited. The Court appears to be holding United States v. Burks, 11-178, which asks whether an understatement of gross income attributable to an overstatement of basis in sold property is an "omi[ssion] from gross income" that can trigger the extended six-year assessment period; it also asks whether a final regulation promulgated by the Department of the Treasury (which answers that first question "yes," if there was ever any doubt) is entitled to judicial deference. The case appears (to my bleary eyes) to raise the same question as United States v. Home Concrete & Supply, LLC, 11-139, which the Court granted off the summer list. This must be a fairly common tax issue, because the Court has also been holding the nearly-identical Beard v. Commissioner of Internal Revenue, 10-1553, since the Long Conference. At the risk of blogging Mission Creep, the Court has also called for the record in KPMG v. Cocchi, 10-1521, which was initially distributed for the September 26 Conference after the respondents waived their right to respond (and then was sorta kinda relisted because the Court called for a response in August). Call the CFRecord after last week's Conference an "anticipatory relist" since it means the case will be considered at a future conference, and obviously with both a CFR and a CFRecord, somebody's Spider Senses are tingling on this one. KPMG arises out of the Bernie Madoff scandal, and concerns whether an arbitration agreement between a fund auditor and its funds applies to individuals who invest in the funds and bring a claim against the auditor. That's all for now. Mercifully for all of us, we have a week off now. Stay tuned for the next relist watch the first week in November. Until then, Happy Halloween! Thanks to Eric White for compiling and drafting this update. Medina v. Texas (relisted after the 10/14 Conference for the 11/4 Conference) Docket: 10-10838 Issue(s): Whether the trial court deprived petitioner of his (1) Fourteenth Amendment rights to due process, a meaningful opportunity to be heard, a fair opportunity to present a defense, and a fundamentally fair trial; (2) Sixth and Fourteenth Amendment right to counsel; and (3) Eighth and Fourteenth Amendment right to a reliable and individualized capital sentencing proceeding. Certiorari stage documents: Opinion below (Tex. Ct. Crim. App.) Petition for certiorari Brief in opposition Petitioner's reply Utah Highway Patrol Ass'n v. American Atheists (relisted after the 9/26, 10/7, and (probably) 10/14 Conferences) Docket: 10-1276 Issue(s): (1) Which Establishment Clause test should be applied when analyzing passive public displays; (2) does the Establishment Clause forbid roadside memorial crosses marking the site of death for state highway troopers killed in the line of duty; and (3) is a collection of memorials owned by a private organization, disclaimed by the state, and located on both private and public property properly classified as government speech? Certiorari stage documents: Opinion below (10th Cir.) Petition for certiorari Brief in opposition Petitioners' reply Amicus brief of New Tribes Mission Amicus brief of Utah Sheriffs' Association Amicus brief of the Foundation for Moral Law Amicus brief for the Beckett Fund for Religious Liberty Amicus brief of Robert E. Mackey Davenport v. American Atheists (relisted after the 9/26, 10/7, and (probably) 10/14 Conferences) Docket: 10-1297 Issue(s): (1) What is the appropriate test for evaluating whether a passive display with religious imagery violates the Establishment Clause; (2) whether this Court should set aside the "endorsement test" in favor of the "coercion test"; and (3) whether a memorial cross placed on state land by a private organization to commemorate fallen state troopers is an unconstitutional establishment of religion. Certiorari stage documents: Opinion below (10th Cir.) Petition for certiorari Brief in opposition Petitioners' reply Amicus brief of New Tribes Mission Amicus brief of Utah Sheriffs' Association Amicus brief of the Beckett Fund for Religious Liberty Amicus brief of the American Center for Law and Justice Amicus brief of the Family Research Council et al. Amicus brief of Mothers Against Drunk Driving Amicus brief of Louisiana et al. (forthcoming) Amicus brief of the American Legion Miller v. Alabama (relisted after the 9/26, 10/7, and (probably) 10/14 Conferences) Docket: 10-9646 Issue(s): Whether imposing a sentence of life without possibility of parole on an offender who was fourteen at the time he committed capital murder constitutes cruel and unusual punishment in violation of the Eighth Amendment. Certiorari stage documents: Opinion below (Ala. Ct. Crim. App.) Petition for certiorari