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Petitions of the week ByAndrew Hamm on Oct 30, 2021 at 3:07 pm

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 Haggertys contention, ruling that the burden was Haggertys 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 Womans Health v. Jackson and United States v. Texas. The cases address the laws 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 laws 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 Womans Health ask the justices to address directly the prevailing abortion precedents, Roe v. Wade,Planned Parenthood v. Casey, and 2016s Whole Womans Health v. Hellerstedt. The cross-petitions are Dickson v. Whole Womans Health, Carlton v. Whole Womans Health, and Clarkston v. Whole Womans Health.

These and otherpetitions of the weekare below:

Shoop v. Twyford21-511Issues: (1) Whether federal courts may use the All Writs Act to order the transportation of state prisoners for reasons not enumerated in28 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 States21-516Issues: (1) Whether the interracial nature of a minor offense in Indian Country is an element of18 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 Corporation21-522Issue: 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. Castro21-533Issues: (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 K9s 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 violatedCity and County of San Francisco v. Sheehanand 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. Lewis21-538Issue: Whether, after Roderick Lewiss 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 misapplied28 U.S.C. 2254in holding that the failure to applyUnited States v. Cronic in which the Supreme Court suggested that, thoughStrickland v. Washingtonrequires 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 Womans Health21-582Issues: (1) Whether the Supreme Court should overruleRoe v. WadeandPlanned Parenthood of Southeastern Pa. v. Casey; and (2) whether the Supreme Court should overruleWhole Womans Health v. Hellerstedt, which refused to enforce an explicit severability requirement in a state abortion statute.

Carlton v. Whole Womans Health21-583Issue: Whether the Supreme Court should overruleRoe v. WadeandPlanned Parenthood of Southeastern Pa. v. Casey.

Clarkston v. Whole Womans Health21-587Issue: Whether the Supreme Court should overruleRoe v. WadeandPlanned Parenthood of Southeastern Pa. v. Casey.

Go here to see the original:
Defendants' Native American status and more abortion petitions - SCOTUSblog