A capital case that tests the right to represent oneself at trial

RELIST WATCH

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

We have two new cases to discuss this week — one unequivocal relist, and one kinda-sorta relist.

Like last week’s new addition, Shoop v. Cassano is a capital case. August Cassano was serving a life sentence for murder when he stabbed his cellmate, Walter Hardy, to death. Before his trial for murdering Hardy, Cassano filed a “waiver of counsel” along with a request for the appointment of counsel. Then, three days before trial, Cassano asked the trial court, “Is there any possibility I could represent myself?” The Ohio Supreme Court held that neither the waiver of counsel nor the question about self-representation constituted a proper invocation of the Sixth Amendment right of self-representation, noting that the Supreme Court has said that a defendant must “clearly and unequivocally declare[]” his intention to proceed pro se under Faretta v. California, and must do so in timely fashion. The court held that Cassano’s statements were not unequivocal invocations and Cassano’s question would have been untimely even if it had been clear and unequivocal. By a 2-to-1 vote, the U.S. Court of Appeals for the 6th Circuit granted habeas relief, holding that Cassano had properly invoked his right of self-representation and the Ohio Supreme Court had unreasonably applied U.S. Supreme Court precedent in concluding otherwise. Three judges dissented from the decision denying rehearing en banc. Judge Amul Thapar wrote that the 6th Circuit had been “corrected for similar errors before,” and “[u]nfortunately,” the court “need[ed] to be reminded again.”

The state of Ohio now asks the Supreme Court to summarily reverse the 6th Circuit’s decision. It also asks the court to clarify whether correcting a clearly erroneous panel decision is sufficiently important to warrant rehearing en banc. The court rescheduled this case eight times before relisting it.

Now on to the kinda-sorta relist. Because the court decided Morgan v. Sundance, Inc. and Shinn v. Ramirez on Monday, it released all the cases raising the same or similar issues that it had been holding for those cases. On each of those dockets, the penultimate entry reads, “DISTRIBUTED for Conference of [the date when the court voted to hold the case],” and the last entry notes it was distributed for this week’s conference.

One of those cases is International Energy Ventures Management, L.L.C. v. United Energy Group, Ltd., which argues that there is a circuit split on whether factual findings are always reversible only upon a showing of clear error. The district court in that case found as a factual matter that United Energy Group did not suffer prejudice from International Energy Ventures Management’s failure to immediately press its right to arbitration. The court of appeals reversed. But rather than find the factual finding of no prejudice clearly erroneous, as Federal Rule of Civil Procedure 52 textually requires, the U.S. Court of Appeals for the 5th Circuit held that because the district court’s no-prejudice finding was conclusory, the court of appeals “owe[d] no deference to such conclusory assertions.” International Energy Ventures Management sought Supreme Court review, arguing that there is a circuit split on whether appellate courts can reverse factual findings absent clear error. But it noted that the court was then considering in Morgan v. Sundance whether courts can adopt a rule conditioning waiver of the right to arbitrate on a showing of prejudice, and asked for the petition to be held for Morgan. The case was distributed for conference on May 19. Ordinarily, at that conference, the court would have voted to hold that case for Morgan. But the justices knew something people outside the court didn’t: Morgan would be released the following Monday, and it would hold that courts may not condition a waiver of the right to arbitrate on a showing of prejudice.

Ordinarily, I’d consider International Energy Ventures Management a released hold that because of a happenstance of timing looked like a relist, but I thought it worth flagging anyway, particularly because the petitioner is represented by the Dean of #AppellateTwitter. International Energy Ventures Management has submitted a supplemental brief arguing for five pages that the court should vacate the 5th Circuit’s decision and remand for further consideration in light of Morgan. Although they throw in a pro forma alternative request for plenary review on the asserted circuit split, it’s clear it’s gunning for vacatur and remand.

That’s all for this week. Until next time, stay safe!

