Petition for Writ of Certiorari — Jerry Scott Hill, Petitioner v. United States

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 2018

HRA ERI RE K ERR EER RR KR RRR EKER RR RRR ERE R RRR ER ER ERE EER ERE REE

JERRY SCOTT HILL, Petitioner,

Vv.

UNITED STATES OF AMERICA, Respondent

PRA RARE AE RRR K REE RE REE RRR ERR ER EE REE E ERE RRERER EERE

MOTION TO PROCEED IN FORMA PAUPERIS

FR RK KRHA KE RK KARR RER ER RE KR EER ERR REAR ER RE RE RRR RK ER ER REE EEE

Petitioner, Jerry Scott Hill, by his undersigned counsel, requests leave to file

a Petition for Writ of Certiorari without prepayment of costs and to proceed in

forma pauperis pursuant to Rule 39 of the Supreme Court Rules. Counsel was

appointed in the lower court pursuant to 18 U.S.C. § 3006 and Rule 44, Fed.

R. CR. P.

This the 30 day of August, 2019.

Respectfully submitted,

eA. A. Pb. B=

RUDOLPH A. ASHTON, III

Panel Attorney,

Eastern District of North Carolina

N.C. State Bar No. 0125

Post Office Drawer 1389

New Bern, North Carolina 28563-1389

Telephone: (252) 633-3800

Email: RAshton@dunnpittman.com

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 2018

YORKER RR IIR RARE IRE ERE REE ERIE IERIE RR ERE REESE REBERER

JERRY SCOTT HILL, Petitioner,

v.

UNITED STATES OF AMERICA, Respondent

SAR WMI IRR RAR KER ER RAR AIRE RRR ERR EER RE KKK RRR EERE IR,

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RIAA TCR RI IIR RRR RR ARERR IRE ERR ERR RE RRR REE ERE IR ERE RR

RUDOLPH A. ASHTON, III

Panel Attorney

Eastern District of North Carolina

North Carolina State Bar No. 0125

P.O. Drawer 1389

New Bern, North Carolina 28563-1389

Telephone: (252) 633-3800

Facsimile: (252) 633-6669

Email: RAshton@dunnpittman.com

Il.

QUESTIONS PRESENTED

WHETHER THE FOURTH CIRCUIT COURT OF APPEALS ERRED IN

HOLDING THAT NORTH CAROLINA ASSAULT WITH A DEADLY

WEAPON WITH INTENT TO KILL INFLICTING SERIOUS INJURY

(AWDWIKISD CONSTITUTES A VIOLENT FELONY UNDER THE

ARMED CAREER CRIMINAL ACT (ACCA), IN LIGHT OF THE SUPREME

COURT DECISION IN JOHNSON v. UNITED STATES.

WHETHER THE FOURTH CIRCUIT COURT OF APPEALS ERRED IN

REFUSING TO ALLOW A CERTIFICATE OF APPEALABILITY, IN

FINDING THAT PETITIONER'S TWO PRIOR CONVICTIONS OF NORTH

CAROLINA BREAKING OR ENTERING (B&E&L) WERE VIOLENT

FELONIES UNDER ACCA BECAUSE THEY FIT THE GENERIC

DEFINITION OF BURGLARY, AND IN DISMISSING THE APPEAL.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED .......c.cececeseceteneeeeeeeeerreteteieneeenetensasenseeseneseneneceneneneenenenertes ii

TABLE OF CONTENTS ....cccccccecccesecceesseeecesecnsesssaeeeesresecessesaenseraesesersatteanensengesaneanes ii

INDEX TO APPENDIRX......cccccccecescesssssesscesensceseaeeneesecseeeceeenersaesenserseeesseeenesseesssseneeeesnes v

TABLE OF CASES AND STATUTES ......cccccccscseetetseneeeeteeaeterepeceeceateateeeseneaneries vi

PETITION FOR WRIT OF CERTIORARL 0.00... ecccccecesceseeeeceecneeerseesenserasseteneeneneseseaes 1

OPINION BELOW ......cccccccccecseceeceeseersserecerseesscsessecsecaeneeneasesecneeessensesensensecnnenaseensesneene 1

JURISDICTION ...ccccccccccseccececsccececceeeseessesseseenseseseeeseneneeeeeneneseeseeensssseeneeesnesseeeeesenegnegaes 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 1... esses 2

STATEMENT OF THE CASE oo... ee ccceccccteesesseseeenseeeeeeeeseareeseneensesessneeesesneseaeenennasens 3

PROCEDURAL HISTORY 0... ccccccsssssseseeseetenseneeecnestersernenssneseeseeenssnseeneennegtes 3

STATEMENT OF FACTS 00. cccccccccscsereeseeeneeeeceenerieesersenesneenecnrenseesenenrennennes 5

REASONS FOR GRANTING THE PETITION ...cccccesecetetesetessesereeteesssereesesnestettacees 6

I. IN LIGHT OF THE SUPREME COURT DECISION IN

JOHNSON v. UNITED STATES, THE FOURTH CIRCUIT

COURT OF APPEALS ERRED IN HOLDING THAT

NORTH CARLOLINA ASSAULT WITH A DEADLY

WEAPON WITH INTENT TO KILL INFLICTING SERIOUS

INJURY (AWDWIKISI CONSTITUTES A VIOLENT

FELONY UNDER THE ARMED CAREER CRIMINAL ACT

(ACCA). coecccccssescccseesceececteeseecessnssaececsssesessescnescaenesteetessnerneeensesseenaeneenersnens 6

