Petition for Writ of Certiorari — Dalton Crutchfield, Petitioner v. United States
Supreme Court briefDec 5, 2019
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NO.
__________
IN THE
SUPREME COURT OF THE UNITED STATES
DALTON CRUTCHFIELD,
PETITIONER,
vs.
UNITED STATES OF AMERICA,
RESPONDENT.
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
__________________________________________________________________
CORRECTED JOINT PETITION FOR WRIT OF CERTIORARI1
__________________________________________________________________
Doris A. Randle-Holt
Federal Public Defender for the
Western District of Tennessee
By: Tyrone J. Paylor
First Assistant Federal Public Defender
Attorneys for Petitioners
200 Jefferson, Suite 200
Memphis, Tennessee 38103
E-mail: Tyrone_Paylor@fd.org
(901) 544-3895
1
Pursuant to Supreme Court Rule 12.4, Petitioners Patrick Jackson, Joseph Kemmerling,
DeMarcus Rogers, Owen Lewis Finch, Teddy Norris, Marcus Mann, Jermel Franklin Williams,
Kevous McKinney, Larry Ammons, Michael Lemons, Michael Roberts, Darryl Merriweather,
Richard Hughes, Azavius Justice, Keith Keglar Timothy Bohannon, Leo Bearden, Michael Cox,
Wilson Jones, and Dereck Dawson are joining this Petition seeking review of their Sixth Circuit
judgments. The cases involve an identical issue.
QUESTION PRESENTED FOR REVIEW
Whether Tennessee’s burglary statutes are generic where the State can obtain a conviction
by proving only attempted burglary because the element of “entry” is satisfied by a mere showing
of the use of an instrument in an attempt to make entry.
ii
LIST OF PARTIES
Pursuant to Supreme Court Rule 12.4, Petitioners are filing a single petition seeking review
of their Sixth Circuit judgments that involve the same issue. The parties to each proceeding include
the United States, and the following Petitioners:
Dalton Crutchfield
Darryl Merriweather
Patrick Jackson
Richard Hughes
Joseph Kemmerling
Azavius Justice
Demarcus Rogers
Keith Keglar
Owen Lewis Finch
Timothy Bohannon
Teddy Norris
Leo Bearden
Marcus Mann
Michael Cox
Jermel Franklin Williams
Wilson Jones
Kevous McKinney
Dereck Dawson
Larry Ammons
Michael Lemons
Michael Roberts
iii
TABLE OF CONTENTS
QUESTION PRESENTED FOR REVIEW…….............................................................................ii
LIST OF PARTIES.........................................................................................................................iii
TABLE OF CONTENTS................................................................................................................iv
TABLE OF AUTHORITIES…........................................................................................................v
PRAYER..........................................................................................................................................1
OPINIONS BELOW........................................................................................................................2
JURISDICTION..............................................................................................................................5
STATUTES, ORDINANCES AND REGULATIONS INVOLVED..............................................6
STATEMENT OF THE CASES......................................................................................................8
REASONS FOR GRANTING THE PETITION............................................................................11
CONCLUSION..............................................................................................................................27
iv
TABLE OF AUTHORITIES
Cases
Page
Bailey v. State,
231 A.2d 469 (Del. 1967)...............................................................................................................15
Bearden v. United States, No. 17-5927,
2019 U.S. App. LEXIS 33528
(6th Cir. Nov. 6, 2019)......................................................................................................................3
Bohannon v. United States, No. 17-5962,
2019 U.S. App. LEXIS 33019
(6th Cir. Nov. 4, 2019)......................................................................................................................3
Brumbach v. United States, No. 18-5703/18-5705,
2019 U.S. App. LEXIS 28017
(6th Cir. Sept. 16, 2019)..................................................................................................................10
Brumbach v. United States,
929 F.3d 791 (6th Cir. 2019)............................................................................................9-11, 22-23
Commonwealth v. Burke,
467 N.E.2d 846 (Mass. 1984).........................................................................................................13
Commonwealth v. Cotto,
752 N.E.2d 768 (Mass. App. 2001)................................................................................................13
Cox v. United States, No. 17-5953,
2019 U.S. App. LEXIS 33934
(6th Cir. Nov. 13, 2019)....................................................................................................................4
Cradler v. United States,
891 F.3d 659 (6th Cir. 2018)...........................................................................................................26
Dawson v. United States, Nos. 17-5930/17-5931,
2019 U.S. App. LEXIS 34627
(6th Cir. Nov. 20, 2019)....................................................................................................................4
Descamps v. United States,
570 U.S. 254 (2013)..................................................................................................................12, 21
Ferguson v. State,
530 S.W.2d 100 (Tenn. Crim. App. 1975)................................................................................17, 20
v
Finch v. United States, No. 17-5965
2019 U.S. App. LEXIS 28335
(6th Cir. Sept. 18, 2019)....................................................................................................................2
Foster v. State,
220 So.2d 406 (Fla. Dist. Ct. App. 1969)........................................................................................14
Gonzales v. Duenas-Alverez,
549 U.S. 183 (2007).......................................................................................................................20
Hall v. State,
584 S.W.2d 819 (Tenn. Crim. App. 1979)......................................................................................18
Hammons v. Norfolk S. Corp.,
156 F.3d 701 (6th Cir. 1998)...........................................................................................................24
Holder v. Tennessee Judicial Selection Comm’n,
937 S.W.2d 877 (Tenn. 1996)...................................................................................................17-18
Hughes v. United States, No. 17-5913,
2019 U.S. LEXIS App. 32585
(6th Cir. Oct. 30, 2019).....................................................................................................................3
Jackson v. United States, Nos. 17-6080/6081,
2019 U.S. App. LEXIS 27959
(6th Cir. Sept. 17, 2019)....................................................................................................................2
James v. United States,
550 U.S. 192 (2007).................................................................................................11-12, 21-22, 25
Johnson v. United States,
135 S. Ct. 2551 (2015)...........................................................................................................8, 24-25
Jones v. United States, Nos. 18-5844/18-5845,
2019 U.S. App. LEXIS 34085
(6th Cir. Nov. 14, 2019)....................................................................................................................4
Lemons v. United States, Nos.17-5945/17-5847,
2019 U.S. App. LEXIS 32244
(6th Cir. Oct. 25, 2019).....................................................................................................................3
Mann v. United States, Nos. 17-6486/17-6487,
2019 U.S. App. LEXIS 29062
(6th Cir. Sept. 25, 2019)....................................................................................................................2
vi
Mann v. United States, Nos. 17-6486/17-6487
773 F. App’x 308 (6th Cir. 2019)......................................................................................................2
Mattox v. State,
100 N.E. 1009 (Ind. 1913)..............................................................................................................14
McKinney v. United States, No. 5956,
2019 U.S. App. LEXIS 29208
(6th Cir. Sept. 26, 2019)....................................................................................................................3
Moncrieffe v. Holder,
569 U.S. 184 (2013).......................................................................................................................20
Morissette v. United States,
342 U.S. 246 (1952).......................................................................................................................14
Norris v. United States, Nos. 17-5983/17-5985,
2019 U.S. App. LEXIS 28491
(6th Cir. Sept. 19, 2019)....................................................................................................................2
People v Davis,
279 N.E.2d 179 (Ill. Ct. App. 1972)................................................................................................14
People v. Osegueda, 210 Cal. Rptr. 182
(Cal. App. Dep’t Super. Ct. 1984)..................................................................................................15
People v. Rhodus,
303 P.3d 109 (Colo. App. 2012).....................................................................................................14
People v. Tragani,
449 N.Y.S.2d 923 (N.Y. Sup. Ct. 1982)..........................................................................................14
People v. Walters,
249 Cal. App. 2d 547 (Cal. App. 2nd App. Dist. 1967)...................................................................15
Rex v. Hughes,
1 Leach 406 (1785).........................................................................................................................13
Russell v. State,
255 S.W.2d 881 (Tex. Crim. App. 1953)........................................................................................13
Salmi v. Sec’y of Health & Human Servs.,
774 F.2d 685 (6th Cir. 1985)...........................................................................................................10
Sears v. State,
713 P.2d 1218 (Alaska Ct. App. 1986)...........................................................................................14
vii
Staley v. Jones,
239 F.3d 769 (6th Cir. 2001)...........................................................................................................24
Stamps v. Commonwealth,
602 S.W.2d 172 (Ky. 1980)............................................................................................................14
State v. Crawford,
80 N.W. 193 (N.D. 1899)...............................................................................................................14
State v. Crow,
