Petition for Writ of Certiorari — Robbie Shane Bateman, Petitioner v. United States

No. 20-_______

__________________________________________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

__________________________________________________________________________

ROBBIE SHANE BATEMAN,

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

__________________________________________________________________________

PETITION FOR WRIT OF CERTIORARI

__________________________________________________________________________

ELIZABETH B. FORD

Federal Community Defender

JENNIFER NILES COFFIN

Assistant Federal Defender

Counsel of Record

Federal Defender Services

of Eastern Tennessee, Inc.

800 South Gay Street, Suite 2400

Knoxville, Tennessee 37929

(865) 637-7979

QUESTION PRESENTED

The Armed Career Criminal Act’s mandatory penalty can be triggered by prior

convictions for “burglary.” 18 U.S.C. § 924(e), (e)(2(B)(ii). The term “burglary” carries

the meaning that the majority of jurisdictions gave it in 1986 when the ACCA was

enacted. United States v. Stitt, 139 S. Ct. 399, 405 (2018). At that time, the majority

rule was that burglary requires an “entry” either by any part of the person or, if not

the person, by an instrument used to commit the felony inside the building or

structure. Under this majority rule, an “entry” does not occur when just the

instrument has crossed the threshold and was not itself used or intended to be used

to commit the felony. Tennessee law, in contrast, defines “entry” to include the use of

an instrument merely to try to make entry—thereby criminalizing mere attempted

burglary as “burglary.”

The question presented is whether Tennessee aggravated burglary qualifies as

a generic burglary, or whether instead the state’s unusual definition of “entry,”

because it encompasses mere attempted burglary, disqualifies aggravated burglary

as an ACCA predicate.

ii

PARTIES TO THE PROCEEDINGS

All parties appear in the caption of the case on the cover page.

RELATED CASES

(1) United States v. Robbie Shane Bateman, No. 3:11-cr-42, District Court for the

Eastern District of Tennessee. Amended judgment entered October 13, 2017.

(2) United States v. Robbie Shane Bateman, No. 3:11-cr-144, District Court for the

Eastern District of Tennessee. Amended judgment entered October 13, 2017.

(3) United States v. Robbie Shane Bateman, No. 1:11-cr-65, District Court for the

Western District of North Carolina. Transferred to the Eastern District of Tennesseee

as No. 3:11-cr-144, December 6, 2011.

(4) Robbie Shane Bateman v. United States, No. 3:14-cv-00270, District Court for the

Eastern District of Tennessee. Judgment entered August 23, 2017.

(5) Robbie Shane Bateman v. United States, No. 3:14-cv-00271, District Court for the

Eastern District of Tennessee. Judgment entered August 23, 2017.

(6) United States v. Robbie Bateman, Nos. 17-6340/17-6343, U.S. Court of Appeals for

the Sixth Circuit. Opinion and judgment reversing grant of § 2255 relief, entered

October 16, 2019.

iii

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................ ii

PARTIES TO THE PROCEEDINGS ........................................................................... iii

RELATED CASES ........................................................................................................ iii

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

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED........................ 2

STATEMENT OF THE CASE ....................................................................................... 3

REASONS FOR GRANTING THE PETITION .......................................................... 10

I.

II.

The The Sixth Circuit has made a serious error that requires many

defendants in Mr. Bateman’s shoes to return to prison. .................................... 10

A.

Generic burglary requires an entry by the person or by an

instrument used to commit the intended felony. ........................................ 12

B.

In 1989, Tennessee codified by statute its broader,

any-instrument rule..................................................................................... 17

C.

