On Point blog, page 1 of 16
SCOTUS grants cert to determine whether restitution is penal for purposes of the Ex Post Facto Clause
Holsey Ellingburg, Jr. v. United States, USSC No. 24-557, certiorari granted 4/7/25
SCOTUS added to its 2025-26 docket on April 7, when it granted the petitioner’s cert. petition to address the following:
Whether criminal restitution under the Mandatory Victim Restitution Act (MVRA) is penal for purposes of the Ex Post Facto Clause.
SCOTUS grants cert to determine scope of defendant’s right to discuss matters with counsel during recess in trial testimony.
David Asa Villarreal v. Texas, USSC No. 24-557, certiorari granted 4/7/25
SCOTUS added to its 2025-26 docket this week when it granted the petitioner’s cert. petition to address the following:
Whether a trial court abridges the defendant’s Sixth Amendment right to counsel by prohibiting the defendant and his counsel from discussing the defendant’s testimony during an overnight recess.
SCOTUS to consider mental state requirement for “true threats”
Counterman v. Colorado, USSC No. 22-138; cert. granted 1/13/23; reversed 6/27/23 Scotusblog page (containing links to briefs and commentary)
Question presented:
Whether, to establish that a statement is a “true threat” unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective “reasonable person” would regard the statement as a threat of violence.
SCOTUS takes up use of co-defendant’s out-of-court confession against defendant
Adam Samia v. United States, USSC No 22-196 ; cert. granted 12/13/22; Scotusblog page (containing links to briefs and commentary)
Question presented:
Whether admitting a codefendant’s redacted out-of-court confession that immediately inculpates a defendant based on the surrounding context violates the defendant’s rights under the Confrontation Clause of the Sixth Amendment.
SCOW to review deference owed to trial counsel’s strategic decisions
State v. Jovan T. Mull, 2020AP1362, petition for review of a per curiam opinion granted, 5/18/22, case activity (including briefs)
Question Presented (from petition):
Under binding case law, in reviewing an ineffective assistance claim, the court must defer to a trial attorney’s strategic decisions. Here, the circuit court found Mull’s attorney used reasonable strategies in choosing a defense and handling cross-examination of a witness, and it deferred to the attorney’s strategy. But the court of appeals substituted its own decisions for those of Mull’s trial attorney. Did the court of appeals impermissibly fail to defer to Mull’s attorney’s strategic decisions?
SCOTUS will clarify plain error doctrine’s prejudice requirement
Greer v. United States, No. 19-8709, cert. granted 1/11/21; SCOTUSblog page
Whether, when applying plain-error review based on an intervening United States Supreme Court decision, Rehaif v. United States, a circuit court of appeals may review matters outside the trial record to determine whether the error affected a defendant’s substantial rights or impacted the fairness, integrity or public reputation of the trial.
SCOTUS to address how plain error doctrine applies to defective plea colloquy
United States v. Gary, No. 20-444, cert granted 1/8/21; SCOTUSblog page
Whether a defendant who pleaded guilty to possessing a firearm as a felon, in violation of 18 U.S.C. 922(g)(1) and 924(a), is automatically entitled to plain error relief if the district court did not advise him that one element of that offense is knowledge of his status as a felon, regardless of whether he can show that the district court’s error affected the outcome of the proceedings.
SCOTUS to review illegal reentry after deportation
United States v. Palomar-Santiago, No. 20-437, cert granted 1/8/21; SCOTUSblog page
Whether charges that a non-citizen illegally reentered the United States should be dismissed when the non-citizen’s removal was based on a misclassification of a prior conviction.
SCOTUS declares federal penalty enhancer unconstitutionally vague
United States v. Davis, USSC No. 18-431, June 24, 2019, affirming and vacating in part, United states v. Davis, 903 F.3d 483 (5th Cir. 2018); Scotusblog page (includes links to briefs and commentary)
No surprise here. Section 18 U.S.C. §924(c) makes it a crime to use a firearm during a crime of violence and 18 U.S.C. §924(c)(3)(B) defined a crime of violence as an offense that by its nature involves a substantial risk that physical force would be used in committing it. SCOTUS declared similar language unconstitutionally vague in Sessions v. Dimaya, and it followed suit here.
SCOTUS to address second or successive habeas petition issue
Banister v. Davis, USSC No. 18-6943, certiorari granted 6/24/19
Whether and under what circumstances a timely Rule 59(e) motion should be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby, 545 U.S. 524 (2005).