Strike Three?

Raphael Levy has been to the Eleventh Circuit three times. Each time the court has told him to go away. Most recently, the court told him so even though the Supreme Court told the 11th to reconsider Mr. Levy's claims. How can this be, you wonder? How can the court ignore its superiors? Here's what happened: Before the Supreme Court decided Blakely/Booker -- the cases doing away with the mandatory sentencing guideliens -- Levy filed his initial brief in the 11th circuit. He lost. After Blakely came out, he filed a motion for reconsideration. The 11th said no way, applying a rule that no other court employs -- if you didn't raise the issue in the initial brief, you have forever lost it. But when Levy filed his initial brief, there was no Blakely and such a claimed would have been deemed frivolous. For the 11th circuit, however, that is of no moment; the rule applies rigidly across the board: raise the issue (even frivolous ones) in your initial brief or you're out of luck. Levy appealed this decision to the Supremes and it initially appeared that the Court gave him some relief. It GVRed the case, telling the 11th to reconsider Levy's claim in light of Blakely/Booker. On remand, the 11th maintained that its rule applies and said it need not consider Blakely/Booker because Levy had not raised it in his initial brief. Read the opinion here. Judge Tjoflat has been blasting his brethern for this anomolous rule, in cases like Vanorden. And commentators, like Professor Berman, have written about this strange rule in the 11th Circuit. It looks like the 11th and the Supremes are due for a showdown as Levy is sure to file a new cert petition, asking the Court to fix this. We'll see. One disclosure -- I have a similar cert petition pending in Hogan v. United States.