Petition for Writ of Certiorari — Travis Miles, Petitioner v. United States
Supreme Court briefJan 21, 2020
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NO.
IN THE UNITED STATES SUPREME COURT
- - - - - - - TERM
TRAVIS MILES,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Erin P. Rust
Assistant Federal Defender
FEDERAL DEFENDER SERVICES
OF EASTERN TENNESSEE, INC.
835 Georgia Avenue, Suite 600
Chattanooga, Tennessee 3 7402
(423) 756-4349
Counsel for Petitioner
QUESTIONS PRESENTED FOR REVIEW
1.
Does Tennessee's burglary statute, which defines "entry"
so broadly as to encompass mere attempted burglary,
qualify as a "generic burglary" under the Armed Career
Criminal Act, 18 U.S.C. § 924( e) (the "ACCA")?
11
TABLE OF CONTENTS
Page
QUESTION PRESENTED FOR REVIEW ....................................................... ii
TABLE OF CONTENTS .................................................................................. iii
TABLE OF AUTHORITIES .............................................................................. v
OPINIONS BELOW ........................................................................................... 1
JURISDICTIONAL STATEMENT ................................................................... 2
PRAYER FOR RELIEF ............................ ............................ ......... 3
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ......... 3
STATEMENT OF THE CASE AND FACTS .................................................. .4
REASONS FOR GRANTING OF THE WRIT ................................................. 7
ARGUMENT ............................. ............................. .................... 9
I.
Mr. Miles's convictions for Tennessee burglary and aggravated
burglary are not "violent felonies" because he could have
committed them by merely attempting a burglary ............................. 9
A.
Generic burglary requires an entry, not merely an attempted
entry ............................. ............................. .............. 11
B.
Tennessee follows the minority rule, such that a mere
attempt may be treated as a burglary ............................. ..... 17
C.
Mr. Miles's convictions could be for what was nothing
more than an attempted burglary ............................ .......... 24
CONCLUSION ................................................................................................. 25
iii
APPENDIX:
1.
Order, United States Court of Appeals for the Sixth
Circuit, Travis Miles v. United States of America,
Court of Appeals No. 19-5741, denying certificate of
appealability, October 23, 2019 . .. . .................................. Appx 01
2.
Memorandum Opinion, United States District Court for the
Eastern District of Tennessee at Chattanooga, Travis Miles v.
United States of America, District Court No. 3: 14-cr-100,
denying 18 U.S.C. § 2255 motion and denying certificate of
appealability, May 9, 2019 . .................................. ........... Appx 06
3.
Judgment Order, United States District Court for the
Eastern District of Tennessee at Chattanooga, Travis Miles v.
United States of America, District Court No. 3: 14-cr-100,
denying 18 U.S.C. § 2255 motion and denying certificate of
appealability, May 9, 2019 ....... . .. . ..... . ........ . .. . .............. .... Appx 12
4.
1988 Tennessee Jury Instructions, Burglary ............... . ... . .. ..Appx 13
iv
TABLE OF AUTHORITIES
Supreme Court Cases:
Descamps v. United States, 570 U.S. 254 (2013) ..................................... 10-11
James v. United States, 550 U.S. 1928 (2007) ........................................ 16, 24
Johnson v. United States, 135 S. Ct. 2551 (2015) ................................ l, 4, 5, 10
Moncrieffe v. Holder, 569 U.S. 184 (2013) ............................................... 24
Quarles v. United States, 139 S. Ct. 1872 (2019) ........................................ 11
Taylor v. United States, 495 U.S. 575 (1990) ........................................ 11, 15
United States v. Stitt, 139 S. Ct. 399 (2018) ............................................ 5, 11
Appellate Court Cases:
Brumbach v. United States, 929 F.3d 791 (6th Cir. 2019) ............................. 5-6
Carter v. United States, No. 19-5814 (6th Cir. Oct. 4, 2019) ............................. 7
United States v. Burris, 912 F.3d 386 (6th Cir. 2019) (en bane) ...................... . 24
