Amicus Curiae Brief — Michael St. Hubert, Petitioner v. United States

No. 19-5267

In the Supreme Court of the United States

MICHAEL ST. HUBERT, PETITIONER

v.

UNITED STATES

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR AMICUS CURIAE NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE LAWYERS

IN SUPPORT OF PETITIONER

DAVID OSCAR MARKUS

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE

LAWYERS

40 NW Third Street

Penthouse 1

Miami, FL 33128

DANIEL V. WARD

Counsel of Record

JANINE M. PARÉ

NICHOLAS A. DUBE

EMMA NOTIS-MCCONARTY

ROPES & GRAY LLP

800 Boylston Street

Boston, MA 02199

(617) 951-7000

Daniel.Ward@

ropesgray.com

TABLE OF CONTENTS

Page

Interest of amicus curiae .................................................... 1

Summary of the argument ................................................. 4

Argument:

I.

Review is warranted because the Eleventh

Circuit’s practice is impermissible ........................... 5

II. The Eleventh Circuit’s standard is inconsistent

with all other circuits ............................................... 13

III. The problem is important, recurring, and

squarely presented ................................................... 18

Conclusion........................................................................... 24

(I)

II

TABLE OF AUTHORITIES

Page(s)

Cases:

Beckles v. United States, 135 S. Ct. 2928

(2015) ....................................................................... 11

Beckles v. United States, 137 S. Ct. 886 (2017) ....... 11

Beckles v. United States, 616 F. App’x 415

(11th Cir. 2015) ....................................................... 11

Boddie v. Connecticut, 401 U.S. 371 (1971) ............. 19

Carpenters Local Union No. 26 v. U.S. Fid.

& Guar. Co., 215 F.3d 136 (1st Cir. 2000) ........... 13

County of Allegheny v. ACLU, Greater

Pittsburgh Chapter, 492 U.S. 573 (1989) .............. 9

Cox v. Dravo Corp., 517 F.2d 620 (3d Cir.

1975), cert. denied 423 U.S. 1020 (1975) ............. 15

Crow Tribe of Indians v. Repsis, 73 F.3d 982

(10th Cir. 1995), cert. denied 517 U.S. 1221

(1996) ......................................................................... 9

Dawson v. Mayor of Baltimore City, 220 F.2d

386 (4th Cir. 1955) .................................................... 8

Evitts v. Lucey, 469 U.S. 387 (1985)............................ 5

In re Fleur, 824 F.3d 1337 (11th Cir. 2016) ..... passim

Grady v. North Carolina, 135 S. Ct. 1368

(2015) ....................................................................... 12

Guevara v. United States, 136 S. Ct. 2542

(2016) ....................................................................... 11

In re Hernandez, 857 F.3d 1162 (11th Cir.

2017)......................................................................... 20

III

Cases—Continued:

Page(s)

Herrera v. Wyoming, 139 S. Ct. 1686

(2019) ............................................................. 9, 10, 13

Hoffman v. Hunt, 126 F.3d 575 (4th Cir. 1997),

cert. denied 523 U.S. 1136 (1998) ......................... 16

Holmes v. City of Atlanta, 223 F.2d 93 (5th

Cir. 1955) ................................................................... 8

Holmes v. City of Atlanta, 350 U.S. 879 (1955) ........ 8

Hutto v. Davis, 454 U.S. 370 (1982) ................... 11, 23

Hylor v. United States, 896 F.3d 1219 (11th

Cir. 2018), cert. denied 139 S. Ct. 1375

(2019) ....................................................................... 20

Joseph v. United States, 135 S. Ct. 705 (2014)......... 23

Karns v. Shanahan, 879 F.3d 504 (3d Cir.

2018)......................................................................... 16

King v. United States, 723 F. App’x 842 (11th

Cir.), cert. denied 138 S. Ct. 2592 (2018) ............ 20

In re Krebs, 527 F.3d 82 (3d Cir. 2008) ..................... 15

LaChance v. Erickson, 522 U.S. 262 (1998) ............. 23

Lawrence v. Chater, 516 U.S. 163 (1996) ............ 10, 11

Lester v. United States, 921 F.3d 1306 (11th

Cir. 2019) ........................................................... 10, 23

Martinez v. Illinois, 572 U.S. 833 (2014).................. 12

Mathis v. United States, 136 S. Ct. 2243 (2016) ........ 7

McCullough v. AEGON USA, Inc., 585 F.3d

1082 (8th Cir. 2009) ................................................ 15

Miller v. Fenton, 474 U.S. 104 (1985) ......................... 5

Miller v. Gammie, 335 F.3d 889

(9th Cir. 2003) ............................................. 14, 16, 17

IV

Cases—Continued:

Page(s)

Minnesota v. Mille Lacs Band of Chippewa

Indians, 526 U.S. 172 (1999) .................................. 9

Northeast Ohio Coal. for the Homeless v.

Husted, 831 F.3d 686 (6th Cir. 2016) ................... 16

Ornelas v. United States, 517 U.S. 690 (1996) ........... 5

Ortega-Rodriguez v. United States, 507 U.S.

234 (1993) ................................................................ 12

Ovalles v. United States, 905 F.3d 1231 (11th

Cir. 2018), abrogated by United States v.

Davis, 139 S. Ct. 2319 (2019) ................................ 21

Patterson v. Tenet Healthcare, Inc., 113 F.3d

832 (8th Cir. 1997) .................................................. 15

Pennsylvania v. Goldhammer, 474 U.S. 28

(1985) ....................................................................... 12

Seminole Tribe of Fla. v. Florida, 517 U.S. 44

(1996) ......................................................................... 8

Sessions v. Dimaya, 138 S. Ct. 1204 (2018) ............. 19

Stokes v. Sw. Airlines, 887 F.3d 199 (5th Cir.