New Relists

Shoop v. Cassano, 21-679
Issues: (1) Whether the Supreme Court should summarily reverse the U.S. Court of Appeals for the 6th Circuit’s award of habeas relief; (2) whether, when a three-judge panel clearly errs in awarding habeas relief, its decision raises questions important enough to justify en banc review; and (3) whether Cassano clearly and timely requested self-representation.
(rescheduled before the Mar. 4, Mar. 18, Mar. 25, April 1, April 14, April 22, April 29 and May 12 conferences; relisted after the May 19 conference)

International Energy Ventures Management, L.L.C. v. United Energy Group, Ltd., 21-1028
Issue: Whether a reviewing court must strictly adhere to Federal Rule of Civil Procedure 52(a)’s requirement that a district court’s fact-findings “must not be set aside unless clearly erroneous,” as the U.S. Court of Appeals for the 1st, 8th, 9th, and District of Columbia Circuits have held, or whether the appellate court may engage in its own review with less deference (or “no” deference, as the U.S. Court of Appeals for the 5th Circuit held below) when the court of appeals decides the fact-findings are insufficient, as the U.S. Courts of Appeals for the 2nd, 5th, 6th, and 11th Circuits have concluded.
(kinda-sorta relisted after the May 19 conference)

Returning Relists

Andrus v. Texas, 21-6001
Issues: (1) Whether, on remand, the Texas court rejected the Supreme Court’s conclusions in Andrus v. Texas, which were amply supported by the habeas and trial records, and whether the Texas court disregarded the Supreme Court’s express guidance for conducting a prejudice analysis pursuant to Strickland v. Washington; and (2) whether the Texas court’s failure to adhere to the Supreme Court’s decision conflicts with our constitutional system of vertical stare decisis and creates widespread confusion regarding the proper legal standard that courts must use in assessing whether the Sixth Amendment right to effective assistance of counsel is violated in death-penalty cases.
(rescheduled before the Jan. 14, Jan. 21, Feb. 18, Feb. 25, March 4, and March 18 conferences; relisted after the March 25, April 1, April 14, April 22, April 29, May 12 and May 19 conferences)

Cope v. Cogdill, 21-783
Issues: (1) Whether jail officials who are subjectively aware of a substantial risk that a pretrial detainee will attempt suicide and respond to the harm unreasonably may be held liable when their violation was obvious — as the U.S. Courts of Appeals for the 1st, 4th, 7th, 8th, 9th, and 11th Circuits have held — or whether jail officials who respond unreasonably to the obvious risk should be granted qualified immunity in the absence of a case involving the same facts — as the U.S. Court of Appeals for the 5th Circuit held below; (2) whether the objective standard the Supreme Court announced in Kingsley v. Hendrickson applies to inadequate-care claims brought by pretrial detainees — as the U.S. Court of Appeals for the 2nd, 6th, 7th, and 9th Circuits have held — or whether the subjective standard that applies to convicted prisoners also applies to pretrial detainees — as the U.S. Courts of Appeals for the 8th, 10th, and 11th Circuits have held and as the 5th Circuit held below; and (3) whether the judge-made qualified immunity doctrine requires reform.
(relisted after the April 1, April 14, April 22, April 29, May 12 and May 19 conferences; record requested and received after the April 22 conference)

Grzegorczyk v. United States, 21-5967
Issue: Whether Zenon Grzegorczyk is entitled to relief on his claim that knowingly using a facility of interstate commerce with intent that a murder be committed, in violation of 18 U.S.C. § 1958(a), is not a crime of violence under 18 U.S.C. § 924(c).
(relisted after the April 14, April 22, April 29, May 12 and May 19 conferences)

Thomas v. Lumpkin, 21-444
Issues: (1) Whether, under the Supreme Court’s clearly established precedent, Andre Thomas—an African American man who, during a schizophrenic episode, killed his estranged white wife, their son, and her daughter— was denied his constitutional right to be tried by an impartial jury, when three jurors at Thomas’s capital trial expressed opposition to people of different races marrying and having children—writing on their voir dire questionnaires that such relationships are “against God’s will,” that we should “stay with our Blood Line,” and that the children of interracial relationships are denied “a specific race to belong to”—and when the jurors never disclaimed those views or said they could set them aside to consider Thomas’s mental illness and make the individualized sentencing judgment required by the Constitution; and (2) whether Thomas was denied his constitutional right to the effective assistance of counsel, when defense counsel did not object to, or seek to strike, any of those three jurors, and failed to ask two of them a single question about their bias.
(rescheduled before the Jan. 7, Jan. 14, Jan. 21, Feb. 18, Feb. 25, March 4, March 18, March 25, April 1, April 14, April 22 and April 29 conferences; relisted after the May 12 and May 19 conferences)