Il. THE FOURTH CIRCUIT COURT OF APPEALS ERRED IN

REFUSING TO ALLOW <A_ CERTIFICATE OF

APPEALABILITY, IN FINDING THAT PETITIONER'S

TWO PRIOR CONVICTIONS OF NORTH CAROLINA

BREAKING OR ENTERING (B&E&L) WERE VIOLENT

FELONIES UNDER ACCA BECAUSE THEY FIT THE

ili

GENERIC DEFINITION OF BURGLARY, AND IN

DISMISSING THE APPEAL, .0.. cece scccccssereeereneeteeeeenecnereeseesneneneeeenes 9

CONCLUSION .....cccccccccssctscescesenecssesseeeeseessenessessseneceesneeeneeneeaeeeesaeenenesnesees eas aeneeseege gees 18

CERTIFICATE OF SERVICE oc cccccccccccssessesecnecnentenesneeterseraerecesensasasesensessesseeaneenes 19

iv

APPENDIX A -

APPENDIX B -

APPENDIX C -

APPENDIX CC -

APPENDIX D -

APPENDIX E -

APPENDIX F -

APPENDIX G -

APPENDIX H -

APPENDIX I -

APPENDIX J -

INDEX TO APPENDIX

Unpublished Opinion of the Fourth Circuit Court of Appeals

Affirming the Judgment (Filed June 6, 2019)

Judgment

Mandate

District Court Order and Judgment

Title 18 U.S.C. § 922(¢)

Title 18 U.S.C. § 924(a)

Title 18 U.S.C. § 924()

U.S. Constitution, Fifth Amendment

N.C.G.S. § 14°51 Burglary

N.C.G.S. § 14°52 Punishment for Burglary

N.C.G.S. § 14-54 Breaking or Entering

TABLE OF CASES AND STATUTES

CASES

Johnson v. Frankell, 520 U.S. 911, 117 S.Ct. 1800, 138 L.Ed.2d 108 (1997) «0. 8

Johnson v. United States, 576 U.S. __, 185 S.Ct. 2551, 192 L.Ed.2d 569 (2015) ...... 6

Mathis v. United States, 579 U.S. __, 186 S.Ct. 2248, 195 L.Ed.2d 604 (2016)...... 12

Milley-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2008).......... 10

Shepard v. United States, 544 U.S. 18, 125 8.Ct. 1254, 161 L.Ed.2d 205 (2008)......12

Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, L.Ed.2d 542 (2000) wocececceee 10

State vy. Brown, 176 N.C. App. 72, 626 S.E.2d 307, cert. denied,

360 N.C. 538, 684 S.B.2d 221 (2006) occ ececcenseensesssesesenssersesceeeeseeeeatestenereneeeeeties 15

State v. Jones, 353 N.C. 159, 538 S.E.2d 917 (2ZOOO) oo .eeececcccesececscssecssessceseeesesenesteeteoee 7

State v. Parker, 350 N.C. 411, 516 S.E.2d 106 (1999), cert. denied,

528 U.S. 1084, 120 S.Ct. 808, 145 L.Ed.2d 681 (2000) woe eeeeecccecessccecceeessesseeceseeeateeee 13

State v. Singletary, 344 N.C. 95, 472 S.H.2d 895 (1996) voce eeecccecessessesseeeseeseeereeaee 13

State v. Surles, 230 N.C. 272, 52 S.H.2d 880 (1949) cece eccseseseetesesseaseseeseesseeeeeeee 13

Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2148, 109 L.Ed.2d 607 (1990)....... 12

United States v. Cary, 592 F.3d 636 (4 Cir. 2010)... cesses esceesteteteenssenseneeeenens 16

United States v. Henriquez, 757 F.3d 144 (4th Cir, 2014) oe csceeseeseseeteresseeeeaeeeeees 7

United States v. Mungro, 754 F.3d 267 (4% Cir, 2014). csc cceesseseeseereensseeeeneens 12

United States v. Scheetz, 293 F.3d 175, 187 (4% Cir, 2002) oo. reneeseeeeseer 13

United States v. Spring, 80 F.3d 1450 (10% Cir, 1996)... seeeeesesseeeneneeseeneens 15

United States v. Stitt, US. , 139 S.Ct. 399, 202 L.Ed.2d 864 (2018) 0... 14

vi

CASES (continued)

United States v. Townsend, 886 F.3d 441 (4% Cir. 2018) ....csceeeeeseeseneteteerenstenenenes 7

Welch v. United States, _ U.S. __, 186 S.Ct. 1257, 194 L.Ed.2d. 387 (2016).......... 6

STATUTES

18 U.S.C. § 922(g) vccceesccscsecssesssesssessnsessseessseesvessictsuasecneecneesssesseesaresseceseesetesserenneeneeessesey 3

18 U.S.C. § 924 A)(2)..cececcccesecsccscscescesessesesesneseesesnessaeecesseesseenssecsnsseesssseneseessssesnesesnraenes 6

18 U.S.C. § 924 (6) veccccccccsessssesssusssscsssssseessessecsecasessnecsesuecouesreseressnssaseeeesneesnessecasecsesesess 13

