Petitions to watch | Conference of May 10

In its conference of May 10, 2018, the court will consider petitions involving issues such as whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause; whether the Johnson rule made retroactive in Welch renders the residual clause of the career offender provision of the mandatory, pre-Booker Sentencing Guidelines unconstitutionally vague; and whether a railroad’s payment to an employee for time lost from work is subject to employment taxes under the Railroad Retirement Tax Act.

17-1104

Issue: Whether products-liability defendants can be held liable under maritime law for injuries caused by products that they did not make, sell or distribute.

17-5684

Issues: (1) Whether the petitioner’s mandatory guidelines sentence, which was enhanced under the residual clause of U.S.S.G. § 4B1.2, is unconstitutional in light of the Supreme Court’s decision in Johnson v. United States, and, if so, whether a conviction for burglary of a dwelling under Florida law qualifies as a “crime of violence” under U.S.S.G. § 4B1.2’s elements clause; and (2) whether published orders issued by a circuit court of appeals under 28 U.S.C. § 2244(b)(3), and in the context of applications to file second or successive 28 U.S.C. § 2255 motions, constitute binding precedent outside of that context.

16-8058

Issue: Whether 18 U.S.C. § 16(b) is unconstitutionally vague because it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.

17-654

Issue: Whether, pursuant to United States v. Munsingwear, Inc., the Supreme Court should vacate the U.S. Court of Appeals for the District of Columbia Circuit’s judgment and instruct that court to remand the case to the district court with directions to dismiss all claims for prospective relief regarding pregnant unaccompanied minors.

17-6856

Issue: Whether the “separate sovereign” concept actually exists when Congress’s plenary power over Indian tribes and the general erosion of any real tribal sovereignty is amplified by the Northern Cheyenne Tribe’s constitution in such a way that the petitioner’s prosecutions in both tribal and federal court violate the double jeopardy clause of the Fifth Amendment to the U. S. Constitution.

16-7667

Issue: Whether — after the Supreme Court’s decision in Johnson v. United States, which held the residual clause of the Armed Career Criminal Act’s “violent felony” definition to be unconstitutionally vague — 18 U.S.C. § 16(b) is unconstitutionally vague when it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.

17-1042

Issue: Whether a railroad’s payment to an employee for time lost from work is subject to employment taxes under the Railroad Retirement Tax Act.

17-8151

Issues: (1) Whether a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition should assume that medical personnel are competent to manage his condition and that procedure will go as intended; (2) whether evidence comparing a state’s method of execution with an alternative proposed by an inmate must be offered via a single witness, or whether a court at summary judgment must look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate; (3) whether the Eighth Amendment requires an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition; and (4) whether petitioner Russell Bucklew met his burden under Glossip v. Gross to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the state’s method of execution.

17-6926

Issue: Whether the U.S. Court of Appeals for the 5th Circuit erred when it denied a certificate of appealability regarding petitioner’s claim that the definition of a “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague in light of Johnson v. United States.

17-7183

Issue: Whether 18 U.S.C. § 16(b) is unconstitutionally vague because it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.

16-8734

Issue: Whether — after the Supreme Court’s decision in Johnson v. United States, which held the residual clause of the Armed Career Criminal Act’s “violent felony” definition to be unconstitutionally vague — 18 U.S.C. § 16(b) is unconstitutionally vague when it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.

16-8997

Issues: (1) Whether 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague; (2) whether Hobbs Act robbery is a “crime of violence” as defined by 18 U.S.C. § 924(c)(3); and (3) whether a prior Texas conviction for burglary is a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e).

17-820

Issue: Whether 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.

17-6368

Issue: Whether the U.S. Court of Appeals for the 11th Circuit erred when it denied a certificate of appealability regarding petitioner’s claim that the definition of a “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague in light of Johnson v. United States.

17-6117

Issue: Whether the U.S. Court of Appeals for the 8th Circuit erred when it denied a certificate of appealability regarding petitioner’s claim that the definition of a “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague in light of Johnson v. United States.

17-6340

Issues: (1) Whether the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague; (2) whether conspiracy to commit Hobbs Act robbery has as an element “the use … of physical force against the person or property of another,” 18 U.S.C. § 924(c)(3)(A); and (3) whether the U.S. Court of Appeals fo the 11th Circuit’s rule that reasonable jurists could not debate an issue foreclosed by binding circuit precedent, even when a judge on the panel issued the binding precedent and subsequently stated that the panel’s decision may be erroneous, misapplies the standard articulated by the Supreme Court in Miller-El v. Cockrell and Buck v. Davis for determining whether a movant has made the threshold showing for a certificate of appealability.

17-7245

Issue: Whether the death penalty, in and of itself, violates the Eighth Amendment in light of contemporary standards of decency and the geographic arbitrariness of its imposition.

17-961

Issue: Whether, or in what circumstances, a cy pres award of class action proceeds that provides no direct relief to class members supports class certification and comports with the requirement that a settlement binding class members must be “fair, reasonable, and adequate.”