Brief in opposition Petitioner's reply brief Jackson v. Hobbs, Dir., Ark. Dep't of Corrections (relisted after the 9/26, 10/7, and (probably) 10/14 Conferences) Docket: 10-9647 Issue(s): Whether imposing a sentence of life without possibility of parole on an offender who was fourteen at the time he committed capital murder constitutes cruel and unusual punishment in violation of the Eighth Amendment. Certiorari stage documents: Opinion below (Ark. S. Ct.) Petition for certiorari Brief in opposition Petitioner's reply brief Buck v. Thaler (relisted after the 9/26, 10/7, and (probably) 10/14 Conferences) Docket: 11-6391 Issue(s): (1) Whether the defendant's race or ethnic background was used impermissibly as an aggravating circumstance in the punishment phase of a capital murder trial; (2) whether the defendant's race was used as evidence of future dangerousness during the punishment phase of a capital murder trial; (3) whether a reasonable jurist could believe this case presents extraordinary circumstances justifying reopening federal habeas corpus proceedings under Fed. R. Civ. P. 60(b)(6); (4) whether a reasonable jurist could believe that the Texas Attorney General made material misrepresentations that constitute a fraud on the court; (5) whether imposition of the death penalty in this case was arbitrary and capricious. Certiorari stage documents: Opinion below (5th Cir.) Petition for certiorari Brief in opposition Petitioners' reply Magner v. Gallagher (relisted after the 9/26, 10/7, and (probably) 10/14 Conferences) Docket: 10-1032 Issue(s): (1) Whether disparate impact claims are cognizable under the Fair Housing Act; and, if so (2) what test should be used to analyze them. Certiorari stage documents: Opinion below (8th Cir.) Petition for certiorari Brief in opposition Petitioner's reply Amicus brief of International Municipal Lawyers Association Cavazos v. Smith (relisted after the 5/12, 5/19, 5/26, 6/2, 6/9, 6/16, 6/23, 6/27, 9/26, 10/7, and (probably) 10/14 Conferences) Docket: 10-1115 Issue(s): Did the Ninth Circuit exceed its authority under 28 U.S.C. § 2254(d) by granting relief for insufficient evidence based on its acceptance of the cause-of-death testimony of defense experts over the contrary opinion testimony of prosecution experts? Certiorari stage documents: Opinion below (9th Cir.) Petition for certiorari Brief in opposition Petitioners' reply Cash v. Maxwell (relisted after the 9/26, 10/7, and (probably) 10/14 Conferences) Docket: 10-1548 Issue(s): (1) Whether, under 28 U.S.C. § 2254, a federal court may grant habeas relief on a claim that the state-court conviction rested on perjured testimony absent proof that the prosecution knew that the challenged testimony was false and when the state post-conviction court deemed the testimony truthful; (2) whether, under 28 U.S.C. § 2254, a federal court may grant habeas relief on a claim alleging suppression of exculpatory evidence when that evidence was unknown to law enforcement officials working on the case and without considering whether the state court might have rejected this claim. Certiorari stage documents: Opinion below (9th Cir.) Petition for certiorari Brief in opposition Petitioners' reply Hardy v. Cross (relisted after the 9/26, 10/7, and (probably) 10/14 Conferences) Docket: 11-74 Issue(s): Whether the court of appeals violated 28 U.S.C. § 2254 and Supreme Court precedent by overriding state court determinations of law and fact and awarding habeas relief based on a constitutional rule that this Court has never recognized and that the Seventh Circuit derived entirely from its own precedent. Certiorari stage documents: Opinion below (7th Cir.) Petition for certiorari Brief in opposition Petitioner's reply Bobby v. Dixon (relisted after the 9/26, 10/7, and (probably) 10/14 Conferences) Docket: 10-1540 Issue(s): (1) Whether the Sixth Circuit contravened the directives of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) when it abandoned the "in custody" requirement of Miranda v. Arizona and Edwards v. Arizona; (2) whether the interviewer's state of mind has any bearing on whether a suspect's statement is voluntary under the established law of Oregon v. Elstad; and (3) whether the Sixth Circuit exceeded its authority under AEDPA when it condemned the use of the "prisoner's dilemma"-where the police indicate that favorable treatment will go to the first suspect who cooperates-as an unconstitutionally coercive interrogation tactic. Certiorari stage documents: Opinion below (6th Cir.) Petition for certiorari Brief in opposition Petitioners' reply In association with Bloomberg Law.. To continue reading this legal news please click Read full information...

