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October 20, 2021 Cert Alert

Supreme Court Cases of Interest

Anthony Franze

The Supreme Court’s October 2021 term promises to be a blockbuster. With less than half of the court’s docket filled at the time this column went to print, the justices already have accepted high-profile cases concerning abortion rights, the Second Amendment, and religious school choice.

Though these marquee cases will likely dominate the headlines, the high court will also consider several important criminal law–related issues this term. In October alone, the justices will hear arguments in a case involving the government’s effort to reinstate the death penalty of one of the Boston Marathon bombers, a case addressing the permissible scope of the Armed Career Criminal Act, and a case that will provide guidance to practitioners navigating SCOTUS’s Confrontation Clause jurisprudence.

With ongoing concerns about COVID-19, it is unclear whether the justices will continue to hear oral argument by telephone or return to in-courtroom arguments. But whether in-person or by phone, the docket is chock-full of significant criminal law–related cases, with more surely to follow. The following are the criminal cases set for argument at the time we went to print.


Crimes and Offenses—Armed Career Criminal Act

Wooden v. United States, No. 20-5279

Argument Date: October 4, 2021

Question Presented:

Did the Sixth Circuit err by expanding the scope of 18 U.S.C. § 924(e)(1) in the absence of clear statutory definition with regard to the vague term “committed on occasions different from one another”?

[Disclosure: Arnold & Porter is counsel for petitioner.]

Habeas—Standard for Constitutional Error

Brown v. Davenport, No. 20-826

Argument Date: October 5, 2021

Question Presented:

May a federal habeas court grant relief based solely on its conclusion that the Brecht test is satisfied, as the Sixth Circuit held, or must the court also find that the state court’s Chapman application was unreasonable under § 2254(d)(1), as the Second, Third, Seventh, Ninth, and Tenth Circuits have held?

Sixth Amendment—Confrontation Clause

Hemphill v. New York, No. 20-637

Argument Date: October 12, 2021

Question Presented:

A litigant’s argumentation or introduction of evidence at trial is often deemed to “open the door” to the admission of responsive evidence that would otherwise be barred by the rules of evidence. The question presented is: Whether, or under what circumstances, a criminal defendant who opens the door to responsive evidence also forfeits his right to exclude evidence otherwise barred by the Confrontation Clause.

Death Penalty—Sentencing/Pretrial Publicity

United States v. Tsarnaev, No. 20-443

Argument Date: October 13, 2021

Questions Presented:

  1. Whether the court of appeals erred in concluding that respondent’s capital sentences must be vacated on the ground that the district court, during its 21-day voir dire, did not ask each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard, or seen about respondent’s case.
  2. Whether the district court committed reversible error at the penalty phase of respondent’s trial by excluding evidence that respondent’s older brother was allegedly involved in different crimes two years before the offenses for which respondent was convicted.


Shinn v. Ramirez, No. 20-1009

Argument Date: November 1, 2021

Question Presented:

The Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254(e)(2), precludes a federal court from considering evidence outside the state court record when reviewing the merits of a claim for habeas relief if a prisoner or his attorney has failed to diligently develop the claim’s factual basis in state court, subject to only two statutory exceptions not applicable here. In the cases below, the Ninth Circuit concluded that AEDPA’s bar on evidentiary development does not apply to a federal court’s merits review of a claim when a court excuses that claim’s procedural default under Martinez v. Ryan, 566 U.S. 1 (2012), because the default was caused by postconviction counsel’s negligence. The question presented, which drew an eight-judge dissent from the denial of en banc rehearing in each case, is: Does application of the equitable rule this Court announced in Martinez v. Ryan render 28 U.S.C. § 2254(e)(2) inapplicable to a federal court’s merits review of a claim for habeas relief?

Section 1983—Favorable Termination Rule

Thompson v. Clark, No. 20-659

Argument Date: November 1, 2021

Question Presented:

Whether the rule that a plaintiff must await favorable termination before bringing a Section 1983 action alleging unreasonable seizure pursuant to legal process requires the plaintiff to show that the criminal proceeding against him has “formally ended in a manner not inconsistent with his innocence,” Laskar v. Hurd, 972 F.3d 1278, 1293 (11th Cir. 2020), or that the proceeding “ended in a manner that affirmatively indicates his innocence,” Lanning v. City of Glens Falls, 908 F.3d 19, 22 (2d Cir. 2018); see also Laskar, 972 F.3d at 1293 (acknowledging 7-1 circuit conflict).

Crimes and Offenses—The Hobbs Act

United States v. Taylor, No. 20-1459

Argument Date: t/b/d

Question Presented:

Whether 18 U.S.C. § 924(c)(3)(A)’s definition of “crime of violence” excludes attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a).

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By Anthony Franze

ANTHONY FRANZE is a lawyer in the Appellate & Supreme Court practice at Arnold & Porter, a regular commentator on the high court and appellate law, and a critically acclaimed novelist.