Circuit’s Actions Raise Eyebrows, not Certiorari

     WASHINGTON (CN) – The Supreme Court was divided Monday in the rejection of a case involving the forfeiture of issues not raised in an opening appellate brief.
     In a brief opinion explaining the court’s rejection of Patrick Joseph’s petition for a writ of certiorari, Justice Elena Kagan wrote that “this is not the usual case” in which a party is barred from raising an issue that he failed to mention in an opening appellate brief.
     Joseph brought his appeal to the 11th Circuit in 2013 after he was convicted of several drug offenses and sentenced as a career offender.
     “At the time Joseph filed his open­ing brief, Eleventh Circuit precedent precluded the argu­ment that he did not properly qualify as a career offender,” Kagan wrote, joined by Justices Ruth Bader Ginsburg and Stephen Breyer.
     The Supreme Court put this issue into question shortly thereafter, however, with its June 20, 2013, ruling in Descamps v. United States.
     In that ruling the court ordered a lighter sentence for a repeat offender because he was convicted under a California law that it deemed too generic.
     The government still had nine days to file its brief in Joseph’s case when he “moved to file a replacement brief relying on Descamps to challenge his classification as a career offender,” Kagan wrote.
     Though the gov­ernment did not oppose the motion, the 11th Circuit refused to accept Joseph’s filing.
     “Not a single other court of appeals would have done that,” Kagan wrote. “Every circuit, save the Elev­enth, accepts supplemental or substitute briefs as a mat­ter of course when this court issues a decision that upsets precedent relevant to a pending case and thereby provides an appellant with a new theory or claim.”
     Kagan noted that the 11th Circuit’s conduct means that “criminal defendants with unpreserved new claims may be treated differently” there, but that she must “nonetheless agree with the court’s decision today to deny certiorari.”
     “We do not often review the circuit courts’ procedural rules,” Kagan wrote. “And we usually allow the courts of appeals to clean up intracircuit divisions on their own, in part because their doing so may eliminate any conflict with other courts of appeals. For those combined reasons, I favor deferring, for now, to the Eleventh Circuit, in the hope that it will reconsider whether its current practice amounts to a ‘reasoned exercise[ ]’ of its authority.”

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