Opposition Brief — Nunez v. United States

eh [Supreme Count. US.

(3) FILED

( |

| APR 15 2005

No. 04-1094 OFFICE OF THE CLERK |

Jn the Supreme Court of the Cited States

CECILIO NUNEZ, PETITIONER

U,

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

SUPPLEMENTAL RESPONSE FOR THE UNITED STATES

IN OPPOSITION

PAUL D. CLEMENT

Acting Solicitor General

Counsel of Record

CHRISTOPHER A. WRAY

Assistant Attorney General

ELIZABETH A. OLSON

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the Eleventh Circuit abuses its discretion

by applying a longstanding procedural bar rule to

decline to consider claims of error under the Sixth

Amendment or United States v. Booker, 125 8. Ct. 738

(2005), in cases in which that argument is not raised in

the appellant’s opening brief.

(I)

Opinions below

Jurisdiction

Statement

Argument

Conclusion

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Cases:

Adams-Arapahoe Joint Sch. Dist. No. 28-J v.

Continental Ins. Co., 891 F.2d 772 (10th

Give shel ae dre hee b edn kek nea eae

Apprendi v. New Jersey, 530 U.S. 466

es daa hone hseshee Ganesan cdake cs xs

ey Dee RReT aR

Bickel v. Korean Air Lines Co., 96 F.3d 151

(6th Cir. 1996), cert. denied, 519 U.S. 1093

ca ee sc RSG va REDS des d otk dered:

Blakely v. Washington, 1258S. Ct. 2531

a RO Eee eer ere Cr er ee ee eee

(1973) EPS EE EO Pet eee Eee eee Ee

Ns eapmedieaataanen tea area ae

Garcia v. United States, 534 U.S. 823

ES ee ean Gueie cd aU cwn 6 ban Ton hake.

Ghana v. Holland, 226 F.3d 175 (3d Cir.

tei sae ens wen GN wae Maaeua eke henea

Gramegna v. Johnson, 846 F.2d 675 (11th

ES vat tau Vedat sta c0bs en be)

Greenwood v. FAA, 28 F.3d 971 (9th Cir.

Sy cua sud aae nana ss ndaecaees

Griffith v. Kentucky, 479 U.S. 314

EE Ee eb nine et abe acca eee can’

SC CPPCC CPC eBC eC eeCe eevee ecececeeese dose ee

ceeees 9

IV

Cases—Continued: Page

Harper v. Virginia Dep't of Taxation, 509

2k Siena rere Perr errr Tres 8

Holman vy. Indiana, 211 F.3d 399 (7th Cir.),

cert. denied, 531 U.S. 880 (2000) ............--66- 9

Johnson v. United States, 520 U.S. 461

Cc ccc cai basa cneewe eee eee ne eencenees 8, 14

Kost v. Kozakiewicz, 1 F.3d 176 (3d Cir.

SE TR eel SER Oe Ny ee Se eer 9

Leer v. Murphy, 844 F.2d 628 (9th Cir.

NE ac cascdascsccoeeseeseis bakers akneewe 10

Maryland People’s Counsel v. FERC, 760

FOO SISO CHG) vivcsccivccvenss ema 10

McGinnis v. Ingram Equip. Co., 918 F.2d

SABE CENT CAP. SOG) occ cc ccscevsanscevecdecnss 11

Nealy v. United States, 534 U.S. 1023

CE kx cook ccdunecucaveree eeu iieuenekerary's 15

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

| enn eee Pee Er Terre rT ee 13

Padilla-Reyes v. United States, 534 U.S. 913

SEY ob chika cake nde hedkwaies 05 ti5sereeeeas 15

Phillips v. United States, 536 U.S. 961

oo occk ccc becdiese con nonce een wesenes 15

Playboy Enters. v. Public Serv. Comm'n,

906 F.2d 25 (1st Cir.), cert. denied, 498 U.S.

POET gs dv cones eae coed eked rhe becevereaeees 9

Priddy v. Edelman, 883 F.2d 438 (6th Cir.

RE ocd ode clea eeu wene re ckeetanaeueeieieeds 9

Schrivo v. Summerlin, 1248. Ct. 2519

CED oii cote coer an eka eae eri eahe eer an aks 5

Senn v. United States, 1258. Ct. 1397

I os Cau ee aaa a kena Ree dee aren 4

Shea v. Louisiana, 470 U.S. 51

CRO) acc cen nvsndctcnviceeseeetnedendedteasiies 6

Shopco Distrib. Co. v. Commanding Gen. of

Marine Corps Base, 885 F.2d 167 (4th Cir.

