The Supreme Court agrees to hear roughly 80 cases per year. It chooses from thousands of petitions (over 8,500 last term). The recent debate on same-sex marriage reminds us that the Court rarely hears cases just because 4 Justices think the lower court got it wrong (it only takes four Justices to grant cert., and it is likely that 4 Justices find no problem with bans on same-sex marriage). If that were the case, surely the Court would have granted cert. on the issue when it had the chance.
Enter Patrick Henry Joseph. Named after a Patriot, Mr. Joseph rebelled in his own way: by selling cocaine (hard and soft). He got caught and pleaded guilty in federal court. Labeled a career offender by the district court, in part because of a prior conviction under 21 U.S.C. 843(b) (use of a communication device to facilitate a drug offense), he received a 210-month sentence, which the 11th Circuit affirmed on appeal. The sole issue on appeal involved the denial of the third acceptance-of-responsibility point (the plea was not timely, so he did not get it).
But that is beside the point. What is relevant are dates. Yes, dates.
June 14, 2013: Joseph files his opening brief.
June 20, 2013: The Supreme Court decides Descamps v. United States, a case involving the application of the categorical approach to the Armed Career Criminal Act (ACCA), a provision similar to the career offender Guideline at issue at Joseph's sentencing.
June 25, 2013: Joseph files an unopposed motion to file a replacement brief. He wants to challenge the career-offender designation (reliance on the 843(b) conviction)in light of Descamps.
July 8, 2013: motion denied.
Apparently, the 11th Circuit has an odd rule that prohibits consideration of claims not raised in opening briefs. No other court of appeals has such a rule.
Sort of. We learn from the Supreme Court that the 11th Circuit applies the rule sometimes, and sometimes not.
So, the Supreme Court has to grant cert. in this case, right? Unlike the same-sex marriage cases that were denied when no conflict in the Circuits existed (one exists now), a clear conflict exists on this weird, procedural rule.
No dice, says the Supreme Court last week, although Justices Kennedy and Sotomayor would have heard the case.
But it gets weirder. Justice Kagan, joined by Justices Ginsburg and Breyer, authors a Statement respecting the denial of cert. That Statement criticizes the Eleventh Circuit heavily, noting that its rule "forces every appellant to raise 'claims that are squarely foreclosed by circuit and even Supreme Court precedent on the off chance that a new decision will make them suddenly viable." The Statement ends with an admonition to the 11th Circuit to "reconsider" its current practice, or else the Court might grant cert in another case.
Yet, why not just grant cert. in this case? 2 + 3 = 5, and 5 is enough to hear a case.
Here's my (Hansmeier) criticism: an 11th Circuit fix in another case, or a cert. grant in another case likely does Patrick Henry Joseph no good. His petition was denied, and with that denial is the affirmance of his career offender sentence, even though he might not actually be a career offender. What is the point in that? The Statement is an unfortunate concession that the Court cares little for the individuals behind the caption. And that is a shame.
I'll end with this: the cert. petition in Descamps was granted in August 2012. The case was argued in January 2013. So the Descamps issue could have been raised in the opening brief. And this is why we bother you with cert. grants. Because preservation of issues could shorten our clients' time in prison considerably.