THOMAS v. PAYNE (2020)

ORDER

The petition for rehearing en banc is denied. The petition for panel rehearing is also denied.

Chief Judge Smith, Judge Colloton and Judge Kelly would grant the petition for rehearing en banc.

Having reversed a district court for relying sua sponte on procedural default without giving a prisoner notice and an opportunity to be heard, Dansby v. Hobbs, 766 F.3d 809, 824 (8th Cir. 2014), this court should hold itself to the same standard. See also Day v. McDonough, 547 U.S. 198, 210, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006) (“Of course, before acting on its own initiative, a court must accord the parties fair notice and an opportunity to present their positions.”). In this case, the State did not argue procedural default on appeal, Thomas v. Payne, 960 F.3d 465, 471 n.3 (8th Cir. 2020), so appellee Thomas did not have fair notice that the issue was “in play,” cf. id., and he had no reason to address the point in his brief.

The panel's order denying the petition for panel rehearing does not solve the problem: a litigant's ability to point out after the fact that he was denied notice and an opportunity to be heard is not sufficient. A petition for rehearing, with its truncated length limit and distinct purpose, does not serve as a brief on the merits, and the panel did not grant rehearing in any event. Even assuming that a court of appeals may reverse sua sponte without notice or briefing when an issue is “raised and briefed before the district court,” Kennedy v. Kemna, 666 F.3d 472, 481 (8th Cir. 2012), that proposition would be inapplicable here. Thomas did not brief the disputed procedural default issue in the district court; the State raised appellate default as to Issue 10-1 for the first time in a post-hearing brief that was filed simultaneously with Thomas's post-hearing brief. R. Doc. 122, at 2-3. The district court did not reach the issue, because it concluded that Thomas defaulted in the initial state Rule 37 proceeding. R. Doc. 124, at 40.

Therefore, I would grant the petition for rehearing and allow supplemental briefing as requested in the petition.