Cases—Continued: Page

Sweat v. City of Ft. Smith, 265 F.3d 692

tt EP rr armen meaner em ener rier ee 10

Thomas v. Arn, 474 U.S. 140

CONE ks ASRS HR eee a ree eG 13

Thompson v. United States, 535 U.S. 1114

Ce an be bves ee oe aa oe eee 15

United States v. Ameline, 376 F.3d 967 (9th

Cir. 2004), on reh’g, 400 F.3d 646 (9th Cir),

reh’g en bane granted, 2005 WL 61270 (9th

Ga ee IES ev k oeuce Kav cucee asec eaueecaee 12

United States v. Ardley:

242 F.3d 989 (11th Cir.), cert. denied,

ee 9S) EE fb een nee 3, 4, 11

273 F.3d 991 (11th Cir.), cert. denied,

See tee OTE. kkk ete aaceewcectaesecir 7

United States v. Booker, 125S. Ct. 738

CHEE. Fae v0 xe £44404 5aGtee Rae 3,4, 7,8

United States v. Byers, 740 F.2d 1104 (D.C.

CAE See lac ewisua saree bea che ee aes 12

United States v. Cordoza-Estrada, 385 F.3d

56 (ist Cir. 2004) ........ ae ener Maeda ae ae 12

United States v. Dockery, No. 03-16388,

2005 WL 487735 (11th Cir. Mar. 3, 2005) .... 4,5, 11

United States v. Gaudin, 515 U.S. 506

CE IIIG 5.» ko wkne agen oa ees Pe ee 8

United States v. Henningsen, 387 F.3d 585

(7th Cir. 2004), subsequent determination,

2005 WL 703934 (7th Cir. Mar. 29, 2005) ........ 12

United States v. Hughes, 396 F.3d 374 (4th

Cir.), on reh’g, 2005 WL 628224 (4th Cir.

Wee. Te OE. bss cew ado cae iea ed eee 12

United States v. Humphrey, 287 F.3d 442

Cope Ga ED ob cv x eoe dieses ake ee 8

United States v. Johnson, 457 U.S. 537

CIEE kk vase e cca oe ee 5,6

United States v. Keys, 133 F.3d 1282 (9th

Cir.), cert. denied, 525 U.S. 891 (1998) ........... 8

VI

Cases—Continued: Page

United States v. Levy:

379 F.3d 1241 (11th Cir.), reh’g denied, 391 F.3d

1327 (11th Cir. 2004), petition for cert. pending,

No. 04-8942 (filed Mar. 1, 2005) ............... 11

391 F.3d 1327 (11th Cir. 2004), petition for cert.

pending, No. 04-8942 (filed Mar. 1, 2005) ... 11,14

United States v. Lovasco, 431 U.S. 783

C1OUT) g kvckvbddkcietecedudessaeeneeee 5

United States v. Miranda, 248 F.3d 434 (5th

Cir. 2001), cert. denied, 534 U.S. 980 (2001)

opti TGBG ABU. xo. vcdeondsesdasatacinse 9,10, 12

United States v. Nealy, 232 F.3d 825 (11th

Cir. 2000), cert. denied, 534 U.S. 1023

COED cox xc cde nkdine sad aneeeene eee 3

United States v. Outen, 286 F.3d 622 (2d

Clr, BOD oo vécewakeeweees suienee eee S

United States v. Perez-Covarrubias, No. 92-

30243, 1993 WL 5174 (9th Cir. Jan. 11,

1OUR) vivsnnvacsitesetackeds esau 12

United States v. Pree, 384 F.3d 378 (7th Cir.

SOO) nc ivaccvdén0eecerenseeessee eee 12

United States v. Rivera Pedin, 861 F.2d

LEER (EAC, SR: o ovievecsbareninemee ee 10

United States v. Quiroz, 22 F.3d 489 (2d

Cle. T9GG) cnc cesusekhievetieaeee eee 9, 10

United States v. Rogers, 118 F.3d 466 (6th

Cle. TSB) oc osisuns000bsaeee 6eneaen eee 12

United States v. Washington, 398 F.3d 306

(dt Cle, BD nna vn n04¥3008saph beste 8

United States v. Wheat, 278 F.3d 722

(Sth Cir. 2001), cert. denied, 537 U.S. 850

(BEY o occvcucdvseunnssed creeeetieaioese eee 8

Youakim v. Miller, 425 U.S. 231

(IGT vvacedgusssanvseseecisheci eee 5

Zobrest v. Catalina Foothills Sch. Dist., 509

US. 1 £3GR. ccacuseisesiesse eee 5

VII

Constitution, statutes and rules: Page

U.S. Const.:

CI ES inudnhkcasscxsecescincseaee 5

DIES BO bk ieee ee ae 3,4

Se MIRAE pu.5 eo cone eks 14ktkets cee 2

Sep RA ED. s vsu bare aude panne ateaiemeee oe cae 2

ot a err Pre irri prime 2

Ss CR bs baw de cn kawesadn weno ccs teudesa 2

Fed. R. App. P.:

EE a vaseee eck bee taweaueuneesaaeeee 10, 11

ee ED Sade dnceede Uk becdebeeesnenoees 9

ON (5s Gunna peehee dealer a 13

In the Supreme Court of the Gnited States

No. 04-1094

CECILIO NUNEZ, PETITIONER

Uv.

UNITED STATES OF AMERICA

ON PETITION_FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

SUPPLEMENTAL RESPONSE FOR THE UNITED STATES

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals affirming the

district court’s denial of petitioner’s motion for a new

trial (Pet. App. 1-9) is unpublished, but the judgment is

noted at 116 Fed. Appx. 252 (Table). The earlier opin-

ion of the cuurt of appeals affirming petitioner’s convic-

tion but remanding for an evidentiary hearing on his

motion for a new trial (Pet. App. 10-33) is unpublished,

but the judgment is noted at 82 Fed. Appx. 221 (Table).

JURISDICTION

The judgment of the court of appeals was entered on

August 26, 2004. A petition for rehearing was denied on

November 19, 2004. The petition for a writ of certiorari

was filed on February 11, 2005. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

(1)

bo

STATEMENT

1. Petitioner was a police officer for the City of

Hialeah, Florida. Along with another police officer and

a group of co-conspirators, petitioner engaged in a se-

ries of robberies of individuals and businesses.

2. Petitioner was convicted, following a jury trial, of

conspiracy to commit robbery under the Hobbs Act, in

violation of 18 U.S.C. 1951(a) (Count 2); conspiracy to

use a firearm during and in relation to a crime of vio-

lence, in violation of 18 U.S.C. 924(0) (Count 3); two

counts of Hobbs Act robbery, in violation of 18 U.S.C.

1951(a) and 2 (Counts 5 and 8); and using a firearm dur-

ing and in relation to a crime of violence, in violation of

18 U.S.C. 924(e) and 2 (Count 7). Pet. App. 2. The dis-

trict court sentenced petitioner to imprisonment for a

term of 188 months on Counts 2, 3, 5, and 8, id. at 40,

43, and a consecutive 84-month term of imprisonment

on Count 7. /d. at 43.

On August 28, 2003, the court of appeals affirmed

petitioner’s conviction, but remanded for an evidentiary

hearing on petitioner’s motion for a new trial. Pet. App.

10-11. On August 26, 2004, the court of appeals af-

firmed the district court’s denial of petitioner’s motion

for a new trial. /d. at 1-9. In his two appeals, peti-

tioner raised a number of claims challenging his convic-

tion and the district court’s denial of his motion for a

new trial. Petitioner did not, however, challenge the

sentence the district court imposed. Nor did petitioner

raise a Sixth Amendment challenge to his sentence in

his petition for rehearing, which he filed on October 18,

2004, nearly four months after this Court’s decision in

Blakely v. Washington, 125 S. Ct. 2531 (2004).

3

3. In United States v. Booker, 125 S. Ct. 738 (2005),

this Court held that the Sixth Amendment, as construed

in Blakely, applies to the federal Sentencing Guidelines.

Id. at 748-756 (Stevens, J., for the Court). In answering

the remedial question in Booker, the Court applied

severability analysis and held that the Guidelines are

advisory rather than mandatory, and that federal sen-

tences are reviewable for unreasonableness. /d. at 757-

769 (Breyer, J., for the Court).

4. In the wake of Booker, a significant number of

federal criminal defendants have sought review in this

Court based on that decision (or Blakely). In most such

cases, the government has suggested that the Court

grant the petition, vacate the judgment, and remand for

further consideration in light of Booker, leaving it to the

court of appeals to apply doctrines such as plain error,

harmless error, or waiver, as applicable. In Senn v.