517 S.W.2d 753 (Tenn. 1974)...................................................................................................15-20
State v. Faria,
60 P.3d 333 (2002).........................................................................................................................14
State v. Hodges,
575 S.W.2d 769 (Mo. Ct. App. 1978).............................................................................................14
State v. House, No. W2012-01272-CCA-R3-CD,
2013 Tenn. Crim. App. LEXIS 567
(Tenn. Crim. App. June 21, 2013)..................................................................................................19
State v. Johnson, No. M2010-02664-CCA-R3-CD,
2012 Tenn. Crim. App. LEXIS 293
(Tenn. Crim. App. May 20, 2012)..................................................................................................19
State v. Langford,
994 S.W. 2d 126 (Tenn. 1999)...................................................................................................23-24
State v. Liberty,
280 A.2d 805 (Me. 1971)................................................................................................................14
State v. Moore, C.C.A. No. 1,
1990 Tenn. Crim. App. LEXIS 96
(Tenn. Crim. App. Feb. 7, 1990).....................................................................................................18
State v. O’Leary,
107 A.2d 13 (N.J. 1954)..................................................................................................................14
State v. Sneed,
247 S.E.2d 658 (N.C. App. 1978)...................................................................................................14
State v. Summers, C.C.A. No. 65,
1990 Tenn. Crim. App. LEXIS 681
(Tenn. Crim. App. Oct. 10, 1990)...................................................................................................18
viii
State v. Tixier,
551 P.2d 987 (N.M. Ct. App. 1976)................................................................................................15
State v. Williams,
873 P.2d 471 (Ore. App. 1994).......................................................................................................14
Stokeling v. United States,
139 S. Ct. 544 (2019)......................................................................................................................11
Taylor v. United States,
495 U.S. 575 (1990)............................................................................................................11, 14, 22
United States v. Ammons, Nos. 17-5920/17-5922,
2019 U.S. App. LEXIS 32243
(6th Cir. Oct. 25, 2019).....................................................................................................................3
United States v. Brown,
516 F. App’x 461 (6th Cir. 2013)..............................................................................................22, 24
United States v. Burris,
912 F.3d 386 (6th Cir. 2019)...........................................................................................................20
United States v. Castleman,
572 U. S. 157 (2014).......................................................................................................................11
United States v. Crutchfield, Nos. 17-6358/17-6360,
2019 U.S. App. LEXIS 27782
(6th Cir. Sept. 13, 2019)................................................................................................................2, 5
United States v. Crutchfield, Nos. 17-6358/17-6360,
2019 U.S. App. LEXIS 25527
(6th Cir. April 26, 2019)...............................................................................................................2, 5
United States v. Ferguson,
868 F.3d 514 (6th Cir. 2017).....................................................................................................10, 24
United States v. Justice, No. 17-6465,
2019 U.S. App. LEXIS 32752
(6th Cir. Oct. 31, 2019).....................................................................................................................3
United States v. Justice, No. 17-6465,
2019 U.S. App. LEXIS 24497
(6th Cir. Aug. 15, 2019)....................................................................................................................3
ix
United States v. Keglar, Nos. 17-6021/17-6113,
2019 U.S. App. LEXIS 32751
(6th Cir. Oct. 31, 2019).....................................................................................................................3
United States v. Keglar, Nos. 17-6021/17-6113,
2019 U.S. App. LEXIS 24498
(6th Cir. Aug. 15, 2019)....................................................................................................................3
United States v. Kemmerling, Nos. 17-6515/17-6516,
2019 U.S. App. LEXIS 27960
(6th Cir. Sept. 17, 2019)....................................................................................................................2
United States v. Lara,
590 F. App’x 574 (6th Cir. 2014)....................................................................................................20
United States v. McGrattan,
504 F.3d 608 (6th Cir. 2007)...........................................................................................................20
United States v. Merriweather, No. 18-5567,
2019 U.S. App. LEXIS 32520
(6th Cir. Oct. 29, 2019).....................................................................................................................3
United States v. Nance,
481 F.3d 882 (6th Cir. 2007)......................................................................................8-10, 22-24, 26
United States v. Priddy,
808 F.3d 676 (6th Cir. 2015).....................................................................................................10, 24
United States v. Roberts, No. 17-6412,
2019 U.S. App. LEXIS 32240
(6th Cir. Oct. 25, 2019).....................................................................................................................3
United States v. Roberts, No. 17-6412,
2019 U.S. App. LEXIS 25500
(6th Cir. Aug. 23, 2019)....................................................................................................................3
United States v. Rogers, Nos. 17-5914/17-5917/17-6489,
2019 U.S. App. LEXIS 27956
(6th Cir. Sept. 17, 2019)....................................................................................................................2
United States v. Sawyers,
409 F.3d 732 (6th Cir. 2005).....................................................................................................23, 25
United States v. Stitt,
139 S. Ct. 399 (2018)..................................................................................................9-11, 18, 22-23
x
United States v. Stitt,
860 F.3d 854 (6th Cir. 2017)..............................................................................................8-9, 22-23
United States v. Stitt,
646 F. App’x 454 (6th Cir. 2016)......................................................................................................8
United States v. Stitt,
637 F. App’x 927 (6th Cir. 2016)......................................................................................................8
United States v. Voisine,
136 S. Ct. 2272 (2016)....................................................................................................................11
Walker v. State,
63 Ala. 49 (1879)......................................................................................................................13-14
Webster v. Fall,
266 U.S. 507 (1925).......................................................................................................................25
Will v. Mich. Dep’t of State Police,
491 U.S. 58 (1989).........................................................................................................................24
Williams v. United States, Nos. 17-5921/17-5923,
2019 U.S. App. LEXIS 29209
(6th Cir. Sept. 26, 2019)....................................................................................................................2
Statutory Authority
18 U. S. C. §921(a)(33)(A).............................................................................................................11
18 U.S.C. § 922(g)(1).......................................................................................................................8
18 U. S. C. §922(g)(9)....................................................................................................................11
18 U.S.C. § 924(e)............................................................................................................................8
18 U.S.C. § 924(e)(2)(B)..................................................................................................................6
28 U.S.C. § 1254(1)..........................................................................................................................5
28 U.S.C. § 2255...........................................................................................................................8-9
Supreme Court Rule 12.4.................................................................................................................3
Ariz. Rev. Stat. Ann. § 13-1501(3).................................................................................................15
11 Del. Code § 829(c).....................................................................................................................15
xi
Nev. Rev. Stat. § 193.0145 (1985)..................................................................................................14
Tenn. Code Ann. § 401.........................................................................................................7, 10, 18
Tenn. Code Ann. § 39-14-402(a)..............................................................................6-7, 9-10, 18-19
Tenn. Code Ann. § 39-14-402(b)........................................................................6-7, 9-10, 18-19, 23
Tenn. Code Ann. § 403...............................................................................................................7, 18
Tex. Penal Code Ann. § 30.02(b)....................................................................................................15
Utah Code Ann. § 76-6-201(4).......................................................................................................15
Wash. Rev. Code § 9A.52.010(2) (1985)........................................................................................14
Other Authority
Iowa J.I. Crim. § 1300.12...............................................................................................................14
1 Matthew Hale,
The History of the Pleas of the Crown (1736).................................................................................13
18 Moore’s Federal Practice –
Civil § 134.03[3]............................................................................................................................25
Okla. Uniform Jury Instructions –
Crim. § 5-18...................................................................................................................................14
Tenn. Pattern Instr. Crim.
