By John Elwood
June 8, 2021
at 5:54 p.m.
The Relist Watch column examines certified petitions that the Supreme Court has “re-listed” for its next conference. A brief explanation of relists is available here.
The Supreme Court expeditiously authorized the two new re-registrations last week. The court granted the cert in Federal Bureau of Investigation v. Fazaga, 20-828, implying if Article 1806 (f) of Foreign Intelligence Review Act 1978, which creates procedures for individuals to seek to suppress FISA evidence that will be presented against them, replaces the privilege of state secrets at common law. The court granted relatively few cases for the next term, but two of them involve that privilege, both of which derive from the United States Court of Appeals for the 9th Circuit. The petitioners in National Coalition for Men v. Selective Service System, 20-928, contesting the constitutionality of a registration project reserved for men, were not so fortunate. The court refused the examination without a noted dissent. Judge Sonia Sotomayor wrote a separate opinion concurring in the denial of certification, joined by Justices Stephen Breyer and Brett Kavanaugh. While noting that “[t]he role of women in the army has radically changed since »the Supreme Court confirmed the registration of conscriptions reserved for men in Rostker vs. Goldberg, the deal explained that Congress was even then considering lifting the restrictions, and concluded that “at least for now, the Court’s long-standing deference to Congress on defense matters National and Military Affairs warns against granting a review while Congress actively assesses the issue.
The court only re-entered one case this week: Balbuena vs. Cates, 20-1207. Balbuena again raises a question regarding the Antiterrorism and Effective Death Penalty Act 1996, which places limits on the ability of federal judges to grant reparations to inmates who seek an indirect review of their criminal convictions. As Sotomayor wrote while serving as a United States Court of Appeals Judge for the 2nd Circuit, AEDPA “guarantees every detainee a full opportunity to request a collateral examination. “But the law places even stricter restrictions on ‘second or successive’ requests.
California state prisoner Alexander Balbuena argues that the lower courts are divided when the first habeas proceeding ends and subsequent filings are considered “second or successive”. Balbuena argues that in two circuits, the courts have ruled that the first habeas proceedings are not completed while the district court’s denial of redress is still open on appeal, and therefore attempts to amend the petition are not not subject to restrictions on “second or successive” requests. . And yes, then Judge Sotomayor wrote an opinion adopting that position. The petition argues that five other circuits treat a district court’s substantive denial of a habeas petition as the “end point” of the first habeas proceeding and thus characterize any effort to seek as a “second or successive” petition. modify the underlying request while reviewing the denial is pending appeal.
In Balbuena’s case, detectives interviewing Balbuena in an interrogation room informed him of his right to counsel “before” the interrogation, and he was also told that he “ha[d] the right to a lawyer. Balbuena then confessed to his role in a murder. On direct appeal and collateral review through his first motion, the courts rejected Balbuena’s argument that his confession was involuntary. As the appeal to dismiss his first habeas petition was pending at Circuit 9, Balbuena received permission from the district court to amend his petition, and he introduced a new argument: the detectives had violated Miranda v. Arizona by not informing him of his right to legal assistance during examination. Because the district court had already ruled on Balbuena’s first petition, the 9th Circuit ruled that its new argument in the amended record was a prohibited “second or successive” petition. Arguing that other circuits would have allowed him to assert his new argument, Balbuena asks the Supreme Court to rule.
Balbuena vs. Cates, 20-1207
Publish: If a filing in a district court to amend a pending habeas petition on appeal constitutes a “second or successive petition” under the Antiterrorism and Effective Death Penalty Act 1996.
Chipotle Mexican Grill v. Scott, 20-257
Publish: Whether a district court may take into account factors other than the presence of a single question of law or fact common to a group of employees when assessing whether employees are “similarly situated” for the purposes of the class action provision of the Fair Labor Standards Act.
(relaunched after the conferences of December 4, 11, Jan 8, Jan 15 and Jan 22) [NB: the parties have reached an agreement in principle to settle and the court now appears to be holding the case]
Lombardo v. City of St. Louis, Missouri, 20-391
Publish: Could a reasonable jury find that officers used excessive force when they put a handcuffed and shackled person face down on the ground and pushed them behind their back until they choked .
(rescheduled before conferences on December 4, December 11, January 8, January 15, January 22, February 19, February 26, March 5, March 19, March 26, April 1, April 16 and April 23; relisted after conferences of April 30, May 13, May 20 and May 27)
Dunn vs. Reeves, 20-1084
Publish: US Court of Appeals for the 11th Circuit violated 28 USC § 2254 (d) by easily attributing the error to the state court in violation of Woodford v. Visciotti.
(relaunched after the conferences of May 20 and 27)
Hernandez v. Peery, 20-6199
Questions: (1) Should a certificate of capacity to appeal (“COA”) be granted systematically when state courts and state judges are divided on the merits of the constitutional question as held by the 5th and 7th Circuit, several district courts and three judges of this Court, or if the courts deny a COA despite the dispute between reasonable state lawyers, as judged by the 9th Circuit and the district court below; (2) whether, on a preliminary basis, the petitioner has shown that reasonable jurists could debate whether his petition should have been resolved in a different manner where the opinion published by the California Supreme Court created a split with every state and every lower federal court since Perry vs. Leeke, who ruled that an order of the trial court which violates the “right of the defendant to unrestricted access to his lawyer for advice on various matters relating to the trial” is a structural error, reversible in itself; and (3) whether the 9th Circuit improperly looked beyond the preliminary inquiry as to whether a COA is warranted and decided the merits without jurisdiction in violation of the ruling of this Court in Buck vs. Davis, where different state court judges have reached opposing conclusions on the petitioner’s constitutional claim and all lower state and federal court authorities disagree with the California Supreme Court ruling on this constitutional claim .
(relaunched after the conferences of May 20 and 27)