United States, 125 S. Ct. 13897 (2005) (No. 04-7175), the

government took a different approach. The petition in

Senn raised both a constitutional challenge to the com-

position of the court of appeals panel that decided that

case and a claim that the Guidelines sentence imposed

violated the rule announced in Blakely. In its brief in

opposition, the government noted that the Eleventh

Circuit had denied that petitioner’s motion to file a sup-

plemental brief that would have raised, for the first

time, a Blakely challenge to his sentence. See Br. in

Opp. at 28-29, Senn, supra (No. 04-7175). Because the

Eleventh Circuit has held that arguments not raised in

a party’s opening brief are deemed abandoned, see, e.g.,

United States v. Ardley, 242 F.3d 989, 990 (11th Cir.),

cert. denied, 533 U.S. 962 (2001); United States v.

Nealy, 232 F.3d 825, 830 (11th Cir. 2000), cert. denied,

534 U.S. 1023 (2001), and because there was no reason

d

to believe that the Eleventh Circuit would consider on

the merits a Booker claim that the petitioner had not

adequately preserved under that procedural bar rule,

the government suggested that the petition be denied.

Br. in Opp. at 28-29, Senn, supra (No. 04-7175). This

Court nonetheless granted certiorari, vacated the judg-

ment of the court of appeals, and remanded the case for

further consideration in light of Booker. See 1258. Ct.

1397.

In light of this Court’s disposition of Senn, the gov-

ernment stated in its memorandum filed in this case

that it would be appropriate to grant certiorari, vacate

the judgment of the court of appeals, and remand the

case for further consideration in light of Booker. See

Mem. 1-2 (filed Mar. 3, 2005).

5. The day that the government filed its memoran-

dum in this case, the Eleventh Circuit addressed the

application to Booker claims of its rule that issues not

raised in a party’s opening brief will be deemed © »an-

doned. See United States v. Dockery, No. 03-1388,

2005 WL 487735, at *1 (11th Cir. Mar. 3, 2005). In

Dockery, the Eleventh Circuit held, in a case that this

Court had remanded for reconsideration in light of

Booker, that the defendant would be deemed to have

abandoned his Sixth Amendment challenge to the

Guidelines by failing to raise it in his opening brief.

Ibid. The court of appeals stated that it saw nothing

in the Supreme Court’s remand order, which is cast

in the usual language, requiring that we treat the

case as though the * * * issue had been timely

raised in this Court. In the absence of any require-

ment to the contrary in either [Booker] or in the or-

der remanding this case to us, we apply our well-

5

established rule that issues and contentions not

timely raised in the briefs are deemed abandoned.

Ibid. (quoting Ardley, 242 F.3d at 990).

ARGUMENT

For the first time in any court, petitioner challenges

the Eleventh Circuit’s decision not to entertain

Booker and Blakely claims that are not raised in a

party’s initial brief. Petitioner contends (Pet. 8-10)

that the Eleventh Circuit’s prudential rule contravenes

the retroactivity principle of Griffith v. Kentucky, 479

U.S. 314 (1987), which, petitioner notes, this Court also

invoked in Schriro v. Summerlin, 124 S. Ct. 2519, 2523

(2004) (citing Griffith in passing), and applied in United

States v. Johnson, 457 U.S. 537, 545 n.9 (1982) (applying

reasoning similar to Griffith to conclude that a decision

by this Court construing the Fourth Amendment is to

be applied retroactively to all convictions not yet final

at the time the decision was rendered). Petitioner also

contends (Pet. 15-23) that the Eleventh Circuit’s posi-

tion conflicts with decisions of “[t]he eleven other fed-

eral circuits.” Pet. 18. This Court does not ordinarily

review claims that were neither raised nor resolved be-

low. See, e.g., Zobrest v. Catalina Foothills Sch. Dist.,

509 U.S. 1, 8 (1993); United States v. Lovasco, 431 U.S.

783, 788 n.7 (1977); Youakim v. Miller, 425 U.S. 231,

234 (1976) (per curiam). In any event, neither conten-

tion has merit. Further review is not warranted.’

' Because the court of appeals confirmed in United States v.

Dockery, No. 0383-16388, 2005 WL 487735, at *1 (11th Cir. Mar. 3, 2005),

that a remand for further consideration in light of Booker does not alter

the court of appeals’ application of its longstanding rule that issues not

raised in an appellant’s opening brief are deemed abandoned, the

government has concluded, notwithstanding the position taken in the

6.

1. In Griffith, this Court held that “a new rule for

the conduct of criminal prosecutions is to be applied

retroactively to all cases * * * pending on direct re-

view or not yet final.” 479 U.S. at 328. Because the

petitioner in Griffith had preserved the claim on which

he sought review, the Court did not have occasion to

consider the interplay between the retroactivity rule

adopted in that case and principles of waiver, forfeiture,

and other prudential doctrines. See id. at 317, 318;

see also Johnson, 457 U.S. at 539-540 (noting that re-

spondent’s Fourth Amendment claim was raised before

the district court and on appeal).