United States v. Bureau, 52 F.3d 584 (6th Cir. 1995) ................................... 15
United States v. Buie, No. 18-6185,pending .......... ....................................... 7
United States v. Moore, 578 F. App'x 550 (6th Cir. 2014) .............................. 18
United States v. Prater, 766 F.3d 501 (6th Cir. 2014) .................................... 10
V
State Court Cases:
Bailey v. State, 231 A.2d 469 (Del. 1967) .... . ...................... ... ......... ...... ... 23
Commonwealth v. Burke, 467 N .E.2d 846 (Mass. 1984) ............................. . .13
Commonwealth v. Cotto, 752 N.E.2d 768 (Mass. App. 2001) . .......... . ..... 12, 13, 15
Ferguson v. State, 530 S.W.2d 100 (Tenn. Crim. App. 1975) . ..... . ...... . .. .... ... ... 20
Hall v. State, 584 S.W.2d 819 (Tenn. Crim. App. 1979) ..................... ....... 20-21
Hayes v. State, 656 S.W.2d 926 (Tex. Ct. App. 1983) .............................. .. ... 23
Hebron v. State, 627 A.2d 1029 (Md. App. 1993) ........................... . ....... 14-15
People v. Davis, 958 P.2d 1083 (Cal. 1998) ................... ........ .. .. . ... .. ......... 14
Russellv. State, 255 S.W.2d 881 (Tex. Crim. App. 1953) ..................... 13-14, 23
Statev. Crow, 517 S.W.2d 753 (Tenn. 1974) ...... .. .. ....... . .... .. ..... .... . ........ 18-22
State v. House, 2013 Tenn. Crim. App. LEXIS 567
(Tenn. Crim. App. June 21, 2013) ............................ ..................... 23
State v. Johnson, 2012 Tenn. Crim. App. LEXIS 293
(Tenn. Crim. App . May 20, 2012) ............................ .......... . .......... 23
State v. Moore, 1990 Tenn. Crim. App. LEXIS 96
(Tenn. Crim. App. Feb. 7, 1990) ............................ ....................... 21
State v. Summers, 1990 Tenn. Crim. App. LEXIS 681
(Tenn. Crim. App. Oct. 10, 1990) .......................... . ......... .... ......... 21
State v. Tixier, 551 P.2d 987 (N.M. App. 1976) ............................. ............ 15
vi
Statutes:
18 u.s.c. § 922 ............................. ............................. ....................... 4
18 U.S.C. § 924 (the "ACCA") ............................. ....................... .. .passim
28 U.S.C. § 1254 ............................ ............................ ...................... 1
28 U.S.C. § 2255 ............................ ............................ ................... 1, 4
11 Del. Code§ 829(c) ............................ ............................ ............... 23
Ariz. Rev. Stat. Ann.§ 13-1501 ............................ ............................ ... 23
Tenn. Code Ann.§ 39-14-401 ............................. .......................... 6, 18, 22
Tenn. Code Ann.§ 39-14-402 ............................ ...................... .......passim
Tenn. Code Ann.§ 39-14-403 ............................. ............................. . 6, 18
Jex. Penal Code Ann.§ 30.02 ............................. ............................. .... 23
Utah Code Ann. § 76-6-201 ............................ ............................ ..........23
Rules:
Supreme Court Rule 13 ............................ ............................ ............... 1
Supreme Court Rule 29 .4 ............................ ............................ ............. 1
Other Sources:
Nolan, Joseph R. & Henry Bruce H., Criminal Law (1988) ............................. 15
Perkins, Rollin Morris, & Boyce, Ronald N., Criminal Law (l 999) .................. 15
Rexv. Hughes, l Leach 406,407 (1785) ............................. .................. 13-14
vii
Tennessee Pattern Jury Instructions, Criminal§§ 11.01, et seq ...... ............. . 21-22
Wayne R. LaFave's Substantive Criminal Law§ 21.1 (2d ed. 2003) ................ .15-16
Wharton's Criminal Law (2011) ...... . .................... .. ............................. .. 15
viii
OPINIONS BELOW
1.
Order, United States Court of Appeals for the Sixth Circuit, Travis
Miles v. United States of America, Court of Appeals No. 19-5741, denying
certificate of appealability, October 23, 2019.
2.
Memorandum Opinion, United States District Court for the Eastern
District of Tennessee at Chattanooga, Travis Miles v. United States of
America, District Court No. 3:14-cr-100, denying 18 U.S.C. § 2255 motion
and denying certificate of appealability, May 9, 2019.
3.
