United States Court of Appeals
For the First Circuit
No. 09-2258
UNITED STATES OF AMERICA,
Appellee,
v.
LARRY MATTHEWS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Boudin, Circuit Judge,
Souter,* Associate Justice,
and Selya, Circuit Judge.
William A. Hahn, with whom Hahn & Matkov was on brief, for
appellant.
Sandra S. Bower, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
April 29, 2011
________________
*
Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
SELYA, Circuit Judge. In this appeal, defendant-
appellant Larry Matthews attempts to challenge a sentencing
enhancement imposed pursuant to the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e). We conclude that the law of the case
doctrine bars the attempted challenge.
The background facts are catalogued in considerable
detail in our earlier opinion in this case, see United States v.
Matthews (Matthews I), 498 F.3d 25, 29-30 (1st Cir. 2007), and we
assume the reader's familiarity with that account. We rehearse
here only those facts needed to bring the law of the case issue
into focus.
In 2004, a jury convicted the defendant on a charge of
being a felon in possession of a firearm and ammunition. See 18
U.S.C. § 922(g)(1). At sentencing, the district court applied an
ACCA enhancement, thus triggering a mandatory minimum sentence of
fifteen years. Id. § 924(e)(1). The enhancement rested on the
court's subsidiary finding that the defendant had three prior
convictions for violent felonies or serious drug offenses. This
array included a 1996 conviction for assault and battery with a
dangerous weapon, a 1995 drug-trafficking conviction, and a 1992
juvenile adjudication for assault and battery. Matthews I, 498
F.3d at 32 n.5. The defendant conceded (then and now) that the
first two predicates were properly counted. Consequently, we
concentrate on the juvenile adjudication.
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With respect to the juvenile adjudication, the crucial
question was whether the defendant, in committing this offense, had
used a knife. The government tried to prove this point through a
police report. Relying on that report, the sentencing court
answered the "knife" question in the affirmative and ruled that the
juvenile adjudication qualified as an ACCA predicate.
In his ensuing appeal, the defendant challenged both his
conviction and his sentence. See id. at 30. With respect to the
juvenile adjudication, he argued categorically that juvenile
adjudications should not be counted as ACCA predicates and that, in
all events, the facts relating to this particular adjudication
should have been proven to a jury as required by the holding in
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). He did not,
however, take issue with the method by which the government had
proved the facts related to the juvenile adjudication (i.e.,
through the use of a police report). We rejected all of the
defendant's arguments and, on August 7, 2007, affirmed his
conviction and sentence. Matthews I, 498 F.3d at 37.
The defendant filed an untimely petition for rehearing
and rehearing en banc on September 21, 2007. See Fed. R. App. P.
35(c), 40(a)(1). We summarily denied the late petition. The
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defendant then unsuccessfully sought certiorari.1 Matthews v.
United States, 552 U.S. 1238 (2008).
In 2009, the defendant invoked the federal habeas
statute, 28 U.S.C. § 2255, and moved to vacate, set aside, or
correct his sentence. After some preliminary skirmishing (not
relevant here), the district court granted the motion in part and
convened a new sentencing hearing. The government renewed its
quest for the ACCA enhancement but, instead of relying exclusively
on the police report to prove the nature of the juvenile
adjudication, introduced copies of various juvenile court documents
obtained from the files of the Massachusetts Department of Youth
Services. The district court admitted these exogenous documents
into evidence and also allowed explanatory testimony. The court
then used the juvenile adjudication along with the defendant's
other two convictions to ground an ACCA enhancement. It thereafter
imposed the same mandatory minimum sentence. This timely appeal
followed.
1
In his untimely rehearing petition, the defendant for the
first time asserted a claim that the method by which the government
had proven the facts associated with the juvenile adjudication was
improper. He reasserted that claim in his certiorari petition.
These efforts were too late to preserve the claim. See Am.
