391 F.3d 1327 (11th Cir. 2004), 01-17133, United States v. Levy

Docket Nº:01-17133.
Citation:391 F.3d 1327
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Raphael R. LEVY, Defendant-Appellant.
Case Date:December 03, 2004
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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391 F.3d 1327 (11th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellee,


Raphael R. LEVY, Defendant-Appellant.

No. 01-17133.

United States Court of Appeals, Eleventh Circuit

December 3, 2004

Jeffrey S. Weiner, Law Offices of Jeffrey S. Weiner, P.A., Ronald S. Lowy, Law Offices of Ronald S. Lowy, Miami, FL, for Defendant-Appellant.

Lisette M. Reid, Anne R. Schultz, U.S. Atty., Maria Beguiristain, Miami, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida (No. 99-08125-CR-DTKH); Daniel T.K. Hurley, Judge.

(Opinion, Aug. 3, 2004, 11th Cir., 379 F.3d 1241)



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.

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HULL, Circuit Judge, concurring in the denial of rehearing en banc, in which ANDERSON, CARNES and PRYOR, Circuit Judges, join:

We concur in this Court's denial of rehearing en banc because Defendant Levy did not raise a claim regarding a right to a jury trial on his sentencing enhancements until after this Court had affirmed his conviction and sentence. Indeed, Levy pled guilty and concedes that he never asked for a jury trial on his sentencing enhancements either in the district court or in his direct appeal to this Court. See United States v. Levy, 374 F.3d 1023 (11th Cir. 2004) (affirming conviction and sentence).

After this Court affirmed Levy's conviction and sentence, the United States Supreme Court decided Blakely v. Washington, --- U.S. ----, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), extending the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Defendant Blakely argued that he had a right to a jury trial on "all facts legally essential to his sentence." Blakely, 124 S.Ct. at 2536. The United States Supreme Court "rejected the state's argument that Blakely's case was distinguishable from Apprendi because his 90-month sentence did not exceed the 10-year statutory maximum...." United States v. Levy, 379 F.3d 1241, 1242 (11th Cir. 2004). Blakely is basically an extension of the Apprendi rule. See In re Dean, 375 F.3d 1287, 1289-90 (11th Cir. 2004).

After Blakely, Levy filed a petition for rehearing in this Court and, for the first time, argued that he had a right to a jury trial regarding his federal sentencing enhancements. Although Blakely did not involve the federal sentencing guidelines, Levy argued that "the reasoning" of Apprendi, Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Blakely clearly lead to the conclusion that the federal sentencing guidelines are constitutionally infirm (hereinafter referred to as Levy's " Blakely-type" claim).

This Court properly denied Levy's petition for rehearing based on this Court's long-standing rule that issues raised for the first time in a petition for rehearing and not raised in an appellant's initial brief will not be considered. See Levy, 379 F.3d at 1242-45 (collecting cases). In denying Levy's petition for rehearing, this Court noted that

our practice has been longstanding. As we have explained, the rule requiring that issues be raised in opening briefs "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)." United States v. Ardley, 273 F.3d 991, 991 (11th Cir. 2001) (en banc). Importantly, this rule applies neutrally to all appellants, whether the government or the defendant.

Levy, 379 F.3d at 1244.

The dissent concedes that: (1) the Levy panel was bound by circuit precedent, see United States v. Ardley, 242 F.3d 989, 990 (11th Cir. 2001) (collecting cases); and (2) this Court recently denied en banc review of the very question in this case; that is, whether the rules concerning retroactivity are subject to this Court's procedural rules. See United States v. Ardley, 273 F.3d 991 (11th Cir. 2001) (denying rehearing en banc and explaining why Defendant's Apprendi claim was procedurally barred) (Carnes, J., concurring), cert. denied, Ardley v. United States, 535 U.S. 979, 122 S.Ct. 1457, 152 L.Ed.2d 397 (2002).