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Argument preview: Standing to challenge sex offender rule

The federal Sex Offender Registration and Notification Act, or SORNA, has been percolating in the lower courts since its enactment in 2006. Convicted sex offenders seem to have attacked its registration requirements every which way, leaving a trail of lower court opinions that address everything from congressional authority to enact SORNA to the Tenth Amendment and related federalism concerns. But the Supreme Court has not yet entered this thicket. Its two rulings on SORNA, both in 2010, involved relatively minor aspects of the Act, rather than the more significant constitutional issues. This case, the first set for oral argument this Term, is no different. In Reynolds v. United States, the Court will consider a surprisingly narrow issue: standing. In particular, the case asks whether a sex offender who was convicted before SORNA's enactment has standing to challenge the Attorney General's rule that applies SORNA's registration requirement to pre-enactment offenders. Because it is not at all obvious why this is even an issue, some background on SORNA, and on Billy Joe Reynolds, might be helpful. SORNA requires every sex offender to register, and to keep the registration current, in each jurisdiction where the offender lives, works, or studies. It provides that a sex offender's failure to register, or to keep registration current, itself constitutes a federal crime. Section 16913(d) delegates to the Attorney General the authority to say whether and how SORNA's registration requirements apply to sex offenders who were convicted before SORNA's enactment: Initial registration of sex offenders unable to comply with subsection (b) "The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b)." The Attorney General exercised this authority and issued just such a rule on February 28, 2007. That rule indicated that SORNA's registration requirements applied to all pre-enactment offenders. But the rule did not go through ordinary notice-and-comment rulemaking procedures; instead, the Attorney General invoked the "good cause" exception to the Administrative Procedure Act and made the rule effective immediately. The petitioner in this case, Billy Joe Reynolds, was convicted of a sex crime in Missouri in 2001 and sentenced to imprisonment. Upon his release in 2005, he registered under Missouri law and subsequently updated and verified his registration as required by Missouri law. In November 2007, Reynolds was charged and indicted with violating SORNA's registration requirements after he moved to Pennsylvania without updating his registration. He moved to dismiss the indictment, arguing – among other things – that the Attorney General's rule violated the APA. The district court denied the motion, and Reynolds entered a conditional plea, reserving the right to appeal the denial of his motion to dismiss. The Third Circuit affirmed, ruling that SORNA's registration requirements applied to pre-enactment offenders by their own force, even without the additional rule by the Attorney General. The court concluded that Reynolds therefore had no stake in the rule and no standing to challenge it. (It is not clear if this case involves formal Article III standing, or "standing" in its more colloquial sense. But it doesn't matter: either way, Reynolds has to show that he had some stake in the Attorney General's rule.) This appeal followed. Reynolds argues that the plain language of Section 16913(d) delegates to the Attorney General the authority to determine both whether SORNA's requirements apply to pre-enactment offenders and how they apply. In particular, he says that the plain language of the first clause, delegating the authority "to specify the applicability" of SORNA's registration requirements, means that the Attorney General gets to say whether they apply at all. He claims that the language of the second clause, on contradistinction to the language of the first, only underscores this: the authorization to the Attorney General "to prescribe rules" means that the Attorney General gets to say how they apply. Reynolds argues that some courts' contrary reading is too cramped, would frustrate congressional purpose, and cut against the Court's 2010 ruling in Carr v. United States (holding that SORNA's criminal provision does not apply to sex offenders whose interstate travel occurred before enactment, because that provision states elements in the present, rather than past, tense). Finally, Reynolds argues that his reading is supported by SORNA's structure and legislative history. The government argues that the plain language of SORNA's registration requirements means that all sex offenders, including pre-enactment offenders, must register. It says that SORNA's delegation to the Attorney General to "specify the applicability" of the registration requirements further suggests that the SORNA's requirements apply by their own force. Finally, the government argues that SORNA's structure, context, and purpose, and the weight of lower court authority, support its reading. The government argued in its brief opposing review that the issue here is "narrow, transitory, and of diminishing importance." It's hard to see how that's wrong. After all, the precise standing question applies to a small and shrinking class of sex offenders – those convicted of failing to register between February 28, 2007, the date of the Attorney General's rule, and August 1, 2008, the latest date that any court of appeals has said that the Attorney General issued a valid final rule that required pre-enforcement offenders to register. Moreover, the ruling, either way, won't affect the ability of pre-enforcement offenders to challenge registration requirements under SORNA. Pre-enforcement and post-enforcement offenders will be able to lodge claims against SORNA's registration requirements one way or another, regardless of the outcome here. This case only affects pre-enforcement offenders' standing to challenge the February 28, 2007, rule. Finally, this case is not framed to present the more interesting constitutional issues around SORNA. The Court will almost surely limit its ruling to the precise standing issue here. Given all this, we might wonder why the Court even agreed to hear the case. It's likely that the Court just needed to resolve a circuit split – a simple explanation for a surprisingly narrow case. Sponsored by Bloomberg Law.. To continue reading this legal news please click Read full information...