Policyholders Ins. Co. v. Nyacol Prods., Inc., 989 F.2d 1256, 1264
(1st Cir. 1993) (explaining that "a party may not raise new and
additional matters for the first time in a petition for
rehearing"); see also Glover v. United States, 531 U.S. 198, 205
(2001) (discussing same principle in certiorari context).
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In our view, this appeal turns on an application of the
law of the case doctrine. The defendant disagrees: he argues that
the law of the case issue is not properly before us because it is
not listed in the statement of issues on appeal. See Fed. R. App.
P. 28(a)(5). This argument is hopeless. In the absence of a
cross-appeal — and none is needed here — an appellee is not
required to file a statement of issues. See Fed. R. App. P.
28(b)(2). Rather, an appellee may defend a favorable judgment on
any ground made apparent by the record.2 Mass. Mut. Life Ins. Co.
v. Ludwig, 426 U.S. 479, 481 (1976); United States v. Craven, 239
F.3d 91, 97 (1st Cir. 2001). Thus, we proceed to consider the
government's threshold argument.
Writ large, the law of the case doctrine "posits that
when a court decides upon a rule of law, that decision should
continue to govern the same issues in subsequent stages in the same
case." Arizona v. California, 460 U.S. 605, 618 (1983). This
means that "a legal decision made at one stage of a civil or
criminal case, unchallenged in a subsequent appeal despite the
existence of ample opportunity to do so, becomes the law of the
case for future stages of the same litigation." United States v.
Bell, 988 F.2d 247, 250 (1st Cir. 1993). In other words, the
doctrine bars a party from resurrecting issues that either were, or
2
In any event, a court may raise law of the case issues sua
sponte. See United States v. Wallace, 573 F.3d 82, 90 n.6 (1st
Cir. 2009).
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could have been, decided on an earlier appeal. See United States
v. Connell, 6 F.3d 27, 30 (1st Cir. 1993). "[T]he aggrieved party
is deemed to have forfeited any right to challenge that particular
decision at a subsequent date." Bell, 988 F.2d at 250.
This salutary approach safeguards "the finality and
efficiency of the judicial process by protecting against the
agitation of settled issues." Christianson v. Colt Indus. Oper.
Corp., 486 U.S. 800, 816 (1988) (internal quotation marks omitted).
The result is a sturdier, more stable decisionmaking process. See
United States v. Rivera-Martínez, 931 F.2d 148, 151 (1st Cir.
1991); see also Ellis v. United States, 313 F.3d 636, 647 (1st Cir.
2002) (explaining that "the law of the case doctrine affords
litigants a high degree of certainty as to what claims are — and
are not — still open for adjudication").
The law of the case doctrine has two branches. The first
branch — known colloquially as the mandate rule — "prevents
relitigation in the trial court of matters that were explicitly or
implicitly decided by an earlier appellate decision in the same
case." United States v. Moran, 393 F.3d 1, 7 (1st Cir. 2004).
The second branch of the doctrine binds a "successor
appellate panel in a second appeal in the same case" to honor fully
the original decision. Id. This branch "contemplates that a legal
decision made at one stage of a criminal or civil proceeding should
remain the law of that case throughout the litigation, unless and
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until the decision is modified or overruled by a higher court."
Id. Whether the doctrine applies in a specific instance is a
question of law, engendering de novo review. Negrón-Almeda v.
Santiago, 579 F.3d 45, 50 (1st Cir. 2009); Harlow v. Children's
Hosp., 432 F.3d 50, 55 (1st Cir. 2005).
We turn now from the general to the specific. At the
time of the defendant's initial sentencing hearing, the Supreme
Court had already granted certiorari in Shepard v. United States,
542 U.S. 981 (2004), which involved a challenge to the method of
proving ACCA predicate convictions. Shepard by then had been
briefed or argued, and the contours of the issue were clearly
delineated. Yet when the government sought to prove the nature of
the juvenile adjudication at issue here through a police report,
the defendant made no contemporaneous objection.
