Petition for Writ of Certiorari — Joshua E. Shepherd, Petitioner v. Jeffrey E. Krueger, Warden

No. 18IN THE

Supreme Court of the United States

___________

JOSHUA E. SHEPHERD,

v.

Petitioner,

JEFFREY E. KRUEGER, WARDEN, FCI, TERRE HAUTE,

Respondent.

___________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

___________

PETITION FOR A WRIT OF CERTIORARI

___________

SARAH O’ROURKE SCHRUP

NORTHWESTERN SUPREME

COURT PRACTICUM

375 East Chicago Avenue

Chicago, IL 60611

(312) 503-0063

JEFFREY T. GREEN *

NAOMI IGRA

STEPHEN CHANG

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

Counsel for Petitioner

March 7, 2019

* Counsel of Record

QUESTION PRESENTED

Whether the Constitution permits a federal court to

conclude that a prior conviction is “generic” for ACCA

purposes based solely on another federal court’s independent interpretation of an ambiguous state statute

when neither federal court has surveyed state case

law to reach its conclusion.

This question is an iteration of the question presented in the pending petition for a writ of certiorari

in Malone v. United States, No. 18-6671:

Whether the Constitution permits a federal court to

conclude that a prior conviction is “generic” for ACCA

purposes based on an independent interpretation of

an ambiguous state statute without first surveying

state case law or certifying the question to the state

supreme court.

(i)

ii

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT

The parties to the proceeding are those appearing

on the caption to this petition. Neither party is a

corporation.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...................................

i

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT ............................................

ii

TABLE OF AUTHORITIES .................................

v

PETITION FOR A WRIT OF CERTIORARI .......

1

OPINIONS BELOW .............................................

1

JURISDICTION ...................................................

1

STATUTORY PROVISIONS INVOLVED ...........

1

INTRODUCTION .................................................

2

STATEMENT OF THE CASE..............................

4

REASONS FOR GRANTING THE PETITION ...

6

I. THE PETITION ADDRESSES AN ITERATION OF THE IMPORTANT AND RECURRING QUESTION PRESENTED IN

THE MALONE PETITION ...........................

6

A. The Problems With Malone Infect The

Decision Below ..........................................

6

B. The Decision Below Raises Additional

Constitutional Concerns ...........................

8

II. THE DECISION BELOW PRESENTS A

CLEAN AND COMPELLING CASE FOR

DECIDING THE QUESTION PRESENTED ..................................................................

10

CONCLUSION .....................................................

12

APPENDICES

iv

TABLE OF CONTENTScontinued

APPENDIX A: Opinion, Joshua E. Shepherd v.

Jeffrey E. Krueger, No. 17-1362 (7th Cir. Dec.

26, 2018) .............................................................

Page

1a

APPENDIX B: Final Judgment Pursuant to

Fed. R. Civ. Pro. 58, Joshua Shepherd v. Stephen Julian, No. 2:17-cv-026-LJM-MJD (S.D.

Ind. Feb. 2, 2017) ............................................... 10a

APPENDIX C: Entry Dismissing Action and

Directing Entry of Final Judgment, Joshua

Shepherd v. Stephen Julian, No. 2:17-cv-026LJM-MJD

(S.D.

Ind.

Feb.

2,

2017) ................................................................... 11a

APPENDIX D: Order, Joshua Shepherd v. Stephen Julian, No. 17-1362 (7th Cir. Feb. 21,

2018) ...................................................................... 15a

APPENDIX E: Order, Joshua Shepherd v. Stephen Julian, No. 17-1362 (7th Cir. Jan. 12,

2018) ...................................................................... 17a

APPENDIX F: 18 U.S. Code § 922 ....................... 18a

APPENDIX G: 18 U.S. Code § 924....................... 20a

APPENDIX H: Ky. Rev. Stat. Ann. § 511.030 ..... 21a

APPENDIX I: Ky. Rev. Stat. Ann. § 511.010 ...... 22a

APPENDIX J: Amended Brief of Petitioner,

Joshua Shepherd v. Stephen Julian, No. 171362 (7th Cir. Mar. 20, 2018) ............................... 23a

APPENDIX K: Stipulated Motion to Reverse

and Remand, Joshua Shepherd v. Stephen Julian, No. 2:17-cv-00026 (S.D. Ind. Dec. 15,

2017) ...................................................................... 84a

v

TABLE OF AUTHORITIES

CASES

Page

Elkins v. Moreno, 435 U.S. 647 (1978) ........

