In In re Williams, No. 18-12538 (Aug. 1, 2018) (Wilson, Martin, Jill Pryor) (per curiam), the Court denied an application by a state prisoner for leave to file a successive 2254 petition.
Judge Wilson, joined by Judges Martin and Jill Pryor, specially concurred in order to criticize the Court's recent holding in St. Hubert that all published SOS orders are binding precedent. In a thorough opinion, he explained why that holding was problematic: SOS applications are prepared on a standardized form and often decided without counsel, oral argument, adversarial testing, or the full record; the 11th circuit publishes more SOS orders than other circuits, no other circuits considers itself bound by the 30-day deadline to decide an SOS application, and several other circuits receive briefing and oral argument in SOS application; SOS orders are unreviewable by statute, and so any mistake can be corrected only if a judge sua sponte requests rehearing en banc; and there are no formal rules on when orders can be published or reheard en banc.
Judge Martin, joined by Judges Wilson and Jill Pryor, also specially concurred in order to explain how creating binding precedent through SOS orders "goes far beyond the prima facie examination called for by the statute." She emphasized that no other circuit examines the underlying merits at the SOS stage. But the Eleventh Circuit, by contrast, has "entered hundreds of orders denying motions based on this merits inquiry, thus touching many lives." And, in doing so, it has published at least eight opinions holding, for the first time, that a particular offense was a violent felony or crime of violence.
