Franklin Edward Davis v. Frank C. Blackburn, Warden, Louisiana State Penitentiary

This court has ruled repeatedly that we will not consider issues that were not raised below,1 and, a fortiori, that we will not consider issues that are not raised by the litigants on appeal2 save when they undermine our jurisdiction.3 Davis’ petition for rehearing points out that the State did not raise, either in the district court or in its brief on appeal, the defense that Stone v. Powell4 barred relitigation of his fourth amendment claim, and that this court both raised and decided the question sua sponte. My colleagues concede that these contentions are factually correct. Their opinion…