12

Factors Etc., Inc. v. Pro Arts, Inc., 652 F.2d

278 (2d Cir. 1981) ......................................

9

Johnson v. United States, 135 S. Ct. 2551

(2015) .........................................................

4

Mathis v. United States, 136 S. Ct. 2243

(2016) .........................................................

5

Stokeling v. United States, 139 S. Ct. 544

(2019) (Sotomayor, J., dissenting) ............

9

Town of Castle Rock v. Gonzales, 545 U.S.

748 (2005) ..................................................

9

United States v. Franklin, 895 F.3d 954

(7th Cir. 2018) ...........................................

10

United States v. Malone, 889 F.3d 310 (6th

Cir. 2018) ................................................... 7, 8

United States v. Maness, 23 F.3d 1006 (6th

Cir. 1994) ...................................................

9

United States v. Stitt, 139 S. Ct. 399

(2018) .........................................................

7

United States v. Stitt, 860 F.3d 854 (6th

Cir. 2017) ...................................................

5

STATUTES

Ky. Rev. Stat. Ann. § 511.010 ......................

Ky. Rev. Stat. Ann. § 511.030(1)..................

6, 7

6

COURT DOCUMENTS

Petition for a Writ of Certiorari, Malone v.

United States, No. 18-6671 (Nov. 9,

2018) .......................................................... 7, 8, 9

Reply Brief for Petitioner, Malone v. United States, No. 18-6671 (Feb. 20, 2019) .....

7

vi

TABLE OF AUTHORITIEScontinued

Page

OTHER AUTHORITIES

John Elwood, Relist Watch: Quantity has a

Quality All its Own, SCOTUSblog (Mar.

22, 2018, 11 AM), http://www.scotus

blog.com/2018/03/relist-watch-quantityquality........................................................

10

PETITION FOR A WRIT OF CERTIORARI

Petitioner Joshua E. Shepherd respectfully petitions for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Seventh

Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Seventh Circuit is reported at 911 F.3d 861

and is reproduced in the appendix to this petition at

Pet. App. 1a-9a. The opinion of the trial court below

is unpublished and is reproduced at Pet. App. 10a14a.

JURISDICTION

The Seventh Circuit entered judgment on December 26, 2018, Pet. App. 1a. This Court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The statutory provisions involved are 18 U.S.C.

§ 922(g), 18 U.S.C. § 924(e), Ky. Rev. Stat. Ann.

§ 511.010, and Ky. Rev. Stat. Ann. § 511.030, and are

set forth in the appendix to this petition at Pet. App.

18a-22a.

2

INTRODUCTION

In the decision below, the Seventh Circuit relied entirely on the Sixth Circuit’s opinion in United States

v. Malone to determine that an ambiguous Kentucky

burglary statute is a form of “generic” burglary for

purposes of the Armed Career Criminal Act (“ACCA”), even though Malone failed to survey Kentucky

state law before independently interpreting the statute. The petition for a writ of certiorari in Malone is

currently scheduled for conference on March 15,

2019. The Court should grant this petition concurrently with Malone because Malone is the sole authority on which the decision below is based. In the

alternative, the Court should hold this petition until

it disposes of Malone. The decisions underlying both

petitions involve the same Kentucky statute, and

both petitions address whether the Constitution permits federal courts to interpret ambiguous state statutes for ACCA purposes without first surveying state

law.