Judgment Order, United States District Court for the Eastern District of
Tennessee at Chattanooga, Travis Miles v. United States of America, District
Court No. 3:14-cr-100, denying 18 U.S.C. § 2255 motion and denying
certificate of appealability, May 9, 2019.
1
JURISDICTIONAL STATEMENT
Mr. Miles was sentenced under the Armed Career Criminal Act (the
"ACCA"), 18 U.S.C. § 924(e)(2)(B)(i) on July 20, 2015.
On June 14, 2016
he filed a motion to modify sentence under 18 U.S .C. § 2255 and Johnson v.
United States , 135 S. Ct. 2551 (2015), challenging the application of the ACCA
and its 15-year mandatory minimum sentence.
The District Court for the
Eastern District of Tennessee denied the§ 2255 motion and denied a certificate
of appealability.
On October, 23 , 2019, the United States Court of Appeals
for the Sixth Circuit also denied a certificate of appealability.
This Court's
jurisdiction is invoked under Title 28, United States Code, Section 1254(1).
Rule 13 of the Supreme Court allows for ninety days within which to file a
Petition for a Writ of Certiorari after entry of the order of the Court of Appeals.
Accordingly, this Petition is timely filed.
Pursuant to Rule 29.4(a), appropriate service is made to the Solicitor
General of the United States and to Assistant United States Attorney Debra A.
Breneman, who appeared in the United States Court of Appeals for the Sixth
Circuit on behalf of the United States Attorney's Office, a federal office which
is authorized by law to appear before this Court on its own behalf.
2
PRAYER FOR RELIEF
Petitioner Travis Miles respectfully prays that a Writ of Certiorari issue
to review the order of the United States Court of Appeals for the Sixth Circuit.
The question presented in this case is already pending before this Court as
Docket Number 19-6968 in a Petition for Writ of Certiorari filed by Mr. David
Brumbach.
Thus, Mr. Miles alternatively requests that the Court hold any
decision in this case pending the outcome of Mr. Brumbach's petition.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Sixth Amendment of the U.S. Constitution provides that "[i]n all
criminal prosecutions, the accused shall enjoy the right to a ... trial[] by ...
jury[.]."
The Armed Career Criminal Act provides that a prior conviction
qualifies as a "violent felony" if it is a conviction for "burglary." 18 U.S.C.
§ 924( e)(2)(B)(ii).
3
STATEMENT OF THE CASE AND FACTS
Mr. Miles pled guilty to one count of being in possession of a firearm as
a convicted felon, under 18 U.S.C. § 922(g)(l).
(Appx. at 6).
In 2014 he
was sentenced as an armed career criminal under 18 U.S. C. § 924( e), and thus
had a mandatory minimum sentence of 15 years.
(Id.) .
This enhancement
was based on one prior Tennessee aggravated burglary and three prior
Tennessee regular burglary convictions.
(Id.).
He was ordered to serve the
mandatory minimum - 180 months of imprisonment.
(Id.).
On June 14, 2016, through appointed counsel, Mr. Miles filed a motion
to vacate or modify his sentenced under 28 U.S.C. § 2255 based on Johnson v.
United States, 135 S. Ct. 2551 (2015).
(Id. at 6-7). Johnson held that the
residual clause of the ACCA was void for vagueness. 1 (Id. at 7).
He argued
1 Under the ACCA, a prior offense qualifies as a "violent felony" if it satisfies
the following definition:
(B) The tenn "violent felony" means any crime punishable by imprisonment
for
a term exceeding one year ... 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 ofphysical injury to another.
4
that, after Johnson and in the absence of the residual clause, his prior burglary
and aggravated burglary convictions no longer qualified as predicate
convictions to trigger application of the armed career criminal act, and its 15year mandatory minimum sentence.
(Id. at 8).
The district court denied that motion, finding itself bound by prior Sixth
Circuit precedent holding that Tennessee's regular burglary statute is
categorically a generic burglary under the ACCA.
(Id. at 10).
It also noted
that this Court's holding in United States v. Stitt, 139 S. Ct. 399 (2018),
indicated that Tennessee aggravated burglary also qualified as a generic
burglary under the ACCA.
(Id.).
Finding that reasonable jurists could not
debate whether Mr. Miles qualified for the ACCA enhancement, the district
court denied a certificate of appealability.
(Id. at 11, 12).
Mr. Miles appealed, and the Sixth Circuit also denied a certificate of
appealability, also relying upon it's prior precedent.
