Opposition Brief — Hembree v. United States

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No. 04-1210

Jn the Supreme Court of the Gnited States

GREGORY WADE HEMBREE, PETITIONER

VU.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT

Acting Solicitor General

Counsel of Record

JOHN C. RICHTER

Acting Assistant Attorney

General

ELIZABETH A. OLSON

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the Eleventh Circuit abused its discretion

by applying an established procedural default rule to

decline to consider a claim of error under United States

v. Booker, 125 S. Ct. 738 (2005), where petitioner failed

to raise the claim in his opening brief.

(I)

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TABLE OF CONTENTS

; Page

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in each Ha citer Hk shaw ke ad eneah denne ¥aees 4

ee tie eae hiamnen en ek uae Oude 14

Cases:

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

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

TA dake hap kee 9

Apprendi v. New Jersey, 530 U.S. 466 (2000) ..... 7,10

Ardley v. United States, 535 U.S. 979 (2002) ....... 14

Becton Dickinson & Co. v. C.R. Bard, Inc., 922

a CNA: CUE. cbc eve cevecctvtesnessvas 9

Bickel v. Korean Air Lines Co., 96 F.3d 151 (6th

Cir. 1996), cert. denied, 519 U.S. 1093 (1997) ....... 9

Blakely v. Washington, 125 S. Ct. 2531 (2004) ....... 2

Cupp v. Naughten, 414 U.S. 141 (1978) ............ 13

Edwards v. Arizona, 451 U.S. 477 (1981) ........... 6

Garcia v. United States, 534 U.S. 823 (2001) ....... 14

Ghana v. Holland, 226 F.3d 175 (3d Cir. 2000) ...... )

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

Ne aoa Cee ecueek ues eased bao RE oH eee 8

Greenwood v. FAA, 28 F.3d 971 (9th Cir. 1994) ...... )

Griffith v. Kentucky, 479 U.S. 314 (1987) ....... 4, 5,6

Harper v. Virginia Dep't of Taxation, 509 U.S.

IRE RRS SSPE Ss SFB ST a ee go 7

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

cert. denied, 531 U.S. 880 (2000) ...............06. 9

(IIT)

Cases—Continued:

Johnson v. United States, 520 U.S. 461 (1997) ...

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

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

Maryland People’s Counsel v. FERC, 760 F.2d

SO Ci Be = bo kd vaskcasibeeeshesvias

McGinnis v. Ingram Equip. Co., 918 F.2d 1491

CRE GI, TE ha Sn ecs vad ce censvandevesceses

Nealy v. United States, 534 U.S. 1023 (2001) ....

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

CD Nocedes kate ceceaecsscacckiecenes

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

OEY Livccecus ives renbinnceanecemunansetes

Phillips v. United States, 536 U.S. 961 (2002) ...

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

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

COE wick Shiba Co ie wake Car ee i euio eines

Priddy v. Edelman, 883 F.2d 438 (6th Cir. 1989) .

Shea v. Louisiana, 470 U.S. 51 (1985) .........

Shopco Distrib. Co. v. Commanding Gen. of

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

SONNE a ckncccacavinscecivncuvsuprccusseeress

Sweat v. City of Ft. Smith, 265 F.3d 692 (8th

te Rp mempr me ey pyres ery Par mr ae

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

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

UND ivi A itera ins cdr

Cases—Continued: Page

United States v. Ardley:

242 F.3d 989 (11th Cir.), cert. denied, 533 U.S.

962 (2001) and 535 U.S. 979 (2002) ......... 3, 4, 10

273 F.3d 991 (11th Cir.), cert. denied, 533 U.S.

962 (2001) and 535 U.S. 979 (2002) .............. 6

United States v. Booker, 125 S. Ct. 738 (2005) ... 3,6,7

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

ng | RODE i CRIP capnd en rele: Le Ves era AS 11

United States v. Cordoza-Estrada, 385 F.3d 56

CRU CALMED A cp aden catéacaceehyee ds 4abscuias 11

United States v. Dacus, No. 04-15319, 2005 WL

1017985 (11th Cir. May 3, 2005) ................... 8

United States v. Dockery, 401 F.3d 1261 (11th

| Rr omit eA oe RE ey eR 3, 4, 10

United States v. Ford, 270 F.3d 1346 (11th Cir.

2001), cert. denied, 535 U.S. 1098 (2002) ............ 3

United States v. Garcia, 242 F.3d 598 (5th Cir.