The decision below magnifies the importance of the

recurring question in Malone. The courts of appeal

employ a wide range of approaches when confronted

with an ambiguous state statute for purposes of ACCA’s “generic offense” analysis and no state supreme

court decision that resolves the ambiguity. As the

Malone petition explains, courts of appeal have sometimes looked deep into the decisions of intermediate

courts and treated those decisions as binding, some

have “erred on the side of caution” when presented

with unsettled state law, and some have certified

questions to state supreme courts. But even along

this vast spectrum of approaches, the Sixth Circuit is

an outlier; it employs federal canons of construction

to independently interpret ambiguous state statutes

3

without surveying state court decisions first. This

approach raises grave concerns about arbitrary sentencing and the integrity of our federal system. And

with the decision below, the constitutional infirmities

of Malone now infect the Seventh Circuit.

The decision below also compounds the problems in

Malone by treating the Sixth Circuit as an authority

on state law for ACCA purposes even though Malone

does not focus on Kentucky state court decisions. As

a result of the Seventh Circuit’s blind adherence to

Malone, Mr. Shepherd was denied the opportunity for

an inquiry that could have led in a different direction

according to established Seventh Circuit practice. In

a case involving a similarly ambiguous state statute,

the Seventh Circuit certified a question to the Wisconsin state supreme court. The same approach

would have been appropriate here but the Seventh

Circuit instead relied on the Sixth Circuit’s sui generis interpretation of the Kentucky statute rather than

seek certainty for itself. The result is that Kentucky

was denied the opportunity to give a definitive answer to an important question of state law, with

grave consequences for Mr. Shepherd and future defendants.

The decision below is an opportunity for the Court

to answer the question presented in a compelling

case. The Seventh Circuit did not conduct any analysis of Kentucky case law to reach its decision; it simply adopted the language of Malone. The decision below squarely presents the question in this petition

and also emphasizes the important and recurring nature of the question presented in Malone.

4

STATEMENT OF THE CASE

Eleven years ago, Mr. Shepherd was pulled over

while driving in Kentucky. Pet. App. at 3a. Police

discovered marijuana and a firearm in his car. Id.

The United States charged Mr. Shepherd with one

count of possession of marijuana with intent to distribute, one count of being a felon in possession of a

gun, and two counts of criminal forfeiture. Id. Mr.

Shepherd pled guilty to all charges. Id.

The district court found that Mr. Shepherd was

subject to an ACCA enhancement based on three prior convictions for Kentucky second-degree burglary.

Id. at 4a. Based on this enhancement. Mr. Shepherd

was sentenced to the mandatory minimum of fifteen

years in prison. Id. Without the ACCA enhancement,

Mr. Shepherd would no longer be incarcerated.

Mr. Shepherd has repeatedly and persistently challenged this enhancement over the past decade. On

direct appeal, the Sixth Circuit affirmed the district

court’s decision. Id. Mr. Shepherd’s subsequent collateral attacks under § 2255 before the Western District of Kentucky and the Sixth Circuit were also denied. Id. at 4a-5a.

In 2016, Mr. Shepherd filed a request before the

Sixth Circuit to seek leave to file a successive § 2255

motion to challenge his ACCA sentence based on

Johnson v. United States, 135 S. Ct. 2551, 2563

(2015). Id. at 5a. In November 2016, the Sixth Circuit

denied that motion finding that Mr. Shepherd’s sentencing enhancement was based on the enumerated

offenses clause of ACCA, not the residual clause at

issue in Johnson. Id.

In 2017, Mr. Shepherd filed a petition for relief under 28 U.S.C. § 2241(c)(3) in the Southern District of

5

Indiana where he is currently in prison. Id. at 6a.

Mr. Shepherd argued that Kentucky’s burglary statute was overbroad under Mathis v. United States, 136

S. Ct. 2243, 2248 (2016), and thus his burglary convictions did not constitute ACCA predicates. The district court dismissed the petition and Mr. Shepherd

appealed to the Seventh Circuit. Id.