§ 14.01 (2019)................................................................................................................................17
Tenn. Pattern Instr. Crim.
§ 11.02(1)(b) (1988).......................................................................................................................17
Wayne R. LaFave, Substantive Criminal Law
§ 21.1(b) (2 ed. 2003)................................................................................................................14-15
xii
IN THE
SUPREME COURT OF THE UNITED STATES
________________
JOINT PETITION FOR WRIT OF CERTIORARI
________________
Petitioner, Dalton Crutchfield,2 respectfully prays that a writ of certiorari issue to review
the judgment below.
2
Petitioners Patrick Jackson, Joseph Kemmerling, DeMarcus Rogers, Owen Lewis Finch,
Teddy Norris, Marcus Mann, Jermel Franklin Williams, Kevous McKinney, Larry Ammons,
Michael Lemons, Michael Roberts, Darryl Merriweather, Richard Hughes, Azavius Justice, Keith
Keglar, Timothy Bohannon, Leo Bearden, Michael Cox, Wilson Jones, and Dereck Dawson join
this Petition pursuant to Supreme Court Rule 12.4.
1
OPINIONS BELOW
Pursuant to this Court’s Rule 12.4, Petitioners are filing a single petition seeking review of
their Sixth Circuit judgments that involve the same issue. The Sixth Circuit opinions are available
as follows, submitted collectively as Appendix A, filed electronically herewith, in the order of
issuance. Additionally, in Appendix B, the corresponding district court orders are submitted for
all Petitioners who initiated their cases under 28 U.S.C. § 2255.
1.
United States v. Crutchfield, Nos. 17-6358/17-6360, 2019 U.S. App. LEXIS 25527
(6th Cir. April 26, 2019), rehr’g en banc denied, United States v. Crutchfield, Nos. 17-6358/176360, 2019 U.S. App. LEXIS 27782 (6th Cir. Sept. 13, 2019);
2.
Jackson v. United States, Nos. 17-6080/6081, 2019 U.S. App. LEXIS 27959 (6th
Cir. Sept. 17, 2019);
3.
United States v. Kemmerling, Nos. 17-6515/17-6516, 2019 U.S. App. LEXIS
27960 (6th Cir. Sept. 17, 2019);
4.
United States v. Rogers, Nos. 17-5914/17-5917/17-6489, 2019 U.S. App. LEXIS
27956 (6th Cir. Sept. 17, 2019);
5.
Finch v. United States, No. 17-5965, 2019 U.S. App. LEXIS 28335 (6th Cir. Sept.
18, 2019);
6.
Norris v. United States, Nos. 17-5983/17-5985, 2019 U.S. App. LEXIS 28491 (6th
Cir. Sept. 19, 2019);
7.
Mann v. United States, Nos. 17-6486/17-6487, 773 F. App’x 308 (6th Cir. 2019),
rehr’g en banc denied, Mann v. United States, Nos. 17-6486/17-6487, 2019 U.S. App. LEXIS
29062 (6th Cir. Sept. 25, 2019);
2
8.
Williams v. United States, Nos. 17-5921/17-5923, 2019 U.S. App. LEXIS 29209
(6th Cir. Sept. 26, 2019);
9.
McKinney v. United States, No. 5956, 2019 U.S. App. LEXIS 29208 (6th Cir. Sept.
26, 2019);
10.
United States v. Ammons, Nos. 17-5920/17-5922, 2019 U.S. App. LEXIS 32243
(6th Cir. Oct. 25, 2019);
11.
Lemons v. United States, Nos.17-5945/17-5847, 2019 U.S. App. LEXIS 32244 (6th
Cir. Oct. 25, 2019);
12.
United States v. Roberts, No. 17-6412, 2019 U.S. App. LEXIS 25500 (6th Cir. Aug.
23, 2019), rehr’g en banc denied, 2019 U.S. App. LEXIS 32240 (6th Cir. Oct. 25, 2019);
13.
United States v. Merriweather, No. 18-5567, 2019 U.S. App. LEXIS 32520 (6th
Cir. Oct. 29, 2019);
14.
Hughes v. United States, No. 17-5913, 2019 U.S. App. LEXIS 32585 (6th Cir. Oct.
30, 2019);
15.
United States v. Justice, No. 17-6465, 2019 U.S. App. LEXIS 24497 (6th Cir. Aug.
15, 2019), rehr’g en banc denied, United States v. Justice, No. 17-6465, 2019 U.S. App. LEXIS
32752 (6th Cir. Oct. 31, 2019);
16.
United States v. Keglar, Nos. 17-6021/17-6113, 2019 U.S. App. LEXIS 24498 (6th
Cir. Aug. 15, 2019), rehr’g en banc denied, United States v. Keglar, Nos. 17-6021/17-6113, 2019
U.S. App. LEXIS 32751 (6th Cir. Oct. 31, 2019);
17.
Bohannon v. United States, No. 17-5962, 2019 U.S. App. LEXIS 33019 (6th Cir.
Nov. 4, 2019);
3
18.
Bearden v. United States, No. 17-5927, 2019 U.S. App. LEXIS 33528 (6th Cir.
Nov. 6, 2019);
19.
Cox v. United States, No. 17-5953, 2019 U.S. App. LEXIS 33934 (6th Cir. Nov.
13, 2019);
20.
Jones v. United States, Nos. 18-5844/18-5845, 2019 U.S. App. LEXIS 34085 (6th
Cir. Nov. 14, 2019);
21.
Dawson v. United States, Nos. 17-5930/17-5931, 2019 U.S. App. LEXIS 34627
(6th Cir. Nov. 20, 2019).
4
JURISDICTION
On April 26, 2019, a three-judge panel of the Sixth Circuit Court of Appeals entered its
opinion in United States v. Crutchfield, Nos. 17-6358/17-6360, 2019 U.S. App. LEXIS 25527 (6th
Cir. April 26, 2019). A petition for en banc rehearing was filed and it was denied on September
13, 2019. See United States v. Crutchfield, Nos. 17-6358/17-6360, 2019 U.S. App. LEXIS 27782
(6th Cir. Sept. 13, 2019). All of the joined Petitioners’ opinions were entered by varying panels
of the Sixth Circuit Court of Appeals subsequent to September 13, 2019.
jurisdiction over all of these cases pursuant to 28 U.S.C. § 1254(1).
5
This Court has
STATUTES, ORDINANCES AND REGULATIONS INVOLVED
1.