18 U.G.C. § 924(e) 2B) GID ooecceccecccsscesssessesseesseesecarecaeeeveereerstesssssssucseessresseeseneeseesseeneetes 6

N.C.G.S. § LAB cicccesceccsscesssssessesssscssscsssssscssecssseseesseqsncaueeeneesaequscaussasseneseneanesseeassesseeses 14

N.C.G.S. § 14-52 coc eccccccsccssssssecssessseesseeessessreessessuseceueeseseenesesanseaeenneeenneseieeaseesneenersoase 14

N.G.GAS. § 14-54 occcccccecccssesscssesesesssecssessscsscsiecsecesecsuecnescessonceressnssasessesussescssetsasssnatensane 15

N.C.G.S. § 14-54 (a) oe eecccccccccsccseeceesececeesesseceeneesreeessassisiesnessusessasasseenesssseneseesesssenseneanenses 14

vil

PETITION FOR WRIT OF CERTIORARI

Petitioner Jerry Scott Hill respectfully prays this Court that a writ of

certiorari issue to review the judgment of the United States Court of Appeals for the

Fourth Circuit, issued on June 6, 2019, affirming the petitioner’s judgment in part

and dismissing his appeal in part.

OPINION BELOW

The Opinion of the United States Court of Appeals for the Fourth Circuit for

which review is sought is United States v. Jerry Scott Hill, No. 17-6022 (4% Cir.,

June 6, 2019). The unpublished opinion of the United States Court of Appeals for

the Fourth Cireuit is reproduced in the Appendix to this petition as Appendix A.

The judgment is reproduced as Appendix B. The mandate is reproduced as

Appendix C.

JURISDICTION

The Opinion of the United States Court of Appeals for the Fourth Circuit

affirming Petitioner's judgment and sentence was issued on June 6, 2019. The

jurisdiction of this court is invoked pursuant to 28 U.S.C. § 1254).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Petitioner Jerry Scott Hill was convicted of one count of possession of a

firearm by a felon in violation of 18 U.S.C. § 922(g). (App. D). Due to alleged prior

violent felonies, he was sentenced under the Armed Career Criminal Act (ACCA) to

a prison term of 262 months, pursuant to 18 U.S.C. §924(e). (App. F). Petitioner

contends his sentence deprives him of liberty without due process of law under the

Fifth Amendment of the United States Constitution. (App. G). Also, the following

state statutes are applicable to the issues herein: N.C.G.S. § 14-51 — Burglary (App.

HD); N.C.G.S. § 14-52 — Punishment for Burglary (App. D3 and N.C.G.S. § 14-54 -—

Breaking or Entering. (App. J).

STATEMENT OF THE CASE

Procedural History

On March 17, 2010 Jerry Scott Hill was charged in an indictment in the

Eastern District of North Carolina with possession of a firearm by a felon on or

- about October 25, 2009 pursuant to 18 U.S.C. § 922(g). (App. D). A superseding

indictment was filed on October 20, 2010, and count three charged him with the

original count of possession of firearm by a felon on or about October 25, 2009. The

case came on for trial on February 1, 2011 in New Bern, North Carolina before the

Honorable Louise W. Flanagan, District Court Judge. On February 3, 2011 the jury

found the petitioner guilty of count three.

The case came on for sentencing on April 29, 2011. Mr. Hill was found to be

an armed career criminal based upon two prior breaking or entering convictions

(B&E&L) and one prior conviction of assault with a deadly weapon with intent to

kill inflicting serious injury. (AWDWIKISD. He received a sentence of 262 months.

On May 38, 2011 his notice of appeal was filed. In an unpublished opinion entered

on May 4, 2012, Mr. Hill’s conviction and sentence were affirmed.

On February 5, 2013 Jerry Scott Hill filed a motion to vacate his sentence

pursuant to 28 U.S.C. § 2255. The Petition was dismissed by Order filed on

November 25, 20138.

On November 24, 2015 the petitioner sent a letter to the District Court Judge

requesting a review of his case under the recent decision of the United States

Supreme Court in Johnson v. United States. He also asked the Court to appoint

new counsel to assist him. A motion under 28 U.S.C. § 2244 requesting an order

authorizing the district court to consider a second or successive application for relief

under 28 U.S.C. § 2255 was filed in the Fourth Circuit Court of Appeals on June 7,

2016. On June 24, 2016 the Fourth Circuit Court of Appeals entered an Order

granting authorization for Mr. Hill to file a second or successive § 2255 petition,

thus permitting consideration of the motion by the district court.

On June 27, 2016 the successive 28 U.S.C. § 2255 motion herein was filed

pursuant to the above order. The Government was directed to file an answer. On

August 4, 2016 the Government filed a motion to dismiss, accompanied by a

memorandum in support of its motion to dismiss. By Order and Judgment filed on

December 8, 2016, the Petitioner's motion to vacate was denied, the Government’s

motion to dismiss was granted, and the Court granted a certificate of appealability

as to the AWDWIKISI charge only.

Petitioner again appealed. The case was held in abeyance several times

based upon other pending cases, the last of which was awaiting this court’s decision

in United States v. Stitt. Briefing then resumed.

In an unpublished opinion delivered on June 6, 2019 the Fourth Circuit

Court of Appeals affirmed in part the dismissal of the AWDWIRKISI issue and

dismissed in part the issue regarding the two breaking or entering prior convictions.

The Fourth Circuit denied Hill’s pending motion to expand the certificate of

appealability.