5 OP RIS Py ees BSP PSE RED ES oe 11

United States v. Gaudin, 515 U.S. 506 (1995) ....... 6

United States v. Henningsen, 387 F.3d 585 (7th

Cir. 2004), subsequent determination, 402 F.3d

FOR TE hoo oo oho knees: 11

United States v. Hines, 398 F.3d 713 (6th Cir.

| Re ee ite te Biprans Ligeretion ee ne Ap Pa eae 11

United States v. Humphrey, 287 F.3d 422 (6th

CE cass cules eh brah ae ia ki ee ee, 7

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

cert. denied, 525 U.S. 891 (1998) ................ eae

Cases—Continued: Page

United States v. Levy:

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

F.3d 1327 (2004), petition for cert. pending,

No. 04-8942 (filed Mar. 1, 2005) ............... 8, 10

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

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

SONUE 4:6 5008 cadad kbaee eee tee aeeeeee 13

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

Cir.), cert. denied, 534 U.S. 980 (2001) and 1086

(OUD kc occdunuvtictitenscieiees eee 9, 10, 11

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

2000), cert. denied, 534 U.S. 1023 (2001)............ 3

United States v. Oliver, 397 F.3d 369 (6th Cir.

2005), petition for reh’g pending (filed Mar. 15,

BOG os vvvninssxca tect eeetnnaeee eee ees 11

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

WOOD: oc cuenk¥suciens 005046558 7

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

SOG) is viciasvxd.nceosben nee er enetenees 9,10

United States v. Rivera Pedin, 861 F.2d 1522

(ESE Te TD «vin Waeanse kw bueaiatecbarsiestenes 8

United States v. Senn, No. 02-16983, 2005 WL

1006885 (11th Cir. Apr. 29, 2005) ............ceee 4

United States v. Washington, 398 F.3d 306 (4th

COPIED svn Ganundecaes clvccdvcasanianibes 7,11

United States v. Wheat, 278 F.3d 722 (8th Cir.

2001), cert. denied, 537 U.S. 850 (2002) ............ 7

Constitution, statutes and rules:

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VII

Statute and rules—Continued: Page

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Fed. R. App. P.:

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In the Supreme Court of the Anited States

No. 04-1210

GREGORY WADE HEMBREE, PETITIONER

VU.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals affirming petitioner’s

conviction and sentence (Pet. App. 1a-3la) is unreported,

but the judgment is noted at 125 Fed. Appx. 981 (Table).

The order denying petitioner’s motion to file a supplemen-

tal brief (Pet. App. 44a) is unreported: The order denying

petitioner’s motion to file a substitute principal brief or for

reconsideration of the denial of his motion to file a supple-

mental brief (Pet. App. 45a-46a) is reported at 381 F.3d

1109.

JURISDICTION

The judgment of the court of appeals was entered on

December 9, 2004. A petition for rehearing was denied on

February 7, 2005. Pet. App. 47a. The petition for a writ of

(1)

certiorari was filed on March 8, 2005. The jurisdiction of

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

STATEMENT

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

conspiracy to possess cocaine with the intent to distribute

it, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(B)(iii); and

perjury, in violation of 18 U.S.C. 1623. Petitioner was also

convicted, following a guilty plea, of failure to appear, in

violation of 18 U.S.C. 3146(a)(1), (b)(1)(A)(@) and (ii). Pet.

App. 32a-33a. Pursuant to the Sentencing Guidelines, the

district court imposed concurrent sentences of 60 months

of imprisonment for the perjury conviction and 78 months

of imprisonment for the drug conviction, and a consecutive

sentence of 12 months for the failure-to-appear conviction.

Id. at 34a.

2. In his opening brief on appeal, petitioner raised sev-

eral claims of plain error with respect to his conviction, in-

cluding challenges to the district court’s evidentiary rul-

ings, jury instructions, and its decision to join the conspir-

acy and perjury counts. Pet. App. 2a. Petitioner also ar-

gued that, at sentencing, the district court failed to credit

him properly for acceptance of responsibility in the failure- —

to-appear case and misapplied a Sentencing Guidelines pro-

vision. /d. at 25a. Petitioner did not challenge the consti-

tutionality of using judicially found facts at sentencing.

After petitioner’s principal brief was filed, this Court

_issued its decision in Blakely v. Washington, 125 S. Ct. 2531

(2004). Petitioner then filed a motion for leave to file a sup-

plemental brief seeking to raise, for the first time in any

court, a claim that the district court’s application of the

Guidelines violated the Sixth Amendment. Pet. 4n.2. The

court of appeals denied petitioner’s motion, citing circuit

precedent establishing that a party may not raise a claim

for the first time in a supplemental brief. See Pet. App. 44a

(citing United States v. Ford, 270 F.3d 1346, 1347 (11th Cir.

