En banc fight

The issue is whether published panels orders should be binding on all subsequent panels.  The 11th Circuit denied en banc review.  But Judges Martin, Jill Pryor, and Wilson all wrote dissents from the denial of en banc review.  Judge Rosenbaum joined the dissent as well.

Judge Tjoflat wrote an opinion concurring in the denial of rehearing en banc, joined by Ed Carnes, William Pryor, Newsom and Branch.  Judge William Pryor wrote an opinion respecting the denial of rehearing en banc.  Judge Jordan wrote an opinion concurring in the denial of rehearing en banc.   Judge Marcus did not join any opinion but appears to have voted against en banc review.  In all, 90 pages of opinions.

Judge Tjoflat starts his off in a very aggressive tone:

Two dissents—those by Judges Wilson and Martin—have seized upon this direct appeal case as an opportunity to criticize our Court’s processing and publishing of orders on federal prisoners’ applications to file successive motions under 28 U.S.C. § 2255(h). Those dissents not only distort the factual context but also contain unfounded attacks on the integrity of the Court as an institution. So, regrettably, a response is required to set the record straight.
These two dissents focus on only prisoners’ post-conviction applications to file successive § 2255 motions. To place the subject matter of the dissents in context, it is necessary to describe first (1) the nature of the instant direct-appeal case and (2) how, after a direct appeal, a federal prisoner has yet another post-conviction opportunity to challenge his sentence through an initial 28 U.S.C. § 2255 motion. Second, I explain how Congress has strictly limited prisoners’ applications to file successive § 2255 motions that seek to challenge yet again a federal conviction and sentence that has long since become final.
Third, to correct the record about our Court’s published orders ruling on such applications, I provide the statistics that show how our Court has published only 1 to 2% of its orders on post-conviction applications to file successive § 2255 motions, even in 2016, the year on which the dissenters focus. Lastly, contrary to what the dissents claim, I discuss how all published orders of this Court are always subject to further review, such as the en banc poll in this very case. As explained below, there simply isn’t (nor has there ever been) any crisis about our Court’s published orders.

Judge Wilson responds in his conclusion:

Judge Tjoflat takes offense to my dissent, which sheds light on what I believe is an unfair process.5 Thoughtful and respectful disagreement is essential to our constitutional directive—“[t]he premise of our adversarial system is that appellate courts . . . [are] arbiters of legal questions presented and argued by the parties before them.” Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (Scalia, J.). There is sometimes impassioned but collegial disagreement about the answers to those questions. But to turn substantive disagreement into a sweeping charge that contrary views are “attacks on the integrity of the court as an institution” is another thing entirely. It is the great respect for both this Court as an institution and the judicial role that leads members of this Court to dissent. And if anyone has the duty to raise concerns about the fairness of this Court’s process for resolving a category of appeals, it is a member of this Court. Consistent with that duty, I will continue to express disagreement when important issues are at stake. In another case, when Judge Tjoflat is in the minority, he will be entitled to do the same.

 And Judge Martin responds in her introduction:

Federal judges who decide cases in groups are bound to have differences of opinions about how those cases are decided. I’ve always understood that it is the discussion of those differing views that furthers the development and evolution of the laws and precedent that govern us all. My understanding does not appear to be unique, because if there is any member of this court who has not written a dissenting opinion, they have not been on this court for very long. As for this dissent, it is certainly not an attack on the institution of the federal courts, to which I have devoted the last eighteen years of my professional life. Rather, this dissent is intended to honor the role I have been given on this court. I understand my oath to require me to point out procedures or interpretations of the law that I view as hampering our ability to administer justice to the people who come before us. If I have distorted any fact in this opinion, I request that someone tell me what that fact is so that I can correct my mistake.
As my colleagues have pointed out, this case is the direct appeal of Michael St. Hubert, who was sentenced to serve a 32-year prison sentence in 2016. Although this is Mr. St. Hubert’s first opportunity to challenge his conviction and sentence in this court, his opportunity is limited by rulings this court has made in our habeas jurisprudence. So while Mr. St. Hubert is sitting in prison, his case has generated what I view as a healthy discussion of how it came to pass that he will be required to serve the entirety of a sentence that could not be legally imposed upon him if he were sentenced today. Six of the twelve of the active judges on this court have written opinions about Mr. Hubert’s case, so it seems to have merited a valuable exchange of viewpoints.
Michael St. Hubert was 37-years-old when he pled guilty to two firearms charges brought against him under 18 U.S.C. § 924(c). At that 2016 hearing, the District Judge explained that Mr. St. Hubert would not be a free man until after his 69th birthday. Then, in a sprawling opinion reviewing Mr. St. Hubert’s direct appeal, a panel of this Court affirmed Mr. St. Hubert’s convictions and 32-year sentence, holding that the offenses underlying his convictions—Hobbs Act robbery and attempted Hobbs Act robbery—qualify as crimes of violence under § 924(c)’s residual and use-of-force clauses. See United States v. St. Hubert (“St. Hubert II”)6, 909 F.3d 335 (11th Cir. 2018).
There are several problems with the panel opinion that I believe deserve the attention of the en banc Court. Judge Wilson and Judge Jill Pryor each cogently address some of those problems, and I am privileged to join their dissents in full.
See Wilson, J., dissenting op. at 50–57 (discussing the St. Hubert II panel’s troubling reaffirmation of its ruling that published panel orders from the second or successive context bind all panels of this Court); Jill Pryor, J., dissenting op. at 85–90 (arguing the panel erroneously held attempting a crime of violence itself equates to a crime of violence).
In writing separately, I echo some of my colleagues’ concerns. But beyond that, Mr. St. Hubert’s case offers a valuable illustration of why I’ve been concerned about how this Circuit has parlayed the limited authority given it under 28 U.S.C. § 2244(b) (statute governing second or successive habeas petitions) to stop thorough consideration of the issues presented by people like Mr. St. Hubert, even on his direct appeal. It is an aberration that a statute meant to govern the treatment of inmates who seek to file a second or successive § 2255 motion now serves as a tool for this Court to limit the review of prison sentences on direct appeal. I am convinced this aberration results from our Court failing to follow the plain mandate of 28 U.S.C. § 2244(b)(3)(C). Since this is his case, I will begin with Mr. St. Hubert.

When there is so much disagreement and it takes 90 pages to discuss whether there should be en banc review, why not have it?  The 11th Circuit has a long history of only granting en banc review when there is a defense-favorable issue.  This looks like another example of the most-government friendly appellate court in the country bending over backwards to just rule for the government.  Sigh.