(Id. at 3).
It also noted
that it had reaffirmed the conclusion that Tennessee burglary qualified as a
generic burglary under the ACCA, citing to its holding in Brumbach v. United
18 U.S.C. § 924( e)(2)(B) (emphasis added).
The final clause of §
924( e)(2)(B)(ii) - "otherwise involves conduct that presents a serious potential
risk of physical injury to another" - is the "residual clause," held void for
vagueness by Johnson. 135 S. Ct. at 2563.
5
States, 929 F.3d 791 , 794 (6th Cir. 2019).
(Id.).
Mr. Brumbach challenged
Tennessee's regularly burglary statute (which is also incorporated into its
aggravated burglary statute) 2 on the element of "entry."
Specifically, he
argued that unlike generic burglary under the ACCA, in Tennessee a person
can be convicted of "burglary" when they have only attempted an entry (by
crossing the threshold, not with one's body, but only with an instrument used
only to attempt entry).
Thus, he argued, Tennessee burglary encompasses
mere attempted burglary, and thus does not qualify as a "generic burglary"
under the ACCA.
Mr. Brumbach filed a Petition for Certiorari with Court, which is pending
as Docket Number 19-6968.
Mr. Miles ' s case raises the identical issues as
those being litigated in Brumbach.
Accordingly, he requests this Court hold
his case pending the outcome in Brumbach , or alternatively, to grant certiorari
review here.
In Tennessee "aggravated burglary" means "burglary of a habitation as
defined in§§ 39-14-401 [defining habitation] and 39-14-402 [defining
burglary]." Tenn. Code Ann.§ 39-14-403.
2
6
REASONS FOR GRANTING OF THE WRIT
This Court has not yet defined what constitutes a sufficient "entry" for
generic burglary under the ACCA.
And, while the Sixth Circuit declined to
address these specific arguments in Brumbach, finding that it was bound by
prior precedent, the question remains pending before another panel of that
Comi in United States v. Buie, No. 18-6185.
Further, in the context of a
§ 2255 appeal, the Sixth Circuit granted a certificate of appealability on this
same question.
See Carter v. United States, No. 19-5814, App. R. 5-2, Page
3-4 ( 6th Cir. Oct. 4, 2019).
Thus, this is an important question which has not
been conclusively determined, and which appears to be causing tension in the
lower courts.
This case presents this Court with the opportunity to define the element
of "entry" for generic burglary in the ACCA.
As noted above, Mr. Miles' s
case presents the same issues currently being litigated by this Court in
Brumbach v. United States, pending as Docket Number 19-6968.
He thus
requests this Court hold his case pending the outcome in Brumbach, or
alternatively, to grant certiorari review here.
The ACCA, and it's harsh 15-year mandatory minimum sentence - an
enhancement that mandates a sentence 5 years longer than the otherwise
7
applicable 10-year statutory maximum - was wrongly applied to Mr. Miles.
Moreover, as detailed in Mr. Brumbach's petition, many defendants were
released via § 2255 motions challenging their prior Tennessee burglary
convictions under Johnson and the Sixth Circuit's en bane holding in Stitt
(which was later overturned by this Court).
Had Mr. Miles's § 2255 motion
been resolved earlier, he too, likely would currently be released to society.
These individuals, some who have had no problems while released, are now
facing the possibility that they will be forced to return to jail under the reapplication of the ACCA.
No individual should be forced to serve a 15-year mandatory sentence in
the absence of complete certainty that he qualifies for that enhancement.
Here, Mr. Miles' s only potential predicates are 3 burglaries of buildings which
are not homes/being used for habitation purposes, and one burglary of a
habitation.
Yet, under Tennessee law, each of these convictions could have
only been for mere attempted entry - mere attempted burglary - which does
not qualify as a predicate under the ACCA.
This Court should grant certiorari
review to ensure that individuals such as Mr. Miles, and Mr. Brumbach, are not
serving ( or are not required to return to prison to complete) an unconstitutional
8
sentence based on a statute that is broad enough to encompass mere attempted
burglary.
9
ARGUMENT
I.
Mr. Miles's convictions for Tennessee burglary and aggravated
burglary are not "violent felonies" because he could have
committed them by merely attempting a burglary.
