United States v. Michael St. Hubert
918 F.3d 1174 (2019)
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Rule of Law:
Published orders issued by a three-judge panel on an application for leave to file a second or successive habeas petition constitute binding precedent on all subsequent panels of the circuit, including those hearing direct appeals.
Facts:
- On January 21, 2015, Michael St. Hubert brandished a firearm while robbing an AutoZone store.
- On January 27, 2015, St. Hubert brandished a firearm while attempting to rob a different AutoZone store.
- The robbery and attempted robbery were predicate offenses under the Hobbs Act.
- St. Hubert's actions led to his conviction on two counts of using a firearm during and in relation to a 'crime of violence' under 18 U.S.C. § 924(c).
Procedural Posture:
- Michael St. Hubert was convicted in U.S. District Court on two counts of violating 18 U.S.C. § 924(c).
- St. Hubert appealed his convictions to the U.S. Court of Appeals for the Eleventh Circuit.
- A three-judge panel of the Eleventh Circuit affirmed the convictions, relying in part on In re Saint Fleur, a prior published order on a successive habeas application.
- A member of the Eleventh Circuit requested a poll of all active judges on whether to rehear the case en banc.
- A majority of the active judges voted against granting rehearing en banc.
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Issue:
Does a published order from a three-judge panel ruling on an application to file a second or successive habeas petition constitute binding precedent for subsequent panels, including those hearing direct appeals?
Opinions:
Majority - By the Court
Yes. By denying the petition for rehearing en banc, the court leaves in place the panel's decision which held that published orders on successive habeas applications are binding precedent. A majority of the active judges on the court voted against rehearing the case en banc.
Concurring - Tjoflat
Yes, published panel orders on successive applications are binding precedent. This is not a new rule and follows existing circuit precedent. These orders are not insulated from review, as any active judge can request an en banc poll on the order itself or on any subsequent case that applies its holding, as was done here. The dissenters' primary issue is not with the process but with their inability to garner enough votes to overturn precedents with which they disagree. The court has been judicious, publishing only 1-2% of such orders, even during the surge of cases following the Supreme Court's decision in Johnson.
Concurring - William Pryor
Yes, such orders are binding, and the court's practice of conducting a preliminary merits review is proper. The statutory requirement of a 'prima facie showing' is not a mere formality; it requires a 'sufficient showing of possible merit to warrant a fuller exploration by the district court.' Under the circuit's precedent in In re Holladay, this means an applicant must show a 'reasonable likelihood' of success. Denying applications that are clearly doomed prevents district courts from being inundated with meritless petitions and serves the congressional goal of finality in criminal judgments.
Concurring - Jordan
Yes, there is no workable common-law principle to deny precedential effect to these published orders, but the court should exercise greater caution in publishing them. Significant institutional concerns arise from making precedent in this context because these decisions are made under a compressed 30-day timeline, almost always without adversarial briefing, and are not subject to typical appellate review like petitions for rehearing or certiorari. The Eleventh Circuit publishes far more of these orders than any other circuit, which creates a risk of error that could be avoided with more restraint.
Dissenting - Wilson
No, published orders from the second or successive context should not be binding precedent on merits panels. The process for deciding these applications is procedurally deficient: it is rushed (30 days), based on restrictive pro se forms, lacks adversarial briefing, and is statutorily shielded from appeal or rehearing. It is inconceivable that 'super-precedents' created through this flawed process should bind a merits panel that has the benefit of a full record, adversarial briefing, and oral argument. This practice allows panels to insulate their substantive rulings from any meaningful review.
Dissenting - Martin
No, these orders should not be binding because the court regularly exceeds its statutory authority by making full merits decisions instead of the simple 'prima facie' review Congress authorized. The court's gatekeeping function is only to determine if a petitioner has made a preliminary showing sufficient to proceed in district court, not to decide the ultimate merits of the claim. By shortcutting this process and creating binding law through unreviewable orders, the court prevents the proper, adversarial development of the law and denies prisoners like Mr. St. Hubert a meaningful review of their sentences, even on direct appeal.
Dissenting - Jill Pryor
No, and the panel’s flawed legal reasoning illustrates the danger of this practice. The panel incorrectly held that an attempt to commit a crime of violence is automatically a crime of violence under the elements clause. This conclusion improperly conflates the intent to commit every element of a crime with the actual attempt to commit every element; a person can be convicted of an attempt crime without ever actually attempting to use force. This logical and legal error is now binding precedent due to the court's refusal to grant en banc review, perpetuating unlawfully lengthy sentences.
Analysis:
The denial of rehearing en banc solidifies the Eleventh Circuit's unique and controversial practice of treating published orders from truncated, non-adversarial successive habeas proceedings as binding circuit precedent. This decision entrenches a method of law-making that prioritizes docket efficiency and finality over the traditional adversarial process, raising significant due process concerns highlighted by the dissenting judges. The deep division within the court suggests this issue remains highly contentious and distinguishes the Eleventh Circuit's approach from that of its sister circuits, potentially leading to further litigation over the validity of precedent created in this manner.
