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SCOTUS Next Week

Monday is Columbus Day, a government holiday, so the orders list from today's conference will be issued Tuesday.  Today the Court issued a single order lifting a stay in one of the same-sex marriage cases, presumably from the conference though not on the list.  Cert Pool has the list.  SCOTUSblog has its list of Petitions to Watch.  More on that after the break.

Tuesday's arguments feature an "original jurisdiction" case, one of the few that the Constitution allows to be filed directly in SCOTUS, not appealed from a lower court.  Yep, states suing each other over rivers again.  Also a case about state regulators and antitrust.

Wednesday's calendar has a civil case about appellate courts reviewing district court factual findings.  That might have something of interest for those who do federal habeas cases, which are technically civil.

The case most relevant to this blog, also Wednesday, is Jennings v. Stephens.  It has to do with the procedural requirements for a habeas petitioner who prevails on one issue but loses on the others, and who wants the court of appeals to review the others when the state appeals on the one it lost.  Does he need to cross-appeal?  Does he need a certificate of appealability? 

If he needs a COA for rejected claims, how finely do we parse the claims?  If the petitioner says his lawyer was ineffective for reasons A, B, and C, and the district court says A and B were fine but C was ineffective, does he need a COA for A and B?

CJLF has filed one of its very few briefs disagreeing, in part, with the prosecution.  We take the position (disagreeing with the petitioner) that he does indeed need a COA for rejected claims, but we also believe (disagreeing with the state) that ineffective assistance is one claim for each phase of the trial.
Here are the criminal and related cases on SCOTUSblog's Petitions to Watch list (issues copied from SCOTUSblog):

Whitman v. U.S. -- a securities case

Dunlap v. Idaho
Issue: Whether the Confrontation Clause applies to evidence offered by the prosecution to prove statutory aggravating circumstances that establish a defendant's eligibility for the death penalty.

Battles v. United States
Issue: Whether, when the district court disposes of a motion for a new trial while an appeal is pending in the court of appeals, a defendant must file a second notice of appeal in order for the court of appeals to have jurisdiction to consider the issue that was before the district court in the motion for a new trial.

Crews v. Farina
Issue: Whether a habeas court may evade the highly deferential standard of review in the habeas statute by characterizing its legal and policy differences with the state court as unreasonable factual determinations and grant the writ on the basis of ineffectiveness of appellate counsel when the state court held that the cross-examination of the mitigation witness was not fundamental error under state law.

Carroll v. Carman
Issue: (1) Whether, when a police officer approaches a residence to conduct a "knock and talk," the Fourth Amendment requires the officer to go to the "front door" even where it reasonably appears that some other entrance is also customarily used by visitors; and (2) whether the court of appeals erred in holding that such a rule was "clearly established" for purposes of qualified immunity.

Henderson v. United States
Issue: Whether a felony conviction, which makes it unlawful for the defendant to possess a firearm, prevents a court under Rule 41(g) of the Federal Rules of Criminal Procedure or under general equity principles from ordering that the government (1) transfer non-contraband firearms to an unrelated third party to whom the defendant has sold all his property interests; or (2) sell the firearms for the benefit of the defendant.

Brumfield v. Cain
Issue: (1) Whether a state court that considers the evidence presented at a petitioner's penalty phase proceeding as determinative of the petitioner's claim of mental retardation under Atkins v. Virginia has based its decision on an unreasonable determination of facts under 28 U.S.C. § 2254(d)(2); and (2) whether a state court that denies funding to an indigent petitioner who has no other means of obtaining evidence of his mental retardation has denied petitioner his "opportunity to be heard," contrary to Atkins and Ford v. Wainwright and his constitutional right to be provided with the "basic tools" for an adequate defense, contrary to Ake v. Oklahoma.

Chappell v. Ayala
Issue: Whether a state court's rejection of a claim of federal constitutional error on the ground that any error, if one occurred, was harmless beyond a reasonable doubt is an "adjudicat[ion] on the merits" within the meaning of 28 U.S.C. § 2254(d), so that a federal court may set aside the resulting final state conviction only if the defendant can satisfy the restrictive standards imposed by that provision.

City of Los Angeles v. Patel
Issue: (1) Whether facial challenges to ordinances and statutes are permitted under the Fourth Amendment; and (2) whether a hotel has an expectation of privacy under the Fourth Amendment in a hotel guest registry where the guest-supplied information is mandated by law and an ordinance authorizes the police to inspect the registry, and if so, whether the ordinance is facially unconstitutional under the Fourth Amendment unless it expressly provides for pre-compliance judicial review before the police can inspect the registry.

Also noteworthy is James Hitchcock of Florida, whose thoroughly deserved execution for murdering a 13-year-old girl has been delayed far too long.  Like many murderers in the turbulent 70s and 80s, his first death sentence was set aside when the Supreme Court declared unconstitutional an aspect of his state's capital sentencing law it had previously indicated was perfectly okay.  The opinion in Hitchcock v. Dugger (1987) was written by, of all people, Justice Scalia.  "Sometimes even good old Homer nods."  Justice Scalia soon recognized the error of the underlying rule he was applying in that case.  See Walton v. Arizona (1990) (concurring in part and concurring in the judgment).

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