U.S. v. Ardley, 98-7033

• Citation: 273 F.3d 991
• Decision Date: 20 November 2001
• Docket Number: No. 98-7033,98-7033
• Parties: (11th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BARRY LEON ARDLEY, Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

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273 F.3d 991 (11th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
BARRY LEON ARDLEY, Defendant-Appellant. No. 98-7033 UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT November 20, 2001

Appeal from the United States District Court for the Southern District of Alabama (No. 97-00251-CR-1); Charles R. Butler, Jr., Judge.

ON PETITION FOR REHEARING EN BANC

(Opinion Feb. 20, 2001, 11th Cir., 242 F.3d 989)

Before ANDERSON, Chief Judge, and TJOFLAT, EDMONDSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS and WILSON, Circuit Judges.

ORDER:

The Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rule 35-5), the Suggestion of Rehearing En Banc is DENIED.

CARNES, Circuit Judge, Concurring in the Denial of Rehearing En Banc, in which BLACK, HULL and MARCUS, Circuit Judges, join:

Our dissenting colleague has written much expressing his disagreement with the panel opinion in this case and his disappointment about the refusal of the en banc court to vacate the panel decision. We resist the temptation to write as much and respond only briefly.

I.

As the dissent concedes, the rule requiring that issues be raised in opening briefs is well-established. See United States v. Ardley, 242 F.3d 989, 990 (11th Cir. 2001) (collecting cases). That rule serves valuable purposes, as do all of the procedural default rules, which is why we regularly apply them. See generally Presnell v. Kemp, 835 F.2d 1567, 1573-74 (11th Cir. 1988). The principal concern of the dissent seems to be that applying this specific procedural default rule in this particular context somehow conflicts with the doctrine that Supreme Court decisions are to be retroactively applied to cases on direct appeal. But that concern conflates the two doctrines. They are separate and

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each plays a different role, answering a different question.

Retroactivity doctrine answers the question of which cases a new decision applies to, assuming that the issue involving that new decision has been timely raised and preserved. Procedural bar doctrine answers the question of whether an issue was timely raised and preserved, and if not, whether it should be decided anyway. It makes no more sense to say that a procedural bar should not be applied in this situation because doing so undermines or frustrates retroactive application of a Supreme Court decision, than it does to say that procedural bars should not be applied in any situation because doing so undermines or frustrates the constitutional doctrines and commands underlying the issue that is held to be defaulted. We routinely hold that constitutional issues based upon Supreme Court decisions applicable to trials occurring after those decisions are issued are nonetheless procedurally barred if they were not raised in a timely and appropriate fashion. No one has suggested, so far as we know, that procedural bars should not be enforced in that context because doing so undermines or frustrates the doctrine that Supreme Court decisions should be applied to all trials occurring after the decisions are issued.

If the dissent's position were adopted, no procedural bar could ever be enforced because doing so would undermine or frustrate whatever values or doctrines underlie the constitutional or statutory provisions being belatedly asserted. Why should we give more protection against procedural default to the principles underlying the general doctrine established by retroactivity decisions than we do to the doctrines established by any other decisions of the Supreme Court, or than we do to the Fourth, Fifth, or Sixth Amendments, or any other constitutional provisions? We do not think we should.

As a final point on the retroactivity matter, we note that the dissent's position is more than a little inconsistent. It recognizes that Apprendi issues not timely raised at trial should be reviewed only for plain error, which is another way of saying that trial level procedural defaults should be enforced in the usual way notwithstanding the retroactive applicability of the Apprendi decision to all cases pending at the time it was announced. Plain error review is much more narrow than the review that is conducted when there has been no procedural default. See United States v. Humphrey, 164 F.3d 585, 588 (11th Cir. 1999)("our power to review for plain error is 'limited' and 'circumscribed.'"); United States v. Pielago, 135 F.3d 703, 708 (11th Cir. 1998) ("The plain error rule places a daunting obstacle before [the appellant]."); United States v. King, 73 F.3d 1564, 1572 (11th Cir. 1996) ("[t]he plain error test is 'difficult to meet'").