2018)......................................................................... 17

Thomas v. Arn, 474 U.S. 140 (1985) ..................... 5, 19

Troy v. Samson Mfg. Corp., 758 F.3d 1322

(Fed. Cir. 2014) ...................................................... 17

Union of Needletrades, Indus. & Textile

Emps. v. INS, 336 F.3d 200 (2d Cir. 2003) ... 15, 16

United States v. Becker, 762 F. App’x 668

(11th Cir. 2019) ....................................................... 20

United States v. Brooks, 751 F.3d 1204 (10th

Cir. 2014) ........................................................... 16, 17

V

Cases—Continued:

Page(s)

United States v. Grace, 711 F. App’x 495 (11th

Cir. 2017), cert. denied 138 S. Ct. 1295

(2018) ....................................................................... 20

United States v. Guevara, 619 F. App’x 648

(9th Cir. 2015), vacated and remanded by

136 S. Ct. 2542 (2016) ............................................ 11

United States v. Jones, 565 U.S. 400 (2012) ............. 12

United States v. Kaley, 579 F.3d 1246 (11th Cir.

2009)......................................................................... 14

United States v. Lucido, 612 F.3d 871

(6th Cir. 2010) ................................................... 13, 15

United States v. Parker, 651 F.3d 1180 (9th Cir.

2011)......................................................................... 16

United States v. Reyes-Hernandez, 624 F.3d 405

(7th Cir. 2010) ......................................................... 15

United States v. Schooner Peggy, 5 U.S. (1

Cranch) 103 (1801) ................................................. 13

United States v. Short, 181 F.3d 620 (5th Cir.

1999), cert. denied 528 U.S. 1091 (2000) ............ 17

United States v. St. Hubert, 909 F.3d

335 (11th Cir. 2018) ....................................... passim

United States v. St. Hubert, 918 F.3d 1174

(11th Cir. 2019) ....................................................... 21

United States v. Tann, 577 F.3d 533 (3d Cir.

2009)......................................................................... 13

United States v. Tavares, 843 F.3d 1 (1st Cir.

2016)......................................................................... 16

United States v. Wiles, 723 F. App’x 968

(11th Cir. 2018) ....................................................... 20

VI

Cases—Continued:

Page(s)

United States v. Williams, 155 F.3d 418 (4th

Cir.), cert. denied 525 U.S. 1058 (1998)............... 16

Ward v. Race Horse, 163 U.S. 504 (1896) ................... 9

Constitutional provision and statutes:

U.S. Const. amend. V .................................................... 5

18 U.S.C. 924(c) .................................................. 6, 18, 21

18 U.S.C. 924(e)(2)(B) ................................................. 21

18 U.S.C. 1951(a) ............................................................ 6

18 U.S.C. 1951(b)(1) ....................................................... 7

28 U.S.C. 2244(b)(3)(E) ............................................... 22

Miscellaneous:

1 William Blackstone, Commentaries (2d ed.

1803)........................................................................... 5

7th Cir. R. 40(e) ............................................................ 15

Amy Coney Barrett, Stare Decisis and Due

Process, 74 U. Colo. L. Rev. 1011 (2003) ............ 10

Bryan A. Garner et al., The Law of Judicial

Precedent (2016)....................................................... 6

Joseph W. Mead, Stare Decisis in the Inferior

Courts of the United States, 12 Nev. L.J.

787 (2012) ................................................................ 15

Antonin Scalia, The Rule of Law as a Law of

Rules, 56 U. Chi. L. Rev. 1175 (1989) ................... 8

In the Supreme Court of the United States

NO. 19-5267

MICHAEL ST. HUBERT, PETITIONER

v.

UNITED STATES

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR AMICUS CURIAE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE1

The National Association of Criminal Defense

Lawyers (NACDL) is a nonprofit voluntary professional bar association that works on behalf of criminal defense attorneys to ensure justice and due process for

those accused of crime or misconduct. NACDL was

founded in 1958. It has a nationwide membership of

many thousands of direct members, and up to 40,000

with affiliates. NACDL’s members include private

1

Both parties received timely notice of amicus curiae’s intention to file this brief and provided written consent to its filing. No

counsel for any party authored this brief in whole or in part, and

no person or entity, other than amicus curiae or its counsel, made a

monetary contribution intended to fund the preparation or submission of this brief.

(1)

2

criminal defense lawyers, public defenders, military defense counsel, law professors, and judges. NACDL is

the only nationwide professional bar association for

public defenders and private criminal defense lawyers.

NACDL is dedicated to advancing the proper, efficient,

and just administration of justice. NACDL files numerous amicus briefs each year in the U.S. Supreme

Court and other federal and state courts, seeking to

provide amicus assistance in cases that present issues

of broad importance to criminal defendants, criminal

defense lawyers, and the criminal justice system as a

whole.

This case presents an issue pertinent to many criminal defendants who seek to apply this Court’s rulings

to their own cases. Because the Eleventh Circuit requires nearly identical factual circumstances to decide

that this Court has overruled its prior precedent, numerous cases where defendants can demonstrate directly applicable intervening Supreme Court precedent

are affirmed on the basis of outdated circuit law. By

statute, second-or-successive habeas petitioners cannot

seek this Court’s review, and this Court is unlikely to

review a direct appeal where it has so recently established the legal rule. Thus, criminal defendants in the

Eleventh Circuit are unlikely to have a meaningful opportunity for a review of the merits of their appeals

under the law at the time of their appeal absent repeated error correction by this Court. NACDL’s members

are all too familiar with the Eleventh Circuit’s unyielding rule and the difficulty of applying new Supreme

Court rationale on appeal. As a direct result of this

rule, criminal defendants are sent to or held in prison

without the merits of their case ever being considered

3

under current law. It is therefore of profound interest

to amicus that the Eleventh Circuit consider intervening Supreme Court decisions for which the rationale is

at odds with its own prior decisions.