Statement of Facts

The Presentence Report, filed under seal, found the Petitioner Jerry Scott

Hill to be an armed career criminal based upon three (8) prior convictions in

paragraphs 11, 14, and 18. In paragraph 11, Mr. Hill pled guilty m Johnston

County File No. 88-CRS-2589 to breaking or entering and larceny, said offense

occurring on March 21, 1988 when he was age 16. He received a 13 year sentence,

suspended with five years probation. On June 12, 1989 the probation was revoked.

In paragraph 14 Mr. Hill pled guilty on June 12, 1989 to felonious breaking or

entering and larceny in Johnston County File No. 89-CRS-2922, said offense

occurring on March 27, 1989 when he was age 17. He received a sentence of 9 years

custody.!

In paragraph 18 of the Presentence Report, the Petitioner pled guilty on June

12, 1989 to assault with a deadly weapon with intent to kill inflicting serious injury

in Johnston County File No. 89-CRS-3298. He received an 18 year consecutive

sentence to 89-CRS-2918, which was a larceny of motor vehicle conviction in

paragraph 16. That sentence was consecutive to the sentence in paragraph 14 of

the Presentence Report.

Further facts will be developed in the argument portion of this petition.

1 Please note that the probation in paragraph 11 was revoked on that same date.

-5-

REASONS FOR GRANTING THE PETITION

I. IN LIGHT OF THE SUPREME COURT DECISION IN JOHNSON v.

UNITED STATES, THE FOURTH CIRCUIT COURT OF APPEALS ERRED

IN HOLDING THAT NORTH CARLOLINA ASSAULT WITH A DEADLY

WEAPON WITH INTENT TO KILL INFLICTING SERIOUS INJURY

(AWDWIKIS]I CONSTITUTES A VIOLENT FELONY UNDER THE

ARMED CAREER CRIMINAL ACT (ACCA).

This case arises from a second petition filed by Jerry Scott Hill wherein he

sought to vacate his sentence. The basis of Mr. Hill’s petition is that under the

recent decision of the United States Supreme Court in Johnson v. United States,

576 U.S. __, 185 §.Ct. 2551, 192 L.Ed 2d 569 (2015), his prior convictions were no

longer violent felonies and he was entitled to a new sentencing hearing. This issue

is significant because Mr. Hill received a sentence of 262 months, whereas the

maximum sentence without the enhanced classification was 10 years or 120

months. See 18 U.S.C. § 924(a)(2). (App. E).

In Johnson v. United States, this Court held that the residual clause of the

Armed Career Criminal Act (ACCA) 18 U.S.C. § 924(e)(2)(B) Gi) (App. FP), is void for

vagueness and violates due process. In Welch v. United States, US. , 186

S.Ct. 1257, 194 L.Ed.2d 387 (2016), this Court held that Johnson announced a new

substantive rule that has retroactive effect in cases on collateral review. There is no

dispute that AWDWIKISI does not fall within the offenses enumerated under 18

U.S.C. § 924(e)(2)(B)Gi). Since it no longer qualifies as a violent felony under the

residual clause, the offense herein only qualifies as a violent felony, if at all, under

the “force clause”.

The Fourth Circuit held this case in abeyance pending a decision in United

States v. Townsend, which opinion was filed on March 30, 2018. United States v.

Townsend, 886 F.3d 441 (4* Cir. 2018). Townsend held that a prior North Carolina

conviction for assault with a deadly weapon with intent to kill inflicting serious

injury categorically qualified as a “violent felony” under ACCA. The Fourth Circuit

in Townsend noted that the defendant therein relied upon the statement by the

North Carolina Supreme Court in State v. Jones, 353 N.C. 159, 166, 538 S.E.2d 917,

923 (2000), that “culpable or criminal negligence may be used to satisfy the intent

requisites for certain dangerous felonies, such as manslaughter, assault with a

deadly weapon with intent to kill, and AWDWISI.” The Fourth Circuit in Townsend

declined to adopt this interpretation. It took the position that the statement relied

upon by Mr. Townsend was dicta. 886 F.3d at 446-447.

In the instant case, the District Court Judge, applying the categorical

approach, found that the North Carolina Supreme Court’s position in State v. Jones

ag enunciated above, was dicta, and therefore did not follow it. While the Fourth

Circuit opinion herein did not note the District Court’s similar interpretation of

State v. Jones, it affirmed her decision based on its own decision in State v.

Townsend.

It is respectfully urged that the above reasoning in Jones is more than

mere dicta, and that the District Court and Fourth Circuit were obligated to

follow the North Carolina Supreme Court’s construction of its state statutes.

See United States v. Henriquez, 757 F.3d 144, 148 (4% Cir. 2014), citing

Johnson v. Frankell, 520 U.S. 911, 916, 117 S.Ct. 1800, 1803-1804, 138

L.Ed.2d 108 (1997).

State v. Jones was a tragic case where the intoxicated defendant struck a

vehicle occupied by six Wake Forest University students head on, killing two of

them and seriously injuring three others. The issue was whether the assault with a

deadly weapon inflicting serious injury convictions could serve as underlying

felonies for the first-degree murder convictions. The Supreme Court held they could

not, noting it was aware of no circumstance in which culpable or criminal negligence

has served to satisfy the intent element of first-degree murder, a capital offense in

North Carolina. The North Carolina Supreme Court addressed this as follows:

“From the outset, we recognize that our analysis of

defendant’s conviction for AWDWISI demonstrates that

culpable or criminal negligence may be used to satisfy the

intent vequisites for certain dangerous felonies, such as

manslaughter, assault with a deadly weapon with intent

to kill and AWDWISI. See N.C.G.S. § 14-32; Eason, 242

N.C. at 65, 86 S.E.2d at 778; State v. Sudderth, 184 N.C.

