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.
The Supreme Court has continued the relist housecleaning since our last post. The biggest development was a rare summary reversal in favor of a death-row inmate in nine-time relist Whitton v. Dixon. In a per curiam opinion, the court held that the U.S. Court of Appeals for the 11th Circuit erred by relying on post-trial DNA evidence the jury never saw; the court held that because that evidence could not have influenced the jury’s verdict, it had no place in the circuit court’s analysis and the case goes back for another look. Justice Clarence Thomas, largely joined by Justice Samuel Alito, dissented, arguing that the court was vacating over a stray mention of later DNA testing in a long 11th Circuit opinion even though Whitton’s claim would fail anyway. The court also granted review in Maxwell v. Thomas, a formerly self-represented prisoner case relisted just last week that involves whether prisoners can pursue accelerated transfer to a halfway house or home confinement under the First Step Act using a petition for habeas relief.
But that is where the luck ran out for petitioners. The court denied review in United States v. Rivera-Valdes – a government petition involving the service of process in immigration cases. It was the third government petition turned away in as many weeks, with a fourth turned away a couple of weeks earlier. That represents an unusual cold streak for the solicitor general, traditionally the most successful petitioner. And the justices denied leave to file a bill of complaint in Florida v. California and Franchise Tax Board of California, Florida’s challenge to California’s tax treatment of former Florida domiciliaries. Thomas, joined by Alito, dissented once more to reiterate their view that the court lacks discretion to refuse original actions between states.
On to new business: There are 122 petitions and applications on the docket for this week’s conference. Four are being considered for a second time.
Due process and immigration detention
In Genalo v. Black, the solicitor general is petitioning to resolve two constitutional questions about the government’s authority to detain certain noncitizens under 8 U.S.C. § 1226(c), a provision of the Immigration and Nationality Act that mandates detention of specified categories of “criminal aliens” (including those convicted of aggravated felonies) pending removal proceedings. In Jennings v. Rodriguez, the court construed § 1226(c) to prohibit bond hearings as a statutory matter, but reserved the question whether the due process clause ever requires such hearings (and the standard of proof that would be applied). The cases involve two lawful permanent residents detained by ICE after criminal convictions: Carol Williams Black, who was detained for about seven months, and Keisy G.M., who was detained for about 21 months. A two-judge panel of the U.S. Court of Appeals for the 2nd Circuit (the third judge died while the opinion was being written) held that detention under Section 1226(c) can become “unreasonably prolonged,” triggering due-process protection; applying Supreme Court precedent, it concluded that both respondents were entitled to individualized bond hearings and, in Black’s case, that the government had to justify continued detention by clear and convincing evidence. The en banc court denied rehearing. Judge William Nardini dissented, joined by Chief Judge Debra Ann Livingston and Judges Richard Sullivan, Michael Park, and Steven Menashi; Menashi separately dissented, joined by the same group minus Nardini. They disagreed with the panel on the merits and noted that the decision created a circuit split.
The government seeks review, arguing that the 2nd Circuit’s decision (joined, the government argues, by the U.S. Court of Appeals for the 3rd Circuit) cements a split with the U.S. Court of Appeals for the 8th Circuit, which held that “[d]ue process imposes no time limit on detention pending deportation.” According to the government, the 2nd Circuit’s decision is simply wrong: respondents are raising substantive due process claims (whether the length of detention is constitutionally permissible), not procedural due process claims, and substantive due process affords no right to a bond hearing where, as here, detention bears a reasonable relation to legitimate immigration purposes such as preventing criminal aliens from fleeing or re-offending. And the government argues that even accepting the 2nd Circuit’s procedural framing, the clear-and-convincing burden it imposed is unjustified.
Black and G.M., represented by the American Civil Liberties Union, counter that the government forfeited its new first-principles argument that detention under Section 1226(c) implicates no fundamental liberty interest at all by taking a different position below; that the supposed split is shallow because the 2nd Circuit merely applied the familiar Mathews v. Eldridge procedural due process framework to unusually prolonged detentions; and that the cases are messy vehicles because Black has left the country and withdrew her appeal and G.M. has been out of ICE custody since 2022. The court called for the case record on Monday, I suspect to assess respondent’s claimed vehicle problems. Between the relist and the called for the record, it’s clear the justices are taking a close look at this one. We’ll see soon if this case breaks the solicitor general’s cold streak.
The state confesses error
Newberry v. Texas is a case in the increasingly crowded category: “Texas confessed error, but the Texas Court of Criminal Appeals was unimpressed.”