On December 15, 2017, the United States Attorneys’ Office for the Southern District of Indiana filed

a stipulated motion requesting that the Seventh Circuit reverse the decision of the district court and remand to grant Mr. Shepherd’s petition. Id. at 84a.

Most pertinently, the government—at that time—

agreed, inter alia that Section 2241 was an “appropriate vehicle” to address Mr. Shepherd’s claim and

that the Sixth Circuit’s decision in United States v.

Stitt, 860 F.3d 854, 860, 862 (6th Cir. 2017) (en banc)

suggested that Mr. Shepherd no longer qualified for

an ACCA enhancement. Id. at 86a.

On January 12, 2018, the Seventh Circuit ordered

the parties to answer legal questions regarding the

controlling circuit law and the applicability of Section

2241. Id. at 17a. The parties each submitted memoranda to the Seventh Circuit. Id. at 15a. On February 21, 2018, the Seventh Circuit denied the parties’

motion to reverse and remand, but granted Petitioner’s request to file an amended brief. Id. at 15a-16a.

In his amended briefing filed on March 20, 2018,

Petitioner argued, inter alia, that then-controlling

Sixth Circuit precedent in Stitt applied such that

Kentucky’s burglary statute was broader than generic burglary and thus his convictions did not constitute

predicate offenses under ACCA. See Id. at 65a. (citing United States v. Stitt, 860 F.3d 854, 874 (6th Cir.

2017) (White, J. concurring) (“Kentucky's definition of

6

a ‘dwelling’ includes vehicles, watercraft, and aircraft, and is thus broader than the common-law

meaning of dwelling.”)).

On May 8, 2018, the Sixth Circuit decided United

States v. Malone, 889 F.3d 310 (6th Cir. 2018), holding that Kentucky’s second-degree burglary statute

constituted generic burglary and thus was a predicate

offense under ACCA. Relying exclusively on the

Sixth Circuit’s decision in Malone, on December 26,

2018, the Seventh Circuit affirmed the district court’s

denial of Mr. Shepherd’s petition.

REASONS FOR GRANTING THE PETITION

I. THE PETITION ADDRESSES AN ITERATION OF THE IMPORTANT AND RECURRING QUESTION PRESENTED IN THE

MALONE PETITION

A. The Problems With Malone Infect The

Decision Below.

In Malone, the Sixth Circuit affirmed an ACCA enhancement based on its own questionable interpretation of an ambiguous Kentucky burglary statute. 889

F.3d at 311. In Kentucky, “[a] person is guilty of burglary in the second degree when, with the intent to

commit a crime, he knowingly enters or remains unlawfully in a dwelling.”

Ky. Rev. Stat. Ann.

§ 511.030(1). The accompanying definitions section

provides:

The following definitions apply in this chapter

unless the context otherwise requires:

(1) “Building,” in addition to its ordinary meaning, means any structure, vehicle, watercraft or

aircraft:

7

(a) Where any person lives; or

(b) Where people assemble for purposes of business, government, education, religion, entertainment or public transportation.

Each unit of a building consisting of two (2) or

more units separately secured or occupied is a

separate building.

(2) “Dwelling” means a building which is usually

occupied by a person lodging therein.

(3) “Premises” includes the term “building” as defined herein and any real property.

Ky. Rev. Stat Ann. § 511.010. The burglary statute

thus refers to “dwellings,” defined to include “buildings,” which are in turn defined to include “vehicle[s],

watercraft, and aircraft,” if “usually occupied by a

person lodging therein.” Mr. Malone argued that the

statute is therefore broader than generic burglary. 1

Petition for a Writ of Certiorari at 4-5, Malone v.

United States, No. 18-6671 (Nov. 9, 2018) (“Malone

Pet.”).