17-646

Issue: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

17-5305

Issue: Whether — after the Supreme Court’s decision in Johnson v. United States, which held the residual clause of the Armed Career Criminal Act’s “violent felony” definition to be unconstitutionally vague — 18 U.S.C. § 16(b) is unconstitutionally vague when it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.

17-6262

Issue: Whether, under the Supreme Court’s opinions in United States v. BookerJohnson v. United States and Beckles v. United States, which depended heavily upon the distinction between advisory and mandatory sentencing schemes, the residual clause of the mandatory sentencing guidelines is unconstitutionally vague.

16-8777

Issue: Whether the definition of the term “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague.

16-6259

Issue: Whether — after the Supreme Court’s decision in Johnson v. United States, which held the residual clause of the Armed Career Criminal Act’s “violent felony” definition to be unconstitutionally vague — 18 U.S.C. § 16(b) is unconstitutionally vague when it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.

17-7177

Issue: Whether, when a criminal defendant has already been convicted of an offense in a state criminal proceeding, the United States may thereafter prosecute the defendant for the same offense without violating the Fifth Amendment’s prohibition on double jeopardy.

17-6751

Issue: Whether the term “crime of violence” in 18 U.S.C. § 16(b) is unconstitutionally vague.

17-6065

Issues: (1) Whether the federal generic aggravated-assault offense requires more than a showing of mere recklessness for conviction; and (2) whether the definition of an “aggravated felony” in 18 U.S.C. § 16(b) is unconstitutionally vague.

17-6769

Issue: Whether, under the Supreme Court’s opinions in United States v. BookerJohnson v. United States and Beckles v. United States, which depended heavily upon the distinction between advisory and mandatory sentencing schemes, the residual clause of the mandatory sentencing guidelines is unconstitutionally vague.

17-7153

Issues: (1) Whether incarcerating a prisoner awaiting execution for over four decades, even after the state found a life-without-parole sentence to be appropriate, violates the Eighth Amendment because it fails to serve any legitimate penological purpose; and (2) whether incarcerating a prisoner awaiting execution for over four decades, with over half that time attributable to repeated constitutional violations in a succession of sentencing hearings, violates the Eighth Amendment because it fails to serve any legitimate penological purpose.

17-7521

Issues: (1) Whether a prior conviction for drug trafficking, Fla. Stat. § 893.135, that rests upon the mere possession of a specified quantity of drugs qualifies as a “controlled substance offense” for federal sentencing enhancement purposes, when the Florida statute is missing the requisite element of intent to distribute, an issue on which the circuits are divided; and (2) whether 18 U.S.C. § 922(g)(1) is facially unconstitutional because it exceeds Congress’s authority under the commerce clause and is unconstitutional as applied to the intrastate possession of a firearm.

16-9660

Issue: Whether — after the Supreme Court’s decision in Johnson v. United States, which held the residual clause of the Armed Career Criminal Act’s “violent felony” definition to be unconstitutionally vague — 18 U.S.C. § 16(b) is unconstitutionally vague when it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.

17-1366

Issues: (1) Whether the retroactivity analysis of Teague v. Lane is categorical, such that when the Supreme Court held that Johnson v. United States announced a new substantive rule of constitutional law that is retroactive to cases on collateral review in Welch v. United States, it made Johnson’s rule retroactive for purposes of all cases on collateral review; and (2) whether the Johnson rule made retroactive in Welch renders the residual clause of the career offender provision of the mandatory, pre-Booker Sentencing Guidelines unconstitutionally vague.

17-5767

Issues: (1) Whether the analysis of whether a predicate act constitutes a “crime of violence” under the language of 18 U.S.C. § 924(c)(3)(B) must comport with the Supreme Court’s jurisprudence regarding the Armed Career Criminal Act’s residual clause, 18 U.S.C. § 924(e)(2)(B)(ii), as the U.S. Courts of Appeals for the 3rd, 7th and 9th Circuits have held, in conflict with the rulings of the U.S. Courts of Appeals for the 2nd, 6th, 8th and 11th Circuits; and (2) whether the “ordinary case” methodology survived Johnson v. United States for purposes of statutes other than the Armed Career Criminal Act, 18 U.S.C. § 924(e).

16-9319

Issue: Whether 18 U.S.C. § 16(b) is unconstitutionally vague.

16-9318

Issue: Whether 18 U.S.C. § 16(b) is unconstitutionally vague.

17-5484

Issue: Whether the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague in light of the Supreme Court’s holding in Johnson v. United States.

17-5503

Issues: (1) Whether the double jeopardy clause of the Fifth Amendment prohibits the federal government from charging, convicting and sentencing a person who has already been charged, convicted and sentenced in the court of a state for much of the same conduct; and (2) whether the seriousness of the offense conduct is an appropriate consideration for a district court when fashioning a sentence on revocation of supervised release.

17-6721

Issue: Whether the term “crime of violence” in 18 U.S.C. § 16(b) is unconstitutionally vague.

