Defendants’ Native American status and more abortion petitions

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Petitions of the week
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This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether federal prosecutors or defendants have the burden of proving their status as a Native American or not for purposes of criminal jurisdiction, and three conditional cross-petitions over Texas’ abortion ban.

Federal law generally provides that tribal courts, not federal or state courts, have jurisdiction to prosecute minor crimes “committed by one Indian against the person or property of another Indian” on tribal land. In Haggerty v. United States, federal authorities charged Justin Haggerty with committing malicious destruction of tribal property on the Tigua Indian Reservation in Texas. In the U.S. Court of Appeals for the 5th Circuit, Haggerty maintained that the prosecution had failed in its burden of proof because it never introduced any evidence that he was not Native American. The 5th Circuit rejected Haggerty’s contention, ruling that the burden was Haggerty’s to have raised a defense that he is Native American. Arguing that the circuits are split on this question, Haggerty asks the justices for review.

On Monday, the Supreme Court will hear oral arguments in two cases arising out of Texas’ ban on nearly all abortions after the sixth week of pregnancy, Whole Woman’s Health v. Jackson and United States v. Texas. The cases address the law’s private-enforcement structure, which deputizes private individuals to bring lawsuits to enforce the ban, and whether the federal government has the right to sue in federal court to block the law’s enforcement. As Amy Howe reported for SCOTUSblog, the justices’ orders on oral arguments suggest that they will not use these cases to directly weigh in on whether the law violates the constitutional right to abortion.  Nonetheless, three conditional cross-petitions in Whole Woman’s Health ask the justices to address directly the prevailing abortion precedents, Roe v. WadePlanned Parenthood v. Casey, and 2016’s Whole Woman’s Health v. Hellerstedt. The cross-petitions are Dickson v. Whole Woman’s Health, Carlton v. Whole Woman’s Health, and Clarkston v. Whole Woman’s Health.

These and other petitions of the week are below:

Shoop v. Twyford
21-511
Issues: (1) Whether federal courts may use the All Writs Act to order the transportation of state prisoners for reasons not enumerated in 28 U.S.C. § 2241(c); and (2) whether, before a court grants an order allowing a habeas petitioner to develop new evidence, it must determine whether the evidence could aid the petitioner in proving his entitlement to habeas relief, and whether the evidence may permissibly be considered by a habeas court.

Haggerty v. United States
21-516
Issues: (1) Whether the “interracial” nature of a minor offense in Indian Country is an element of 18 U.S.C. § 1152, rather than an affirmative defense, and thus must be both pled and proved by the prosecution; and (2) whether the government must plead and prove the “interracial” nature of a minor offense in Indian Country to establish federal subject matter jurisdiction under 18 U.S.C. § 1152.

Simko v. United States Steel Corporation
21-522
Issue: Whether, or under what circumstances, a claim that an employer unlawfully retaliated against an employee for filing a charge of discrimination with the Equal Employment Opportunity Commission under the remedial structure of Title VII may be addressed in an ensuing civil action, if the employee did not file a second formal administrative charge specifically alleging the retaliation.

Martin v. Castro
21-533
Issues: (1) Whether, when a law enforcement officer reasonably deploys a police K9 to restrain a fleeing suspect known to have a history of violent crime and believed to be in possession of a deadly weapon and under the influence of an illegal stimulant, the Fourth Amendment is violated when the K9’s handler commands the K9 to release the suspect within seconds after the suspect is handcuffed and ceases resisting arrest; (2) whether the U.S. Court of Appeals for the 9th Circuit erred when it failed to consider the totality of the circumstances in assessing the reasonableness of force used to restrain a suspect with a known history of violent crime who is actively resisting arrest and is believed to be in possession of a deadly weapon and under the influence of an illegal stimulant; and (3) whether the 9th Circuit violated City and County of San Francisco v. Sheehan and other binding precedent when it denied a police officer qualified immunity by defining clearly established law at too high a level of generality.

Reagle v. Lewis
21-538
Issue: Whether, after Roderick Lewis’s counsel failed at sentencing to say anything more than that Lewis would speak on his own behalf, the U.S. Court of Appeals for the 7th Circuit misapplied 28 U.S.C. § 2254 in holding that the failure to apply United States v. Cronic — in which the Supreme Court suggested that, though Strickland v. Washington requires an ineffective-assistance claimant to prove both deficient performance and prejudice, some “circumstances. . . are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified” — violated “clearly established Federal law, as determined by the Supreme Court of the United States.”

Dickson v. Whole Woman’s Health
21-582
Issues: (1) Whether the Supreme Court should overrule Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey; and (2) whether the Supreme Court should overrule Whole Woman’s Health v. Hellerstedt, which refused to enforce an explicit severability requirement in a state abortion statute.

Carlton v. Whole Woman’s Health
21-583
Issue: Whether the Supreme Court should overrule Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey.

Clarkston v. Whole Woman’s Health
21-587
Issue: Whether the Supreme Court should overrule Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey.



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