Application of procedural default rules is consonant

with the retroactivity principle of Griffith. Griffith con-

cluded that retroactive application of new rules on di-

rect appeal was necessary both because of “the nature

of judicial review” and in order to “treat|] similarly situ-

ated defendants the same.” 479 U.S. at 322-323. That

rationale is in no way inconsistent with application of

procedural default rules to bar consideration of claims

that have not been adequately preserved. Defendants

who have not preserved a claim of error are not “simi-

larly situated” (id. at 323) to those who have. Cf. Shea

v. Louisiana, 470 U.S. 51, 59-60 (1985) (holding that it

is not inequitable to draw a distinction between a defen-

dant who raises a claim on collateral attack and one who

raises it on direct review because “[t]he one litigant

already has taken his case through the primary system”

and “[t]he other has not”). Application of procedural

bar rules does not offend principles requiring the retro-

memorandum filed in this case, see Mem. 1-2, that it is unnecessary for

this Court to remand this case for reconsideration in light of Booker.

7

active application of new constitutional rules to cases

open on direct review.

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 an-

swers 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 under-

mines or frustrates the constitutional doctrines and

commands underlying the issue that is held to be

defaulted.

United States v. Ardley, 273 F.3d 991, 992 (11th Cir.)

(Carnes, J., concurring in denial of rehearing en banc),

cert. denied, 533 U.S. 962 (2001).

On several occasions, this Court has indicated that

the retroactivity principle embodied in Griffith is in no

way inconsistent with the application of procedural de-

fault rules. In Shea v. Louisiana, supra, for example,

the Court held that the rule announced in Edwards v.

Arizona, 451 U.S. 477 (1981), would be applied retroac-

tively to cases pending on direct review. 470 U.S. at 59.

In doing so, the Court explicitly noted that the retroac-

tive application of Edwards was “subject, of course, to

established principles of waiver, harmless error, and the

like.” Jd. at 58 n.4. Similarly, in Booker itself, the

Court stated that while courts were bound to apply its

holding “to all cases on direct review,” 125 S. Ct. at 769

8

(citing Griffith, 479 U.S. at 328), “we expect reviewing

courts to apply ordinary prudential doctrines,” includ-

ing, specifically, the plain error doctrine for claims that

have not been preserved, ibid. See also Johnson v.

United States, 520 U.S. 461, 467 (1997) (noting that rule

of United States v. Gaudin, 515 U.S. 506 (1995), applied

retroactively under Griffith, but unpreserved claims

were subject to review only for plain error); Harper v.

Virginia Dep't of Taxation, 509 U.S. 86, 104 n.1 (1993)

(Sealia, J., concurring) (noting, as the Court extended

the holding of Griffith to civil cases, that “a party may

procedurally default on a claim in either [the civil or

criminal] context”).” This Court has never suggested

the contrary.”

Accord, e.g., United States v. Humphrey, 287 F.3d 422, 442 (6th

Cir. 2002) (noting that although Apprendi v. New Jersey, 530 U.S. 466

(2000), applies retroactively to cases on direct review under Griffith,

unpreserved claims were subject to plain error review); United States

v. Outen, 286 F.3d 622, 634 (2d Cir. 2002) (same); United States v.

Wheat, 278 F.3d 722, 739 (8th Cir. 2001) (same), cert. denied, 537 U.S.

850 (2002); United States v. Keys, 133 F.3d 1282, 1285-1286 (9th Cir.)

(en bane) (holding that although rule of Gaudin applied retroactively to

cases on direct review under Griffith, unpreserved claims were subject

to review only for plain error), cert. denied, 525 U.S. 891 (1998).

> The Fourth Circuit recently stated in a footnote, and without

briefing or argument by the parties on the issue, that “[a]lthough

appellate contentions not raised in an opening brief are normally

deemed to have been waived, the Booker principles apply in this

proceeding because the Court specifically mandated that we ‘must

apply [Booker] . . . to all cases on direct review.’” United States v.

Washington, 398 F.3d 306, 312 n.7 (4th Cir. 2005) (citation omitted;

brackets in original) (quoting Booker, 125 S. Ct. at 769 (Breyer, J., for

the Court)). The government was unable to seek rehearing in that case

because the court of appeals, after the time for filing a petition for

rehearing had expired, denied the timely filed joint motion of the

parties for an extension of time in which to file a rehearing petition.