The Armed Career Criminal Act
[T]the term “violent felony” means any crime punishable by imprisonment for a
term exceeding one year, or any act of juvenile delinquency involving the use or
carrying of a firearm, knife, or destructive device that would be punishable by
imprisonment for such term if committed by an adult, that—
(i) has as an element the use, attempted use, or threatened use of physical force
against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to another
....
18 U.S.C. § 924(e)(2)(B).
2.
Tennessee’s burglary statute
(a)
A person commits burglary who, without the effective consent of the
property owner:
(1)
Enters a building other than a habitation (or any portion thereof) not open
to the public, with intent to commit a felony, theft or assault;
(2)
Remains concealed, with the intent to commit a felony, theft or assault, in a
building;
(3)
Enters a building and commits or attempts to commit a felony, theft or
assault; or
(4)
Enters any freight or passenger car, automobile, truck, trailer, boat, airplane
or other motor vehicle with intent to commit a felony, theft or assault or
commits or attempts to commit a felony, theft or assault.
(b)
As used in this section, “enter” means:
(1)
Intrusion of any part of the body; or
(2)
Intrusion of any object in physical contact with the body or any object
controlled by remote control, electronic or otherwise.
Tenn. Code Ann. § 39-14-402(a), (b).
6
3.
Tennessee’s aggravated burglary statute
Aggravated burglary is burglary of a habitation as defined in §§ 39-14-401 and 39-14-402.
Tenn. Code Ann. § 403.
7
STATEMENT OF THE CASES
In all of the cases presented to the Court, the Petitioners were originally convicted of being
felons in possession of firearms, in violation of 18 U.S.C. § 922(g)(1). They were all sentenced
under the enhanced punishment provisions of the Armed Career Criminal Act, 18 U.S.C. § 924(e)
(“ACCA”), mandating at least a sentence of 180 months imprisonment. Subsequent to this Court’s
ground breaking decision in Johnson v. United States, 135 S. Ct. 2551 (2015), which invalidated
the “residual clause” definition of “violent felony.” All but one filed motions to vacate, set aside
or correct their sentences pursuant to 28 U.S.C. § 2255. In Mr. Justice’s case, the government took
a direct appeal. All of the Petitioners had convictions for Tennessee aggravated burglary, which
they argued should not count as a violent felony for ACCA purposes. This was because during
this time, the Sixth Circuit determined to revisit en banc the question of whether Tennessee
aggravated burglary constituted a “violent felony” for ACCA purposes. See United States v. Stitt,
637 F. App’x 927 (6th Cir.), rehr’g en banc granted, United States v. Stitt, 646 F. App’x 454 (6th
Cir. 2016). The en banc court held that Tennessee aggravated burglary could not constitute a
“violent felony” for ACCA purposes due to the overbreadth of the definition of “habitation,” which
included vehicles adapted for overnight accommodation. See United States v. Stitt, 860 F.3d 854
(6th Cir. 2017) (en banc) (“Stitt I”). When the court in Stitt I concluded that Tennessee’s
aggravated burglary statute swept more broadly than generic burglary, it also noted that the
decision conflicted with its prior decision in United States v. Nance, 481 F.3d 882 (6th Cir. 2007)
(holding that Tennessee aggravated burglary is generic), so the court overruled Nance. See Stitt I,
860 F.3d at 806-61.
After the Sixth Circuit’s en banc decision in Stitt I, the government conceded that the
Petitioners’ convictions for Tennessee aggravated burglary did not count as violent felonies. The
8
government, however, preserved its argument that Stitt I was wrongly decided and might be
overturned by this Court. All of the Petitioners’ sentences were remanded, and the Petitioners
either received lower sentences, or their cases were held in abeyance pending the outcome of the
petition for certiorari filed by the government challenging Stitt I. Many of the Petitioners have
been out of prison since that time, working toward successfully completing their terms of
supervised release.
In late 2018, this Court held that burglary of a structure or vehicle that had been adapted
for overnight use qualified as the enumerated violent felony of burglary for ACCA purposes.
United States v. Stitt, 139 S. Ct. 399, 403-04 (2018) (“Stitt II”). In light of the Stitt II decision,
the government argued that all of the § 2255 motions that had been granted under Stitt I should be
reversed, and the cases remanded to the district courts to reinstate the original sentences.
In
response, all of the Petitioners presented an alternative argument that Tennessee aggravated
burglary still did not qualify as a violent felony for ACCA purposes because Tennessee’s
interpretation of the “entry” element was overly broad when compared to generic burglary. For
some Petitioners, who also had prior Tennessee burglary convictions, this argument applied
equally well.
This issue was raised by § 2255 Petitioners across the State of Tennessee and throughout
the Sixth Circuit. The first panel to rule upon the issue was the panel in Brumbach v. United States,
929 F.3d 791 (6th Cir. 2019). The Brumbach panel held that by overruling Stitt I, this Court
reversed the rationale by which the Sixth Circuit had overruled Nance. Brumbach, 929 F.3d at
794. The Brumbach panel reasoned that it would therefore necessarily follow that Nance’s holding
was once again the law of the circuit. Id.
9
The Brumbach panel went on to also note that Tennessee’s aggravated burglary statute
directly references Tennessee’s simple burglary statute. Id. (citing Tenn. Code Ann. § 39-14-402
(“Aggravated burglary is a burglary of a habitation as defined in §§ 39-14-401 and 39-14-402.”).
The panel observed that after Stitt II, courts in the Sixth Circuit had cited United States v. Ferguson,
868 F.3d 514, 515 (6th Cir. 2017) (relying on United States v. Priddy, 808 F.3d 676, 684 (6th Cir.
2015)), which held, broadly, that “convictions under subsections (a)(1), (a)(2), or (a)(3) of the
Tennessee burglary statute [Tenn. Code Ann. § 39-14-402] fit within the generic definition of
burglary and are therefore violent felonies for purposes of the ACCA.”) Id. The panel found that
Ferguson was binding precedent, and any concerns about the relationship between Ferguson,
Priddy and Nance had been resolved by Stitt II. Id. at 795.
With regard to the argument about the meaning of “entry,” the Brumbach panel found that
it was bound by Nance because the Sixth Circuit holds that one panel cannot overrule the published
decision of another panel. Id. The prior decision remains controlling authority unless an
inconsistent decision of the United States Supreme Court requires modification of the decision or
the Circuit Court sitting en banc overrules the prior decision. Id. (citing Salmi v. Sec’y of Health
& Human Servs., 774 F.2d 685, 689 (6th Cir. 1985)).
Thus, in every case in this Petition, the respective panels found that they were bound by
the holding in Brumbach. The Sixth Circuit has denied en banc review of the issue in Brumbach,
and in several of the Petitioners’ cases herein. See Brumbach v. United States, No. 18-5703/185705, 2019 U.S. App. LEXIS 28017 (6th Cir. Sept. 16, 2019). Hence, for this issue to be
considered at all, this Court’s help is required.
10
REASONS FOR GRANTING THE PETITION
Over a decade ago, this Court declared that attempted burglary is a not a “violent felony”
under the ACCA’s enumerated clause because it does not meet the generic definition of burglary
set forth by the Court in Taylor v. United States, 495 U.S. 575, 598 (1990): “an unlawful or
unprivileged entry into, or remaining in, a building or other structure, with intent to commit a
crime.” James v. United States, 550 U.S. 192, 198 (2007). Tennessee’s reading of the word
“entry” in its burglary statutes permits convictions based merely upon attempted burglary. For
federal courts to allow use of such convictions to establish a requisite violent felony for ACCA
purposes is in direct conflict with James.