To count as an ACCA predicate, a burglary conviction must satisfy any
one of the three clauses that comprise the ACCA's definition of "violent
felony." With the all-encompassing residual clause now struck down as
unconstitutional, Johnson, 135 S. Ct. at 2563, and with the force clause
inapplicable, United States v. Prater, 766 F.3d 501 , 509 (6th Cir. 2014), Mr.
Miles's burglary convictions count as ACCA predicates only if Tennessee
burglary satisfies the enumerated offenses clause, which lists "burglary" but
not
"attempted
burglary"
as
a
qualifying
offense.
18
u.s.c.
§ 924( e)(2)(B)(ii). Thus, to count as an ACCA predicate, his burglary
convictions must be for generic "burglary," not merely attempted burglary.
To determine whether Mr. Miles's aggravated burglary convictions
qualify as generic burglary, the Court applies the "categorical approach."
Descamps v. United States, 133 S. Ct. 2276, 2281 (2013).
Under this
approach, the Court compares the statutory elements of Mr. Miles's Tennessee
burglary offenses to the elements of generic burglary.
Id.
If the elements of
the Tennessee burglary offense "are the same as, or narrower than, those of
10
[generic burglary]," then his conviction counts as a "violent felony" predicate
under the ACCA.
Id.
Otherwise, it does not.
Id.
Here, the Tennessee
elements are broader than the generic elements, and so the conviction does not
count as generic burglary.
A.
Generic burglary requires an entry, not merely an attempted
entry.
Under the ACCA, generic burglary is "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. 575,598 (1990).
Stitt addressed just
one element of this generic definition: the term "structure," as that term meant
when Congress enacted the Armed Career Criminal Act in 1986.
Ct. at 405.
Stitt, 139 S.
Addressing that term, Stitt held that Tennessee's "habitation"
element in its aggravated burglary statute sweeps no more broadly than the term
"structure."
But Stitt did not settle everything when it comes to Tennessee
burglary. 3
3 More recently, this Court addressed yet another aspect of generic burglary,
holding that generic "remaining-in" burglary (a form of generic burglary under
Taylor) "occur[ s] when the defendant forms the intenrto commit a crime at any
time while unlawfully present in a building or structure." Quarles v. United
States, 139 S. Ct. 1872 (2019). Quarles also did not address generic "entry,"
so its outcome does not affect Mr. Miles' s arguments here.
11
Generic burglary also requires an "entry," an element unaddressed by
Stitt.
According to the common law and a majority of jurisdictions, an "entry"
is made when any part of the person, such as a hand, crosses the threshold of
the structure. See Commonwealth v. Cotto, 752 N.E.2d 768, 771 (Mass. App.
2001 ).
An "entry" may also be made when the person does not use a part of
their body, but only an instrument-such as a coat hanger, Molotov cocktail,
or screwdriver-to cross the threshold.
Jurisdictions differ, however, about
what is required for this "entry" by instrument.
The distinction turns on the
defendant's purpose in using the threshold-crossing instrument.
As discussed below, the majority view is that if the person used the
instrument itself in an effort to commit the intended felony inside the structure
( e.g. used a coat hanger to snag an item or used a Molotov cocktail to start a
fire), then an "entry" is made when the instrument crosses the threshold and
thus a burglary is committed (assuming the other elements are established).
Mr. Miles will refer to this as the "entry-plus-crime" view of the required use
of an instrument when no part of the person crosses the threshold.
The minority view, in contrast, is that if the person used the instrument
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 instead
12
only an attempted burglary is committed (assuming, again, the other elements
are established). Mr. Miles will refer to this as the "entry-only" view of the
required use of an instrument when no part of the person crosses the threshold.
This distinction started with the common law, which took the more
restrictive, entry-plus-crime approach.
Under common law, "[i]n cases where
only an instrument crossed the threshold of the dwelling house, there is no entry
where the instrument was used only for the breaking .. . [h]owever, where the
instrument is used to commit the felony within, there is an entry." Cotto, 752
N.E.2d. at 771 (summarizing common law sources); see Commonwealth v.