4

SUMMARY OF THE ARGUMENT

It is emphatically the province and duty of the judicial branch to say what the law is, not what the law

was. But in the Eleventh Circuit, petitioner and scores

of other defendants like him have their cases decided on

the basis of law otherwise recognized as repudiated by

intervening precedent from this Court. Alone among

the circuit courts, the Eleventh Circuit requires direct

instruction from the Supreme Court to revisit its prior

precedent; without it, rationale widely considered

clearly erroneous in light of subsequent Supreme Court

case law is still applied to defeat defendants’ appeals.

Petitioner has ably explained the due process implications resulting from turning pro se second-orsuccessive (SoS) habeas petitions into binding decisions

that foreclose merits review in all other cases. Amicus

writes to emphasize an additional aspect of the first

question presented on how the Eleventh Circuit’s prior-panel-precedent rule deprives petitioner and similarly situated individuals of due process and sharply limits

this Court’s authority. Because the Eleventh Circuit’s

internal rules require Supreme Court precedent to be

“directly on point” to allow reconsideration of its past

case law, it takes a narrower view of Supreme Court

rationale than does this Court. Where, as in this case, a

court acknowledges that the Supreme Court’s intervening rationale is “at odds with” its binding precedent and

yet forecloses argument on the issue, a defendant’s due

process right to a meaningful appeal is violated. For

this reason, and those in the petition, the Court should

grant certiorari.

5

ARGUMENT

I.

REVIEW I S WARRANTED BECAUSE THE ELEVENTH C IRCUIT ’ S P RACTICE I S I MPERMISSIBLE

An appeal is not intended to be a “meaningless ritual”—instead, it is an occasion for an appellate court to

perform its “primary function as an expositor of law.”

Evitts v. Lucey, 469 U.S. 387, 394 (1985); Miller v. Fenton, 474 U.S. 104, 114 (1985); see also Ornelas v. United States, 517 U.S. 690, 697 (1996) (“[A]ppellate courts

are to maintain control of, and to clarify, the legal principles.”). The Due Process Clause requires that appellants be afforded “an opportunity . . . granted at a

meaningful time and in a meaningful manner” for a

hearing before the court of appeals. Thomas v. Arn,

474 U.S. 140, 155 (1985) (citation omitted). Yet the

Eleventh Circuit’s prior-panel-precedent rule makes

appeals to that court “meaningless” precisely because it

prevents the court from reviewing legal principles under current law as set forth by this Court, dooming defendants to petition vainly for discretionary review in

order to receive the benefit of Supreme Court precedent.

To be sure, rules counselling restraint in overruling

prior precedent are long-standing and serve vital purposes. See 1 William Blackstone, Commentaries *69

(2d ed. 1803) (“[I]t is an established rule to abide by

former precedents, where the same points come again

in litigation; as well to keep the scale of justice even

and steady, and not liable to waver with every new

judge’s opinion * * *.”). But rigidity for its own sake

has never been the rule, and prior precedent must give

way when by reason of a higher authority’s decision it

6

can no longer be justified. Bryan A. Garner et al., The

Law of Judicial Precedent 388 (2016) (“[S]tare decisis

isn’t an ineluctable doctrine to be applied with procrustean rigor.”); see also id. at 38 (explaining the law-ofthe-circuit’s “obvious and common-sense caveat” that a

panel may depart from prior panel precedent “when it

has been repudiated or undermined by * * * an intervening Supreme Court decision”).

The circuit rule applied below is that “when only

the reasoning, and not the holding, of [an] intervening

Supreme Court decision ‘is at odds with that of our prior decision’ there is ‘no basis for a panel to depart from

our prior decision.’ ” United States v. St. Hubert, 909

F.3d 335, 347 n.9 (11th Cir. 2018) (quoting Atlantic

Sounding Co. v. Townsend, 496 F.3d 1282, 1284 (11th

Cir. 2007)). Despite petitioner’s protestations, the

Eleventh Circuit asserted it remained bound by In re

Fleur,2 where the court had held that 18 U.S.C. 1951(a)

(Hobbs Act robbery) contained the necessary elements

of a crime of violence under 18 U.S.C. 924(c) because:

Count 4 further charged Saint Fleur with,

and Saint Fleur pled guilty to, committing

robbery ‘by means of actual and threatened force, violence, and fear of injury.’

Thus, the elements of Saint Fleur’s § 1951

robbery, as replicated in the indictment,

2

It is worth emphasizing that in Fleur, the pro se petitioner’s

“argument” was thirty-six words long—shorter than the caption of

this brief—and the petitioner was instructed not to cite cases or

law, save for two lines for any “new rule of law.” Application for

Leave to File a Successive 28 U.S.C. § 2255 Mot. to Vacate, Set

Aside, or Correct Sentence, In re Fleur, No. 16-12299 (11th Cir.

May 9, 2016).

7

require the use, attempted use, or threatened use of physical force ‘against the

person or property of another.’

824 F.3d 1337, 1341 (2016) (emphases added); compare

18 U.S.C. 1951(b)(1) (“by means of actual or threatened

force, or violence, or fear of injury” (emphases added)).

Two weeks after Fleur, however, this Court made

clear that Fleur’s mode of analysis in determining a

crime’s elements was error. In Mathis v. United

States, the Court explained that “the court below erred

in applying the modified categorical approach [and examining the indictment] to determine the means by

which Mathis committed his prior crimes.” 136 S. Ct.

