Bill Cassara and our friends at the Army Defense Appellate Division have filed a cert petition seeking review of CAAF’s decision in United States v. Clayton, 68 M.J. 419 (C.A.A.F. 2010).  Here’s the QP:


We’ve uploaded the body of the cert petition here.

23 Responses to “Clayton cert petition”

  1. Anonymous says:

    What a waste of client funds. This QP is about as case-specific as possible.

    SCOTUS isn’t in the error-correction business. You’ve got one chance (i.e. the QP) at showing the Court how this case presents an engine for resolving a gap in the law. This petition is all about why CAAF got it wrong. Who cares?

  2. Anonymous says:

    It is a good QP. Good chance that the SCT bites and grants.

  3. Snuffy says:

    Who says the client is paying anything?

  4. Anonymous says:

    What a waste of electrons from a pretty uninformed post. There is a legitimate issue. There is a split in the circuits about how to address said issue, see dissent by Ryan at CAAF.

    When will a petition NOT be about why the lower court got it wrong?

  5. Anonymous says:

    Every federal circuit court that has addressed this issue has come to the same conclusion, save the Sixth. By split, do you mean outlier?

    This petition gets 60 seconds of eyes-on from the cert pool clerk. And that will be that.

  6. RY says:

    While it’s true that J. Ryan’s dissent lays out the reason for granting cert well, I wonder if the issue presented captures enough attention that the petition will not be set-aside and quickly denied. Granted, the issue sounds like a wrong was done, but it’s the conflict J. Ryan addresses that’s most compelling for a grant.

  7. DC Steve says:

    So any bets as to whether SCOTUS will overturn the service court and CAAF’s interpretation and evaluation of:
    1) Military Rules for Evidence & 4th as applied to military.
    2) for a search authorized overseas and during wartime
    3) The good faith exception as applied to the military

    Seems like this is the case the Court would ignore. Even if this does represent a circuit split that is important enough for the court to resolve, it is unlikely that it would be through a military case.

    But, never hurts to try!

  8. anon says:

    Well, Mr. Cassera is a nice guy, but he does like to eat. What makes you think otherwise?

  9. Anonymous says:

    Anon 7:26, did one of the counsel steal your girlfriend or something? Why are you so upset by this?

  10. Mike "No Man" Navarre says:

    A few thoughts:

    1. The QP is a decent shot at a deep issue with a few flaws. The body of the brief could have moved up the pseudo-split issues to highlight them. Since it really isn’t a split I think I didn’t belong in the QP. I hope Army et al. are recuriting amici because from what I can see there are probably ltos out there–though they may not want to generate bad case law as this case has the potential to do.

    2. This sentence probably deserves filing a corrected petition:

    In two recent cases, the Second Circuit held that the defendants‟ memberships in online child pornography e-groups were sufficient to establish probable cause for obtaining search warrants of their computers and homes. See United States v. Coreas, 419 F.3d 151 (2d Cir. 2005); United States v. Martin, 426 F.3d 68 (2d Cir. 2005).

    3. See my prior post on Clayton’s cert. worthiness, here.

  11. Dwight Sullivan says:

    Anon 2130 –chicks dig cert petitions.

  12. Anonymous says:

    Every federal circuit court that has addressed this issue has come to the same conclusion, save the Sixth.By split, do you mean outlier?This petition gets 60 seconds of eyes-on from the cert pool clerk.And that will be that.

    So, IOW, a split. And you do not file cert petition because you know they will be picked up, you file them because there is a legitimate issue in the case.

  13. Anonymous says:

    Agreed. But whether a legitimate issue exists and whether it’s been cogently and succinctly presented for the Court in the cert petition are two separate matters. The point of my original post (@ 1926) and follow on comment is that this petition came up short in the second regard. And that’s a shame, because there’s arguably a legitimate issue here (the first hurdle).

    Anyway, I apologize for my previously snarky tone. I like the discussion that’s going on and don’t want to kill it by acting like a jerk.

  14. Anonymous says:

    Sorry, this was a reply to Anon @ 2225.

  15. Anonymous says:

    but that wasn’t your point.

    And instead of being snarky, which to your credit you have apologized for, how would YOU have written it or framed it better?

    There is one circuit who looks at different but no there aren’t any others so there is only so much hay you can make with that.

    What big area of cert-worthy goodness was missed?

