### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 95-60468

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

DONNIE HOWARD MCPHAIL,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Northern District of Mississippi

_________________________

July 31, 1997

ON REQUEST FOR REHEARING EN BANC

Before REAVLEY, KING, and BARKSDALE, Circuit Judges.

PER CURIAM:

A member of the court in active service having requested a

poll on the reconsideration of this cause en banc, and a majority

of the judges in active service not having voted in favor,

rehearing en banc is DENIED.

JERRY E. SMITH, Circuit Judge, dissenting:1 See, e.g., Lowrey v. Texas A & M Univ. Sys.

, No. 96-20157, 1997 WL 370846,

at *3 (5th Cir. July 7, 1997); Hernandez v. City of Lafayette

, 643 F.2d 1188, 1192-

93 (5th Cir. Unit A May 1981) (Reavley, J.); United States v. Arce

, No. 96-20983,

1997 WL 403023, at *2 (5th Cir. July 18, 1997) (King, J.); Kiser v. Garrett

, 67 F.3d

1166, 1173 (5th Cir. 1995) (Barksdale, J.).



### 2 I respectfully dissent from the court's refusal to hear this

case en banc. If the panel opinion is to be taken as binding law

in this circuit, it stands as the first decision of this court to

hold that a habeas corpus petitioner may successful ly raise, on

appeal, an issue he did not bring first to the attention of the

federal habeas district court. That is a remarkable proposition

that should be welcome news to habeas petitioners in this circuit

and anathema to the United States and to the three states in this

circuit. If we are to install so startling a rule, we should do so

only after full en banc consideration.

I.

A.

Fortunately, this opinion is not binding on future panels of

this court, as it contravenes our caselaw. We have long abided by

the rule that one panel may not overrule another, even when the

later panel disagrees with t he earlier one's holding. 1 

### This is

necessary, for “[a] 'purpose of institutional orderliness' is

served by 'our insistence that, in the absence of inte rvening

Supreme Court precedent, one panel cannot overturn another panel,

regardless of how wrong the earlier panel decision may seem to2 Grabowski v. Jackson County Pub. Defenders Office

, 47 F.3d 1386, 1399 (5th

Cir.) (Smith, J., concurring in part and dissenting in part) (quoting Montesano v.

Seafirst Commercial Corp.

, 818 F.2d 423, 425-26 (5th Cir. 1987))

, vacated for reh'g

en banc

, 47 F.3d 1403 (5th Cir. 1995), district court judgment aff'd

, 79 F.3d 478

(5th Cir. 1996) (en banc).

3 See, e.g., Texaco v. Louisiana Land & Exploration Co.

, 995 F.2d 43, 44 (5th

Cir. 1993); Hernandez , 643 F.2d at 1192-93.

4 I do not mean to suggest or imply that the panel consciously violated our

rule of orderliness or intentionally set out to undermine the holdings of prior

panels. To the contrary, I am confident that the panel only intended to reach

a just result in this case and, at most, may have overlooked the impact of its

ruling on our jurisprudence.

5 See, e.g., Marts v. Hines

, No. 94-30513, 1997 WL 405903 (5th Cir. July 18,

1997) (en banc); Grabowski , 79 F.3d 478.



### 3 be.'” 2 

### So, when a later panel decision contradicts an earlier one,

the earlier one remains binding circuit law. 3



### The point is that a panel cannot overrule, nullify, or

implicitly disavow a prior panel's interpretation of circuit law,

even if i t appears wildly flawed. The proper mechanism for such

change is action by the en banc court, the Supreme Court, or, in an

appropriate case, Congress. When a panel, presumably through

inadvertence, 4 

### nonetheless fails to follow prior decisions, we have

cus tomarily corrected the error through en banc review, 5 

### to avoid

inconsistencies in our circuit law. Today, the court has refused

to correct an obvious departure from this rule.

B.

McPhail raises a sufficiency challenge to his “use or carry”

conviction for the first time on appeal of the district court's

denial of collateral relief. Citing only a civil age discrimination case, the panel holds that we may “review the [district]6 United States v. McPhail

, 112 F.3d 197, 199 (5th Cir. 1997) (citing Douglass

v. United Servs. Auto. Ass'n , 79 F.3d 1415, 1424 (5th Cir. 1996) (en banc)).

7 E.g., United States v. Samuels

, 59 F.3d 526, 529-30 (5th Cir. 1995) (“Short

of a miscarriage of justice, we may not consider an issue raised for the first time

on appeal of a section 2255 motion.”); United States v. Madkins

, 14 F.3d 277, 279

(5th Cir. 1994) (“[T]his assignment of error is being raised for the first time on

appeal; it was not presented to the district court. We may not consider it.”);

United States v. P ineda , 988 F.2d 22, 23 (5th Cir. 1993) (per curiam) (“Since Pineda

did not properly raise his sixth amendment claim before the district court, this

court will not consider it.”); United States v. Cates

, 952 F.2d 149, 152 (5th Cir.