9

2. Petitioner also contends (Pet. 16-23) that the

Eleventh Circuit’s application of its procedural bar rule

conflicts with the law of every other court of appeals,

and that Supreme Court review is necessary to resolve

the circuit conflict.

a. The Federal Rules of Appellate Procedure pro-

vide that an appellant’s brief “must contain * * * ap-

pellant’s contentions and the reasons for them.” Fed.

R. App. P. 28(a)(9)(A). The courts of appeals have with-

out exception interpreted that provision to establish a

general prudential rule that “[aJn appellant waives any

issue which it does not adequately raise in its initial

brief.” Playboy Enters. v. Public Serv. Comm’n, 906

F.2d 25, 40 (1st Cir.), cert. denied, 498 U.S. 959 (1990).!

The Fourth Circuit should be given an opportunity to reconsider that

erroneous conclusion in an appropriate case.

* Accord, e. g., United States v. Quiroz, 22 F.3d 489, 490-491 (2d Cir.

1994) (“It is well established that an argument not raised on appeal is

deemed abandoned, and we will not ordinarily consider such an

argument unless manifest injustice otherwise would result.”) (internal

citations and quotation marks omitted); Ghana v. Holland, 226 F.3d

175, 180 (3d Cir. 2000) (“It is well settled that if an appellant fails to

comply with these [Rule 28] requirements on a particular issue, he

normally has abandoned and waived that issue on appeal.”) (quoting

Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993)) (alterations

omitted); Shopco Distrib. Co. v. Commanding Gen. of Marine Corps

Base, 885 F.2d 167, 170 n.3 (4th Cir. 1989) (holding that any claim not

raised in a party’s initial brief will be deemed waived) (collecting

authorities); United States v. Miranda, 248 F.3d 434, 443 (5th Cir.

2001) (“Failure to satisfy the requirements of Rule 28 as to a particular

issue ordinarily constitutes abandonment of the issue.”), cert. denied,

534 U.S. 980 (2001) and 1086 (2002); Bickel v. Korean Air Lines Co., 96

F.3d 151, 153 (6th Cir. 1996) (“We normally decline to consider issues

not raised in the appellant’s opening brief.”) (quoting Priddy v.

Edelman, 883 F.2d 438, 446 (6th Cir. 1989)), cert. denied, 519 U.S. 1093

(1997); Holman v. Indiana, 211 F.3d 399, 406 (7th Cir.) (finding

10

The courts of appeals have recognized that that rule is

not jurisdictional, and therefore that courts have au-

thority, in the exercise of their discretion, to address

issues not timely raised by the parties. See, e.g., United

States v. Miranda, 248 F.3d 434, 443-444 (5th Cir. 2001)

(noting that “the issues-not-briefed-are-waived rule is

a prudential construct that requires the exercise of dis-

cretion” and that the court may consider an issue that

was not timely raised “where substantial public inter-

ests are involved”), cert. denied, 534 U.S. 980 (2001) and

1086 (2002); United States v. Quiroz, 22 F.3d 489, 490-

491 (2d Cir. 1994) (court will review issue not raised in

the brief where manifest injustice would otherwise re-

sult); Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988)

(same). See also Fed. R. App. P. 2 (granting courts dis-

cretion to suspend most rules for “good cause”). The

Eleventh Circuit specifically has recognized that it has

the authority to relieve litigants of the consequences of

default and address an issue on the merits where mani-

fest injustice would otherwise result.” In the exercise of

arguments not raised in initial brief waived), cert. denied, 531 U.S. 880

(2000); Sweat v. City of Ft. Smith, 265 F.3d 692, 696 (8th Cir. 2001)

(“{C Jlaims not raised in an initial appeal brief are waived.”); Greenwood

v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We review only issues which

are argued specifically and distinctly in a party’s opening brief.”);

Adams-Arapahoe Joint Sch. Dist. No. 28-J v. Continental Ins. Co., 891

F.2d 772, 776 (10th Cir. 1989) (holding that “[a]n issue not included in

either the docketing statement or the statement of issues in the party’s

initial brief is waived on appeal”); Maryland People’s Counselv. FERC,

760 F.2d 318, 319-320 (D.C. Cir. 1985) (deeming an issue waived where

a party did not raise it until supplemental briefing).