2243, 2253 (2016). The Court instructed that the modified categorical approach “is not to be repurposed as a

technique for discovering whether a defendant’s prior

conviction, even though for a too-broad crime, rested on

facts (or otherwise said, involved means) that also could

have satisfied the elements of a generic offense.” Id. at

2254. Mathis spoke in absolutes. Id. at 2253 (“ ‘[T]he

only [use of that approach] we have ever allowed,’ we

stated a few Terms ago, is to determine ‘which element[s] played a part in the defendant’s conviction.’ ”

(alterations in original) (quoting Descamps v. United

States, 133 S. Ct. 2276, 2283, 2285 (2013))). Yet the St.

Hubert panel refused to reconsider Fleur’s holding in

light of Mathis—even though Fleur’s reasoning centered on the language of Saint Fleur’s indictment, not

the statute—because Mathis “did not involve Hobbs

Act robbery or attempted robbery, or the use-of-force

clause in § 924(c)(3)(A), and thus [is] not clearly on

point here.” 909 F.3d at 347 n.9.

8

The Eleventh Circuit’s distinction between the

“reasoning” and “holding” of this Court’s decisions to

limit an intervening decision’s reach is not one recognized by this Court. See Seminole Tribe of Fla. v.

Florida, 517 U.S. 44, 66-67 (1996) (“We adhere * * * not

to mere obiter dicta, but rather to the well-established

rationale upon which the Court based the results of its

earlier decisions.”). To be sure, lower courts have tried

to cabin Supreme Court rationale in the past to particular facts and claim their hands were bound by precedent, but this Court and history have corrected them.

Compare, e.g., Holmes v. City of Atlanta, 223 F.2d 93

(5th Cir. 1955) (affirming the district court’s decision

that it was bound by Plessy v. Ferguson, 163 U.S. 537

(1896), and its progeny because Brown v. Board of Education, 347 U.S. 483 (1954), did not affect the court’s

“separate-but-equal” precedent), with Dawson v.

Mayor of Baltimore City, 220 F.2d 386, 387 (4th Cir.

1955) (per curiam) (“The combined effect of these decisions of the Supreme Court is to destroy the basis of

the decision of [past precedent].”); see also Holmes v.

City of Atlanta, 350 U.S. 879 (1955) (mem.) (vacating

the decision below and directing the court to “enter a

decree for petitioners in conformity with” Dawson).

The prior-panel-precedent rule’s myopia would limit

each case to its facts; something that this Court’s members have made clear is not how our law works. See,

e.g., Antonin Scalia, The Rule of Law as a Law of

Rules, 56 U. Chi. L. Rev. 1175, 1177 (1989) (“Let us not

quibble about the theoretical scope of a ‘holding’; the

modern reality, at least, is that when the Supreme

Court of the federal system * * * decides a case, not

merely the outcome of that decision, but the mode of

9

analysis that it applies will thereafter be followed by

the lower courts within that system * * *.” ); cf. County

of Allegheny v. ACLU, Greater Pittsburgh Chapter,

492 U.S. 573, 668 (1989) (Kennedy, J., concurring in the

judgment in part and dissenting in part) (“As a general

rule, the principle of stare decisis directs us to adhere

not only to the holdings of our prior cases, but also to

their explications of the governing rules of law.”). Examination of this Court’s practices and precedent confirms that view.

Just last Term, this Court made clear that intervening Supreme Court case law can remove the binding

effect of circuit precedent. In Herrera v. Wyoming,

this Court examined the interpretation of a treaty with

the Crow Indian tribe. 139 S. Ct. 1686 (2019). The

Tenth Circuit had previously held, under reasoning derived from Ward v. Race Horse, 163 U.S. 504 (1896),

that the Crow Indian treaty had been abrogated with

the admission of Wyoming to statehood. Crow Tribe of

Indians v. Repsis, 73 F.3d 982, 992-993 (10th Cir. 1995),

cert. denied 517 U.S. 1221 (1996). Subsequent to Repsis, this Court decided Minnesota v. Mille Lacs Band

of Chippewa Indians, 526 U.S. 172 (1999), which “repudiated the reasoning on which the Tenth Circuit relied

in Repsis.” Herrera, 139 S. Ct. at 1697. When a Crow

Tribe member sought to have the Mille Lacs reasoning

applied to enforce his treaty right, Wyoming courts applied issue preclusion on the basis of Repsis. Id. at

1694. This Court vacated and remanded, explaining

that “Mille Lacs upended both lines of reasoning in

Race Horse,” thereby “repudiat[ing] the reasoning” of

Repsis, and adding that “a repudiated decision does not

retain preclusive force.”

Id. at 1696-1698.

10

While Herrera involved issue preclusion as opposed to

stare decisis, the principles are analogous. See Amy

Coney Barrett, Stare Decisis and Due Process, 74 U.

Colo. L. Rev. 1011, 1012 (2003). “Because * * * [Mathis]

repudiated the reasoning on which the [Eleventh] Circuit relied in [Fleur], [Fleur] does not preclude” petitioner from re-litigating the legal question at issue. 139

S. Ct. at 1697. If the Tenth Circuit followed the Eleventh’s rule, Herrera would be able to obtain relief in

Wyoming’s state court (because there would be no issue preclusion and Wyoming could decide the question

anew), but not in federal court because of the priorpanel-precedent rule. But criminal defendants cannot

choose their forum and so cannot seek out a different

court to gain the benefit of this Court’s reasoning.3

This Court’s grant-vacate-remand order (GVR)

practice further confirms that this Court’s opinions affect more cases than just those directly implicated by

their strict facts. The Court frequently vacates decisions for reconsideration in light of intervening Supreme Court precedent. See Lawrence v. Chater, 516

U.S. 163, 180 (1996) (Scalia, J., dissenting) (explaining

that this Court regularly vacates and remands where

“an intervening event (ordinarily a postjudgment deci3

Inmates who transfer out of the Eleventh Circuit may be

able to gain relief—and their freedom—based on Supreme Court

precedent, but it is a difficult road. See, e.g., Lester v. United

States, 921 F.3d 1306, 1318 (11th Cir. 2019) (Martin, J., respecting

the denial of rehearing en banc) (describing a Georgia prisoner

who was transferred to Virginia and successfully received habeas

relief that he would not have received in the Eleventh Circuit

“based on Chambers v. United States, which overruled the Eleventh Circuit precedent” (internal citation omitted)).

