Eleventh Circuit Changes Precedent

Justice Scalia's opinion in Johnson v. United States is a significant opinion that received little coverage when it came out. In Johnson, the Supreme Court concluded that the Armed Career Criminal Act's residual clause was unconstitutionally vague. Johnson's ripples are reaching the circuit courts.

Thanks to Johnson, the Eleventh Circuit changed long-standing precedent. Wayne Durham was found to be an Armed Career Criminal under ACCA, and he appealed his sentence. In his opening brief, he did not challenge the ACCA's constitutionality. (In 2013, the Eleventh Circuit, in a published opinion, found that ACCA's residual clause was not unconstitutionally vague.) Under Eleventh Circuit precedent, the failure to raise the issue barred Mr. Durham's attempts to raise it in supplemental briefing. This rule applied despite intervening Supreme Court law.

But not anymore. In United States v. Durham, the Eleventh Circuit, en banc, overturned its precedent. It framed the issue like this:

Should this Court overturn its precedent barring an appellant from asserting an issue that was not raised in his opening brief where the issue is based on an intervening Supreme Court decision that changes the law?

The Eleventh Circuit overturned its precedent and allowed Mr. Durham to brief ACCA's constitutionality. (Every other circuit, apparently, disagreed with the Eleventh Circuit's old rule.) The Eleventh Circuit held:

[W]here there is an intervening decision of the Supreme Court on an issue that overrules either a decision of that Court or a published decision of this Court that was on the books when the appellant's opening brief was filed, and that provides the appellant with a new claim or theory, the appellant will be allowed to raise that new claim or theory in a supplemental or substitute brief provided that he files a motion to do so in a timely fashion after (or, as in this case, before) the new decision is issued.

Johnson is not affecting just the Eleventh Circuit. The Seventh Circuit recently held that Johnson applies retroactively: "Johnson announces a new substantive rule of constitutional law that the Supreme Court has categorically made retroactive to final convictions."