U.S. v. Higdon, 03-14365.

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Citation418 F.3d 1136
Docket NumberNo. 03-14365.,03-14365.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jerry Joseph HIGDON, Jr., Defendant-Appellant.
Decision Date08 July 2005

Michael John Petersen (Court-Appointed), Law Office of Michael Petersen, Montgomery, AL, for Higdon.

Louis V. Franklin, Sr., Stephen P. Feaga, Asst. U.S. Atty., Montgomery, AL, for U.S.

Appeal from the United States District Court for the Middle District of Alabama (No. 03-00043-CR-N-1); Mark E. Fuller, Judge.

ON PETITION FOR REHEARING EN BANC

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

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

In this case, Jerry Joseph Higdon, Jr. appealed his convictions and sentences for: (1) two counts of distribution of "ice" methamphetamine, and one count of possession with intent to distribute "ice" methamphetamine, all in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and (2) a drive-by shooting, in violation of 18 U.S.C. § 36(b). The defendant's lengthy sentence was, in large part, the product of receiving consecutive sentences for each of his drug and drive-by-shooting convictions. See U.S.S.G. § 5G1.2(d).1

At no time in the district court or in his initial brief on appeal did Higdon challenge the constitutionality of any extra-verdict sentencing enhancement or assert that the district court lacked the authority to impose the enhancements under a preponderance-of-the-evidence standard. Instead, approximately three months after briefing was completed in the case, Higdon filed a motion to file a supplemental brief raising a Blakely issue.

This Court has repeatedly followed the prudential rule that new issues not raised in opening briefs will not be considered by the court. See e.g., United States v. Sears, 411 F.3d 1240, 1241 (11th Cir.2005); United States v. Verbitskaya, 406 F.3d 1324, 1339-40 (11th Cir.2005); United States v. Day, 405 F.3d 1293, 1294 n. 1 (11th Cir.2005); United States v. Dockery, 401 F.3d 1261 (11th Cir.2005); United States v. Ardley, 273 F.3d 991, 991-95 (11th Cir.2001) (Carnes, J., concurring in the denial of rehearing en banc) (collecting cases); United States v. Nealy, 232 F.3d 825, 830 (11th Cir.2000).2 Thus, this Court, consistent with this rule, denied Higdon's motion and refused to consider his belated attempt to raise a Blakely issue in supplemental briefing.3 Unhappy with this Court's prior decisions, the dissent criticizes this Court's application of its well-established prudential rule to cases involving United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

As in Sears, Verbitskaya, Day, Dockery, Ardley, and others, this Court properly denied Higdon's motion to file a supplemental brief raising a Blakely (now Booker) claim based on our circuit's long-standing rule that issues not raised in a party's initial brief will not be considered. This Court's prudential rules apply evenly to all appellants, whether the government or the defendant. Moreover, the requirement 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 at 991 (Carnes, J., concurring in the denial of rehearing en banc).

Retroactivity Under Griffith v. Kentucky

The dissent's main argument 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 all defendants to raise, for the first time, a Booker-type issue at any point in the direct appeal process, regardless of whether the issue was in the defendant's initial brief on appeal. It is the dissent's apparent belief that retroactivity rules always trump any prudential rule. I submit that nothing in Griffith, or any other Supreme Court decision, requires (or even suggests) this result.

In Griffith, the defendant timely raised the error in issue at trial and the appellate level, and in that context 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. "The Griffith holding, however, applies only to defendants who preserved their objections throughout the trial and appeals process." Verbitskaya, 406 F.3d at 1340 n. 18 (citing Griffith, 479 U.S. at 316-20, 107 S.Ct. at 709-11).4

It is clear that Supreme Court precedent does not mandate that rules of retroactivity trump all procedural rules. Indeed, Supreme Court case law clearly indicates that rules of retroactivity are subject to procedural rules. For example, in Shea v. Louisiana, 470 U.S. 51, 58 n. 4, 105 S.Ct. 1065, 1069 n. 4, 84 L.Ed.2d 38 (1985), the Supreme Court stated that "[a]s we hold, if a case was pending on direct review at the time Edwards [v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)] was decided, the appellate court must give retroactive effect to Edwards, subject, of course, to established principles of waiver, harmless error, and the like."

Similarly, as discussed later, in Booker itself, the Supreme Court stated that although courts are to apply its holding to cases on direct review, "we expect reviewing courts to apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the `plain-error' test." Booker, 125 S.Ct. at 769. Booker clearly implied that "plain error" (which applies to issues not raised in the trial court) is only one of a number of prudential doctrines; the rule that issues not timely raised on appeal are waived or abandoned is certainly another.

Thus, there are two rules at issue in this case: (1) retroactivity; and (2) this Court's prudential rule that issues not raised in the opening brief are waived. These rules, although equally important, play distinct and separate roles. As Judge Carnes 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 in the denial of rehearing en banc).

The fact remains that our Court has elected to apply its prudential default rules in a uniform manner. It is the uniform application of this Court's procedural default rules that provides a clear, intelligent rule for litigants to follow: raise the issue in your initial brief or risk procedural bar. The dissent is able to point to nothing, other than personal preference, that warrants a different application of this Court's prudential rules.5

Orderly Administration of Justice

The dissent also asserts that the application of this Court's prudential rules unnecessarily invites litigants to raise non-meritorious issues on the slim chance the Supreme Court might reverse course on some line of precedent while their direct appeal is pending. Of course, precisely the same argument can be made against every procedural bar. Adopting the dissent's rationale would make all procedural bar rules unenforceable. In any event, the dissent's catastrophic predictions regarding the orderly administration of justice have simply failed to materialize. It has been nearly four years since the Ardley decision was released, and we have not seen appellants raise a host of non-meritorious issues.6

Further, this Court's prudential rules do not result in any manifest injustice. Criminal defense attorneys were well aware of Apprendi's potential impact on the sentencing guidelines even after our Sanchez decision, and before the Supreme Court's decisions in Blakely and Booker. In fact, in United States v. Reese, 382 F.3d 1308, 1309 (11th Cir.2004), United States v. Petrie, 302 F.3d 1280, 1289-90 (11th Cir.2002), cert. denied, 538 U.S. 971, 123 S.Ct. 1775, 155 L.Ed.2d 530 (2003), United States v. Snyder, 291 F.3d 1291, 1294 n. 3 (11th Cir.2002), and United States v. Rodriguez, 279 F.3d 947, 950 n. 2 (11th Cir.2002), defense counsel asserted before both the district court and this Court that their client's rights to a jury trial were violated when the district court enhanced their sentences with extra-verdict enhancements not proved to a jury beyond a reasonable doubt. These Apprendi-type arguments about federal sentencing enhancements were made in those cases before Blakely and despite adverse precedent in Sanchez.

Procedural Default

The dissent also notes that Higdon has not "waived" the issue because he "could not have intentionally relinquished or abandoned a right that our own precedent flatly denied him at the time his initial brief was filed." The dissent argues that a litigant should be able to raise a new issue based on an intervening Supreme Court decision at any time in the direct appeal process even if the defendant had not preserved the issue. However, the dissent's position is not only flawed, but internally inconsistent. In effect, the dissent recognizes that procedural default of an issue should be enforced at the trial level and result in plain-error review on appeal, but that this Court is powerless to enforce its own prudential rules if an issue is not raised in the opening brief on appeal. As Judge Carnes stated in Ardley: ...

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