          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.


                                     -2-
           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




                                    -3-
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).

                                      -4-
            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).

                                 -5-
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


                                     -6-
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,


                                -7-
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).

                                -8-
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


                                       -9-
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


                                                -10-
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,


                                 -11-
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.


                                   -12-