Moreover, this Court has recently reiterated that, “[W]e made clear in Taylor that Congress
intended the definition of burglary to reflect the generic sense in which the term was used in the
criminal codes of most States at the time the Act was passed.” See Stitt II, 139 S. Ct at 406 (internal
quotations and citation omitted). The Brumbach panel’s decision, the decision that controls
Petitioners’ fate herein, conflicts with the decisions from this Court that have repeatedly held that
proper application of the categorical approach entails evaluating how, in 1986, the year the ACCA
was amended to its current form, a majority of the States defined “entry” in their burglary statutes.
See, e.g., Stokeling v. United States, 139 S. Ct. 544, 552 (2019) (“In 1986, a significant majority
of the States defined nonaggravated robbery as requiring force that overcomes a victim’s
resistance.”); United States v. Castleman, 572 U. S. 157, 167 (2014) (reading “physical force” to
include common-law force, in part because a different reading would render 18 U. S. C. §922(g)(9)
“ineffectual in at least 10 States”); United States v. Voisine, 136 S. Ct. 2272, 2280-81 (2016)
(declining to interpret §921(a)(33)(A) in a way that would “risk rendering §922(g)(9) broadly
inoperative” in 34 States and the District of Columbia). Because the Sixth Circuit is deciding this
11
important federal question in a way that conflicts with relevant decisions from this Court,
Petitioners desperately need this Court’s intervention. The Petitioners present the following for
this Court’s consideration in support of their urgent request.
A.
Generic burglary requires an entry by the person or by an instrument being
used to commit the intended felony.
The issue is whether a prior conviction for a Tennessee aggravated burglary offense (and
in some of Petitioners’ cases, a simple burglary offense) qualifies as an ACCA predicate under the
“categorical approach,” which requires the Court to compare the statutory elements of the
Tennessee offense with the elements of “generic” burglary. Descamps v. United States, 570 U.S.
254, 257 (2013). “The prior conviction qualifies as an ACCA predicate only if the statute’s
elements are the same as, or narrower than, those of the generic offense.” Id.
Tennessee’s
burglary offenses do not qualify as ACCA predicates because the “entry” element is broader than
those of the generic offense.
That mismatch is due to Tennessee’s unusual definition of “entry.” Because generic
burglary requires an entry, a mere attempted burglary – e.g., when someone merely tries
unsuccessfully to make entry – does not qualify as generic burglary. James, 550 U.S. at 198. Even
though the traditional and modern majority rule on “entry” requires the making of an actual entry
by a person or instrument to commit the intended crime therein, Tennessee’s unusual rule does
not. Tennessee treats some attempted burglaries as if they were completed burglaries, and for that
reason the Tennessee burglary offense does not qualify as a generic burglary or, hence, as an
ACCA predicate.
With respect to the crime of burglary, what counts as making “entry”? Common law and a
majority of jurisdictions make it clear that an entry is made when, for example, any part of the
12
person, such as a hand, crosses the threshold of the structure as that person is trying to commit the
felony. Commonwealth v. Cotto, 752 N.E.2d 768, 771 (Mass. App. 2001).
How does the law address a situation where only an instrument – such as a coat hanger or
a screwdriver – crosses the threshold of the structure? For purposes of defining an “entry,” the
law on burglary has long made a distinction based on the defendant’s purpose in using the
threshold-crossing instrument. As discussed below, if that instrument is used in an effort to
commit the intended felony inside the structure (e.g. a coat hanger used to snag an item), then an
“entry” is made when the instrument crosses the threshold and thus a burglary is committed,
assuming the other elements are established. However, if that instrument is used only in an effort
to make entry (e.g., a screwdriver used to pry at the door), then no “entry” is made even when the
instrument crosses the threshold, and a mere attempted burglary is committed. In short, the
controlling distinction is between an instrument used in an effort to commit the intended felony
(“instrument-for-crime rule”), versus an instrument used only in an attempt to make entry (the
“any-instrument rule”).
This distinction started with the common law. The common law adopted the instrumentfor-crime rule.
Cotto, 752 N.E.2d. at 771 (summarizing common law sources); see
Commonwealth v. Burke, 467 N.E.2d 846, 849 (Mass. 1984) (quoting Rex v. Hughes, 1 Leach
406, 407 (1785)); Russell v. State, 255 S.W.2d 881, 884 (Tex. Crim. App. 1953) (adhering to
common-law rule as stated in Hughes); Walker v. State, 63 Ala. 49, 51 (1879) (citing 1 Matthew
Hale, The History of the Pleas of the Crown, 555 (1736)).
As of 1986, when Congress enacted the ACCA, the vast majority of states defined burglary
in their respective codes as requiring an entry, without any statutory definition of “entry.” Because
a court should presume that an undefined statutory term comports with the common law,
13
Morissette v. United States, 342 U.S. 246, 263 (1952), it would naturally follow that the vast
majority of states were following the instrument-for-crime rule as of 1986. Indeed, almost every
single court that had interpreted “entry” by 1986 had endorsed the common law’s instrument-forcrime rule, typically citing either the common law or one of the many treatises stating that the
blackletter rule is the instrument-for-crime rule. See, e.g., State v. Hodges, 575 S.W.2d 769, 772
(Mo. Ct. App. 1978); People v Davis, 279 N.E.2d 179, 180 (Ill. Ct. App. 1972); State v. Liberty,
280 A.2d 805, 808 (Me. 1971); State v. O’Leary, 107 A.2d 13, 15-16 (N.J. 1954); Foster v. State,
220 So.2d 406, 407 (Fla. Dist. Ct. App. 1969); Mattox v. State, 100 N.E. 1009 (Ind. 1913); State
v. Crawford, 80 N.W. 193, 194 (N.D. 1899); Walker, 63 Ala. at 51; People v. Tragani, 449
N.Y.S.2d 923, 925-28 (N.Y. Sup. Ct. 1982) (“it must be assumed that the drafters . . . really
envisioned . . . an adoption by the courts of common-law, common-usage, and common-sense
definitions of both bodily and instrumental entry”); see also Nev. Rev. Stat. § 193.0145 (1985);
Wash. Rev. Code § 9A.52.010(2) (1985).3
Accordingly, the leading modern treatise on the subject – Wayne R. LaFave, Substantive
Criminal Law – reports that the instrument-for-crime rule is the blackletter rule on burglary
“entry.” Id. § 21.1(b) (2 ed. 2003); see also Taylor, 495 U.S. at 580, 593, 598 & nn.3-4 (placing
significant reliance on LaFave’s treatise to define generic burglary).4
3
Prior to 1986, three additional states also indicated they would follow the instrument-forcrime rule: State v. Sneed, 247 S.E.2d 658, 659 (N.C. App. 1978); Stamps v. Commonwealth, 602
S.W.2d 172, 173 (Ky. 1980); Sears v. State, 713 P.2d 1218 (Alaska Ct. App. 1986). After 1986,
three additional states clearly followed that rule, giving no reason to think that they were adopting
a rule that was new: State v. Williams, 873 P.2d 471, 473-74 (Ore. App. 1994); Iowa J.I. Crim.
§ 1300.12; and OUJI-CR § 5-18 (Oklahoma). And, after 1986, two additional states indicated they
would follow that rule, with no hint they were adopting a rule that was new: State v. Faria, 60 P.3d
333, 339 (2002) and People v. Rhodus, 303 P.3d 109, 113 (Colo. App. 2012).