2001), cert. denied, 535 U.S. 1098 (2002); 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)). Petitioner

then filed a motion to file a substitute principal brief or in

the alternative for reconsideration of the denial of his mo-

tion to file a supplemental brief. The court denied the mo-

tion, Pet. App. 45a-46a, noting that permitting the filing of

substituted or amended principal briefs would permit cir-

cumvention of the general rule that “a party may not raise

through a supplemental brief an issue not previously raised

in his principal brief.” Jd. at 46a.

The court affirmed petitioner’s conviction and sentence.

Pet. App. la-3la. The opinion discussed only the argu-

ments raised in petitioner’s principal brief, and did not dis-

cuss Blakely.

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

this Court held that the Sixth Amendment, as construed in

Blakely, applies to the federal Sentencing Guidelines. /d.

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 sentences are reviewable

for unreasonableness. /d. at 757-769 (Breyer, J., for the

Court).

4. In United States v. Dockery, 401 F.3d 1261 (2005)

(per curiam), the Eleventh Circuit addressed the applica-

tion to Booker claims of its rule that issues not raised in a

party’s opening brief will be deemed abandoned. There, the

court of appeals held, in a case that this Court had re-

manded for reconsideration in light of Booker, that the de-

fendant would be deemed to have abandoned his Sixth

Amendment challenge to the Guidelines by failing to raise

it in his opening brief. Jd. at 1262-1263. The court 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-established rule that issues and contentions not

timely raised in the briefs are deemed abandoned.

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

States v. Senn, No. 02-16983, 2005 WL 1006885, at *1 (11th

Cir. Apr. 29, 2005) (per curiam) (following Dockery, on re-

mand for reconsideration in light of Booker).

ARGUMENT

Petitioner contends (Pet. 7-11) that the Eleventh Cir-

cuit’s practice of treating as abandoned Booker and Bk © ly

claims that are not raised in a party’s initial brief con..a-

venes the retroactivity principle of Griffith v. Kentucky,

479 U.S. 314 (1987). Petitioner also contends (Pet. 7-21)

that the Eleventh Circuit’s rule is an “absolute bar” (Pet. 5;

see also Pet. 6) to consideration of issuer not raised in a de-

fendant’s opening brief that conflicts with decisions of

“Celvery other circuit.” Pet. 15. Neither contention has

merit. Further review is not warranted.’

Because the court of appeals confirmed in United States v.

Dockery, 401 F.3d 1261 (11th Cir. 2005) (per curiam), and United States

v. Senn, No. 02-16983, 2005 WL 1006885, at *1 (11th Cir. Apr. 29, 2005)

(per curiam), 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, it is unnecessary for this Court to remand this case for

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

conduct of criminal prosecutions is to be applied retroac-

tively to all cases * * * pending on direct review or not

yet final.” 479 U.S. at 328. Because the petitioner in Grif-

fith had preserved the claim on which he sought review, the

Court (as petitioner concedes, see Pet. 11) did not have oc-

casion to consider the interplay between the retroactivity

rule adopted in that case and principles of waiver, forfei-

ture, and other prudential doctrines. See 479 U.S. at 317,

318.

Application of procedural default rules is consonant with

the retroactivity principle of Griffith. Griffith concluded

that retroactive application of new rules on direct appeal

was necessary both because of “the nature of judicial re-

view” and in order to “treat{] similarly situated 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 “similarly 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 be-

tween a defendant 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 sys-

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

bar rules does not offend principles requiring the retroac-

tive 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

reconsideration in light of Booker.

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) and 535 U.S. 979 (2002).

On several occasions, this Court has indicated that the

retroactivity principle embodied in Griffith is in no way

inconsistent with the application of procedural default

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 retroactively to cases

pending on direct review. 470 U.S. at 59. In doing so, the

Court explicitly noted that the retroactive application of

Edwards was “subject, of course, to established principles

of waiver, harmless error, and the like.” Jd. at 58 n.4. Simi-

larly, in Booker itself, the Court stated that, while courts

were bound to apply its holding “to all cases on direct re-

view,” 125 S. Ct. at 769 (citing Griffith, 479 U.S. at 328), “we

expect reviewing courts to apply ordinary prudential doc-

trines,” including, specifically, the plain error doctrine for

claims that have not been preserved. [bid. See also John-

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

rule of United States v. Gaudin, 515 U.S. 506 (1995), ap-

plied retroactively under Griffith, but unpreserved claims

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

ginia Dep't of Taxation, 509 U.S. 86, 105 n.1 (1993) (Scalia,

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.®

b. Petitioner errs in contending (Pet. 5) that the Elev-

enth Circuit’s procedural bar rule “is an absolute bar” to

consideration of issues that were not raised in a defendant’s

opening brief. See also Pet. 15 (contending that “the Elev-

enth Circuit made clear * * * that its rule against raising

a new issue * * * was absolute”). The court of appeals

has, however, addressed claims of Booker error although

. 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 banc) (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).