Burke, 467 N.E.2d 846, 849 (Mass. 1984) (relying on common law to conclude
that "if only an instrument (e.g., a crowbar) intruded into this space, it must be
proved that the instrument was not only used for the purpose of facilitating the
break, but that it also provided the means ' by which the property was capable
of being removed, introduced subsequent to the act of breaking, and after that
essential preliminary had been fully completed"') (quoting Rex v. Hugh es, 1
Leach 406, 407 (1785)) (emphasis in Hughes); Russell v. State , 255 S.W.2d
881 , 884 (Tex. Crim. App. 1953) (adhering to common-law rule as stated in
Hughes) .
13
In the Hughes case from 1785, the "accused had bored a hole through
the panel of a door; the point of the centrebit and some of the chips had entered
the house, but nothing more."
Russell, 255 S.W.2d at 884.
The court held
that the intrusion was not enough to be an "entry":
The court there said that when one instrument is employed to
break and is without capacity to aid otherwise than by opening a
way of entry, and another instrument must be used, or the
instrument used in the breaking must be used in some other way
or manner to consummate the criminal intent, the intrusion of the
instrument is not, of itself, an entry.
Id.
Thus, for example, under that common-law rule, when a defendant has
crossed the threshold with a tool while trying to pry open a door or window, he
is guilty only of "an attempt to commit the crime of burglary and not burglary
itself."
Id.
A few jurisdictions have deviated from this common-law rule and
adopted a broader rule holding that an entry occurs whenever any instrument
crosses the threshold.
See People v. Davis, 958 P.2d 1083, 1086 (Cal. 1998)
("a burglary may be committed by using an instrument to enter a buildingwhether that instrument is used solely to effect entry, or to accomplish the
intended larceny or felony as well"); Hebron v. State, 627 A.2d 1029, 1038
(Md. App. 1993) (holding that "the term 'entering,' as used in [the Maryland
burglary statute], requires that some part of the body of the intruder or an
14
instrument used by the intruder crosses the threshold, even momentarily, of the
house"); State v. Tixier, 551 P.2d 987, 989 (N.M. App. 1976) (expressly
rejecting the common-law rule so that an "entry" is made whenever any
instrument crosses the threshold).
Jurisdictions adopting this less restrictive, entry-only view of the
required use of an instrument remain the "minority."
Cotto, 752 N.E.2d 771.
The "majority of jurisdictions" hold that an entry is made when the instrument
crosses the threshold and is used in an effort to commit the intended felony, but
not when the instrument is used solely in an attempt to make entry. Id. ( citing
cases, Wharton's Criminal Law, Perkins & Boyce Criminal Law, and Nolan &
Henry Criminal Law).
Finally, the majority modern rule as stated in Professor LaFave's
Substantive Criminal Law-which is the treatise upon which the Supreme
Court placed reliance when defining generic "burglary" in the first place, see
Taylor, 495 U.S. at 598-maintains this very same distinction.
That treatise
explains:
If the actor instead used some instrument which protruded into the
structure, no entry occurred unless he was simultaneously using
the instrument to achieve his 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
15
also using the instrument to reach some property therein, then it
constituted an entry.
Wayne R. Lafave, Substantive Criminal Law§ 21.l(b) (2d ed. 2003).
Thus, the common law, the majority of jurisdictions, and LaFave's
treatise are all in agreement:
crossing a threshold with an instrument that
itself is being used to commit the intended felony is a generic "entry," but
crossing a threshold with an instrument used simply to break in is an attempted
entry.
When the other elements of generic burglary are met, the former crime
is burglary; the latter is just attempted burglary.
The distinction matters. Under longstanding precedent, mere "attempted
burglary" does not qualify as a generic burglary under the ACCA. James v.
United States, 550 U.S. 192, 198 (2007) (holding that because the enumerated
offenses clause lists only completed burglary, Florida attempted burglary could
only qualify as a violent felony under the now-defunct residual clause); United
States v. Bureau, 52 F.3d 584, 591-93 (6th Cir. 1995) (collecting cases showing
that, if attempted burglary is to count as a "violent felony," it must present
enough risk to satisfy the residual clause).
As shown next, Tennessee uses the
broader, non-generic definition of "entry," permitting conviction when the
instrument merely crosses into the structure, with no requirement that the
defendant use the instrument to commit the crime inside.
16
B.
Tennessee follows the minority rule, such that a mere attempt
may be treated as a burglary.
Under Tennessee law, Mr. Miles could have been convicted of burglary
and aggravated burglary even if the proof showed only an attempted burglary.
This is because Tennessee follows the less restrictive, entry-only approach
when a person uses an instrument to cross the threshold of the structure.