1992) (“Cates did not raise the Rule 35 contention before the district court in his

§ 2255 motion. We will not consider for the first time on appeal an argument not

presented to the district court.”); United States v. Smith

, 915 F.2d 959, 964 (5th

Cir. 1990) (per curiam) (“If the defendant in habeas proceedings did not raise his

claims before the district court, we do not consider them on appeal.”); United

States v. Houston

, 745 F.2d 333, 334 (5th Cir. 1984) (per curiam) (“This Court will

not consider a § 2255 claim fo r the first time on appeal.”); U nited States v. McKnight

, 693 F.2d 476, 476 (5th Cir. 1982) (per curiam) (“It is well settled that

an appellate court will not consider a § 2255 claim for the first time on appeal.”);

Baeza v. United States , 543 F.2d 572, 574 (5th Cir. 1976) (per curiam) (“Appellant’s

conviction with respect to the alleged invalidi ty of his sentence was not before the

Dist rict Court, and hence m ay not be asserted for the first time on appeal.”)

(emphasis added); McGee v. United States Dist. Ct.

, 489 F.2d 703, 704 (5th Cir.

1973) (per curiam) (“These contentions, several of which were raised and rejected

in the prior habeas proceedings, can, in no event, be reviewed in this court since

none of them w e re presented in the motion before the court below.”) (emphasis

added); Dryden v. United States

, 403 F.2d 1008, 1009 (5th Cir. 1968) (per curiam)

(“It is hornbook law that matters not presented in a motion under 28 U.S.C.A. § 2255

to the District Court may not be consid ered on appeal.”) (emphasis added); H ornbrook

v. United States , 216 F.2d 112, 113 (5th Cir. 1954) (per curiam) (“Matters not

presented in the motion to the trial court may not be considered on this appeal

. . . .”) (emphasis added)

.



### 4 court's denial of his § 2255 petition for plain error.” 6



### A casual reader might proceed through the rest of the opinion

unencumbered by the knowledge that this flatly contradicts a great

many of our prior cases, for the panel mentions none of them. 7 

### The

most recent such case is United States v. Rocha

, 109 F.3d 225 (5th

Cir. 1997), which rejected a claim indistinguishab le from

McPhail's. There, we held specifically that we lack the power to

effect the sort of review engaged in here:

For the first time on appeal, Rocha raises a claim that

the evidence at trial was insufficient to s upport his

18 U.S.C. § 924(c) “use or carry” conviction in light of

the reinterpretation of “use” in Bailey

. His failure to

r aise this highly fact-dependent claim in the district

court prevents us from considering it for the first time8 I say this mindful of Johnson v. United Stat es , 117 S. Ct. 1544, 1549

(1997), holding that plain error must be measured at the time of appeal. J ohnson



### (continued...)

5 on appeal. Rocha, of course, could hardly be expected to

have raised a Bailey claim before Bailey was decided, but

his proper cours e of action is to file a successive

§ 2255 motion, not to raise the issue for the first time

here.

Id. at 229 (footnotes omitted). Although the panel recognizes the

existence of Rocha by citing it for a different proposition, see

McPhail

, 112 F.3d at 199, it makes no effort to harmonize its

holding with this and the earlier cases. In fact, such

reconciliation is not possible.

II.

A.

I have demonstrated how it is that, under our rule of

orderliness, future panels should follow Rocha and the cases that

preceded it, rather than the instant panel opinion. Unfortunately,

however, the panel opinion remains “on the books,” as the court has

declined to rehear it en banc. Accordingly, I will explain how it

is that the panel erred on the merits of the issue.

The error does not end with the incorrect statement that we

should review here for plain error. Assuming the role of a factfinder, the panel weighs the evidence to reach the by-now

unsurprising conclusion that it was indeed insufficient. No effort

is made, however, to explain how the district court committed plain

error in failing sua sponte to grant relief on a ground that was

not presented and, at the time, did not exist. 8

### (...continued)

involved a district court's failure to submit the element of materiality to the

jury in a prosecution for perjury. I d. at 1547. It is an entirely different

situation from that in which a habeas petitioner fails to raise a ground for

collateral relief.

In a criminal trial, the court has a duty correctly to instruct the jury

regardless of what the parties propose. S ee, e.g., Unite d States v. Gray

, 105 F.3d 956, 967 (5th Cir.), cert. denied , 117 S. Ct. 1326 (1997). In habeas

proceedings, by contrast, the burden of raising grounds for relief falls

exclusively on the petitioner. See 28 U.S.C. § 2255; R ULES G OVERNING S ECTION 2255

P ROCEEDINGS FOR THE U NITED S TATES D IST RICT C OURTS

, Rule 2(b) (stating that a § 2255

petition must “state the relief requested” and “specify all the grounds for” it);

cf. B ENJAMIN N. C ARDOZO

, T HE N ATURE OF THE J UDICIAL P ROCESS 141 (1921) (“[A judge] is not

a knight-errant, roaming at will in pursuit of his own ideal of beauty or of

goodness.”).

9 United States v. Olano

, 507 U.S. 725, 731-3 6 (1993); U nited States v.