Shortly thereafter — and well before the defendant's
direct appeal was briefed or argued — the Supreme Court decided
Shepard. See Shepard v. United States, 544 U.S. 13 (2005). This
decision clarified the method through which a predicate conviction
could be proved under the ACCA and forbade the use of a police
report for that purpose. See id. at 21, 26. This decision should
not have come as a surprise. Beforehand (and prior to the
defendant's sentencing) several courts had expressed doubt about
the use of police reports to prove predicate convictions, signaling
that such a tactic would offend Apprendi principles (and, thus,
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offend the Constitution). See, e.g., United States v. Allen, 282
F.3d 339, 342-43 (5th Cir. 2002); United States v. Sparks, 265 F.3d
825, 837 (9th Cir. 2001). While this court had held to the
contrary, see United States v. Shepard, 348 F.3d 308, 314 (1st Cir.
2003), rev'd sub nom., Shepard v. United States, 544 U.S. 13
(2005),3 that did not excuse a party wishing to preserve the issue
from raising it. See, e.g., Bousley v. United States, 523 U.S.
614, 622-23 (1998); United States v. Lopéz-Peña, 912 F.2d 1542,
1546 (1st Cir. 1989); see also Barreto-Barreto v. United States,
551 F.3d 95, 101 (1st Cir. 2008). The claim of error was readily
available, and "the mere fact that counsel failed to recognize the
factual or legal basis for a claim, or failed to raise the claim
despite recognizing it" is not enough to revive a defaulted claim.
Murray v. Carrier, 477 U.S. 478, 486-87 (1986).
The defendant obviously knew about the Supreme Court's
Shepard decision (he cited it in his opening brief in Matthews I,
albeit for a different proposition), but failed to mount a claim of
Shepard error. Nor did he seek reconsideration of the sentence in
the district court. His belated efforts to repair these omissions
in an untimely rehearing petition and in a subsequent certiorari
filing were too late and too little. See supra note 1. We have
warned that "[t]he law ministers to the vigilant not to those who
3
Even within this circuit, skepticism had been voiced. See
United States v. Delgado, 288 F.3d 49, 57 (1st Cir. 2002) (Selya,
J., concurring).
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sleep upon perceptible rights." Puleio v. Vose, 830 F.2d 1197,
1203 (1st Cir. 1987). So it is here: having defaulted the claim of
Shepard error the first time around, the defendant cannot, absent
some exceptional circumstance, resurrect it now. See, e.g., United
States v. Ellis, 619 F.3d 72, 75 (1st Cir. 2010) (per curiam);
Peralta v. United States, 597 F.3d 74, 84 & n.12 (1st Cir. 2010)
(per curiam); see also Connell, 6 F.3d at 30 (warning that
"litigants should not ordinarily be allowed to take serial bites at
the appellate apple").
This is not quite the end of the matter. The law of the
case doctrine is not a "straitjacket for a court." Morgan v.
Burke, 926 F.2d 86, 91 (1st Cir. 1991). There is a modest amount
of play in the joints. See Arizona, 460 U.S. at 618. Withal,
these law of the case principles should not "be lightly shrugged
aside," Rivera-Martínez, 931 F.2d at 151, and in the absence of
exceptional circumstances, a court should apply the doctrine
according to its tenor. Connell, 6 F.3d at 31.
Such exceptional circumstances are rare and narrowly
circumscribed. A party may avoid the application of the law of the
case doctrine only by showing that, in the relevant time frame,
"controlling legal authority has changed dramatically"; or by
showing that "significant new evidence, not earlier obtainable in
the exercise of due diligence," has come to light; or by showing
that the earlier decision is blatantly erroneous and, if
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uncorrected, will work a miscarriage of justice. Bell, 988 F.2d at
251; see Rivera-Martínez, 931 F.2d at 151 (collecting cases); White
v. Murtha, 377 F.2d 428, 432 (5th Cir. 1967) (cited with approval
in Arizona, 460 U.S. at 618 n.8). This case does not qualify for
the exception.