The Sixth Circuit disagreed. Using “principles of

statutory construction,” the Sixth Circuit independently interpreted the Kentucky burglary statute

as referring to buildings in their “ordinary sense,”

and not the statutory definition. Malone, 889 F.3d at

1

After the filing of Mr. Malone’s petition, this Court decided United

States v. Stitt, 139 S. Ct. 399 (2018), which held that burglary as used in

18 U.S.C. § 924(e) includes burglary of a structure or vehicle that has

been “adapted or is customarily used for overnight accommodation.” For

the reasons articulated in Mr. Malone’s reply brief, Stitt does not foreclose

the argument that Kentucky burglary is broader than federal burglary, just

as it did not foreclose the possibility that Arkansas burglary is broader

than federal burglary. Reply Brief for Petitioner at 3, Malone v. United

States, No. 18-6671 (Feb. 20, 2019).

8

312. As the Sixth Circuit acknowledged, it referenced

only snippets of Kentucky law that “corroborate[d]”

its own independent interpretation and did not consider all relevant cases interpreting the statutory

terms. Malone, 889 F.3d at 313; Malone Pet. at 6.

In the decision below, the Seventh Circuit merely

recited the Sixth Circuit’s analysis and held that “[a]

Kentucky conviction for second-degree burglary thus

falls within the scope of a burglary conviction under

ACCA.” Pet. App. at 9a. It did not consider whether

the Sixth Circuit’s interpretation has any roots in the

decisions of Kentucky state courts.

As explained in the Malone petition, the Sixth Circuit’s approach is an outlier. Numerous courts of appeal consider (with varying levels of deference) the

decisions of state intermediate courts. See Malone

Pet. at 6-9. When state law is unclear, some courts of

appeal “err on the side of caution” and are unwilling

to find ACCA predicate offenses, while others sometimes certify such questions to state supreme courts.

Id. The lack of a uniform approach is constitutionally

intolerable and leads to arbitrary results. Because

Malone is the sole authority on which the Seventh

Circuit relied, the constitutional problems with the

Sixth Circuit’s decision also infect the decision below.

See Malone Pet. at 14-20.

B. The Decision Below Raises Additional

Constitutional Concerns.

The Seventh Circuit’s blind adherence to a sister

circuit’s interpretation of an ambiguous state statute

is itself constitutionally problematic in the ACCA

context.

“In determining what a state crime covers for purposes of this federal sentencing enhancement, federal

9

courts look to, and are constrained by state courts’

interpretations of state law.” Stokeling v. United

States, 139 S. Ct. 544, 556 (2019) (Sotomayor, J., dissenting). Although a federal court may sometimes be

given deference when it construes the law of a state

within its jurisdiction, no such deference is due if the

decision “did not draw upon a deep well of statespecific expertise.” Town of Castle Rock v. Gonzales,

545 U.S. 748, 757 (2005). When a federal court relies

on modes of interpretation that “say nothing distinctive” about the law of the state, fresh consideration of

the issue is warranted. Id. This principle must operate with full force in the ACCA context because the

interpretation of state law has such grave consequences for defendants, and for the integrity of our

country’s federal system. Malone Pet. at 16-20. As

applied here, it means that the Seventh Circuit could

not look to the Sixth Circuit as the authority on Kentucky state law because the Sixth Circuit did not survey state law to reach its conclusion. See, e.g., Factors

Etc., Inc. v. Pro Arts, Inc., 652 F.2d 278, 283 (2d Cir.

1981) (“A federal court in another circuit would be

obliged to disregard a state law holding by the pertinent court of appeals if persuaded that . . . prior state

court decisions had been inadvertently overlooked by

the pertinent court of appeals.”); United States v.

Maness, 23 F.3d 1006, 1009 (6th Cir. 1994) (citing

Factors Etc. in declining to adopt Fourth Circuit’s interpretation of North Carolina state law in ACCA

burglary case).

The consequences of such misplaced trust in a sister circuit can be profound in the ACCA context.

Here, it led to a departure from a practice of certification that can yield more certain results.

