Supreme Court Relist watch

Two apparent relists by the Supreme Court today (there are probably more, but these are the only two I’ve inferred). 

Sears v. Upton, 09-8854, a capital case on petition for a writ of certiorari to the Supreme Court of Georgia, which presents two issues:  (1) Having found that capital trial defense counsel were constitutionally deficient in their penalty phase preparation, may the state habeas court find an absence of prejudice merely because it is impossible to know how the capital trial jury would have reacted to evidence of petitioner’s substantial mental health impairments and other mitigating factors trial counsel failed to present?; and (2) Does imposing the death penalty for the offense of kidnaping with bodily injury (a non-homicide offense) violate the Eighth Amendment prohibition on cruel and unusual punishment? The state alleges that Sears did not properly raise claim #2 properly below, and thus can’t benefit from the Court’s decision in Kennedy v. Louisiana, 128 S. Ct. 2641 (2008).  This is apparently its sixth relist since the Court started called for the record, so clearly something (a dissent from denial of cert or perhaps a summary reversal) is brewing.  This is a less sympathetic case that you might think, since a neighboring state was planning to prosecute Sears for the murder of the kidnaping victim until it saw Sears had received the death penalty for the kidnaping.  I hope to have another post later this week on this case, time permitting.

Ryan v. Libberton, 09-1208, appears to have been relisted for the first time.  The State of Arizona has petitioned on two issues:  (1) Did the Ninth Circuit err by finding on habeas that the state court’s ruling regarding ineffective assistance of counsel at sentencing was “unreasoned” and thereafter failing to reference the AEDPA deference standard?  (2) Did the Ninth Circuit err by granting habeas relief in ineffective assistance claim?  And have we mentioned that this is from the Ninth Circuit?  Hint hint!  The Ninth Circuit may have been eclipsed recently by the Sixth recently, but states still like to work the identity of the Court into the question presented.  I suspect the Supremes are trying to decide whether summary reversal might be in order here, but it’s way too early to tell after only a single relist.  I suppose it might also be a “hold” for Harrington v. Richter, 09-587, on for argument in the fall.  It’ll be easier to tell next week. UPDATE (2:20 pm EDT) Libberton is showing up on the docket as a “relist” now.