753, 755, 114 S.E. 828, 829 (1922). However, we are

aware of no circumstance in which such negligence has

served to satisfy the intent element of first-degree

murder, a capital offense in North Carolina. Moreover, in

interpreting our state’s homicide statute, N.C.G.S. § 14

17, we can find no language suggesting that the

legislature either contemplated or intended such a result.”

353 N.C. at 166, 538 §.E.2d at 923.

Jerry Scott Hill contends that the Jones case held that specific, actual intent

on the part of the perpetrator was necessary to support a first-degree murder

conviction but that culpable or criminal negligence could not. However Jones

further held that culpable or criminal negligence may satisfy the intent requisites of

lesser dangerous felonies such as manslaughter, assault with a deadly weapon with

intent to kill, and assault with a deadly weapon inflicting serious injury. Mr. Hill

therefore contends that Jones attempted to make this distinction clear, and

therefore the reference to “dicta” was inappropriate.

It is respectfully urged that under the categorical approach and the North

Carolina Supreme Court’s decision in State v. Jones, a conviction for North Carolina

AWDWIKISI can be sustained on a showing of culpable negligence, and therefore

would not qualify as a violent felony under ACCA. Petitioner prays that this Court

allow his petition to consider this issue.

ll. THE FOURTH CIRCUIT COURT OF APPEALS ERRED IN REFUSING TO

ALLOW A CERTIFICATE OF APPEALABILITY, IN FINDING THAT

PETITIONER'S TWO PRIOR CONVICTIONS OF NORTH CAROLINA

BREAKING OR ENTERING (B&E&L) WERE VIOLENT FELONIES

UNDER ACCA BECAUSE THEY FIT THE GENERIC DEFINITION OF

BURGLARY, AND IN DISMISSING THE APPEAL.

Petitioner Jerry Scott Hill respectfully contends that the District Court erred

in finding that his two prior felony convictions for breaking or entering and larceny

(B&E&L) qualified as violent felonies under the Armed Career Criminal Act

(ACCA), and the Fourth Circuit Court of Appeals erred in dismissing this claim.

Petitioner urges that the elements of B&E&L under North Carolina law are

substantially less egregious than the elements of burglary, and more expansive

than the generic definition of burglary, and therefore his prior B&E&L convictions

should not have been classified as enumerated violent felonies. Furthermore, he

urges that the certificate of appealability should have been expanded to include this

very important issue.

Certificate of Appealability

Although the District Court Judge allowed a certificate of appealability on

the assault with a deadly weapon with intent to kill inflicting serious injury prior

conviction, she declined to issue a certificate of appealability on the two prior

B&E&L convictions. Petitioner filed his opening brief on March 16, 2017. He did

not file a separate motion to expand the certificate of appealability, however noted

in the brief that such a motion would be filed if necessary. After the case came off

abeyance earlier this year, the Government filed a motion to dismiss the appeal.

Petitioner responded and filed a separate motion to expand the certificate of

appealability.

In dismissing Mr. Hill’s appeal, the Fourth Circuit held that where the

District Court denies relief on the merits, as here, the movant must demonstrate

that reasonable jurists would find the District Court’s assessment of the

constitutional claims debatable or wrong, citing Slack v. McDaniel, 529 U.S. 473,

484, 120 S.Ct. 1595, 1604, 146 L.Eid.2d 542 (2000). The Fourth Circuit then held

that Petitioner could not make such a showing and accordingly denied his motion to

expand the certificate of appealability.

Petitioner would respectfully call to this Court’s attention its later decision in

Miller-El v. Cockrell, 537 U.S. 822, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). This

Court held that to obtain a certificate of appealability, a habeas petitioner must

show that reasonable jurists could debate whether the petition should have been

resolved in a different manner or that the issues presented were adequate to

-10-

deserve encouragement to proceed further. It further noted that the issuance of a

certificate of appealability (COA) does not require showing that the appeal will

succeed; and accordingly, a Court of Appeals should not decline application for a

COA merely because it believes the applicant will not demonstrate entitlement to

relief, 537 U.S. at 337, 123 S.Ct. at 1039-1040.

While this Court’s decision in Johnson only invalidated the residual clause, it

nonetheless affected the entire realm of violent felony definitions under the ACCA.

It is urged that it opened the door for further scrutinization of the “use of force

clause” and what is or is not an “enumerated offense”. The reason this thorough

examination is required impacts the primary goal of sentencing, to establish fair

and uniform sentencing for offenders committing similar crimes and having similar

backgrounds. In discussing the residual clause and apparent arbitrary

enforcement, the Supreme Court in Johnson held:

“We are convinced that the indeterminacy of the wideranging inquiry required by the residual clause both

denies fair notice to defendants and invites arbitrary

enforcement by judges. Increasing a defendant’s sentence

under the clause denies due process of law.”

135 S.Ct. at 2557.

With the ever changing landscape regarding violent felonies under the ACCA,

and in particular “burglary” in this instance, it is respectfully contended that the

Fourth Circuit should have expanded the certificate of appealability in this case to

address this issue. It is contended that Petitioner, as movant, demonstrated

-11-

that reasonable jurists would find the District Court’s assessment of the

constitutional claims clearly debatable, if not wrong.