3 The Fourth Circuit recently stated in a footnote, and without brief-

ing or argument by the parties on the issue, that “(although 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) (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. The Fourth Circuit should be given an opportunity

to reconsider that erroneous conclusion in an appropriate case.

they were not raised in the defendant’s opening brief where

the government has conceded the error. See United States

v. Dacus, No. 04-15319, 2005 WL 1017985, at *1 (11th Cir.

May 3, 2005) (per curiam) (“Although we ordinarily refuse

to consider an argument not raised in an initial brief, we

consider the argument that Dacus’s sentence was errone-

ous under Booker because both parties have joined the is-

sue without objection.”) (citing United States v. Levy, 379

F.3d 1241, 1242-1248 (11th Cir.), reh’g denied, 391 F.3d

1327 (11th Cir. 2004), petition for cert. pending, No. 04-8942

(filed Mar. 1, 2005)). In addition, the Eleventh Circuit has

explicitly recognized that it has the authority to relieve liti-

gants of the consequences of failing to raise an issue in an

_opening brief and to address an issue on the merits where

manifest injustice would otherwise result.’

2. Petitioner contends (Pet. 7-21) that the Eleventh

Circuit’s application of its procedural bar rule conflicts with

the law of the other courts of appeals, and that Supreme

Court review is necessary to resolve the circuit conflict.

a. The Federal Rules of Appellate Procedure provide

that an appellant’s brief “must contain * * * appellant’s

contentions and the reasons for them.” Fed. R. App. P.

28(a)(9)(A). The courts of appeals have without exception

interpreted that provision to establish a general prudential

* 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

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).

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. de-

nied, 498 U.S. 959 (1990).° The courts of appeals have rec-

ognized that that rule is not jurisdictional or absolute and

° 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.”) (citations

and internal 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. Koza-

kiewicz, 1 F.3d 176, 183 (8d 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.) (“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 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]laims 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 Counsel v. 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); Becton Dickinson & Co. v. C.R. Bard, Inc., 922

F.2d 792, 799 (Fed. Cir. 1990) (“an issue not raised by an appellant in its

opening brief * * * is waived”).

therefore that courts have authority, in the exercise of their

discretion, to address issues not timely raised by the par-

ties. See, e.g., United States v. Miranda, 248 F.3d 434,

443-444 (5th Cir.) (noting that “the issues-not-briefed-

are-waived rule is a prudential construct that requires the

exercise of discretion” and that the court may consider an

issue that was not timely raised “where substantial public

interests 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 result); Leer

v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (same). See

also Fed. R. App. P. 2 (granting courts discretion to sus-

pend most rules for “good cause”). As noted above, see p.

8, supra, the Eleventh Circuit has recognized that it has the

authority to relieve litigants of the consequences of default

and address an issue on the merits where manifest injustice

would otherwise result. In the exercise of its discretion,

however, the Eleventh Circuit has declined to exempt

Booker and Blakely claims from the operation of its long-

standing rule that it will not consider claims unless they

were timely raised in the appellant’s opening brief. See,

e.g., Dockery, 401 F.3d at 1262-1263; Levy, 379 F.3d at 1243

n.3 (“[W]e conclude 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

. banc)); see also United States v. Ardley, 242 F.3d 989, 990

(11th Cir.) (declining to exempt claims under Apprendi v.

New Jersey, 530 U.S. 466 (2000), from operation of rule),

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

Petitioner asserts that “all of the circuits have ruled on

the question presented,” Pet. 21, and “(e]very other circuit”

permits defendants “to raise a new issue based on an inter-

vening Supreme Court decision, even if the issue was not

raised in the initial brief.” Pet. 15. In the vast majority of

the cases petitioner cites, however, the courts did not ex-

plicitly consider application of the rule that courts will not

entertain issues not raised in an opening brief, and there is

no indication the government urged the court to hold the

claims to be defaulted.® Thus, it appears that most courts

that have addressed claims in this posture have not explic-

®° Of the thirty-four cases petitioner cites to support his contention

that “all of the circuits have ruled on the question,” only one discusses

whether to apply the ordinary rule that issues not raised in an opening

brief will not be considered; even that case did so only in passing in a

footnote, without the benefit of vriefing or argument by the parties.