10

In an ACCA case involving Wisconsin burglary, the

Seventh Circuit engaged in a searching inquiry to ascertain state court law. United States v. Franklin,

895 F.3d 954, 961 (7th Cir. 2018) (per curiam). When

it was unable to reach a definitive answer, it certified

the question to the Wisconsin Supreme Court. Id. The

court explained that it was persuaded to seek certification for two reasons: (1) the question of state law

was a close one; and (2) the issue of state law was

important for both the federal and state court systems. Id. These same factors should have compelled

an identical result in the decision below but the Seventh Circuit did not even consider the possibility of

certification because it erroneously treated the Sixth

Circuit’s independent interpretation of Kentucky law

as sufficient authority. As a result, Mr. Shepherd

was denied full consideration of his arguments as to a

pure question of law, and Kentucky was denied the

opportunity for its courts to weigh in on this critically

important question of state law.

II. THE DECISION BELOW PRESENTS A

CLEAN AND COMPELLING CASE FOR

DECIDING THE QUESTION PRESENTED

The decision below provided no analysis of state

law. Because Malone is the sole authority which the

Seventh Circuit relied upon to affirm Mr. Shepherd’s

sentence, it presents a clean opportunity for this

Court to address the questions presented.

Mr. Shepherd’s case is also a compelling illustration of how the “legendary ambiguity” of ACCA has

resulted in perpetually unsettled and arbitrary law.

See John Elwood, Relist Watch: Quantity has a Quality All its Own, SCOTUSblog (Mar. 22, 2018, 11:11

AM), http://www.scotusblog.com/2018/03/relist-watchquantity-quality (ACCA “has spawned so much litiga-

11

tion that there are now more Armed Career Criminal

Act appeals than there are armed career criminals.”).

The question of whether Kentucky burglary constitutes an ACCA predicate was answered differently by

different federal courts on multiple occasions during

the pendency of Mr. Shepherd’s appeal. On December 15, 2017, an Assistant United States Attorney in

the Southern District of Indiana was willing to stipulate to granting Mr. Shepherd’s petition because thencontrolling Sixth Circuit case law (Stitt) strongly suggested Kentucky second-degree burglary no longer

constituted an ACCA predicate offense under Mathis.

Only five months later, the law of the Sixth Circuit

reversed course with Malone (without even a reference to Judge White’s concurrence in Stitt). Mr.

Shepherd, then at the reply stage in his briefing, was

forced to oppose an outcome-determinative Malone

opinion that did not exist at the time his amended

briefing was filed. In December 2018, the Seventh

Circuit—without any consideration of Kentucky state

court case law—adopted the Sixth Circuit’s independent and incorrect statutory analysis in Malone to

deny Mr. Shepherd relief.

If the Seventh Circuit had addressed Mr. Shepherd’s petition in the narrow period after the Sixth

Circuit decided Stitt but before it decided Malone, it

likely would have found that Mr. Shepherd’s offenses

no longer qualified as ACCA predicates (the same

conclusion the United States Attorney’s Office appears to have reached in December 2017).

The flip-flopping in the federal courts during Mr.

Shepherd’s case highlights the need for uniformity in

the process for ascertaining ambiguous state law in

the ACCA context. If the Sixth Circuit had acknowledged the uncertainty of Kentucky state law and ei-

12

ther erred on the side of caution or certified the question to the state supreme court, then Mr. Malone, Mr.

Shepherd, and countless other defendants would

have some measure of certainty, and Kentucky would

have the opportunity to issue the first definitive opinion on a critical question of its own law. See Elkins v.

Moreno, 435 U.S. 647 (1978) (certifying sua sponte a

“question of great importance” to Maryland’s state

supreme court instead of deferring to the construction

of state law offered by the district court and affirmed

by the court of appeal).

CONCLUSION

For the foregoing reasons, the Court should grant

the petition for a writ of certiorari or hold the petition

for a decision in Malone.

Respectfully submitted,

SARAH O’ROURKE SCHRUP

NORTHWESTERN SUPREME

COURT PRACTICUM

375 East Chicago Avenue

Chicago, IL 60611

(312) 503-0063

JEFFREY T. GREEN *

NAOMI IGRA

STEPHEN CHANG

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

Counsel for Petitioner

March 7, 2019

* Counsel of Record