Calverley , 37 F.3d 160, 162 (5th Cir. 1994) (en banc).

1 0 I assume the panel did not intend that the district courts of this circuit

are now under a duty to scour the record for avenues of relief that have not been

pled.

1 1 

### See McPhail

, 112 F.3d at 199 (“Wheth er B ailey applies

retroactively to cases pending on collateral review has been

questioned in this circuit.”) (citing United States v. Andrade

, 83

F.3d 729, 730 n.1 (5th Cir. 1996)).

6 Plain error requires (1) an error; (2) plainness; (3) a

prejudicial effect on substantial rights; and (4) a discretionary

judgment that there has been a serious compromise of the fairness,

integrity, or public reputation of ju dicial proceedings. 9 

### It is

difficult to understand the panel's apparent conclusion that

failure to grant relief on an unpresented ground constitutes error,

much less an error that offends the fairness and integrity of our

judicial system. 10



### One migh t also wonder how it is that such an error can be

“plain,” given that B ailey ' s retroactive application to pending

habeas petitions was an open question until now, as the panel

acknowledged. 11 

### One might even wonder how it is that all of this1 2 See 28 U.S.C. §§ 2244, 2255; R ULES G OVERNING S ECTION 2255 P ROCEEDINGS FOR THE

U NITED S TATES D ISTRICT C OURTS

, Rule 2(b) (stating that a § 2255 petitioner must “specify

all the grounds for relief”); United States v. Frady

, 456 U.S. 152, 164-66 (1982)

(holding that the pla in error standard should not be applied to correct trial errors

on collateral review).

13 See, e.g., McCleskey v. Zant

, 499 U.S. 467, 493-95 (1991); Frady , 456

U.S. at 167- 68 ; United States v. Placente , 81 F.3d 555, 558 (5th Cir. 1996);

Behringer v. Johnson

, 75 F.3d 189, 190 (5th Cir.) (“[A] motion raising new claims

after entry of a final judgment is properly viewed as a second federal

petition.”), cert. denied

, 116 S. Ct. 1284 (1996); Briddle v. Scott

, 63 F.3d 364,

376 (5th Cir.), cert. denied

, 116 S. Ct. 687 (1995); Williams v. Whitley , 994

F.2d 226, 230-31 & n.2 (5th Cir. 1993).



### 7 can have a prejudicial effect on McPhail's substantial rights, when

he of course continues to have the option to file a successive

petition. The panel explains none of these things.

B.

As we stated in Rocha

, 109 F.3d at 229, a successive petition

is the proper remedy fo r a situation such as McPhail's.

Application of the plain error standard to his claim thwarts both

the scheme Congress has designed for handling these petitions and

the Supreme Court's caselaw interpreting it. 12 

### If habeas

petitioners can successfully raise new claims for the first time on

appea l, we may safely discard the Supreme Court's well-developed

“cause and prejudice” jurisprudence, as well as our caselaw holding

that petitioners may not use F ED



### . R. C IV



### . P. 60(b) to raise matters

that were not brought up prior to judgment. 13



### III.

I now address the impact of the decision. The most direct

### 8

beneficiary is Mr. McPh ail, who, in a sense, has just won the

prison lottery, for the court has happen ed upon his undeveloped

claim and has awarded him relief long denied to habeas petitioners.

But the fate of other, future habeas petitioners also will depend

on which judges happen to be assigned to a circuit panel. Those

panels containing a majority of judges who recognize M cPhail a s

binding will be more willing to entertain new issues on appeal;

panels dominated by judges who recognize Rocha and other prior

cases as controlling will continue to require that habeas issues be

raised first in the federal habeas district court.

This can only lend uncertainty and unpredictability to the

law. How is the hapless litigant or attorney to know whether a

given future panel will follow McPhail rather than Rocha ? It would

have been better for the court to have resolved this inevitable

conflict now, en banc, but its failure to do so leaves me only to

speculate on the consequences of that inaction.

The United States appears to have been asleep at the switch.

Al though it cannot have been expected to anticipate the panel's

s urprising holding, it has not petitioned for panel rehearing or

rehearing en banc, after receiving the opinion. I speculate that,

given the panel's one-sentence treatment of the matter, it could

easily have been missed.

The United States will have to suffer the consequences of this

new circuit law when confronted with a panel majority that adheres

to McPhail as binding circuit law. But the greater burden, because

of the caseload, falls on the states in this circuit, for the rule

### 9

of McPhail logically applies to habeas petitions under 28 U.S.C.

§ 2254 as well as to thos e brought under § 2255. The state

prosecuting authorities hav e had no opportunity, of course, to

participate in these proceedings, but surely they, as well as the

federal district courts and this court, will feel the effect of the

increased litigation that the panel's decision will spawn.

All of this is to say that, if circuit law was to be changed,

it should have been done by the en banc court. The en banc court

could have reconciled past precedent, one way or the other, so that

future panels would speak with one voice, lending fairness and

predictability to the appellate p rocess. The court's failure to

fix t he problem now only means that it will have to do so later.

Accordingly, I respectfully dissent from the denial of rehearing en

banc.