See United States v. Washington, 398 F.3d 306, 312 n.7 (4th Cir. 2005);

see also note 3, supra. Four other cases state in passing that it was

appropriate to consider the claims in that posture because this Court

had recently clarified the law, without explicitly discussing the rule that

claims must be raised in a party’s opening brief. See United States v.

Hines, 398 F.3d 713, 721 (6th Cir. 2005); United States v. Oliver, 397

F.3d 369, 376 n.1 (6th Cir. 2005), petition for reh’g pending (filed Mar.

15, 2005); United States v. Henningsen, 387 F.3d 585, 591 (7th Cir.

2004), subsequent determination, 402 F.3d 748 (7th Cir. 2005); United

States v. Cordoza-Estrada, 385 F.3d 56, 69 (1st Cir. 2004).

The United States is aware of only three decisions besides Wash-

ington (none of which petitioner cited, and one of which is nearly 20

years old) that have entertained claims raised in supplemental briefing

in light of intervening decisions of this Court that have explicitly

considered whether to apply the ordinary prudential rule against

considering issues not raised in the opening brief. See Miranda, 248

F.3d at 443-444 (discussing Apprendi claim); United States v. Garcia,

242 F.3d 593, 599 & n.5 (5th Cir. 2001) (same); United States v. Byers,

740 F.2d 1104, 1115 n.11 (D.C. Cir. 1984). In two of those cases, the

courts may have exercised discretion to proceed to the merits of the

argument 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 circuits”).

itly declined to apply the procedural bar rule, and thus

those decisions cannot be said to “conflict” with the decision

below. Petitioner is therefore incorrect that (Pet. 23) the

law in the courts of appeals “is as developed as it is likely to

get” and that the positions of the courts of appeals on this

issue “are all set in stone.” /bid.

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 and

Blakely, further review would not be warranted. Rules

governing the consideration of unpreserved claims may

appropriately be viewed as local rules that can 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 con-

sistent with Acts of Congress and the Federal Rules of Ap-

pellate Procedure, see Fed. R. App. P. 47(a), there is no

requirement of “uniformity among the circuits in their ap-

proach to [such] rules.” Ortega-Rodriguez v. United States,

507 U.S. 234, 251 n.24 (1993). This Court specifically has

acknowledged the power of courts of appeals to adopt rules

restricting 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 recom-

mendation when the party had failed to file objections with

the district court identifying those issues on which review

was desired. The Sixth Circuit’s “nonjurisdictional waiver

provision,” like the rule at issue here, would ordinarily

“preclud[e] appellate review of any issue” not raised in the

manner prescribed, although the court of appeals could

“excuse the default in the interests of justice.” 474 U.S. at

147-148, 155. Noting that such a rule was supported by

sound considerations of judicial economy, id. 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 Constitution.” Jd. at 146-147 (quoting

Cupp v. Naughten, 414 U.S. 141, 146 (1973)).

Procedural bar rules of the sort at issue here promote

efficiency by avoiding piecemeal briefing of appeals and

ensuring that the appellee has the opportunity to respond

to all issues raised by the appellant without supplemental

briefing. Such rules are especially important because of the

courts of appeals’ increasingly heavy caseloads. Petitioner

contends (Pet. 14-15) that the court of appeals’ rule should

be rejected because it would give litigants an incentive to

raise numerous claims that are precluded by existing prece-

dent. Although the same could be said of any procedural

default rule that attaches consequences to the failure to

raise a claim, this Court rejected the position that the futil-

ity 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 Ap-

peals”). See also Levy, 391 F.3d at 1332 (Hull, concurring

in the denial of rehearing 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 dis-

trict court so objections could receive full de novo review

[on appeal], rather than plain-error review.”); id. at 1333

(noting that even before Blakely, “numerous defendants”

had properly preserved their claims by “rais[ing]

Apprendi-type arguments in their challenges to enhance-

ments 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 opening

brief, see, e.g., Ardley v. United States, 5385 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 application 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 consider-

ation of Apprendi claim); Garcia v. United States, 534 U.S.

823 (2001) (No. 00-1866) (denying review when Eleventh

Circuit declined, on remand from this Court for reconsider-

ation 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 ap-

plication 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.