We can summarily dismiss the last two categories. On the
facts here, there is no practical reason to doubt that the
defendant used a knife when he committed the offense that
underpinned the juvenile adjudication. Similarly, the defendant
does not argue that there is any new, previously unavailable
evidence that would benefit his position.
This leaves the first category, which requires an
intervening change in controlling legal authority. The defendant
relies on the Shepard decision to show such a change. This
reliance is misplaced.
To begin, we doubt that Shepard can be said to constitute
an intervening change in the law. After all, the circuits were
split on the point at the time of the defendant's original
sentencing, and the legal theory undergirding a claim of Shepard
error was readily available to him. Moreover, the Supreme Court
decided Shepard before the defendant's appeal in Matthews I was
briefed or argued and before his sentence became final and
unappealable. The fact that Shepard was newly decided in that time
frame, without more, does not trigger the exception. See Kashner
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Davidson Sec. Corp. v. Mscisz, 601 F.3d 19, 23 & n.5 (1st Cir.
2010); Doe v. Chao, 511 F.3d 461, 467 (4th Cir. 2007).
If more were needed — and we do not think that it is — we
note that the defendant's present claim arises in the section 2255
context. The exceptions to the law of the case doctrine must be
applied with special caution on collateral review. See United
States v. Addonizio, 442 U.S. 178, 184 (1979) (explaining that it
has "long been settled law that an error that may justify reversal
on direct appeal will not necessarily support a collateral attack
on a final judgment"); Ellis, 313 F.3d at 647 (noting that concerns
underlying the law of the case doctrine "are heightened in the
federal habeas context"). Allowing the defendant to raise a new
argument in a habeas petition when he could (and should) have
raised it either at his original sentencing or on direct review or
both would undermine the prudential goals of the law of the case
doctrine. See Peoples v. United States, 403 F.3d 844, 846-47 (7th
Cir. 2005); United States v. Moran, 107 F.3d 1 (1st Cir. 1997) (per
curiam) (table).
We need go no further. Although the defendant makes
additional arguments — that the failure to prove the juvenile
adjudication to a jury offended Apprendi principles, see Shepard,
544 U.S. at 26-27 (Thomas, J., concurring), and that juvenile
adjudications should never count as ACCA predicate convictions, see
Welch v. United States, 604 F.3d 408, 432 (7th Cir. 2010) (Posner,
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J., dissenting) — he concedes that these plaints are foreclosed by
circuit precedent. See, e.g., Ellis, 619 F.3d at 74; Matthews I,
498 F.3d at 33, 35. The short of it is that the defendant had a
full and fair opportunity to raise his claim of Shepard error both
at his original sentencing and on direct review. He did not do so.
Consequently, he should not have been allowed to raise a belated
Shepard claim on collateral review.
This holding confronts us with a procedural anomaly. The
district court erred both in entertaining the defaulted claim of
Shepard error and in vacating the original sentence on that ground.
Yet, after conducting a new sentencing hearing, the court imposed
a sentence identical to the vacated sentence. Given this outcome,
it would be senseless to force the district court and the parties
round and round the mulberry bush for no other reason than an
insistence on ceremonial punctiliousness. Cf. Gibbs v. Buck, 307
U.S. 66, 78 (1939) (terming it "useless" to reverse and remand
where, after appeal was filed, district court corrected its own
error); Jusino v. Zayas, 875 F.2d 986, 990 (1st Cir. 1989)
(observing that any error from district court's grant of a motion
for reconsideration over which it lacked jurisdiction was harmless
because the court of appeals would have remanded case anyway).
Thus, we take a pragmatic course, treat the district court's errors
as harmless, and simply leave the new sentence in place.
Affirmed.
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