As in Ardley, there are two rules at issue in Levy's case: (1) the rule that

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Supreme Court decisions are to be retroactively applied to cases on direct review; and (2) the procedural rule that entirely new constitutional issues will not be considered for the first time by this Court in a petition for rehearing. The two rules in this case are equally important, but play separate roles and answer different questions. As we explained in Ardley,

[r]etroactivity 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.

Ardley, 273 F.3d at 992 (Carnes, J., concurring). Many of the dissent's arguments in this case are answered in Ardley, 273 F.3d at 991-93. In particular, Ardley already explained why the dissent improperly conflates these two rules. Id. Ardley also articulates why, if the dissent's position was adopted, no type of procedural bar could be adopted on direct appeal. Id. at 992.

The dissent's main focus now is that under Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), this Court is required to allow Defendant Levy to raise, for the first time, a Blakely-type issue in a petition for rehearing after this Court has issued an opinion affirming his conviction and sentence. The dissent would have retroactivity rules trump and eliminate any procedural default rule on direct appeal. Essentially, the dissent's rule would be that a new Supreme Court decision applies retroactively per se--even if the defendant has never raised or preserved the constitutional issue and this Court has already affirmed the defendant's conviction and sentence--as long as the defendant is still in some phase of the direct appeal process.

Nothing in Griffith, nor any other Supreme Court decision, requires this result. In fact, Supreme Court precedent indicates that the rules of retroactivity are subject to established principles of procedural default, waiver, and the like. Indeed, as outlined below, the defendant in Griffith timely preserved the constitutional error at issue during his trial and on appeal. The dissent dismisses the fact that the defendants in Griffith preserved the constitutional issue. That fact is important, however. We thus first examine Griffith in detail, and then other arguments in the dissent.


In Griffith, the United States Supreme Court concluded that "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases ... pending on direct review or not yet final...." Griffith, 479 U.S. at 328, 107 S.Ct. at 716. A discussion of Griffith is in order because that decision is the foundation for the dissent's arguments. However, as explained below, nothing in Griffith saved an unpreserved error in a direct appeal.

After the Supreme Court decided Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and rejected a portion of the reasoning of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the Supreme Court granted certiorari in two separate criminal cases from Kentucky and Oklahoma, in which the defendants had made unsuccessful challenges under Swain to the government's use of peremptory challenges. Griffith, 479 U.S. at 316-20, 107 S.Ct. at 709-11. In each of these cases, the defendant (prior to Batson) had preserved an objection in the trial court and at every stage of his direct appeal that the prosecutor

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had exercised his peremptory challenges in a racially discriminatory manner. Griffith, 479 U.S. at 316-20, 107 S.Ct. at 709-11. The defendants made this objection at every stage even though the defendants had clearly failed to prove that the prosecutor had engaged in a pattern of challenging black jurors in a series of cases, as required by Swain. See id. (discussing procedural history of the two cases). Not surprisingly, each defendant lost at each stage of his direct appeal because each court held that the proof of discrimination was inadequate under Swain. Id. (same).

In mid-1985, the defendants in Griffith petitioned the Supreme Court for certiorari while their convictions were still on direct review. On April 30, 1986, the United States Supreme Court decided Batson. In Batson, the Supreme Court departed from Swain's requirement of a pattern of racial discrimination in a series of cases and concluded that a criminal defendant could establish a prima facie case of racial discrimination violative of the Fourteenth Amendment, based solely on the prosecution's use of peremptory challenges to strike members of the defendant's race from the jury venire in the defendant's case. Batson, 476 U.S. at 93, 96-97, 106 S.Ct. at 1721-23. Furthermore, once the defendant had made the prima facie showing, the burden shifted to the prosecution to come forward with a neutral explanation for those challenges. Id. at 97, 106 S.Ct. at 1723. On June 2, 1986, the Supreme Court granted certiorari in Griffith for the limited issue of whether Batson would be applied retroactively on direct appeal. Griffith,...

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