  16. Late Bloomer says:

    It is an often-expressed view among members of the private Supreme Court bar that the Court now passes over quite a few cases that it should hear. Even so, there is no doubt that most of the responsibility for the extremely low rate of grants of certiorari lies with petitioners. It is as true today as when Justice Harlan voiced the complaint in the late 1950s that “a great many petitions for certiorari reflect a fundamental misconception as to the role of the Supreme Court” and have no chance whatever of being granted. These petitions receive dismissive treatment. Justice Brennan routinely decided that a case was not certworthy by looking at the “Questions Presented” on the first page of the petition — and reading no farther. Justice Brennan could decide so quickly, he explained in a 1973 law review article, because 60% of paid petitions he saw were “utterly without merit.” The Chief Justice, in a more recent article, has chided that 2000 petitions each year are so implausible that “no one of the nine [Justices] would have the least interest in granting them.”

    A sure-fire way to guarantee rapid denial of certiorari is to file a petition disputing findings of fact rather than determinations of law; presenting questions of state rather than federal law; or asking for review of a decision that rested on adequate and independent state law grounds even if the court below also addressed a federal issue.

    Do not file a certiorari petition that falls within these categories. Filing a hopeless petition disserves the client, who must pay the $300 filing fee and many times that amount in counsel fees for preparing the petition. It also has some potential to harm the lawyer. The Court has an institutional memory, so counsel who repeatedly file frivolous petitions may find that their briefs receive progressively less attention from the Justices and law clerks. If your petition is clearly meritless, the respondent may not even bother to file a brief in opposition. See Bishop , Opposing Certiorari in the U.S. Supreme Court , Litigation 31, 32 (1994) (discussing the procedures surrounding waiver of the brief in opposition to certiorari). So save your client some money and preserve your own reputation: file a petition for certiorari only if, upon careful review of the standards that the Court applies in ruling upon petitions, you think that there is a chance that you can persuade four Justices — the minimum number necessary to grant the writ — that the Supreme Court should hear your case.

    What Makes a Case Cert Worthy?

    The first and most difficult thing to remember in analyzing the certworthiness of your client’s case — and certainly the most difficult aspect of Supreme Court practice for clients to grasp — is that the merits of the case that have been the main issue throughout the litigation are not of primary concern at the petition stage. The Supreme Court is not a court of error; it does not intervene simply to correct injustices and misapplications of the law. See S. Ct. R. 10 (the writ is rarely granted “when the asserted error consists of * * * the misapplication of a properly stated rule of law”). A petition devoted exclusively to showing why the lower court made a mistake will almost certainly fail.

    That is not to say that the merits are irrelevant. Statistically, the Court reverses a majority of the decisions it elects to review. Indeed, observation suggests that even when an issue is clearly certworthy, the Court will sometimes pass over that issue in cases that it expects to affirm, granting a petition only when it finds a case that it is likely to reverse. For this reason, persuasive petitions for certiorari nearly always explain why the judgment below was wrong. But they do so in a relatively short section at the end of the petition, not as the lead argument. The idea is not to argue the merits in the depth you did below and that would be necessary later if certiorari were granted, but to say enough to give the Court a degree of confidence that commonsense and justice are on your side. You will not be able to devote more than a few pages of the 30 pages allotted for a petition for certiorari to this discussion, for there are more important matters that must be fully addressed.

    Circuit Splits And Issues Of National Importance

    What are the indicators of certworthiness that should be the focus of your petition? Supreme Court Rule 10 sets out factors that, while “neither controlling nor fully measuring the Court’s discretion, indicate the character of the reasons the Court considers.” These are that (1) the decision below conflicts with decisions of one or more federal courts of appeals or state courts of last resort on an important issue of federal law; (2) the court below decided an important federal question in a way that conflicts with rulings of the Supreme Court; (3) the court below decided a question of federal law that is so important that the Supreme Court should pass upon it even absent a conflict; or (4) (a category into which very few grants fall) the court below “so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power.”

    Ideally, then, the certiorari petition will demonstrate both that the lower courts are in disarray on the issue the Supreme Court is being asked to review and that the issue is of considerable national importance. The conflict upon which you rely should be a real one, with cases truly addressing the same issue and reaching different conclusions. One study concluded that although 60 per cent of the petitions surveyed alleged a conflict, that conflict was real in only 6 per cent of the cases. If you are really lucky, the decision below may discuss cases from other jurisdictions and acknowledge that a conflict exists. Short of that, be careful to demonstrate that the holdings of the cases you rely on are at odds. Inconsistent dicta or conflicting statements of general principle generally are not sufficient; nor are conflicts within a single court of appeals or with a district court.

