In U.S. v. Levy, No. 01-17122 (Dec. 3, 2004), the Court denied rehearing en banc from its panel decision holding that a defendant waived reliance on Blakely in a supplemental filing when, prior to the Supreme Court’s decision in Blakely v. Washington, the defendant failed to raise a Blakely-type claim in his initial appellate brief.
In a plurality opinion concurring in the denial of rehearing en banc, Judges Hull, Anderson, Carnes & Pryor explained that the retroactivity requirement of Griffith v. Kentucky, 479 U.S. 314 (1987), which mandates that new Supreme Court cases apply to cases on direct appeal, did not trump the Court’s procedural default rules. The concurring opinion noted that a litigant is not precluded from raising an argument on appeal simply because a previous appeal has been decided that rejects the argument, since the litigant can pursue the issue en banc, or in the United States Supreme Court. The concurring opinion further noted that its rule that it would not consider claims not raised in an initial brief was "well-established," and found no grounds from deviating from it.
Three judges dissented. Judges Tjoflat and Wilson wrote what is essentially a cert petition for those seeking to apply Blakely for the first time in pipeline appeals, explaining why the Eleventh Circuit's "well-established" position is neither that nor right, and the cases on which it relies -- U.S. v. Nealy and U.S. v. Ardley -- are contrary to the holding in Griffith. Under the Eleventh Circuit's interpretation, they argue, there is an unaccounted-for gap between pipeline appeals and closed cases, a gap that Griffith seemingly took pains to avoid. Judges Tjoflat and Wilson nicely identify a circuit split of authority -- Nealy, Ardley, and now Levy -- stand alone among the circuits, since all other circuits allow pipeline appellants to supplement initial arguments with intervening arguments and authority. They also worry about lawyers littering briefs with all kinds of "innovative" arguments, even though the issues have already been decided adversely by precedent, awaiting the next Apprendi, Blakely, etc. Judge Barkett dissented in a separate opinion in which she argues that neither Nealy nor Ardley apply, but that Griffith does. Those who have had supplemental briefs and supplemental authority rejected by the Eleventh have their cert petitions written for them in the dissenting opinions.