One of the best indications of the narrowness of plain error review is the fact that this Court has not yet found any Apprendi error to fit within the scope of the plain error doctrine. Many appellants have tried to squeeze their Apprendi claims through, but we have rejected all their efforts. Even when there has been Apprendi error and it has been "plain," we have still held the other requirements of the plain error rule were not met. See, e.g., United States v. Cromartie, 267 F.3d 1293, (11th Cir.2001); United States v. Gallego, 247 F.3d 1191 (11th Cir. 2001); United States v. Wims, 245 F.3d 1269 (11th Cir. 2001); United States v. Candelario, 240 F.3d 1300 (11th Cir. 2001); United States v. Smith, 240 F.3d 927 (11th Cir. 2001); United States v. Pease, 240 F.3d 938 (11th Cir. 2001); United States v. Swatzie, 228 F.3d 1278 (11th Cir. 2000).

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The dissent never explains why enforcing trial level procedural rules by cutting appellate review down to the narrow confines of the plain error rule does not undermine or frustrate the purposes of the retroactivity doctrine, but enforcing appellate level procedural rules does. If the retroactivity doctrine requires that we address issues that have been procedurally defaulted on appeal, why does it not require that we address full bore those issues that have been procedurally defaulted at trial instead of limiting our review to plain error? Everything the dissent says about declining to review Apprendi issues that were not properly raised in an appellant's brief applies with equal force to refusing to review for anything other than plain error Apprendi issues that were not properly raised at trial. The retroactivity doctrine either trumps the procedural default doctrine or it does not. Our position, which is consistent, is that it does not.

II.

The dissent also suggests, in footnote 20, that our enforcement of procedural bars in this context will require district courts to hold evidentiary hearings in order to decide if an attorney's failure to raise Apprendi issues before that decision was released constitutes ineffective assistance of counsel. That is simply not so. In this circuit, we have a wall of binding precedent which shuts out any contention that an attorney's failure to anticipate a change in the law constitutes ineffective assistance of counsel. See, e.g., Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th Cir. 1994) ("We have held many times that '[r]easonably effective representation cannot and does not include a requirement to make arguments based on predictions of how the law may develop.'") (citations to three other Eleventh Circuit decisions omitted); Davis v. Singletary, 119 F.3d 1471, 1476 (11th Cir. 1997) ("it was not professionally deficient for [counsel] to fail to anticipate that the law in Florida would be changed in the future to bar the admission of hypnotically induced testimony.") Pitts v. Cook, 923 F.3d 1568, 1572-74 (11th Cir. 1991); Thompson v. Wainwright, 787 F.2d 1447, 1459 n.8 (11th Cir. 1986) ("defendants are not entitled to an attorney capable of foreseeing the future development of constitutional law"). That rule applies even if the claim based upon anticipated changes in the law was reasonably available at the time counsel failed to raise it. See, e.g., Pitts, 923 F.3d at 1572-74 (holding that even though a claim based upon the 1986 Batson decision was "reasonably available" to counsel at the time of the 1985 trial, failure to anticipate the Batson decision and raise that claim was not ineffective assistance of counsel).

Further, the rule that it is not ineffective assistance for an attorney to fail to foresee a change in the law applies even when the change is such that the forfeited issue was, in hindsight, a sure fire winner. Wright v. Hopper, 169 F.3d 695, 707-08 (11th Cir. 1999) (Batson issue); Elledge v. Dugger, 823 F.2d 1439, 1443 (11th Cir. 1987) (Michigan v. Mosley issue); Thompson, 787 F.2d at 1459 n.8 (Ake issue). Because our circuit law completely forecloses the contention that an attorney's failure to anticipate the Apprendi decision is ineffective assistance, district courts are not required to, and should not, hold an evidentiary hearing on that issue. There is no relevant evidence to hear. The issue is settled as a matter of law.

Not only that, but we have recently held that neither the novelty of the Apprendi decision nor the perceived futility of raising the issue before the Supreme Court released that decision can serve as adequate cause to excuse a defendant's failure to have raised the issue in a timely fashion.

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See McCoy v. United States, 266 F.3d 1245 (11th Cir. 2001). The McCoy decision also holds that Appendi is not retroactively applicable to cases that were (unlike this one) through the direct appeal process at the time Apprendi was released. We think that our post-Apprendi decisions provide sufficient guidance to the district courts that they will not, as the dissent fears, "result in a waste of judicial resources."

III.

The final point to which we wish to respond is the dissent's assertion that the panel's application of a procedural bar in...