11

sion of this Court) has cast doubt on the judgment rendered by a lower federal court or a state court concerning a federal question” (emphases altered)). For example, this Court vacated and remanded Guevara v. United States, 136 S. Ct. 2542 (2016) (mem.), “for further

consideration in light of Mathis,” even though the case

involved the divisibility of a controlled-substance statute under the Sentencing Guidelines and was foreclosed

by binding circuit precedent. See United States v.

Guevara, 619 F. App’x 648, 649 (9th Cir. 2015), vacated

and remanded by 136 S. Ct. 2542 (2016). Because this

Court viewed Mathis as “reveal[ing] a reasonable

probability that the decision below rest[ed] upon a

premise that the lower court would reject if given the

opportunity,” Lawrence, 516 U.S. at 167 (per curiam), it

believed its opinion affected the law. But in the Eleventh Circuit, GVRs can be dead letters. In Beckles v.

United States, 135 S. Ct. 2928 (2015), this Court vacated

the Eleventh Circuit’s decision and remanded the case

“for further consideration in light of Johnson v. United

States.” In response, the Eleventh Circuit held that it

remained bound by its pre-Johnson precedent, explaining that “Johnson says and decided nothing about career-offender enhancements under the Sentencing

Guidelines.” Beckles v. United States, 616 F. App’x

415, 416 (11th Cir. 2015). Beckles did not receive consideration of his claim under post-Johnson law until

this Court granted certiorari and provided a postJohnson rationale. Beckles v. United States, 137 S. Ct.

886 (2017).

Finally, this Court has often called decisions issued

on the basis of rationale in an analogous, but not directly on point, case plainly erroneous. See, e.g., Hutto v.

12

Davis, 454 U.S. 370, 372-373 (1982) (per curiam) (reversing a circuit court for “fail[ing] to heed our decision” where an intervening case had “implicitly disapproved” of prior panel precedent); Pennsylvania v.

Goldhammer, 474 U.S. 28, 29 (1985) (summarily reversing because “[t]he Pennsylvania Supreme Court’s rationale is inconsistent with the rationale of the holding

of this Court in [United States v.] DiFrancesco”). In

Grady v. North Carolina, 135 S. Ct. 1368 (2015), this

Court summarily reversed the North Carolina Court of

Appeals, which had distinguished United States v.

Jones, 565 U.S. 400 (2012), as a criminal case and held

itself bound by prior precedent. The opinion vacated

the decision below because its “theory is inconsistent

with this Court’s precedents.” Grady, 135 S. Ct. at

1370; see also Martinez v. Illinois, 572 U.S. 833, 843

(2014) (summarily reversing the Supreme Court of Illinois, which had relied on its earlier precedent, where it

“r[an] directly counter to our precedents”).

Any circuit-court procedural rule that limits the

opportunity for a meaningful appeal must be “a reasonable response” to justifications for the limitation. Ortega-Rodriguez v. United States, 507 U.S. 234, 244

(1993). But the justifications behind the Eleventh Circuit’s prior-panel-precedent rule cannot suffice with respect to changes in the law from this Court that directly conflict with past precedent. See id. at 249 (“[T]he

justifications advanced for dismissal * * * generally will

not apply.”). As shown above, this Court presumes

that when it speaks, the lower courts will examine and

distinguish rationales as appropriate. An appellate

court “must decide according to existing laws, and if it

be necessary to set aside a judgment, rightful when

13

rendered, but which cannot be affirmed but in violation

of law, the judgment must be set aside.” United States

v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801).

The Eleventh Circuit’s practice violates due process

because it refuses to engage with the necessary implications of Supreme Court decisions, resting instead unthinkingly on past precedent. To be sure, “it may be

difficult at the margins to discern whether a particular

legal shift warrants an exception to” stare decisis, but

“this is not a marginal case.” Herrera, 139 S. Ct. at

1698. Petitioner should be afforded the opportunity for

a meaningful appeal under the law as it stands during

his appeal.

II. THE ELEVENTH CIRCUIT’S STANDARD IS INCONSISTENT W ITH A LL O THER C IRCUITS

Each of the circuits—with the exception of the

Eleventh Circuit—has fashioned a rule that allows prior panel precedent to be reviewed on the basis of an intervening Supreme Court case when the rationale of

its prior precedent is clearly erroneous. While circuit

courts “strive to maintain a consistent body of jurisprudence,” they also “recognize the overriding principle

that ‘[a]s an inferior court in the federal hierarchy, [appellate courts] are, of course, compelled to apply the

law announced by the Supreme Court as [they] find it

on the date of [their] decision.” United States v. Tann,

577 F.3d 533, 541 (3d Cir. 2009) (first alteration in original) (citation omitted); United States v. Lucido, 612

F.3d 871, 876 (6th Cir. 2010) (“ ‘[W]e must—as a lower

federal court—apply all pertinent Supreme Court precedent,’ including precedent that overrules * * * Circuit

decisions.” (alteration in original) (internal citation

omitted)). To that end, circuit courts’ application of

14

horizontal stare decisis must “leave[] room for courts to

balance their respect for precedent against insights

gleaned from new developments, and to make informed

judgments as to whether earlier decisions retain preclusive force.” Carpenters Local Union No. 26 v. U.S.