4
Professor LaFave explains: “If the actor . . . used some instrument which protruded into
the structure, no entry occurred unless he was simultaneously using the instrument to achieve his
14
As of 1986, states deviating from that rule were few. By statute, four states had defined
“entry” to include entry by any instrument, thereby adopting, against the grain, the any-instrument
rule. See 11 Del. Code § 829(c)5; Ariz. Rev. Stat. Ann. § 13-1501(3); Tex. Penal Code Ann.
§ 30.02(b); Utah Code Ann. § 76-6-201(4). Plus, just two courts had authoritatively interpreted
“entry” – when it was undefined by statute – to mean any instrument, rather than an instrument in
use for the intended felony. One was an intermediate court of appeals in New Mexico that, after
acknowledging the common-law and majority rule, simply announced that in its “opinion” an anyinstrument rule was better. State v. Tixier, 551 P.2d 987, 989 (N.M. Ct. App. 1976). The other
was the Tennessee Supreme Court, which issued binding language endorsing the any-instrument
rule without explaining why it was doing so.6 State v. Crow, 517 S.W.2d 753, 755 (Tenn. 1974).
So, as of 1986, just six jurisdictions had deviated from the long-standing and traditional
instrument-for-crime rule.
In sum, as of 1986, the common law, the clear majority of jurisdictions, and the LaFave
treatise and others all took the very same approach to burglary’s entry requirement: they all
followed the instrument-for-crime rule. Accordingly, a “generic” burglary requires an entry by
the person or by an instrument in use to commit the felony.
felonious purpose. Thus there was no entry where an instrument was used to pry open the building,
even though it protruded into the structure; but if the actor was also using the instrument to reach
some property therein, then it constituted an entry.” Id. § 21.1(b).
5
In Bailey v. State, 231 A.2d 469 (Del. 1967), the Delaware Supreme Court interpreted a
materially-equivalent precursor to 11 Del. Code § 829(c). Id. at 469. The court acknowledged that
the common law followed the instrument-for-crime rule. Id. at 470. Nevertheless, in light of the
statute’s broader language, it adopted the any-instrument rule.
6
An intermediate California court had so interpreted “entry” but did so by misreading the
holding of a previous California precedent. Compare People v. Osegueda, 210 Cal. Rptr. 182,
185-86 (Cal. App. Dep’t Super. Ct. 1984), with People v. Walters, 249 Cal. App. 2d 547, 551 (Cal.
App. 2nd App. Dist. 1967).
15
B.
Tennessee adopted the broader, any-instrument rule.
Under Tennessee precedent, it was not necessary that the defendant actually “enter” a
structure at all; crossing the threshold with an instrument in an effort to make entry would suffice.
The best proof of this fact is the Tennessee Supreme Court’s decision in State v. Crow, 517 S.W.2d
753 (Tenn. 1974). In Crow, the proof at trial showed that a police officer had found a building’s
door had been damaged. Id. at 754. The door’s glass window had been broken and there were
“pry marks” around the lock. Id. The officer then found Crow hiding in nearby bushes with a tire
tool, screwdriver, and knife. Id. On further inspection, it was ascertained that two layers of burlap,
which the owner had attached to the inside of the door frame, had been cut about ten inches in the
area of the lock. Id.
Based on this proof, Crow was convicted at trial of burglary. Crow, 517 S.W.2d at 75455. The intermediate appellate court reversed finding proof of an “entry” lacking. Id. at 753. The
Tennessee Supreme Court acknowledged both the majority and minority rules. Id. at 754 (citing
Wharton’s for majority rule and, for the minority rule, stating that some cases hold “entry of the
hand or an instrument to be sufficient to supply the element of entry”). Ultimately, the Crow court
held that the proof sufficed to show an entry because the jury could find as follows:
that the defendant broke the glass and split the burlap with the knife, tire tool or
screw driver, and thus entered the business house with an instrument, and/or that
he reached his gloved hand through the burlap in an effort to find a flip lock that
would admit him to the premises; that being unable to open the door, without a key,
he had retreated to the bush[.]
Id. at 755 (emphasis added). Although the jury instruction issued by the trial court in Crow stated
as much, the Tennessee Supreme Court also observed that cases existed “holding entry of the hand
or an instrument to be sufficient to supply the element of entry,” and, ultimately, it held that it
sufficed that Crow may have simply broken the window and cut the burlap inside the door frame
16
using a tool in an attempt to make entry.7 Id. at 754-55. Thus, according to the Tennessee Supreme
Court, it could suffice that the defendant stuck an instrument through a door frame trying, but
failing, to make entry. Id. In other words, an attempted, but failed burglary, involved enough of
an “entry” to make it a full-fledged “burglary” under Tennessee law.
In Crow’s wake followed Ferguson v. State, 530 S.W.2d 100 (Tenn. Crim. App. 1975),
where the defendant was convicted on facts sufficient to show only a violation of the minority rule
on “entry.” In Ferguson, the state’s evidence showed that the defendant and another man “knocked
a padlock off the front door to the [restaurant] and went back beneath the bridge and returned with
some large object which they used to break the glass on an inner door.” Id. at 101. At that moment,
the men noticed the police coming, and they ran, eluding immediate arrest. Id. These facts
sustained a conviction at a jury trial of third-degree burglary, which, like all Tennessee burglary,
required an “entry.” Id. at 102. Citing Crow, the Tennessee Court of Criminal Appeals sustained
the conviction. Id.
Indeed, Crow’s guidance is reflected in a later published decisions of the state’s courts
because its considered dicta commands deference from lower courts. Holder v. Tennessee Judicial
Selection Comm’n, 937 S.W.2d 877, 882 (Tenn. 1996) (“inferior courts are not free to disregard,
on the basis that the statement is obiter dictum, the pronouncement of a superior court when it
7
The Tennessee Pattern Jury Instructions prior to 1989 reflect that juries were routinely
instructed on the entry-only view: “The entering requires only the slightest penetration of the space
within the dwelling place by a person with his hand or any instrument held in his hand.” T.P.I.
Crim. § 11.02(1)(b) (1988). The instructions continue to be ambiguous with regard to the scope
of “entry,” providing: “‘Enter’ means an intrusion of any part of the body; or an intrusion of any
object in physical contact with the body or any object controlled by remote control, electronic or
otherwise.” T.P.I. Crim. 14.01 (2019). Hence, there was and remains a realistic probability that
the State could obtain a conviction for all types of burglary where there was only a mere attempted
burglary.
17
speaks directly on the matter before it”). Not surprisingly, after Crow, Tennessee appellate courts
have often summarized Crow’s guidance by stating that simply crossing the threshold with an
instrument constitutes an “entry” (i.e, the minority rule). See, e.g., State v. Moore, C.C.A. No. 1,
1990 Tenn. Crim. App. LEXIS 96, at *4 (Tenn. Crim. App. Feb. 7, 1990) (“The ‘entry’ element
[of pre-1989 third-degree burglary] can be accomplished by the penetration of the space within the
premises by the hand or an instrument held in the hand.”); State v. Summers, C.C.A. No. 65, 1990
Tenn. Crim. App. LEXIS 681, at *3-4 (Tenn. Crim. App. Oct. 10, 1990) (“The ‘entry’ element of
[pre-1989 second-degree] burglary can be accomplished by penetration of the space within the
premises by the hand or an instrument held by the hand.”); Hall v. State, 584 S.W.2d 819, 821
(Tenn. Crim. App. 1979) (“The ‘entry’ element of burglary can be accomplished without the
accompaniment of any force, such as penetration of the space within the premises by the hand or
an instrument held in the hand.”).