Michael Newberry was 17 years old in May 1996 when, one late night in Gainesville, Texas, he and a group of teenagers encountered Granville Hanks, whose car had stalled in the road. Hanks was later found shot dead. Newberry was charged with capital murder on the theory that the crime was death-eligible because he and co-defendant Lilton Deon Moore allegedly murdered Hanks while attempting to rob him. The state did not seek the death penalty, so his conviction after a jury trial carried an automatic life sentence.
Decades later, Newberry obtained the prosecution file, which contained Moore’s police statement and grand-jury testimony. According to the habeas court, that evidence undercut the state’s whole theory: Moore repeatedly indicated that no one discussed robbing Hanks, that Moore had decided to approach Hanks to sell him crack cocaine, and that Newberry came along for the same reason. The habeas court found that the trial prosecutor, Janelle Haverkamp – now the elected judge of the same court – had knowingly withheld favorable and material evidence, recommending that Newberry be granted a new trial. Then Texas did something remarkable: it agreed. The state acknowledged that its conduct violated Brady v. Maryland and joined Newberry’s request for relief – telling the habeas court that “it is a hard decision to admit that someone who held your position once withheld evidence and the defendant…did not receive a fair trial under the 14th Amendment of the Constitution.” Although Newberry, the state, and the habeas court were all in alignment, the Texas Court of Criminal Appeals nonetheless issued an unsigned, unpublished barely two-page per curiam order with the following reasoning: “The trial court recommends granting Applicant a new trial. However, based on our independent review of the entire record, this Court finds that Applicant has not met his burden to prove that he is entitled to relief.” One judge dissented, without writing separately.
Newberry sought review of what appears to be a fairly strong Brady claim. The local district attorney (representing the state of Texas) initially waived its right to file a response. But when the Supreme Court called for a response, it filed a brief captioned “brief in opposition” which nevertheless stated, “the state agrees that relief is warranted because its misconduct under Brady precluded the possibility of a fair trial.” It says that the Court of Criminal Appeals’ denial of relief is “unprecedented, unreasoned, and requires correction.” The Supreme Court often says that it does not sit as a court of error correction, but it has been known to make exceptions when the error is especially grave and especially clear. As the Cooke County district attorney noted, “[t]he State of Texas … ‘wins its point whenever justice is done its citizens in the courts.’”
Judged by six
In Kian v. Florida, Hamed Kian was convicted by a six-person jury on five counts of practicing chiropractic medicine with a suspended license. On appeal, Kian argued that trying him before a six-person jury violated the Sixth and 14th Amendments. The court affirmed without a written opinion – not an anomaly in Florida, where the state’s statutes provide for 12-person juries only in capital cases, leaving all other criminal defendants to be tried by a jury of six. That arrangement has rested on Williams v. Florida, in which the court held (some would say in tension with nearly eight centuries of contrary common-law practice) that the Sixth Amendment’s jury guarantee encompasses no specific-size requirement. The petition asks the court to overrule Williams, arguing that it cannot be squared with Ramos v. Louisiana, which held that the Sixth Amendment’s jury-trial right requires that juries be unanimous, consistent with its Founding-era understanding, and rejected the “cost-benefit” and “functionalist” analysis Williams employed. Justice Neil Gorsuch (the author of Ramos) has written repeatedly that Williams needs to be reconsidered, and Justice Brett Kavanaugh has indicated a willingness to do so as well.
Florida urges denial, invoking stare decisis and warning that overruling Williams would imperil roughly 5,000 criminal convictions currently on direct appeal in Florida alone, along with convictions in five other states that also permit sub-12 juries. Florida further argues that Ramos did not tacitly overrule Williams, since the two cases address different Sixth Amendment requirements (unanimity versus size), and that the court has repeatedly declined to revisit Williams in recent terms. Because the court recently denied review in both Minor v. Florida and Parada v. United States (which also sought to overrule Williams), I don’t see this one going anywhere. Yet.
When is an established rule “previously unavailable”?
In Guerrero v. Johnson, the state of Texas complains that the U.S. Court of Appeals for the 5th Circuit is being too prisoner-friendly in habeas cases. This is a capital habeas case about when “new” is really new, and when “unavailable” means unavailable rather than merely doomed.
