The Supreme Court's October 2011 Term unofficially begins tomorrow with the holding of what's known as the Long Conference. At the conference, the Court will review the many, many pending petitions that were filed over the past few months. Typically, there are a bunch of cert grants since, from a numbers standpoint, the Court simply needs cases to fill up its winter sittings, particularly January and February.
For me, I will be keeping a close eye on Battles, the case concerning the constitutionality of the New York persistent felony offender statute. Another case is Langston v. Conway, a Second Circuit habeas grant.
With respect to other habeas cases out there to keep an eye on, SCOTUSblog has compiled a long list of "Petitions We're Watching" for the conference. They presented most of them in five separate posts called "Petitions To Watch" (1, 2, 3, 4, 5). There are a bunch of habeas cases in those posts. I counted six -- Cavazos v. Smith, Bobby v. Dixon, Langston v. Conway, Lambert v. Beard, Cash v. Maxwell, and Allison v. Diaz (which, I believe, mistakenly appeared in two of the posts -- or maybe they are just watching it very closely). To note, Cavazos is a relisted case that has been relisted numerous times and will probably be a summary reversal (maybe even issued in the order list from this conference). In addition, on their page of Petitions, there were a few more: Motley v. Yenawine, Wetzel v. Abu-Jamal, Wetzel v. Kindler, Ryan v. Gonzales, Childers v. Floyd, Harrison v. Gillespie, and Harvey v. McNeil. You can check out that page to get more details on those cases.
But here's something that made me go hmmm. All but three of the habeas petitions they're watching are cases in which the circuit court granted the petition or otherwise ruled in favor of petitioner (Childers, Harrison, and Harvey were denials). In other words, 10 to 3. To note, of those ten, eight were habeas grants and two were procedural decisions in the petitioner's favor.
Doesn't seem completely balanced. But I guess it comes down to how a "petition to watch" gets defined. If it is defined as one where the odds of a grant are higher than in the typical case, then it would seem appropriate to put more focus on the habeas grants. I think it's safe to say that there are certain members of the Court who think that any habeas grant under the AEDPA or any procedural decision in petitioner's favor is questionable. With respect to habeas grants, I believe we may be at the point for some Judges where unless petitioner has shown an extreme malfunction in the system (maybe something like the judge and jury relying upon witchcraft during trial*), the AEDPA bars relief. And, as we watched last Term, these Judges firmly believe that the habeas rules should be interpreted as strictly as possible against the petitioner.
*I wonder if these judges would require a petitioner to show prejudice in that situation. . . (that's a joke, I am sure they would, begrudgingly, conclude that it's immune from harmless error analysis).
This means that a habeas grant/petitioner victory is probably going to get more attention at a conference. Which means the 10-3 disparity really isn't as unbalanced as it would appear.
When the Court issues its order list, I'll put up a post.