Tennessee's burglary statute provides four separate types of burglary.
A
"burglary" occurs when an individual "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
or theft;
(2) Remains concealed, with the intent to commit a felony or theft,
in a building;
(3) Enters a building and commits or attempts to commit a felony
or theft; 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.
17
Tenn. Code Ann. § 39-14-402(a) (1995). 4
And, Tennessee's aggravated
burglary statute incorporates this definition, as "aggravated burglary" means
"burglary of a habitation as defined in§§ 39-14-401 and 39-14-402."
Tenn.
Code Ann.§ 39-14-403.
Several sources make clear that in order for a person to be convicted of
"burglary," and thus of "aggravated burglary," it is enough that he crossed the
threshold of a habitation with an instrument in an effort to make entry. These
sources are (1) case law leading to the adoption of the 1989 statute; (2) the pre1989 pattern jury instructions; (3) the definition of "entry" in the 1989 statute
(and continuing today); and (4) caselaw interpreting the term "entry" as used
in the 1989 statute.
The starting place 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
4 The fourth subsection, which addresses burglary of cars and other motor
vehicles, has been considered outside the Supreme Court's Taylor definition of
burglary, and thus has not been counted as a predicate offense under the ACCA.
United States v. Moore, 578 F. App'x 550, 554 (6th Cir. 2014).
18
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.
Based on this proof, Crow was convicted at trial of burglary.
517 S.W.2d at 754-55.
"entry" lacking.
Id.
Crow,
The appellate comi reversed, finding proof of an
Id. at 753.
The Tennessee Supreme Court disagreed.
In
reaching its conclusion, it first acknowledged both the majority and minority
rules regarding instruments by citing authority stating each.
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").
It ultimately held that the proof sufficed to show an entry (and
conviction for burglary) 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).
Thus, according to the Tennessee Supreme
Court, there were two alternative ways the jury could have convicted Crow of
burglary: either he split the burlap with the instrument or he reached his hand
through the burlap. It was thus enough that the defendant stuck an instrument
19
through a door frame trying, but failing, to make entry.
Id.
In other words,
this attempted but failed burglary was sufficient for a conviction of "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 likewise
sufficient to show only a violation of the entry-only use of an instrument. 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, after Crow, Tennessee appellate courts often summarized
Crow's guidance by stating that simply crossing the threshold with any
instrument-as occurred in Ferguson-constitutes an "entry" without need for
the instrument itself to be used or intended to be used to commit the crime
inside the structure.
E.g.,
Hallv. State, 584 S.W.2d 819,821 (Tenn. Crim.
20
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."); State v. Summers,
1990 Tenn. Crim. App. LEXIS 681, *3-4 (Tenn. Crim. App. Oct. 10, 1990)
(context of prel 989 second-degree burglary) ("The 'entry' element of burglary
can be accomplished by penetration of the space within the premises by the
-
hand or an instrument held by the hand."); State v. Moore, 1990 Tenn. Crim.
App. LEXIS 96, *4 (Tenn. Crim. App. Feb. 7, 1990) (context ofpre-1989 thirddegree burglary) ("The 'entry' element can be accomplished by the penetration
of the space within the premises by the hand or an instrument held in the
hand.").
Citing Crow and Ferguson, the pre-1989 pattern jury instructions for
burglary also defined "entry" as follows:
"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."
Tennessee Pattern Jury
Instructions - Criminal §§ 11.01, 11.02, at 90, 93 (2d ed. 1988) (emphasis
added); see also id. at §§ 11.03, 11.04, 11.05, 11.06, at 96, 99, 102, 104. 5
Mr. Miles attaches for the Court's convenience these burglary pattern
instructions in their entirety, as they are no longer in use and are presently
difficult to obtain. See Appx 13-33.
5
21
Juries were not required to find that, if entry was done by an instrument, the
person must have intended to use the instrument to commit the felony within
the dwelling place.
In 1989, 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 Crow's endorsement of
the minority rule regarding the requirements for an "entry."
Ann. § 39-14-401 et seq.
See Tenn. Code
The 1989 statute essentially codified Crow and has
ever since defined "entry" for purposes of all burglary offenses as: "Intrusion
of any part of the body" or "Intrusion of any object in physical contact with the
body or any objected controlled by remote control, electronic or otherwise."