Dexter Johnson was convicted and sentenced to death for the 2006 kidnapping, rape, and murder of Maria Aparece. Years before Johnson committed his crime, the Supreme Court decided Atkins v. Virginia, holding that the Eighth Amendment forbids executing people that are intellectually disabled. But Johnson did not raise an Atkins claim in his initial state or federal habeas proceedings. He later sought authorization to file a successive federal habeas petition after the DSM-5 changed the diagnostic framework for intellectual disability, emphasizing clinical judgment and adaptive-functioning deficits over rigid IQ cutoffs. The 5th Circuit authorized the successive petition and stayed Johnson’s execution, reasoning under their precedent, Cathey v. Davis, that a claim is not “previously available” and can thus go forward for purposes of the Antiterrorism and Effective Death Penalty Act (the governing habeas statute) unless it had “some possibility of merit” at the time of the earlier petition.
After an evidentiary hearing, the district court concluded that Johnson had satisfied AEDPA’s gatekeeping requirements. The 5th Circuit then accepted an interlocutory appeal and, in an unpublished panel opinion, reaffirmed Cathey’s rule that “a claim must have some possibility of merit to be considered available” and that “Johnson’s Atkins claim, though technically available to him at all times, did not have a possibility of merit before the APA’s 2013 publication of DSM‐V.” The 5th Circuit narrowly denied rehearing en banc by a vote of 9 to 7, over a dissent by Judge James Ho joined by Judges Edith Jones, Jerry Smith, and Kurt Engelhardt, arguing that Atkins is “a decades old decision, issued years before Johnson brutally murdered Maria Aparece,” and that his was not a claim of new law, which was necessary here under AEDPA.
Texas argues that the 5th Circuit’s decision (together with decisions of the U.S. Court of Appeals for the 9th Circuit) directly conflicts with decisions of the U.S. Courts of Appeals for the 4th and 11th Circuits, which hold that claims are “previously unavailable” only if they could not have been asserted in a prior proceeding. Under that approach, Atkins was always available to Johnson and his successive petition is barred. Johnson responds that there is less here than advertised: lower courts apply a pragmatic feasibility standard, the issue rarely matters, and the case is a poor vehicle because it is interlocutory and the petition reframes the question the 5th Circuit agreed to hear. The case nonetheless has several grant-friendly features: a state petition in a capital habeas case, an asserted circuit split over AEDPA, and a closely divided denial of rehearing en banc.
That’s all for this week. Check back Monday to see whether the court serves up some grants or just another helping of relist purgatory.
New Relists
Issues: (1) Whether, where the petitioner, the state, and the habeas court all agree that a conviction is unconstitutional and must be reversed, it violates due process for a state superior court to summarily deny relief without explanation; and (2) whether the prosecution violated Brady v. Maryland by suppressing evidence contradicting its proof of the aggravating element distinguishing capital murder from non-capital homicide.
(Relisted after the May 28 conference.)
Issues: (1) Whether there is a point at which an alien’s detention under Section 1226(c), pending a decision on whether he is to be removed, becomes “unreasonably prolonged,” such that due process requires a bond hearing; and (2) whether, if so, due process in such a bond hearing requires placing the burden on the government to justify the alien’s continued detention by clear and convincing evidence.
(Relisted after the May 28 conference.)
Issue: Whether a claim relies on a “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable” when the habeas petitioner could have asserted a claim based on the rule in a prior federal habeas petition.
(Relisted after the May 28 conference.)
Issue: Whether the petitioner was deprived of his right, under the Sixth and 14th Amendments, to a trial by a 12-person jury when the defendant is charged with a serious felony.
(Relisted after the May 28 conference.)
Returning Relists
Gator’s Custom Guns, Inc. v. Washington, 25-153
Issue: Whether ammunition feeding devices with the capacity to hold more than ten rounds are “Arms” presumptively entitled to constitutional protection under the plain text of the Second Amendment.
(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, and May 28 conferences.)
Issues: (1) Whether a ban on the possession of exceedingly common ammunition feeding devices violates the Second Amendment; and (2) whether a law dispossessing citizens, without compensation, of property that they lawfully acquired and long possessed without incident violates the takings clause.
(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, and May 28 conferences.)
Viramontes v. Cook County, 25-238
Issue: Whether the Second and 14th Amendments guarantee the right to possess AR-15 platform and similar semiautomatic rifles.
(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, and May 28 conferences.)
National Association for Gun Rights v. Lamont, 25-421
Issue: Whether a ban on the possession of AR-15-style rifles and firearm magazines with a capacity in excess of 10 rounds violates the Second Amendment.
(Relisted after the Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, and May 28 conferences.)
Issue: Whether the Second and 14th Amendments guarantee the right to possess semiautomatic rifles that are in common use for lawful purposes, including the AR-15.