Fid. & Guar. Co., 215 F.3d 136, 142 (1st Cir. 2000) (citation omitted); cf. Miller v. Gammie, 335 F.3d 889, 900

(9th Cir. 2003) (en banc) (explaining that the objective

of maintaining consistency across a circuit “must not be

pursued at the expense of creating an inconsistency between our circuit decisions and the reasoning of state or

federal authority embodied in a decision of a court of

last resort”). Yet the Eleventh Circuit alone has foreclosed its panels from striking this balance and, in doing

so, deprives criminal defendants of their right to a

meaningful appeal governed by the law as it stands

when their appeals are decided. The court’s outlier status underscores the unreasonableness of its position.

To be clear: no circuit other than the Eleventh requires that a prior panel decision be “overruled to the

point of abrogation by the Supreme Court” for a subsequent panel to reconsider the prior decision. That

standard, as applied in the Eleventh Circuit, requires a

Supreme Court decision to be nearly identical to the

case being considered by a panel before that panel is

permitted to apply the law as it stands on the date of

the appeal. See United States v. Kaley, 579 F.3d 1246,

1255 (11th Cir. 2009) (“In addition to being squarely on

point, * * * the intervening Supreme Court case [must]

actually abrogate or directly conflict with, as opposed

to merely weaken, the holding of the prior panel.”). As

a result, the Eleventh Circuit’s rule is meaningfully different than those of the other circuits.

15

Although the other circuits “differ in how much the

earlier decision must be undermined before it can be

overruled,” see Joseph W. Mead, Stare Decisis in the

Inferior Courts of the United States, 12 Nev. L.J. 787,

797 n.74 (2012), they all embrace an exception to the

general rule that permits subsequent panels to reconsider panel precedent on the basis of intervening Supreme Court decisions.4 For example, three circuits

allow subsequent panels to overrule prior panel precedent when it is “inconsistent” with an intervening Supreme Court case. Cox v. Dravo Corp., 517 F.2d 620,

627 (3d Cir. 1975) (en banc), cert. denied 423 U.S. 1020

(1975); Lucido, 612 F.3d at 876; McCullough v. AEGON

USA, Inc., 585 F.3d 1082, 1085 (8th Cir. 2009). And under a slightly different articulation of the standard, the

Second, Third, and Eighth Circuits reconsider prior

panel decisions when an intervening Supreme Court

decision “casts doubt” on prior precedent. Union of

Needletrades, Indus. & Textile Emps. v. INS, 336 F.3d

200, 210 (2d Cir. 2003); In re Krebs, 527 F.3d 82, 87 (3d

Cir. 2008); Patterson v. Tenet Healthcare, Inc., 113 F.3d

832, 838 (8th Cir. 1997).

The Ninth and Tenth Circuits specifically contemplate that subsequent panels should reconsider prior

4

The Seventh Circuit takes a different approach than other

circuits, permitting one panel to overrule another so long as the

subsequent panel circulates the proposed opinion to the active

members of the court “and a majority of them do not vote to rehear en banc the issue of whether the position should be adopted.”

7th Cir. R. 40(e); see generally United States v. Reyes-Hernandez,

624 F.3d 405, 412-413 (7th Cir. 2010). This rule allows subsequent

panels even more opportunity to reconsider prior precedent on the

basis of intervening Supreme Court authority.

16

precedent where an intervening Supreme Court decision is “clearly irreconcilable” with or “contradicts” the

rationale of the prior precedent. United States v.

Brooks, 751 F.3d 1204, 1209-1211 (10th Cir. 2014); Miller, 335 F.3d at 892-893; United States v. Parker, 651

F.3d 1180, 1184 (9th Cir. 2011).

Several other formulations of the standard have also been offered across the circuits, such as whether intervening Supreme Court authority “conflicts with”

prior panel precedent, Karns v. Shanahan, 879 F.3d

504, 514-515 (3d Cir. 2018), whether prior precedent is

“untenable” in light of intervening Supreme Court authority, Hoffman v. Hunt, 126 F.3d 575, 584 (4th Cir.

1997), cert. denied 523 U.S. 1136 (1998), or whether prior precedent is “undermined” by the intervening Supreme Court decision, United States v. Williams, 155

F.3d 418, 421 (4th Cir.), cert. denied 525 U.S. 1058

(1998).

Notably, six circuits also explicitly reject the notion

that intervening Supreme Court authority must directly abrogate the prior precedent for the later panel to

overrule the prior decision: “[T]he intervening Supreme Court authority need not be precisely on point, if

the legal reasoning is directly applicable.” Northeast

Ohio Coal. for the Homeless v. Husted, 831 F.3d 686,

720-721 (6th Cir. 2016); United States v. Tavares, 843

F.3d 1, 11 (1st Cir. 2016) (holding that a later panel can

reconsider binding precedent where intervening Supreme Court authority, “although not directly controlling, nevertheless offers a sound reason” to reconsider

the prior panel’s rationale (citation omitted)); Union of

Needletrades Indus. & Textile Emps., 336 F.3d at 210

(“[T]he intervening decision need not address the pre-

17

cise issue already decided by [the c]ourt.”); Miller, 335

F.3d at 900 (“[I]ssues decided by the higher court need

not be identical in order to be controlling.”); Brooks,

751 F.3d at 1209-1210 (“The question * * * is not

whether an intervening Supreme Court case is on all

fours with our precedent, but rather whether the subsequent Supreme Court decision contradicts or invalidates our prior analysis.”); Troy v. Samson Mfg. Corp.,

758 F.3d 1322, 1326 (Fed. Cir. 2014).

The Fifth Circuit’s standard comes closest to that

of the Eleventh Circuit, but even the Fifth Circuit recognizes that “when the Supreme Court ‘ “expressly or

implicitly” overrules one of [the court’s] precedents, [a

panel has] the authority and obligation to declare and

implement this change in the law,’ ” Stokes v. Sw. Airlines, 887 F.3d 199, 204 (5th Cir. 2018) (emphases altered) (citation omitted); United States v. Short, 181

F.3d 620, 624 (5th Cir. 1999), cert. denied 528 U.S. 1091

(2000), thereby allowing a subsequent panel to assess

whether an intervening Supreme Court decision

“changes the law,” even if only implicitly.