A. Elements of BEE&L vs. Burglary.

The District Court based its decision on the Fourth Circuit opinion in United

States v. Mungro, 754 F.3d 267 (4t Cir. 2014) (holding that North Carolina’s offense

of breaking or entering qualifies as generic burglary under the ACCA). Petitioner

asked the Fourth Circuit to revisit Mungro. This invitation was declined by the

refusal to expand the certificate of appealability and the dismissal of Petitioner’s

appeal as to this claim.

Petitioner contends that there are significant differences between breaking or

entering offenses and burglary offenses under North Carolina law. One of the

pivotal problems is defining the generic offense of burglary in the federal court

when the 50 states each have their own definitions of what is generic or common

law burglary.

The United States Supreme Court has defined the generic offense of burglary

as “an unlawful or unprivileged entry into, or remaining in, a building or other

structure, with intent to commit a crime.” Taylor v. United States, 495 U.S. 575,

599, 110 S.Ct. 2143, 2158, 109 L.Ed.2d 607 (1990). Generic burglary does not

include burglary of a boat or motor vehicle Shepard v. United States, 544 U.S. 18,

15-16, 125 S.Ct. 1254, 1257, 161 L.Ed.2d 205 (2005), or a “land, water, or air

vehicle” Mathis v. United States, 579 U.S. __, 186 S.Ct. 2243, 2250, 195 L.Ed.2d

604 (2016).

-12-

Compare the above definition of burglary to burglary in North Carolina. In

United States v. Scheetz, 293 F.3d 175, 187 (4th Cir. 2002), the Fourth Circuit

stated that under North Carolina state law, a burglary is defined under the common

law. The common law of North Carolina defines burglary as the breaking and

entering into an occupied dwelling in the nighttime with the intent to commit a

felony therein. The Fourth Circuit quoted the North Carolina Supreme Court case

of State v. Parker, 350 N.C. 411, 516 $.H.2d 106 (1999), cert. denied, 528 U.S. 1084,

120 S.Ct. 808, 145 L.Ed.2d 681 (2000). In State v. Singletary, 344 N.C. 95, 472

S.E.2d 895 (1996), the North Carolina Supreme Court defined the elements of first

degree burglazy as (1) the breaking (2) and entering (8) in the nighttime (4) into the

dwelling house or sleeping compartment (5) of another (6) which is actually

occupied at the time of the offense (7) with the intent to commit a felony therein.

The Supreme Court in Singletary went on to note “[T]he law of burglary was

designed to protect the habitation of men, where they repose and sleep, from

meditated harm”, quoting State v. Surles, 230 N.C. 272, 275, 52 8.H.2d 880, 882

(1949). 344.N.C. at 101, 472 S.E.2d at 899.

To categorize breaking or entering and larceny as a burglary, as the Fourth

Circuit does in Mungro, misses the purpose and intent of the sentence enhancement

under 18 U.S.C. § 924(e). (App. F). The purpose of the enhanced sentence is to

provide a lengthier prison sentence for repeat offenders with prior convictions of

violent felonies or serious drug offenses. Violent offenders should be those limited

few who have felonies in their background that involve the use of physical force or

-18-

physical injury to another individual. The punishment for burglary in North

Carolina under N.C.G.S. § 14-51 and § 14-52 (App. H, D) is substantially greater

than the punishment for breaking or entering and larceny in North Carolina under

N.C.G.S. § 14-54(a). (App. J.) The reason is that burglary involves breaking and

entering of a “dwelling” in the “nighttime”. If the dwelling is occupied it is first

degree burglary, and if unoccupied it is second degree burglary. The reason

burglary is so much more serious than ordinary breaking or entering is because it

involves a personal abode, normally occupied, and a secretive, nighttime entering.

Because the elements of BKE&L under North Carolina law are substantially

less egregious than the elements of burglary, and more expansive than the generic

definition of burglary, Mr. Hill’s B&E&L convictions should not have been classified

as enumerated violent felonies.

B. The Applicability of United States v. Stitt.

The Fourth Circuit decision herein held that this Court’s decision in United

States v. Stitt, U.S. __, 189 8.Ct. 399, 202 L.Ed.2d 364 (2018), did not affect

their prior holding in United States v. Mungro. Petitioner disagrees.

In Stitt this Court upheld ACCA enhancements for defendants with prior

burglary convictions in Tennessee and Arkansas. It held that burglary of a

structure or vehicle that has been adapted or is customarily used for overnight

accommodation qualifies as the enumerated violent felony of burglary. The key

element in Stitt appeared to be whether the structure was habitable, not movable.

It noted that Congress viewed burglary as an inherently dangerous crime because

-14-

burglary creates the possibility of a violent confrontation between the offender and

an occupant, caretaker, or some other person who comes to investigate, citing

Taylor v. United States, 495 U.S. at 588, 110 S.Ct. at 2153. It further found that an

offender that breaks into a mobile home, an RV, a camping tent, a vehicle, or

another structure that is adapted for or customarily used for lodging runs a similar

or greater risk of violent confrontation, citing United States v. Spring, 80 F.3d 1450,

1462 (10% Cir. 1996). Stitt, 189 S.Ct. at 406.