Tenn. Code Ann. § 39-14-402(b) (italics added).
The 1989 statute does not
require that the intruding object be an object that is used in an effort to commit
the intended felony; rather, it simply requires that it be "any object" that the
defendant holds or controls.
Id.
Finally, recent case law confirms that Tennessee courts understand this
statutory definition of entry to be as expansive as the Tennessee Supreme
Court' s explanation of the concept in Crow.
In a post-1989 aggravated-
burglary case, the Tennessee Court of Criminal Appeals cited Crow as support
22
for its point that "entry of a hand or an instrument is sufficient" to constitute an
"entry." State v. Johnson, 2012 Tenn. Crim. App. LEXIS 293, *11-12 (Tenn.
Crim. App. May 20, 2012); see also State v. House, 2013 Tenn. Crim. App.
LEXIS 567, * 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 197 4: a conviction could be sustained based on
the entry-only, minority rule.6
The broad language of Tennessee's 1989 statutory definition of "entry" is
just like that of the statutes in Delaware, Arizona, Utah and Texas, which in
1986 had also adopted the entry-only view of burglary-by-instrument, reflected
by their similarly broad statutory language. See 11 Del. Code § 829( c) ("A
person 'enters' upon premises when the person introduces any body part or any
part of any instrument, by whatever means, into or upon the premises."); Bailey
v. State, 231 A.2d 469, 469-79 (Del. 1967) (interpreting materially-equivalent
precursor to 11 Del. Code § 829( c); acknowledging that the common law
fpllowed the entry-plus-crime view; adopting the entry-only view in light of
the statute's broad language); Ariz. Rev. Stat. Ann. § 13-1501(3) ("'Entry'
means the intrusion of any part of any instrument or any part of a person's body
inside the external boundaries of a structure or unit of real property."); Tex.
Penal Code Ann.§ 30.02(b) ("'[E]nter' means to intrude: (1) any part of the
body; or (2) any physical object connected with the body") ( overruling Russell
v. State, see Hayes v. State, 656 S.W.2d 926, 927 (Tex. Ct. App. 1983)); Utah
Code Ann. § 76-6-201(4) ("'Enter' means: (a) intrusion of any part of the
body; or (b) intrusion of any physical object under control of the actor.").
6
23
C.
Mr. Miles's convictions could be for what was nothing more
than an attempted burglary.
"[S]entencing courts must 'presume that the conviction rested upon
nothing more than the least of the acts criminalized."' United States v. Burris,
912 F.3d 386,406 (6th Cir. 2019) (en bane) (quoting Moncrieffe v. Holder, 569
U.S. 184, 190-91 (2013)).
As shown above, the "least of the acts
criminalized," id., by the Tennessee aggravated-burglary statute is that act of
sticking an instrument through a door frame in a failed effort to pry it openthat is, the act of attempting a burglary without making a generic "entry."
Therefore, sentencing courts must presume that a conviction for Tennessee
burglary or aggravated burglary rested upon nothing more than an attempted
burglary.
Sentencing courts must, in other words, presume that a conviction
for Tennessee burglary is not a generic burglary.
See James, 550 U.S. at 198
(attempted burglary is not generic burglary).
Thus, after Johnson, Mr. Miles' s convictions for Tennessee regular and
aggravated burglary no longer qualify as generic "burglary" convictions.
He
was thus wrongly denied § 2255 relief, and wrongly denied a certificate of
appealability.
Mr. Miles's prior convictions simply do not qualify as generic
24
burglaries under the ACCA, and thus cannot support application of the ACCA's
15-year mandatory minimum.
CONCLUSION
In consideration of the foregoing, Petitioner urges the Court to hold his
case pending the outcome in Brumbach, Docket Number 19-6968, or
alternatively to grant certiorari review in order to resolve this important
constitutional question.
Petitioner respectfully submits that the Petition for Certiorari should be
granted, the order of the Sixth Circuit Court of Appeals vacated, and the case
remanded for further consideration.
Respectfully submitted,
FEDERAL DEFENDER SERVICES
OF EASTERN TENNESSEE, INC.
By:
z_-- y::? c--">..,..:;;,1,____
Erin P. Rust
Assistant Federal Community Defender
835 Georgia Avenue, Suite 600
Chattanooga, Tennessee 37402
(423) 756-4349
25
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.