It is therefore apparent among the other circuits

that lower courts are “bound not only by the holdings of

higher courts’ decisions but also by their ‘mode of analysis.’ ” Miller, 335 F.3d at 900 (quoting Antonin Scalia,

The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev.

1175, 1177 (1989)). The Eleventh Circuit’s application

of its prior-panel-precedent rule, on the other hand,

forecloses consideration of the Supreme Court’s mode

of analysis, which means that panels in the Eleventh

Circuit cannot reconsider prior precedent to account for

the current state of the law—thereby violating criminal

defendants’ due process right to a meaningful appeal.

18

While the other circuits articulate various standards,

they all provide a method for revaluating prior precedent on direct review based on intervening Supreme

Court authority. The Eleventh Circuit is alone in prioritizing consistency over the right to a meaningful opportunity to be heard on appeal.

III. THE PROBLEM IS IMPORTANT, RECURRING, AND

SQUARELY PRESENTED

Without this Court’s intervention, the Eleventh

Circuit will continue to deploy its severe prior-panelprecedent rule to affirm criminal convictions and

lengthy sentences without meaningfully considering

their legality.

In direct criminal appeals like

petitioner’s, the Eleventh Circuit refuses to reach the

merits of appellants’ arguments, instead affording

preclusive effect to prior panel decisions that were

decided under law recognized as erroneous under

intervening Supreme Court precedent and published

under procedures that forgo the hallmarks of the

adversarial process, including briefing on the merits

and the ability to seek further review.

In this case, petitioner argued that Hobbs Act

robbery is not categorically a crime of violence under 18

U.S.C. 924(c)(3)(A). The Eleventh Circuit concluded it

could not consider the merits of that argument in light

of its prior precedent in Fleur, which had already

concluded that Hobbs Act robbery is categorically a

crime of violence. United States v. St. Hubert, 909 F.3d

335, 346 (2018). But Fleur’s conclusion hinged on the

court’s review of the defendant’s indictment for means,

not elements (see In re Fleur, 824 F.3d 1337, 1341 (11th

Cir. 2016))—a mode of analysis that is squarely

19

foreclosed by Mathis. As a result of the Eleventh

Circuit’s prior-panel-precedent rule, the court has

never entertained whether Mathis required a different

outcome than the one in Fleur, aside from a passing

reference in a footnote. St. Hubert, 909 F.3d at 347 n.9.

And Fleur itself, like numerous other published

decisions on SoS petitions, was decided without briefing

or argument by the parties.

This approach runs afoul of fundamental due

process guarantees, which require that “persons forced

to settle their claims of right and duty through the

judicial process must be given a meaningful

opportunity to be heard.” Boddie v. Connecticut, 401

U.S. 371, 377 (1971). The Eleventh Circuit’s treatment

of the issue, which was decided without adversarial

testing, can hardly be considered “meaningful.” See

Sessions v. Dimaya, 138 S. Ct. 1204, 1232-1233 (2018)

(Gorsuch, J., concurring in part and concurring in

judgment) (“[T]he crucible of adversarial testing is

crucial to sound judicial decisionmaking. We rely on it

to ‘yield insights (or reveal pitfalls) we cannot muster

guided only by our own lights.’ ” (citation omitted)).

Thus, regardless of whether the Eleventh Circuit

on occasion applies intervening Supreme Court

precedent in some cases, the “practical effect” of the

court’s prior-panel-precedent rule—reaffirmed and

applied in this case—is to deny the petitioner and

similarly situated individuals their right to a

meaningful hearing on the law as it exists at the time of

their appeal. Thomas v. Arn, 474 U.S. 140, 146 (1985).

While the Eleventh Circuit’s problematic

application of its prior-panel-precedent rule here is

20

particularly marked, petitioner’s case is by no means

unique. Numerous other individuals seeking review of

their sentences on the merits of the Hobbs Act robbery

question have been turned away on the basis of Fleur.5

And, under its prior-panel-precedent rule, the Eleventh

Circuit will never meaningfully engage with that

question, despite the court’s prior acknowledgements

that Hobbs Act robbery may encompass conduct that is

not categorically a crime of violence. See, e.g., Order at

6, Davenport v. United States, No. 16-15939 (11th Cir.

Mar. 28, 2017) (Martin, J.); In re Hernandez, 857 F.3d

1162, 1165 (11th Cir. 2017) (Martin, J., joined by Jill

Pryor, J., concurring in result). Furthermore, St.

Hubert has now compounded Fleur’s error by

extending its holding to attempted Hobbs Act robbery,

meaning that an additional class of individuals will also

be caught in the due process morass effected by the

prior-panel-precedent rule. See, e.g., Hylor v. United

States, 896 F.3d 1219 (11th Cir. 2018), cert. denied 139

S. Ct. 1375 (2019). Petitioner asks only that the merits

of his claim be considered on the basis of the law as it

stood at the time of his appeal.