In 1989, the Tennessee enacted a new burglary statute that, although bringing many
changes to classifications and nomenclature (replacing, e.g., “second-degree” with “aggravated”),
served to solidify the endorsement of the minority entry-only rule. The aggravated burglary statute
provides that “[a]ggravated burglary is burglary of a habitation as defined in §§ 39-14-401 and 3914-402.” See Tenn. Code Ann. § 39-14-403(a). Subsection 401 contains the definition of
“habitation” addressed in Stitt II. Section 402 is the entire Tennessee burglary statute. Section
402(a) defines “burglary” as follows:
A person commits burglary who, without the effective consent of the
property owner:
(1)
Enters a building other than a habitation (or any portion thereof) not
open to the public, with intent to commit a felony, theft or assault;
(2)
Remains concealed, with the intent to commit a felony, theft or
assault, in a building;
18
(3)
Enters a building and commits or attempts to commit a felony, theft
or assault; or
(4)
Enters any freight or passenger car, automobile, truck, trailer, boat,
airplane or other motor vehicle with intent to commit a felony, theft or assault or
commits or attempts to commit a felony, theft or assault.
Tenn. Code Ann. § 39-14-402(a)(1)-(4).
The legislature defined “entry” in terms indistinguishable from those of the codes in
Delaware, Arizona, Texas and Utah, cited above: “‘enter’ means: (1) Intrusion of any part of the
body; or (2) Intrusion of any object in physical contact with the body or any object controlled by
remote control, electronic or otherwise.” Tenn. Code Ann. § 39-14-402(b). Accordingly, by using
the “any” instrument language, the Tennessee code makes it clear that, when adopting its new
criminal code, Tennessee kept the any-instrument rule.
C.
Tennessee’s appellate courts have accepted the minority rule and treat mere
attempts as burglary.
Case law confirms that Tennessee courts understand this definition of entry to be as
expansive as the Tennessee Supreme Court’s explanation of the concept in Crow. In a more recent
aggravated-burglary case, the Tennessee Court of Criminal Appeals cited Crow as support for its
point that “entry of a hand or an instrument is sufficient” to constitute an “entry.” State v. Johnson,
No. M2010-02664-CCA-R3-CD, 2012 Tenn. Crim. App. LEXIS 293, at *11-12 (Tenn. Crim. App.
May 20, 2012); see also State v. House, No. W2012-01272-CCA-R3-CD, 2013 Tenn. Crim. App.
LEXIS 567, at *14 (Tenn. Crim. App. June 21, 2013) (ordinary burglary; parenthetically stating
that “entry of a hand or an instrument is sufficient”). With respect to the “entry” requirement, the
law in Tennessee has been the same ever since Crow issued in 1974: a conviction can be sustained
based on the minority rule.
19
The cases thus make clear that, when Petitioners were convicted of their aggravated
burglary (and in some instances simple burglary) crimes, they could have been convicted on the
theory that they made “entry” by merely sticking an instrument into a door-frame in an effort to
open the door. See United States v. Burris, 912 F.3d 386, 406 (6th Cir. 2019) (en banc)
(“sentencing courts must ‘presume that the conviction rested upon nothing more than the least of
the acts criminalized’” (quoting Moncrieffe v. Holder, 569 U.S. 184, 190-91 (2013)).
On this point, all that Petitioners must show is that there is a “realistic probability” that
someone could be convicted of burglary in Tennessee when they merely crossed the threshold with
an instrument used only in the effort to make entry. See Gonzales v. Duenas-Alverez, 549 U.S.
183, 193 (2007). That can be established by showing, for example: (1) a previous case where
someone in Tennessee was convicted of burglary on such evidence, see id.; United States v.
McGrattan, 504 F.3d 608, 615 (6th Cir. 2007) (relying on nonprecedential case law to infer certain
conduct would support a certain type of conviction under Ohio law); or, (2) that the properly
interpreted state law would support such a conviction. United States v. Lara, 590 F. App’x 574,
584 (6th Cir. 2014) (finding a “realistic probability” of a conviction under a certain theory even
though there was no reported example of such a conviction).
As the foregoing discussion indicates, Petitioners can make the showing both ways. First,
in Crow and Ferguson, burglary convictions were sustained on a record that showed with certainty
only that the defendant had crossed the threshold with an instrument used to make entry, not to
commit the felony therein. That fact suffices to satisfy the Duenas standard.
Second, the correctly-interpreted law would sustain an entry-only view for use of any
instrument. Crow defined the entry requirement using “any instrument” language. Following
Crow, Tennessee appellate courts and the pre-1989 pattern jury instructions likewise used such
20
“any instrument” language. And, after 1989, that “any instrument” language was codified. There
is thus, a reasonable probability that someone has been convicted in Tennessee on the entry-only
view of burglary because Tennessee has repeatedly used the “any instrument” language to define
“entry.” Because Petitioners could have been convicted for what were really just attempted
burglaries, their convictions cannot qualify as generic “burglary” convictions.
D.
Any counterargument conflicts with James.
Generic burglary incorporates the instrument-for-crime rule, yet Tennessee follows the
broader any-instrument rule.
Thus, a prior conviction for Tennessee burglary – whether
aggravated or not – does not constitute generic burglary and does not count as an ACCA predicate.
Descamps, 570 U.S. at 257.
Both Congress and this Court have recognized that a completed burglary and an attempted
burglary are two different crimes. Congress rejected an amendment to define the ACCA’s “violent
felony” to include attempted burglary, thereby restricting the ACCA to completed burglary. See
James, 550 U.S. at 200. Accordingly, the James Court held that Florida attempted burglary does
not qualify as a generic burglary. Id. at 197.
Moreover, James made it clear that the degree of dangerousness could not be of controlling
significance. The Florida attempt offense required the defendant to fail in a burglary after having
made an “‘overt act directed towards entering or remaining in a structure[.]’” Id. at 202 (quoting
Florida law). Due to this required overt act, the James Court presumed the offense was at least as
dangerous, if not more dangerous, than a completed generic burglary. Id. at 203-04. But, that
degree of danger did not render the Florida attempt offense (which could be sticking a screwdriver
through a doorframe) a generic burglary since a federal sentencing court’s task is to define
“burglary” as understood by Congress in 1986, not to classify as “burglary” any dangerous crime
21
that is similar to burglary. See id. at 197. In sum, James establishes that generic burglary does not
include attempted burglary, and that attempts that are as dangerous as burglary are covered by the
residual clause. Id. at 197, 202-04; see also Taylor, 495 U.S. at 600 n.9 (explaining the residual
clause might cover break-in crimes falling beyond scope of “burglary”). Any counter-argument
thus implicitly invites the Court to compensate for the loss of the residual clause by ignoring an
age-old distinction between burglary and attempted burglary and by, consequently, lumping the
two crimes together. The Court should decline this invitation.
E.
The concerns about Sixth Circuit precedent holding that Tennessee’s burglary
statutes are generic were not resolved by this Court in Stitt II.