Jerry Scott Hill also contends that the North Carolina breaking or entering

and larceny statute, N.C.G.S. § 14-54 is substantially more expansive than the

generic definition of burglary. To be convicted of burglary in North Carolina (and it

is contended generically) there must be a breaking element and an entering

element, whereas the offense of felonious breaking or entering requires that the

State only prove that either breaking or entering took place. See State v. Brown,

176 N.C. App. 72, 76, 626 S.E.2d 307, 312, cert. denied, 360 N.C. 538, 634 S.E.2d

221 (2006). The defendant in Brown was convicted of both felonious breaking or

entering and first degree burglary. He argued on appeal that the trial court erred

in denying his motions to dismiss for insufficiency of the evidence as to the burglary

and felonious breaking or entering charges. In affirming his convictions, the North

Carolina Court of Appeals outlined the elements as follows:

“The elements of burglary in the first degree are the

breaking and entering, in the nighttime, into a dwelling

house or a room used as a sleeping apartment, which is

actually occupied at the time of the offense, with the

intent to commit a felony therein.’ State v. Simpson, 308

N.C. 439, 449, 279 S.E.2d 542, 548 (1981); see also N.C.

~15-

Gen. Stat. § 14-51 (2005) (defining first degree burglary).

The essential elements of felonious breaking or entering

are (1) the breaking or entering (2) of any building (3)

with the intent to commit any felony or larceny therein.

State v. Williams, 330 N.C. 579, 585, 411 S.H.2d 814, 818

(1992); see also N.C. Gen. Stat. § 14-54(a) (2005) (defining

felonious breaking or entering). Although the offense of

burglary includes both a breaking element and an

entering element, Simpson, 303 N.C. at 449, 279 S.E.2d at

548, the offense of felonious breaking or entering requires

that the State only prove that either breaking or

entering took place. State v. Myrick, 306 N.C. 110, 114,

291 S.B. 2d 577, 579 (1982).”

176 N.C, App. at 76, 626 §.E.2d at 311-312.

Interestingly, the Fourth Circuit noted the difference between breaking or

entering and breaking and entering in United States v. Carr, 592 F.3d 636 (4th Cir.

2010). The issue in Carr was whether the defendant’s prior breaking or entering

crimes were on occasions different from one another. Therefore the distinction

between and and orwas significant. The Fourth Circuit noted that in North

Carolina the breaking of a store window with the requisite intent to commit a felony

therein completes the offense, even though the defendant abandons his purpose

without actually entering the building. A more complete explanation of this issue is

recited below:

“As an initial matter, we believe that Carr’s argument

rests on a faulty premise. Throughout his briefs, Carr

refers to the 13 crimes as ‘breaking and entering’ and, as

set forth above, he contends that it is factually possible for

the crimes to have occurred simultaneously. However, as

we have noted, Carr was actually convicted under § 14-

54(a) of felonious breaking or entering. This is an

important distinction because ‘[t]he essential elements of

felonious breaking or entering are (1) the breaking or

entering (2) of any building (8) with the intent to commit

any felony or larceny therein.’ State v. Williams, 330 N.C.

-16-

579, 411 S.E.2d 814, 818 (1992) (emphasis added). Thus,

‘the crime described in § 14-54 allows conviction on a

showing of ‘breaking or entering, not breaking and

entering, United States v. Bowden, 975 F.2d 1080, 1084

(4th Cir, 1992) (emphasis in original); and it is therefore

complete upon ether a breaking or an entry, State v.

Myrick, 306 N.C. 110, 291 S.E.2d 577, 579 (1982).

Moreover, it is immaterial whether the defendant actually

completed the crime of larceny, State v. Smith, 66 N.C.

App. 570, 312 S.H.2d 222, 225 (1984); see also State v.

Jones, 272 N.C. 108, 157 S.E.2d 610, 611 (1967) (The

breaking of the store window with the requisite intent to

commit a felony therein completes the offense even

though the defendant is interrupted or otherwise

abandons his purpose without actually entering the

building.). Thus, when Carr either broke into or entered

each storage unit, his crime related to that unit was

complete at that point regardless of whether he later

returned to that unit.”

592 F.3d at 644.

Carr was decided before Johnson, Mathis, and Stitt. The fact that North Carolina

breaking or entering contemplates the offense in the disjunctive, necessarily

expands the criminality beyond generic burglary which requires entry.

In Mathis v. United States, 136 S.Ct. at 2250, the Supreme Court decided

that Iowa’s burglary statute covered more conduct than generic burglary. The

holding in Mathis was reaffirmed in United States y, Stitt, 139 S.Ct. at 407. Jerry

Scott Hill urges that because North Carolina’s felony breaking or entering statute

may be violated without actually entering, it is broader and covers more conduct

than generic burglary which requires that the structure, whatever it may be, be

entered.

-17-

For the foregoing reasons, Petitioner Jerry Scott Hill respectfully contends

that the Fourth Circuit erred in refusing to expand the certificate of appealability

and dismissing the appeal on this ground. It further erred in failing to re-visit the

decision in United States v. Mungro and finding that this Court’s decision in

United States v. Stitt was not applicable. North Carolina’s B&E&L statute is more

expansive than generic burglary and therefore should not be a violent felony under

the ACCA. The Supreme Court needs to hear this issue.

CONCLUSION

For the foregoing reasons, Petitioner Jerry Scott Hill respectfully requests

that a Writ of Certiorari issue to review the decision of the United States Court of

Appeals for the Fourth Circuit affirming his judgment and sentence.