17-6628

Issue: Whether 18 U.S.C. § 16(b), as applied to the definition of an aggravated felony in the Immigration and Naturalization Act, is constitutional.

16-7214

Issue: Whether 18 U.S.C. § 16(b) is unconstitutionally vague because it requires application of an indeterminate risk standard to the “ordinary case” of an individual’s prior conviction.

16-8453

Issues: (1) Whether all facts that increase a defendant’s statutory maximum, including the fact of a prior conviction, must be pleaded in the indictment and either admitted by the defendant or proven to a jury beyond a reasonable doubt; (2) whether the Supreme Court should hold this petition for certiorari pending a decision in Sessions v. Dimaya.

17-350

Issues: (1) Whether the U.S. Court of Appeals for the Federal Circuit’s judgment should be vacated and remanded with instructions to dismiss the appeal as moot, in accordance with United States v. Munsingwear, Inc., when the claims of the challenged patent are invalid, and there is no longer a live case or controversy between petitioners and respondent; and (2) whether, if the case is not moot, the lower court erred in holding that the statutory definition of a patent eligible for covered business method review requires that the claims of the patent expressly include a “financial activity element”—in other words, that the claim have no use outside of financial activity—rather than making covered business method review available for patents that claim “a method or corresponding apparatus for performing data processing or other operations used in the practice, administration, or management of a financial product or service.”

16-7373

Issue: Whether 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague.

17-1056

Issue: Whether, or in what circumstances, a defendant must admit that non-forward-looking statements are false or misleading, in order to be protected by the Private Securities Litigation Reform Act safe-harbor provision for forward-looking statements.

17-6877

Issue: Whether, following Johnson v. United States, in which the Supreme Court invalidated the Armed Career Criminal Act’s residual clause as unconstitutionally vague, identical language in the residual clause of the previously-mandatory sentencing guidelines is likewise unconstitutional.

17-5476

Issue: Whether 18 U.S.C. § 16(b) is unconstitutionally vague, in the context of a challenge to the “aggravated felony” enhancement under Sentencing Guidelines § 2L1.2(b)(1)(C).

17-742

Issue: Whether the U.S. Court of Appeals for the 10th Circuit’s holding—granting qualified immunity to law-enforcement officers who stopped the petitioner from praying silently in her own home because there was no prior case law involving similar facts—conflicts with Hope v. Pelzer, which “expressly rejected a requirement that previous cases be ‘fundamentally similar’” or involve “‘materially similar’ facts.”

16-978

Issue: Whether 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.

16-966

Issue: Whether 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.

15-1496

Issue: Whether 18 U.S.C. 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.

15-1494

Issue: Whether 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.

16-398

Issue: Whether 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing a noncitizen’s removal from the United States, is unconstitutionally vague.

16-6288

Issue: Whether 18 U.S.C. § 16(b), as incorporated into the definition of the term “aggravated felony” in 8 U.S.C. § 1326(b)(2), is unconstitutionally vague.

16-6392

Issues: (1) Whether the U.S. Court of Appeals for the 6th Circuit erred when it affirmed the exclusion of the petitioner’s expert rebuttal testimony regarding his future dangerousness in violation of Kelly v. South Carolina, which recognized a capital defendant’s broad due process right to rebut any “implication” or “inference” of dangerousness “from the [government’s] evidence,” and misread the record, which plainly shows that the petitioner’s expert testimony would have rebutted not only the government’s evidence but also its summation arguments; and (2) whether, after the Supreme Court invalidated the definition of a “violent felony” in the residual clause of the Armed Career Criminal Act in Johnson v. United States, the definition of a “crime of violence,” 18 U.S.C. § 924(c)(3)(B), is unconstitutionally vague.

16-8996

Issue: Whether a certificate of appealability should be granted to resolve a circuit split regarding whether the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague.

17-6883

Issue: Whether—when the U.S. Court of Appeals for the 5th Circuit found that the new mitigating evidence discovered on federal habeas review was “double-edged” and could not outweigh the substantial aggravating evidence, and when it misapplied the standard for evaluating prejudice in a Wiggins claim—it denied the petitioner due process.

17-5410

Issue: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

16-617

Issue: Whether 18 U.S.C. § 16(b), as incorporated into Sentencing Guidelines § 2L1.2(b)(1)(C), is unconstitutionally vague.

17-651

Issue: Whether the definition of the term “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague.

17-97

Issue: Whether the definition of the term “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague.

17-5495

Issue: Whether the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague in light of the Supreme Court’s holding in Johnson v. United States.

16-991

Issue: Whether 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s removal from the United States, is unconstitutionally vague.

 

Posted in Cases in the Pipeline

Recommended Citation:
Aurora Barnes,
Petitions to watch | Conference of May 10,
SCOTUSblog (May. 9, 2018, 7:35 PM),
http://www.scotusblog.com/2018/05/petitions-to-watch-conference-of-may-10/

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