Cvijetinovic v. Eberlin

The majority’s interpretation of Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), in line with Eleventh Circuit precedent, would require defense counsel to anticipate and articulate constitutional arguments that are contrary to controlling Supreme Court precedent. See, e.g., Pitts v. Cook, 923 F.2d 1568, 1571 (11 th Cir.1991). This reading is not only unfounded but also poses worrying policy concerns. Because counsel’s failure to articulate a Blakely claim prior to Blakely, itself, constitutes sufficient cause to excuse procedural default, I respectfully dissent.

The…