See, e.g., United States v. Rivera Pedin, 861 F.2d 1522, 1526 n.9

(11th Cir. 1988) (pursuant to Rule 2 of the Federal Rules of Appellate

Procedure, considering an issue raised only in co-defendant’s brief,

despite defendant’s failure to adopt by reference his co-defendant’s

1]

its discretion, however, the Eleventh Circuit has de-

clined to exempt Booker and Blakely claims from the

operation of its longstanding rule that it will not con-

sider claims unless they were timely raised in the appel-

lant’s opening brief. See, e.g., Dockery, 2005 WL

487735, at *1 (involving Booker claims); United States

v. Levy, 379 F.3d 1241, 1243 n.3 (11th Cir.) (“[W]e con-

clude that ‘there would be no miscarriage of justice if

we decline to address’ Blakely-type issues not raised in

opening briefs on appeal.”) (quoting McGinnis v.

Ingram Equip. Co., 918 F.2d 1491, 1496 (11th Cir. 1990)

(en bane)), reh’g denied, 391 F.3d 1327 (11th Cir. 2004),

petition for cert. pending, No. 04-8942 (filed Mar. 1,

2005); see also United States v. Ardley, 242 F.3d 989,

990 (11th Cir.) (declining to exempt claims under Ap-

prendi v. New Jersey, 530 U.S. 466 (2000), from opera-

tion of rule), cert. denied, 533 U.S. 962 (2001).

Petitioner asserts (Pet. 16) that the Eleventh Cir-

cuit’s application of the procedural bar rule “directly

contradicts every other Circuit” because other courts

have entertained on the merits challenges based on in-

tervening decisions of this Court in Booker, Blakely,

and Apprendi, even if they were not raised in the defen-

dant’s opening brief. See Pet. 16-23 & n.4. Of the nu-

merous federal cases petitioner cites, only two explicitly

considered whether to apply the ordinary prudential

rule that issues not raised in an opening brief would not

arguments); Gramegna v. Johnson, 846 F.2d 675 (11th Cir. 1988)

(vacating judgment based on issue raised sua sponte by the court,

pursuant to Rule 2); see also United States v. Levy, 391 F.3d 1327, 1335

(11th Cir. 2004) (Hull, J., concurring in denial of rehearing en banc)

(“The issue is not whether this Court has the power to consider issues

not raised in the initial brief; of course it does.”), petition for cert.

pending, No. 04-8942 (filed Mar. 1, 2005).

12

be considered.® Miranda, 248 F.3d at 443-444 (cited at

Pet. 17) (discussing Apprendi claim); United States v.

Byers, 740 F.2d 1104, 1115 n.11 (D.C. Cir. 1984) (cited

at Pet. 20). In both cases, the courts may have exer-

cised discretion to proceed to the merits of the argu-

ment the defendant had raised only because the court

concluded it clearly lacked merit. See Miranda, 248

F.3d at 446; Byers, 740 F.2d at 1118 (“obvious” that

conditions necessary for relief not met); id. at 1121

(noting claim has been “uniformly rejected by other cir-

cuits”). Thus, it appears that most courts that have ad-

dressed claims in this posture have not explicitly de-

clined to apply the default rule, and thus those decisions

cannot be said to “conflict” with the decision below.

b. Even if other courts of appeals had explicitly de-

clined to apply the usual procedural bar rule to claims

based on intervening decisions of this Court in Booker

6

In addition, four other opinions petitioner cites (Pet. 17-18 & n.4)

stated, without discussing the rule that claims must be raised in a

party’s opening brief, that it was appropriate to consider the claims in

that posture because this Court had recently clarified the law. See

United States v. Ameline, 376 F.3d 967 (9th Cir. 2004), on reh’g, 400

F.3d 646 (9th Cir.), reh’g en bane granted, 2005 WL 612710 (9th Cir.

Mar. 11, 2005); United States v. Henningsen, 387 F.3d 585, 591 (7th Cir.

2004), subsequent determination, 2005 WL 703934 (7th Cir. Mar. 29,

2005); United States v. Cordoza-Estrada, 385 F.3d 56, 59 (1st Cir. 2004);

United States v. Pree, 384 F.3d 378, 396 (7th Cir. 2004). In United

States v. Perez-Covarrubias, No. 92-30243, 1993 WL 5174, at *1n.1 (9th

Cir. Jan. 11, 1993) (cited at Pet. 23), the government conceded error in

its opening brief, which was sufficient to preserve the claim. United

States v. Rogers, 118 F.3d 466, 471 (6th Cir. 1997), and United States v.

Hughes, 396 F.3d 374, 380-381 & n.8 (4th Cir.), on reh’g, 2005 WL

628224 (4th Cir. Mar. 16, 2005), cited by petitioner (Pet. 16-18),

discussed only the implications of the defendants’ failure to raise the

claim before the district court, rather than their failure to raise

Blakely-type claims in their initial briefs before the court of appeals.

