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Justice Kagan Takes Aim at Eleventh Circuit Appellate Procedure

By Mark Wilson, Esq. on December 01, 2014 | Last updated on March 21, 2019

The Supreme Court often appends opinions related to prisoner litigation to the end of its semi-weekly order list. Generally, if the Court is going to deny a cert. petition to a prisoner on habeas or direct appeal, it summarily does so in the order list, but if an issue is important enough, one or more members of the Court will address it in an opinion or statement.

Today's statement, issued by Justice Kagan, and joined by Justices Ginsburg and Sotomayor in a cert. denial to Patrick Henry Joseph v. United States, calls into question an Eleventh Circuit appellate procedure.

The Forfeiture Rule

It's well established in pretty much every court, at every level, that an issue not raised on appeal is forfeited. This makes sense: An appellate court really only reviews a trial court's determinations, and if an issue wasn't presented to the trial court, then it's not fair to that court or to the opposing side to bring the issue up for the first time months or years after it could have been raised.

Patrick Joseph's case is a little different. At the time of his appeal to the Eleventh Circuit, the case law in that circuit didn't allow him to argue that he wasn't a career offender for sentencing purposes. After he filed his opening brief, the U.S. Supreme Court, in an unrelated case dealing with how courts determine whether a defendant is a career offender, essentially invalidated the Eleventh Circuit's precedent.

The Eleventh Circuit's Double Secret Forfeiture Rule

So Joseph moved to file a new brief, incorporating the new Supreme Court opinion -- but the Eleventh Circuit wouldn't let him, even though the government didn't even oppose the motion. "Not a single other court of appeals would have done that," wrote Kagan, offering a block of citations to show that the Eleventh is alone among all the circuits in that it refuses to consider any supplemental briefs when an intervening Supreme Court opinion opens up a new argument for the petitioner.

Kagan explained that the practice followed by every other circuit is different from the forfeiture rule because, in cases like Joseph's, "the failure to raise the claim in an opening brief reflects not a lack of diligence, but merely a want of clairvoyance." While she ultimately agreed with the majority to deny the petition for a writ of certiorari, Kagan urged the Eleventh Circuit to "reconsider whether its current practice amounts to a 'reasoned exercise[ ]' of its authority."

Not quite a full-on rebuke, but at least Kagan's statement puts the Eleventh Circuit on notice that the Supreme Court is watching, so why can't you get with the times?

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