The Brumbach panel stated that any concerns about dated Sixth Circuit precedent holding
that Tennessee aggravated burglary was generic were resolved by this Court in Stitt II. To come
to this finding, the Brumbach panel simply ignored this Court’s intervening precedent by holding
that Sixth Circuit law simply returned to the status quo after this Court reversed Stitt I. When this
Court reversed Stitt I, however, it did not hold that Tennessee aggravated burglary is a generic
burglary; it simply held that the fact that Tennessee’s definition of “habitation” includes “coverage
of vehicles designed or adapted for overnight use [does not] take[] the statute outside the generic
burglary definition.” Stitt II, 139 S. Ct. at 407. This Court actually made no analysis and reached
no conclusion regarding Tennessee’s “entry” requirement; nor did it make any determination as to
how, in general, a Tennessee aggravated burglary conviction must be classified.
Even prior to Stitt I, the Sixth Circuit recognized that there was some uncertainty in its
case law as to whether Tennessee aggravated burglary necessarily counted as a generic burglary,
despite Nance’s broad statement that it did. See United States v. Brown, 516 F. App’x 461, 465
n.1 (6th Cir. 2013) (doubting that breadth and soundness of that statement). Then, in Stitt I the en
banc Court expressly “overrule[d]” Nance, removing its precedential force. Stitt I, 860 F.3d at
22
861. Meanwhile, this Court did not hold that Nance was correct to say all Tennessee aggravated
burglary convictions count as generic burglaries; it held only that Tennessee’s definition of
“habitation” was not fatally overbroad. Stitt, 139 S. Ct. at 407. The question is an open one going
forward – and so it was open for the Sixth Circuit panels to find in Petitioners’ favor. The panels
herein erred in finding they were bound by Brumbach because the Brumbach panel erred in finding
it was bound by Nance.
To understand Nance, one must understand United States v. Sawyers, 409 F.3d 732 (6th
Cir. 2005). Sawyers held that Tennessee facilitation of aggravated burglary does not qualify as a
generic burglary. Id. at 738. While doing so, it said that Tennessee aggravated burglary would so
qualify. Id. To explain this dicta, the Sawyers panel summarily described what constituted an
aggravated burglary under Tennessee law: “Aggravated burglary occurs when an individual enters
a habitation ‘without the effective consent of the property owner’ and, . . . intends to commit a
felony . . .’” State v. Langford, 994 S.W. 2d 126, 127 (Tenn. 1999) (citing Tenn. Code Ann. §§
39-14-402 and 39-14-403).” Sawyers, 409 F.3d at 737 (emphasis added). As the emphasized
phrase reflects, the Sawyers panel seems to have assumed that Tennessee law requires proof of
entry by a person (entry by “an individual”), without even considering an entry-by-instrument
scenario. Sawyers cited no other Tennessee law on the subject. Nor did it consider what the
Tennessee statute means when it says entry can be made by an “object.” Tenn. Code Ann. § 3914-402(b). It did not examine the “entry” issue whatsoever.
The Nance panel then simply adopted Sawyers’ dictum. Nance, 481 F.3d at 888. In a fivesentence passage, Nance quoted Sawyers’ description of Tennessee law, repeating that aggravated
burglary “occurs when an individual enters a habitation,” and then Nance concluded that the
Tennessee offense “clearly comports with [the] definition of generic burglary ‘as committed in a
23
building or enclosed space.’” Id. (emphasis added). Nance’s focus was strictly on the locational
element, and it left the entry element unexamined. As the panel recognized in Brown, 516 F.
App’x at 465, n.1, it seems that Nance does not legitimately serve as a comprehensive holding that
all Tennessee aggravated burglary convictions qualify as generic burglary.
In Priddy, the panel cribbed the same incomplete summary of Tennessee law on aggravated
burglary, simply saying it occurs “‘when an individual enters a habitation.’” Priddy, 808 F.3d at
684 (quoting Langford, supra). Then, without analysis, it repeated Nance’s broad statement that
Tennessee’s aggravated burglary statutes generally “‘represent[] a generic burglary.’” Id. (quoting
Nance).
Next, in Ferguson, the panel said Priddy “compels th[e] holding” that Tennessee nonaggravated burglary qualifies as a generic burglary, without any discussion of Tennessee law on
“entry” or the satisfaction of the generic element of “entry.” Rather it simply mentioned, and
rejected, an argument about the timing of the mens rea. Ferguson, 868 F.3d at 515. Again, the
court’s focus was limited to an issue other than the entry element.
This Court has previously held that appellate courts are free to address previously
unchallenged and unexamined assumptions and revise their views without having to abrogate
precedent. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 63 n.4 (1989) (“‘this Court has never
considered itself bound [by prior sub silentio holdings] when a subsequent case finally brings the
jurisdictional issue before us’” (internal citation omitted; brackets in original)); see also Staley v.
Jones, 239 F.3d 769, 776 (6th Cir. 2001) (citing Will, supra, for this rule); Hammons v. Norfolk
S. Corp., 156 F.3d 701, 703 n.6 (6th Cir. 1998) (same). Indeed, stare decisis is not a rigid rule that
ignores the nuances of the complexities of the law. See Johnson, 135 S. Ct. at 2563 (explaining
that stare decisis does not matter for its own sake, and even decisions rendered after full adversarial
24
presentation may have to yield to the lessons of subsequent experience). Instead, “the best
approach to stare decisis is to give prior decisions the precedential effect that best fits the decision.”
18 Moore’s Federal Practice – Civil § 134.03[3].
Moreover, this Court has recognized that a published, non-dictum statement on a point may
lack precedential value when “[t]he most that can be said is that the point was in the cases if anyone
had seen fit to raise it.” Webster v. Fall, 266 U.S. 507, 511 (1925). In short, under this slightly
more flexible approach to stare decisis, prior unexamined assumptions lack the weight of
precedent.
This principle is aptly applied here. To decide whether Tennessee aggravated burglary
(and, in some of the cases, burglary) was categorically generic burglary, the lower court panels
would have had to decide, at a minimum, whether the Tennessee offense had the requisite entry
element, locational element, and mens rea. But, Sawyers and its progeny left the entry element
utterly unexamined. In fact, Sawyers described only an entry involving the offender’s person. Not
only did those decisions skip over an examination of the entry issue but their inherent assumptions
were inaccurate.
Plus, Sawyers was issued in 2005, which was before this Court decided in James that a
mere attempted burglary does not constitute a generic burglary. Thus, even if Sawyers had
engaged in some analysis, it would have lacked the benefit of what is now the binding guidance
of the James Court. Under James, an entry-only-view burglary, which is nothing more in actuality
than an attempted burglary, does not qualify as a generic burglary. The decisions in Sawyers and
its progeny merely reiterated Sawyer’s unexamined statement, which is at odds with James.
Because such previously unexamined assumptions run afoul of this Court’s ruling in James,
the lower court panels should have considered themselves bound by James to correct the error in
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Nance and other cases that made the same unwarranted assumption about Tennessee’s term
“entry.” See generally Cradler v. United States, 891 F.3d 659, 672 (6th Cir. 2018) (abrogating
circuit precedent that classified a Tennessee burglary third degree offense as a “violent felony,”
because it was in conflict with Supreme Court precedent).
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CONCLUSION
For all of the foregoing reasons, Petitioners respectfully pray that this Court will grant
certiorari to review the judgment of the Sixth Circuit in their cases.
DATED: 16th day of December, 2019.
Respectfully submitted,
DORIS RANDLE HOLT
FEDERAL DEFENDER
/s/ Tyrone J. Paylor
By: Tyrone J. Paylor
First Assistant Federal Defender
Attorney for Petitioners
200 Jefferson, Suite 200
Memphis, Tennessee 38103
(901) 544-3895
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.