    The fact that the lower courts are in conflict is not enough by itself. You also have to show that the issue is one where uniformity counts — that the conflict is going to be difficult to live with. For example, one of us recently filed a petition on behalf of a pre-trial detainee who contended that his constitutional privacy rights were violated in Cook County Jail when he was routinely observed undressed and showering by female prison guards. The Seventh Circuit, in an opinion by Judge Easterbrook, held that prisoners lack any right to bodily privacy. Judge Posner dissented, so the case was immediately arresting because of this sharp division of opinion between two respected jurists. Seven other circuits have held that prisoners do have bodily privacy rights that in a particular case must be weighed against the needs of prison officials, so there was also a clear circuit split. By all objective indicators, the case was certworthy. The court nevertheless denied certiorari. Though the petition argued that the issue was important both because it involved human dignity and, more practically, because prisoner privacy suits are very common, take up a lot of resources, and could more efficiently be handled under a settled rule of law, we suspect that most Justices thought the issue was not quite important enough to warrant review. Such denials of certiorari in the face of a circuit split are not unusual. Justice White counted 56 during the 1989 Term (and thought this far too many). Beaulieu v. United States , 497 U.S. 1038, 1039 (1990).

    The burden of showing that the federal issue presented for review is of national importance becomes all the greater when there is no conflict. The best way to meet this burden is to show that the decision below has a significant impact not just on the petitioner but on a whole industry or large segment of the population. For example, the Court granted the certiorari petition one of us filed in Hartford Fire Insurance v. California , No. 91-1111, to decide whether agreements between insurers on the terms of standardized coverage forms were exempt from antitrust prosecution by the federal McCarran-Ferguson Act. Though there was no conflict among lower courts, the petition and amicus briefs filed by insurance industry associations argued that the industry depends upon agreements as to terms; that such agreements are necessary for insurers and beneficial to consumers; and that antitrust scrutiny would therefore have tremendous practical consequences.

    Studies have found that the filing of amicus briefs in support of a petition increases the likelihood of a grant, so you should actively seek out amici to help you persuade the Court that the issue presented is of broad concern. You have a little extra time to mount this effort, since amicus briefs are due not when the petition is filed but “within the time allowed for filing the brief in opposition,” which is 30 days after the petition is filed, barring an extension. S. Ct. R. 15.

    If the question raised in your petition is of consequence to the federal government, the Court may ask the Solicitor General to file a brief expressing the views of the United States before voting on your petition. If that occurs, you would do well to contact the Solicitor General’s office and the relevant federal agencies to discuss the position the United States will take in its brief. If you can persuade the SG that your case deserves further review, the battle is more than half won. A 1992 study reported that the Court granted 88 per cent of petitions where the SG filed a brief supporting the petitioner and denied 60 percent of petitions where the SG supported the respondent.

    If one or more Justices have an interest in your case, it will be put on the “discuss list,” which means it will be discussed at conference and then voted upon. About 15-30 per cent of petitions make it to the discuss list; the others are automatically denied. Following the Court conference for which your case is set, you’ll soon learn whether you are one of the lucky few or will have to await another opportunity for that feather quill.

  17. Bill C says:

    Gee, I am gone for a day and come back and I am all the rage. Mike: Thanks for your pointer about the QP. I will certainly take a look at it.
    Anon 0924. I do like to eat, but this is pro bono.
    I would certainly welcome any Amicus briefs. Makes my job a little easier.

  18. John Harwood says:

    Wow, a bunch of SCOTUS wonks out on CAAFlog today. I thought there were only two topics that would generate more than 10 comments: LTC Lakin and the 3 Amigos (I mean, the 3 acquitted Navy SEALs). Now we can add a third: any MJ issue where SCOTUS cert is sought.

  19. haha says:

    rewind. 4 justices dont think a 4th amendment violation should get an exclusionary remedy. basically ever. clayton had cp. now lets discuss whether you get relief at scotus.

  20. Gene Fidell says:

    The source for the above is Bishop & Sarles, Petitioning the United States Supreme Court for Certiorari: A Primer (1994). It is on the Mayer Brown Supreme Court & Appellate Practice Group’s website,

  21. Snuffy says:

    Dwight- Chicks dig guys who file cert petitions.

  22. Norbrook says:

    It’s generally been the case that rulings on various rights from SCOTUS are from cases where the plaintiff isn’t particularly admirable.

  23. Anonymous says:

    Davis v. United States.
    United States v. Scheffer.