United States v. Wayne Durham
795 F.3d 1329
| 11th Cir. | 2015Background
- Wayne Durham was convicted of being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)) and possession with intent to distribute cocaine (21 U.S.C. § 841(a)(1)) and sentenced as an Armed Career Criminal to 288 months.
- Durham’s opening brief (Nov. 2014) challenged substantive reasonableness of sentence but did not challenge ACCA application; the government’s answer brief likewise omitted the ACCA issue.
- The Supreme Court granted reargument in Johnson and later held the ACCA residual clause void for vagueness in Johnson v. United States (June 2015).
- Durham moved to stay his appeal pending Johnson and sought leave to file a supplemental brief asserting Johnson undermined the ACCA enhancement in his case; the motion to stay was mooted by Johnson.
- The en banc Eleventh Circuit granted review limited to whether appellants may raise issues in pending direct appeals that were not in their opening brief when based on an intervening Supreme Court decision overruling binding circuit (or Supreme Court) precedent.
- The court adopted a new rule permitting timely-filed supplemental or substitute briefs to assert claims or theories that arise from an intervening Supreme Court decision overruling prior binding precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an appellant may raise an issue in a pending direct appeal that was not in the opening brief when based on an intervening Supreme Court decision overruling binding precedent | Durham: He should be allowed to file a supplemental brief based on Johnson to challenge ACCA enhancement | Government: (implicitly) Circuit precedent bars raising issues not in the opening brief; court should adhere to that rule | The en banc court overruled prior circuit practice and permits timely supplemental/substitute briefs asserting new claims or theories based on an intervening Supreme Court decision that overrules binding precedent |
| Scope of the new rule — does it apply to appeals no longer pending, to non-foreclosed issues, or to issues that reasonably could have been included earlier | Durham: Rule should allow his supplemental ACCA challenge in this pending appeal | Government: Limitations exist; court should not broadly relax briefing rules | Court limited change: applies only to direct appeals still pending where a new Supreme Court decision overrules binding precedent and provides a new claim/theory; other areas (closed appeals, issues not previously foreclosed, or decisions issued early enough to have been included in the opening brief) remain unaffected |
| Effect on other doctrines (plain error, appeal waivers) | Durham: supplemental briefing should not be hindered by other doctrines | Government: protections like plain error and appeal waivers should remain intact | Court preserved plain error rule and appeal-waiver enforceability; only the rule about failure to raise a claim in the opening brief (when the claim is based on intervening Supreme Court law) was changed |
| Procedural requirement to invoke the exception | Durham: timely motion and supplemental brief following the intervening decision | Government: strict deadlines or other constraints | Held: Appellant must file a timely motion to file a supplemental/substitute brief after (or before, if practicable) the intervening Supreme Court decision; court will set briefing schedule and decide issues in the usual manner |
Key Cases Cited
- Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316 (11th Cir. 2012) (prior Eleventh Circuit rule barring new issues not raised in opening brief)
- United States v. Dockery, 401 F.3d 1261 (11th Cir. 2005) (application of rule barring new issues in later briefs)
- United States v. Ardley, 242 F.3d 989 (11th Cir. 2001) (same)
- United States v. Nealy, 232 F.3d 825 (11th Cir. 2000) (same)
- Joseph v. United States, 135 S. Ct. 705 (2014) (noting the question whether intervening precedent should permit new claims)
- United States v. Higdon, 418 F.3d 1136 (11th Cir. 2005) (dissent arguing for allowing new issues based on intervening decisions)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (Supreme Court decision holding the ACCA residual clause unconstitutionally vague)