Supreme Court Relist Watch

On a day when traffic to read about the substantively important decision in Virginia v. Seblius is so heavy that the page is running very slowly, this seems like a great time to post on a subject of interest to practically no one at all. But hey, I amuse myself.

Three apparent new relists:

Swartout v. Cooke, 10-333, CA9 (Reinhardt, Wardlaw, M. Smith), which presents the question whether a federal court may grant habeas corpus relief to a state prisoner based on its view that the state court erred in applying the state-law standard of evidentiary sufficiency governing state parole decisions. Orin may be along shortly to note that given the identity of the author, the Justices are probably taking a close look at this one.

Blaine Lafler v. Anthony Cooper, 10-209, CA6 (Kennedy, Cole, Jordan (DJ)), presents the question whether a state habeas petitioner is entitled to relief where his counsel deficiently advises him to reject a favorable plea bargain but the defendant is later convicted and sentenced pursuant to a fair trial.

Clifton Terelle McNeill v. United States, 10-5258, CA4 (Traxler, Niemeyer, Kiser (dj)), presents the question whether the plain meaning of “is prescribed by law” which ACCA uses to define a predicate “serious drug offense,” requires a federal sentencing court to look to the maximum penalty prescribed by current state law for a drug offense at the time of the instant federal offense, regardless of whether the state has made that current sentencing law retroactive.

I say “apparent” because after a couple weeks of promptly posted detailed updates on the Court’s automated system telling callers when they could expect an update about a case, today, everything just says “pending” with no end date. Hopefully, that just reflects the fact that the Clerk’s office is taking a little more time to get the dockets updated, since the Court won’t have grants again for the better part of the month (until January 7 or 10, depending on whether it’s doing Friday grants then), rather than a change in practice or policy.

Still no action on hardy perennials Aldermann v. United States, 09-1555, and Beer v. United States, 09-1395, or on newcomers Ryan v. Schad, 10-305, and Missouri v. Frye, 10-444. The last entries for Beer and Schad are for the 12/3 Conference, which suggests they weren’t relisted at that Conference; ordinarily, when the last entry is for a long-passed conference, it suggests the case is being held for another case or some external event, but I don’t know what that might be. Suggestions?

We finally got action on Allen v. Lawhorn, 10-24, a habeas case presenting the question whether a state court’s determination that trial counsel’s waiver of a penalty-phase closing argument did not prejudice the defendant was “contrary to” clearly established Supreme Court precedent.  The case had been relisted 8 times.  Justice Scalia, joined by Justices Thomas and Alito, dissented from the Court’s decision not to grant certiorari and summarily reverse, concluding that the Eleventh Circuit’s decision was “patently wrong.” The closing paragraph is noteworthy because it reflects a sentiment that explains a lot of the Court’s summary reversals, and indicates lower-court judges are being “lawless[],” so I reproduce most of it below.

I would not dissent from denial of certiorari if what happened here were an isolated judicial error. It is not. With distressing frequency, especially in capital cases such as this, federal judges refuse to be governed by Congress’s command that state criminal judgments must not be revised by federal courts unless they are “contrary to, or involv[e] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U. S. C. §2254(d)(1) (emphasis added). We invite continued lawlessness when we permit a patently improper interference with state justice such as that which occurred in this case to stand.