This the 30 day of August, 2019.

DUNN, PITTMAN, SKINNER & CUSHMAN, PLLC

Counsel for Petitioner Jerry Scott Hill

wy: (Rudeh A 4. Hobbe: FP

RUDOLPH AY ASHTON, III

Panel Attorney

Eastern District of North Carolina

North Carolina State Bar No. 0125

3230 Country Club Road

Post Office Drawer 1389

New Bern, NC 28563

Telephone: (252) 633-3800

Facsimile: (252) 633-6669

Email: RAshton@dunnpittman.com

-18-

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 2018

HH IETHER AKIRA ARENA RR RARER ERE RR ER ER RRR RRR ER ER RER ER EERE ERR

JERRY SCOTT HILL, Petitioner,

Vv.

UNITED STATES OF AMERICA, Respondent

ORI IORI ERK IRA RR RRA ER KR RE RK RR ER RNR ERR RRR RE RE ERE ERE

ENTRY OF APPEARANCE

and

CERTIFICATE OF SERVICE

HARI IR IRA IR ITER IKE RRR ER RRR ER RN ER ERE R ERE RRR E ERIE EER REE

I, Rudolph A. Ashton, II, a member of the North Carolina State Bar, having

been appointed to represent the Petitioner in the United States Court of Appeals for

the Fourth Circuit, pursuant to the provisions of the Criminal Justice Act, 18 U.S.C.

§ 3006A, hereby enter my appearance in this Court in respect to this Petition for a

Writ of Certiorari.

I, Rudolph A. Ashton, IIT, do swear or declare that on this date, the 30% day

of August, 2019, pursuant to Supreme Court Rules 29.3 and 29.4, I have served the

attached motion for leave to proceed in forma pauperis and petition for a writ of

certiorari on each party to the above proceeding, or that party’s counsel, and on

every other person required to be served by depositing in an envelope containing the

above documents in the United States mail properly addressed to each of them and

-19-

with first-class postage prepaid. The names and addresses of those served are as

follows:

Jennifer P. May-Parker, AUSA

Phillip A. Rubin, AUSA

Office of the United States Attorney

150 Fayetteville Street, Suite 2100

Wells Fargo Building

Raleigh, NC 27601

Solicitor General of the United States

Room 5616, Department of Justice

950 Pennsylvania Ave., N.W.

Washington DC 20530-0001

This the 30% day of August, 2019.

Respectfully submitted,

“Ba A WXEL h aE

RUDOLPH A. ASHTON, III

Panel Attorney,

Eastern District of North Carolina

N.C. State Bar No. 0125

Post Office Drawer 1389

New Bern, North Carolina 28563-1389

Telephone: (252) 633-3800

Facsimile: (252) 633-6669

Email: RAshton@dunnpittman.com

Subscribed and Sworn to Before Me

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This the 30th day of August, 2019. oe ly,

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- 20-

USCA4 Appeal: 17-6022 Doc: 60 Filed: 06/06/2019 = Pg: L ors

‘

App. Al

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-6022

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JERRY SCOTT HILL,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at

Raleigh. Louise W. Flanagan, District Judge. (5:10-cr-00080-FL-1; 5:16-cv-00600-FL)

Submitted: June 3, 2019 Decided: June 6, 2019

Before GREGORY, Chief Judge, and WILKINSON and KING, Circuit Judges.

r

Affirmed in part and dismissed in part by unpublished per curiam opinion.

Rudolph A. Ashton, Il, DUNN PITTMAN SKINNER & CUSHMAN, PLLC, New

Bern, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attormey,

Jennifer P. May-Parker, Phillip A. Rubin, Assistant United States Attorneys, OFFICE OF

THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

USCA4 Appeal! 17-6022 — Doc: 60 Filech Ub/UolZULY =F: 2 OFS

App. A-2

PER CURIAM:

Jerry Scott Hill appeals from the denial of relief on his authorized successive 28

U.S.C. § 2255 (2012) motion in which he challenged his sentence under the Armed

Career Criminal Act. Hill was convicted by a jury of possessing a firearm as a convicted

felon, 18 U.S.C. § 922(g) (2012), and was sentenced as an armed career criminal to 262

months" imprisonment.

Hill now claims that his prior North Carolina convictions for assault with a deadly

weapon with intent to kill inflicting serious injury (“AWDWIKISI”) and breaking and

entering no longer qualify as violent felonies in the wake of the Supreme Court’s decision

in Johnson v. United States, 135 S. Ct. 2551 (2015). The district court granted a

’ certificate of appealability as to Hill’s challenge to the use of his AWDIKISI conviction

as a predicate offense for his ACCA enhancement. In United States v. Townsend, 886

F.3d 441, 442 (4th Cir. 2018), this court determined that a “prior conviction for North

Carolina [AWDWIKISI] is categorically a violent felony under the force clause of the

ACCA.” Thus, under Townsend, Hill’s AWDWIKISI conviction was properly counted

as an ACCA predicate offense. Because we find that Hill’s appeal as to this issue is not

“manifestly unsubstantial,” see 4th Cir. R. 27((1), we deny the Government’s motion

for summary affirmance. Nevertheless, we affirm the district court’s ruling as to this

issue.

Turning to Hill’s claim that the district court improperly counted his two

convictions for breaking and entering as violent felonies for purposes of the ACCA, Hill

may not appeal the district court’s order dismissing this claim unless a circuit justice or

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