Beyond the Hobbs Act robbery question, and as

outlined in the pending certiorari petition in Valdes

Gonzalez v. United States, No. 18-7575 (filed Jan. 18,

2019), the Eleventh Circuit has published several

binding orders holding that various other offenses—

5

See, e.g., United States v. Becker, 762 F. App’x 668, 674 (11th

Cir. 2019) (per curiam); United States v. Wiles, 723 F. App’x 968,

969 (11th Cir. 2018); King v. United States, 723 F. App’x 842, 844

(11th Cir.), cert. denied 138 S. Ct. 2592 (2018); United States v.

Grace, 711 F. App’x 495, 503 (11th Cir. 2017), cert. denied 138 S.

Ct. 1295 (2018).

21

and, after St. Hubert, attempted offenses—qualify as

“crimes of violence” under 18 U.S.C. 924(c) or the

Sentencing Guidelines, or as “violent felonies” under

the Armed Career Criminal Act, 18 U.S.C. 924(e)(2)(B).

As members of the Eleventh Circuit have recognized,

many of these decisions, like Fleur, were wrongly

decided in haste. See Ovalles v. United States, 905 F.3d

1231, 1268-1273 (11th Cir. 2018) (en banc) (Martin, J.,

dissenting) (discussing examples), abrogated by United

States v. Davis, 139 S. Ct. 2319 (2019). Yet the

Eleventh Circuit has relied on those decisions to decide

dozens of appeals over the last two years. See No. 187575 Pet. at 15-17. Furthermore, as the Valdes petition

aptly points out, the binding effect of the court’s

decisions will undoubtedly impact charging practices,

plea bargaining, and sentencing exposure.

This case presents an ideal vehicle for review. The

Eleventh Circuit squarely addressed the point that it

will not revisit its past precedent on the basis of a

conflict in reasoning. St. Hubert, 909 F.3d at 347 n.9.

Furthermore, absent a grant of certiorari, the only

avenue of relief for defendants bound by stale

precedent will be individualized reversals en banc or in

this Court. United States v. St. Hubert, 918 F.3d 1174,

1190 (11th Cir. 2019) (W. Pryor, J., respecting the

denial of rehearing en banc).6 But a ruling from this

Court establishing that a meaningful opportunity for an

appeal requires that an appellate court at some point

6

This is particularly true where the court has “reheard only

one out of [its] more than 10,000 panel orders en banc, despite [its]

unique decisional approach that is ‘fraught with hazard and subject

to error.’ ” St. Hubert, 918 F.3d at 1198 n.4 (Wilson, J., dissenting)

(citations omitted).

22

considered the merits of a claim under current law

would give this Court’s precedents their proper

deference.

Moreover, the issues raised in petitioner’s case, by

virtue of being a direct appeal, provide the only mechanism for this Court to provide due process protections to SoS petitioners whose petitions on the basis of

intervening Supreme Court precedent are unreviewable and will thus never appear before this Court. See

28 U.S.C. 2244(b)(3)(E).

Respondent may argue that any error is harmless,

because Hobbs Act robbery may be a crime of violence

without looking at the indictment. But petitioner (and

amicus) disputes that conclusion, as the crime includes

extortionate acts that involve only injury to intangible

property and was historically understood as such.

Petitioner and amicus could present argument on the

point, but it would serve only to show what petitioner

was denied below: an opportunity to have the merits of

his claim considered under current law. As the law in

the Eleventh Circuit stands, Hobbs Act robbery is a

crime of violence because one man’s indictment

contained facts that showed violence: clear error under

intervening precedent. The Eleventh Circuit should

itself decide the question on the merits.

The prior-panel-precedent rule is a procedural

directive intended to promote certainty in the law and

the efficient use of judicial resources. As applied in the

Eleventh Circuit, however, the only certainty the rule

guarantees is that individuals are foreclosed from

raising meritorious challenges to their convictions and

sentences as established under intervening Supreme

23

Court decisions. They are further deprived of a

meaningful appeal when they are bound by decisions

issued without the procedural safeguards that define

our adversarial system of justice. The court’s out-ofhand rejection of properly raised arguments without

the opportunity to be heard strikes at the “core of due

process.” LaChance v. Erickson, 522 U.S. 262, 266

(1998). And the Eleventh’s Circuit’s approach, unique

among the circuit courts, means that an individual’s

“liberty can depend as much on geography as anything

else.” Lester v. United States, 921 F.3d 1306, 1319

(2019) (Martin, J., respecting the denial of rehearing en

banc). The Eleventh Circuit cannot use internal

procedural rules to insulate itself from its obligations to

uphold fundamental due process guarantees. Rather,

those “[p]rocedural rules of course must yield to

constitutional * * * requirements.” Joseph v. United

States, 135 S. Ct. 705, 705 (2014) (Kagan, J., respecting

the denial of certiorari).

This case presents this Court with an opportunity

to articulate a principled line that will align the

Eleventh Circuit with the other circuit courts: where

intervening Supreme Court rationale conflicts with

prior panel precedent, due process requires the ability

to argue the merits under the law at the time of appeal.

That line can respect the supervisory powers and

judicial acumen of the circuit courts, for “arguments

may be made one way or the other whether the present

case is distinguishable” from the intervening case, and

can also avert “anarchy * * * prevail[ing] within the

federal judicial system.” Hutto v. Davis, 454 U.S. 370,

375 (1982) (per curiam). But the Eleventh Circuit’s

current prior-panel-precedent rule fails to comport with

24

the minimum guarantees of due process, particularly as

applied to orders on SoS petitions, and bucks the

authority of this Court. It cannot be left to stand.

CONCLUSION

For the foregoing reasons, the Court should grant

the petition and the judgment of the Court of Appeals

should be reversed.

Respectfully submitted.

DAVID OSCAR MARKUS

NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE

LAWYERS

SEPTEMBER 2019

DANIEL V. WARD

JANINE M. PARÉ

NICHOLAS A. DUBE

EMMA NOTIS-MCCONARTY

ROPES & GRAY LLP