(Relisted after the Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, and May 28 conferences.)
City of Los Angeles v. Estate of Hernandez, 25-538
Issues: (1) Whether the 9th Circuit disregarded this court’s precedents, including Graham v. Connor and Plumhoff v. Rickard, by artificially parsing a six-second event into discrete segments, finding the first four shots reasonable, but the final two unconstitutional based on a split-second gap and slow-motion video review; (2) whether the 9th Circuit effectively adopted a new and more extreme “moment-of-threat” rule that this court unanimously rejected in Barnes v. Felix; (3) whether, in denying qualified immunity, the en banc 9th Circuit evaluated whether the right at issue was “clearly established” at an impermissibly high level of generality, contrary to this court’s repeated warnings in Kisela v. Hughes, City & County of San Francisco v. Sheehan, and Ashcroft v. al-Kidd; and (4) whether this case presents a novel opportunity to clarify Fourth Amendment guidance that while officers should be encouraged to continue to reassess a situation, they must also be judged in light of the rapidly evolving and life-threatening circumstances they confront.
(Relisted after the Mar. 20, Mar. 27, Apr. 2, Apr. 17, Apr. 24, May 1, May 14, May 21, and May 28 conferences.)
Issue: (1) Whether the Texas Court of Criminal Appeals’ creation of a novel and unforeseeable procedural bar in its interpretation of Texas Criminal Code Article 11.071, Section 5, precludes review of petitioner’s Atkins claim under federal law; and (2) whether a state-created procedural rule may bar review of an Atkins claim consistent with due process where the state has conceded, as here, that the individual meets the criteria for intellectually disability and the procedural gateway necessary to allow for a merits review.
(Relisted after the Mar. 20, Mar. 27, and May 28 conferences.)
Issues: (1) Whether courts must reverse for Griffin v. California error without examining a prosecutor’s comment in context and without finding prejudice; or (2) whether Griffin should be overruled.
(Relisted after the Apr. 17, Apr. 24, May 1, May 14, May 21, and May 28 conferences.)
Issues: (1) Whether courts must reverse for Griffin v. California error without examining a prosecutor’s comment in context and without finding prejudice; or (2) whether Griffin should be overruled.
(Relisted after the Apr. 17, Apr. 24, May 1, May 14, May 21, and May 28 conferences.)
E.D. ex rel. Duell v. Noblesville School District, 25-906
Issues: Whether Hazelwood School District v. Kuhlmeier applies (1) whenever student speech might be erroneously attributed to the school; (2) when student speech occurs in the context of an “organized and structured educational activity”; or (3) only when student speech is part of the “curriculum.”
(Relisted after the Apr. 17, Apr. 24, May 1, May 14, May 21, and May 28 conferences.)
Issue: Whether, when a government official acts in an obviously unconstitutional manner, that is sufficient for the violation to be clearly established, or it is a violation clearly established only if there is binding precedent in a factually indistinguishable case.
(Relisted after the Apr. 17, April 24, May 1, May 14, May 21, and May 28 conferences.)
Issues: (1) Whether the 2nd Circuit violated the Antiterrorism and Effective Death Penalty Act by finding a state jury instruction invalid under Missouri v. Seibert; and (2) whether the 2nd Circuit violated AEDPA by finding that a single response by a state trial judge to a jury note necessarily infected the jury verdict, when the state courts found that there was more than sufficient evidence of the defendant’s guilt that was unaffected by the response.
(Relisted after the Apr. 24, May 1, May 14, May 21, and May 28 conferences.)
Issues: (1) Whether the 4th Circuit violated the Antiterrorism and Effective Death Penalty Act and the party-presentation principle by granting habeas relief based on its de novo review of the state court’s decision; and (2) whether the 4th Circuit violated AEDPA and the party-presentation principle by granting habeas relief on a state-court judgment that was not before it.
(Relisted after the May 14, May 21, and May 28 conferences.)
Dershowitz v. Cable News Network, Inc., 25-770
Issues: (1) Whether a defendant’s systematic omission of qualifying and limiting language from a plaintiff’s recorded statement constitutes proof of actual malice under New York Times Co. v. Sullivan, sufficient to survive summary judgment; (2) whether the actual malice standard established in Sullivan, or as extended by its progeny, should be discarded altogether or at least as to private citizens who are public figures; and (3) whether this court should modify Sullivan’s clear-and-convincing and burden-of-proof evidentiary standards.
(Relisted after the May 21 and May 28 conferences.)