13

and Blakely, further review would not be warranted.

Rules governing the consideration of unpreserved

claims may appropriately be viewed as local rules that

ean differ from circuit to circuit. So long as such local

rules are reasonable, see Thomas v. Arn, 474 U.S. 140,

146-148 (1985), and consistent with Acts of Congress

and the Federal Rules of Appellate Procedure, see Fed.

R. App. P. 47(a), there is no requirement of “uniformity

among the circuits in their approach to [such] rules.”

Ortega-Rodriguez v. United States, 507 U.S. 234, 251

n.24 (1993). Indeed, this Court specifically has acknowl-

edged the power of courts of appeals to adopt rules re-

stricting the consideration of issues not raised in a

timely manner. In Thomas v. Arn, supra, this Court

held that the Sixth Circuit had not abused its discretion

by promulgating a rule that a party waived the right to

appellate review of a district court judgment that

adopted a magistrate’s recommendation when the party

had failed to file objections with the district court iden-

tifying those issues on which review was desired. The

Sixth Circuit’s “nonjurisdictional waiver provision,” like

the rule at issue here, would ordinarily “preclud[e] ap-

pellate review of any issue” not raised in the manner

prescribed, although the court of appeals could “excuse

the default in the interests of justice.” Thomas, 474

U.S. at 147-148, 155. Noting that such a rule was sup-

ported by sound considerations of judicial economy, 7d.

at 148, this Court concluded that the courts of appeals

had authority to adopt “procedures deemed desirable

from the viewpoint of sound judicial practice although

in nowise commanded by statute or by the Constitu-

tion.” Jd. at 146-147 (quoting Cupp v. Naughten, 414

U.S. 141, 146 (1973)).

14

Procedural bar rules of the sort at issue here pro-

mote efficiency by avoiding piecemeal briefing of ap-

peals and ensuring that the appellee has the opportu-

nity to respond to all issues raised by the appellant

without supplemental briefing. Such rules are espe-

cially important because of the courts of appeals’ in-

creasingly heavy caseloads. Petitioner contends (Pet.

11 n.2, 24) that the court of appeals’ rule should be re-

jected because it would give litigants an incentive to

raise numerous claims that were precluded by existing

precedent. Although the same could be said of any pro-

cedural default rule that attaches consequences to the

failure to raise a claim, this Court rejected the position

that the futility of raising a claim under existing law

wholly excuses a litigant from preserving it. See, e.g.,

Johnson, 520 U.S. at 467-468 (reviewing unpreserved

claim only for plain error although the argument was

foreclosed by “near-uniform precedent both from this

Court and from the Courts of Appeals”); see also Levy,

391 F.3d at 1332 (Hull, concurring in the denial of re-

hearing en banc) (“If defendants were going to raise a

long and useless laundry list of objections, they already

would have been doing exactly that in the district court

so objections could receive full de novo review [on ap-

peal], rather than plain-error review.”), petition for

cert. pending, No. 04-8942 (filed Mar. 1, 2005); id. at

1333 (noting that “numerous defendants” had properly

preserved their claims by “rais[ing] Apprendi-type ar-

guments in their challenges to enhancements under the

federal Sentencing Guidelines”) (collecting cases).

This Court has denied review in a number of cases in

which the Eleventh Circuit declined to entertain a claim

under the intervening decisions in Blakely or Apprendi

solely because it was not raised in the petitioner’s open-

15

ing brief, see, e.g., Ardley v. United States, 535 U.S. 979

(2002) (No. 01-8714); Nealy v. United States, 534 U.S.

1023 (2001) (No. 01-5152); Padilla-Reyes v. United

States, 534 U.S. 913 (2001) (No. 01-5284), and denied

review in several cases that specifically challenged ap-

plication of the procedural bar rule in that context, see,

e.g., Phillips v. United States, 536 U.S. 961 (2002) (No.

01-5718) (denying review when petitioner challenged

application of rule to bar consideration of Apprendi

claim); Garcia v. United States, 534 U.S. 823 (2001) (No.

00-1866) (denying review when Eleventh Circuit de-

clined, on remand from this Court for reconsideration in

light of Apprendi, to consider claim because it was not

raised in initial brief); see also Thompson v. United

States, 535 U.S. 1114 (2002) (No. 01-8603) (challenging

application of rule to bar consideration of ex post facto

claim). There is no reason for a different result in this

case.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT

Acting Solicitor General

CHRISTOPHER A. WRAY

Assistant Attorney General

ELIZABETH A. OLSON

Attorney

APRIL 2005