Here's the panel's holding:
We hold that a defendant who unsuccessfully raised a career offender issue at both sentencing and on direct appeal can use a timely-filed first motion under 28 U.S.C. § 2255 to pursue the same issue when an intervening case from the Supreme Court validates his argument and applies retroactively. Under that intervening case, this defendant’s third degree Florida felony child abuse conviction no longer qualifies as a predicate crime of violence. He therefore is not properly treated as a career offender. We vacate the district court’s denial of his section 2255 motion and remand for resentencing.
Seems rather straight forward. But I think this case raises two important issues --
1) If the 11th Circuit is going to allow as many visiting judges as it allows, then if the case is heard en banc, the judges who sat on the panel should be permitted to hear the case en banc. Here, Judge Kravitz was permitted to sit en banc but decided not to. But the author of the opinion, Judge Hornby, cannot.
2) The 11th Circuit should hear more cases en banc where the government is successful, especially because there are so many important decisions being made where there is only one active judge on the panel.
9 comments:
David -- you raise some interesting points, but I take a slightly different view. For strarters, I completely agree with you that the Eleventh Circuit reviews cases en banc only when the defendant wins (usually, habeas cases, but sometimes sentencing cases, too). The problem I have with this trend is not necessarily that it permits the Eleventh Circuit to reverse defendant-friendly decisions. For that reason, I don't necessarily agree that the Eleventh Circuit should review en banc more government-friendly cases to balance things out. Rather, the problem I have with this trend is that it suggests that the en banc procedure is being used, in my view, improperly. Many of the cases that have been heard en banc over the last few years seem to be have done so solely because other judges of the court disagree with the original panel decision. Of course, disagreement is a part of it. But disagreement with a panel decision should not be the sole reason for taking a case en banc. If that were the case, then the court simply couldn't function. I'd reserve taking cases en banc solely to clarify intracircuit inconsistencies, to overturn prior precedent clearly cast into doubt by intervening Supreme Court decisions and other changes in the law, and the like. Unfortunately, it seems as though some of the judges conclude, for example, hey, I disagree with the decision of that panel and therefore I'll seek to take in en banc. I don't approve of this trend.
Good substantive post.
1) For district judges to sit en banc, wouldn't Congress would have to amend the law? See 28 U.S.C. 46(c). Would that be preferable to reducing the number of visiting district judges?
2) FRAP 35(a) prescribes the applicable standards for granting rehearing en banc ("secure or maintain uniformity of the court's decisions") or "the proceeding involves a question of exceptional importance"). Whether the government or defendant prevailed, or whether a district judge sat on the panel, would seem to be irrelevant. To the extent en banc is granted in criminal/habeas cases only where the defendant prevails (is this true?), that would suggest a departure from Rule 35. That said, this Spencer case, where the defendant prevailed, does actually appear to present an issue of exceptional importance...
so may words
On the other hand, Justice O'Connor once suggested to the Ninth Circuit that it take more cases en banc to correct its own errors.
"Only," of course, is an overstatement. Some of the recent en banc decisions included antitrust and immigraiton issues. But it does seem to be an overall trend.
As for FRAP 35(a)'s "question of exceptional importance" standard, I have no quarrel with the language as far as it goes. But, if I were a judge, I'd read that narrowly; otherwise, anything could be arguably regarded as exceptional. As regards the Eleventh Circuit, there are some opinions that come out in which you just know the full court will likely take en banc. And those are almost always grants of petitions for habeas corpus -- especially in death cases. For a recent example of this, see the Evans panel an en banc decisions and Wilson's dissent in the en banc decision. Frankly, I'm not so sure that Hill v. Humphrey warranted en banc review, either. That is an example where the panel opinion, in my view, clearly erred in granting the petition. But I'm not so sure it warranted en banc review, despite the importance of the issues involved.
Ironically, it is often lesser-known cases that should be reviewed en banc. That is because they sometimes rule incorrectly on significant, recurring issues that perhaps have been poorly briefed and therefore sloppily decided. Any readers out there have heard of the now infamous Thomas v. Carnival Corp.?
One does not mention Thomas v. Carnival Corp. in polite company. I agree with 1:56 that that case needed to be taken on appeal. It created a mess in the district courts.
First, I mean "en banc," not "appeal." Second, I'm not sure allowing judges sitting by designation to sit en banc is appropriate. That said, I think that if the Eleventh Circuit is going to repeatedly have judges sitting by designation it ought not hear those opinions en banc unless the panel got the law seriously wrong. Otherwise, the active judge will be left to fend an opinion he or she didn't even write. I imagine that's an untenous situation.
On balance, I concur with Literati, though it is a close call. On the one hand, there is a strong argument that the judges of the Eleventh Circuit ought to have the ultimate say on what the law of this circuit is, and that would counsel against permitting visiting judges who wrote the original panel opinions to sit on the en banc court. On the other hand, en banc procedings are exceedingly rare in the Eleventh Circuit, contra Ninth Circuit, and therefore visiting judges for all intents and purposes sometimes have (a part in) the ultimate say on what the law of the circuit is anyway. I mean, whenever a visiting judge authors a published opinion, it is the law of the circuit.
That said, for institutional purposes, if for nothing else, I like the idea of the judges of the Eleventh Circuit having the ultimate say.
This is all too confusing. I propose a simple rule. If a defendant wins in a criminal case, or a plaintiff wins in a civil case, en banc review is automatically granted. Then there won't be any argument that the 11th Circuit is choosing which cases to review en banc in order to achieve a specific result!
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