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The SCOTUSblog Community

On Monday, we will launch the new SCOTUSblog Community. The Community is essentially a discussion board. I will pick a new topic each business day. Each topic will presumptively remain open for one week. We at the blog will contribute our own opening thoughts. We will then open it up to anyone to contribute. The discussions will be "threaded" so that you can address points and questions raised by others. We will also be soliciting contributions from experts. Participants will need to register and to identify themselves. There will be no anonymity. The information provided in registration will be kept confidential. We will be moderating the discussion aggressively. We encourage competing views. Comments do not have to be based on deep analysis or legal thinking. But we will not permit uncivil discourse or comments lacking substance. We will delete comments that do not meet those standards and ban repeat offenders. The blog will have a daily post on the Community. It will identify the day's topic and upcoming topics. It will also highlight the best comments of the previous day. Monday's topic is "What should (as opposed to 'will') the Court do in the health care litigation?" The next four topics will involve the blog redesign; the Maples ineffective assistance of counsel case; the Supreme Court's approach to patent litigation; and originalism. We also welcome your suggestions for topics. Please be sure to email me with any ideas. We hope that you will participate. Sponsored by Bloomberg Law.. To continue reading this legal news please click Read full information...

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SCOTUS Denies Stay of Florida Execution – Breyer Dissents

Approximately 2 hours and thirty minutes after the Miami Herald ran a story saying the State of Florida had executed Manuel Valle, a story picked up by news outlets around the country, the United States Supreme Court denied a stay of execution with a dissent by Justice Breyer. The News-Press, who ran the wire story, captures the timeline below along with the Herald's correction. Directly below that is the Supreme Court's Order [you will likely need to zoom in to view the Supreme Court's Order]: Manuel Valle Corrections Manuel Valle v. Florida, 564 U.S. _ (2011) // Supreme Court Orders Denying Valle's Petitions //.. To continue reading this legal news please click Read full information...

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Freeman in Action

In Freeman v. United States, 131 S. Ct. 2685 (2011), the Supreme Court held that a defendant who enters into a Rule 11(c)(1)(C) plea agreement is eligible to seek a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2) based on a reduction in the Sentencing Guidelines range if the original sentence was based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o). Today in United States v. Smith, a unanimous panel of the 6th Circuit applied Freeman and arguably expanded it. In Smith, the (c)(1)(C) agreement included a guidelines calculation worksheet which came to an offense level of 35, 2 levels lower than the apparently correct offense level. This was because the plea agreement applied a 2 level enhancement for Smith's role in the offense, and the guidelines would have applied a 4 level enhancement. At the time of sentencing, defense counsel argued that this 2 level difference was the product of plea negotiations, and, "Worshiping the dead mandatory guidelines gives honor to the deceased guidelines and gives them more weight and respect than the rulings of the United States Supreme Court and the Sixth Circuit Court of Appeals. The mandatory guidelines should be left in their crypt and not brought above ground level." Smith was then sentenced pursuant to the lower guidelines range contained in the plea agreement. Accordingly, if Smith's guidelines range was calculated today, it would be the same one he was sentenced to (-2 for the new crack guidelines, +2 for the 4 level role enhancement instead of the 2 level one). However, the 6th Circuit held that Smith can have his cake and eat it too. He gets the benefit of the below guidelines range sentence in the (c)(1)(C) agreement and the benefit of the new crack guidelines. The Court reached this conclusion by deciding that "the applicable Guidelines range for purposes of § 3852(c) is the one provided in the plea agreement." In other words, on a 3582 motion, the court is stuck with all guidelines calculations provided in the (c)(1)(C) agreement, whether they result from mistakes, concessions, or otherwise. The one exception, of course, is a guidelines amendment like the crack one that lowers the guidelines ranges and entitles a defendant to 3582 relief... To continue reading this legal news please click Read full information...

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