The government’s counterargument conflicts with James. ........................ 18

This case presents an excellent vehicle to resolve this important question...... 20

CONCLUSION............................................................................................................. 21

APPENDIX

Sixth Circuit Opinion Reversing the District Court’s Judgment,

United States v. Bateman, Nos. 17-6340/6343

(6th Cir. Oct. 16, 2019) .................................................................................. 1a-4a

Memorandum Opinion, Bateman v. United States, Nos. 3:11-cr-42,

3:11-cr-144, 3:14-cv-270, 3:14-cv-271 (E.D. Tenn. Aug. 23, 2017) .............. 5a-13a

Amended Judgment, United States v. Bateman, Nos. 3:11-cr-42,

3:11-cr-144, (E.D. Tenn. Oct. 13, 2017) ...................................................... 14a-19a

iv

Judgment Order, Bateman v. United States, Nos. 3:11-cr-42,

3:11-cr-144, 3:14-cv-270, 3:14-cv-271 (E.D. Tenn. Aug. 23, 2019) ............ 20a-21a

v

TABLE OF AUTHORITIES

CASES

Bailey v. State,

231 A.2d 469 (Del. 1967) ........................................................................................ 14

Brumbach v. United States,

929 F.3d 791 (6th Cir. 2019) ................................................................................... 10

Chaney v. United States,

917 F.3d 895 (6th Cir. 2019) ..................................................................................... 7

Commonwealth v. Burke,

467 N.E.2d 846 (Mass. 1984) .................................................................................. 12

Commonwealth v. Cotto,

752 N.E.2d 768 (Mass. App. 2001) ......................................................................... 12

Dawson v. United States,

Nos. 17-5930/5931, 2019 U.S. App. LEXIS 34627 (6th Cir. Nov. 20, 2019) ......... 11

Descamps v. United States,

570 U.S. 254, 257 (2013) ............................................................................... 7, 11, 18

Ferguson v. State,

530 S.W.2d 100 (Tenn. Crim. App. 1975) ......................................................... 16-17

Foster v. State,

220 So.2d 406 (Fla. Dist. Ct. App. 1969) ................................................................ 13

Hall v. State,

584 S.W.2d 819 (Tenn. Crim. App. 1979) ............................................................. 18

James v. United States,

550 U.S. 192 (2007) ........................................................................................... 11, 19

Johnson v. United States,

135 S. Ct. 2551 (2015) ............................................................................................... 7

Mattox v. State,

100 N.E. 1009 (Ind. 1913) ....................................................................................... 13

Morissette v. United States,

342 U.S. 246 (1952) ................................................................................................. 13

People v Davis,

279 N.E.2d 179 (Ill. Ct. App. 1972) ........................................................................ 13

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) .................................................................. 13

Rex v. Hughes,

1 Leach 406 (1785) .................................................................................................. 12

Russell v. State,

255 S.W.2d 881 (Tex. Crim. App. 1953) ................................................................. 12

Sears v. State,

713 P.2d 1218 (Alaska Ct. App. 1986) ................................................................... 14

vi

Stamps v. Commonwealth,

602 S.W.2d 172 (Ky. 1980) ..................................................................................... 14

State v. Crawford,

80 N.W. 193 (N.D. 1899) ......................................................................................... 13

State v. Crow,

517 S.W.2d 753 (Tenn. 1974)............................................................................. 15-16

State v. Faria,

60 P.3d 333 (2002) .................................................................................................. 14

State v. Hodges,

575 S.W.2d 769 (Mo. Ct. App. 1978) ...................................................................... 13

State v. Liberty,

280 A.2d 805 (Me. 1971) ......................................................................................... 13

State v. Moore,

1990 Tenn. Crim. App. LEXIS 96 (Tenn. Crim. App. Feb. 7, 1990) ..................... 18

State v. O’Leary,

107 A.2d 13 (N.J. 1954) .......................................................................................... 13

State v. Sneed,

247 S.E.2d 658 (N.C. App. 1978) ............................................................................ 14

State v. Summers,

1990 Tenn. Crim. App. LEXIS 681 (Tenn. Crim. App. Oct. 10, 1990) .................. 18

State v. Tixier,

551 P.2d 987 (N.M. Ct. App. 1976) ......................................................................... 15

State v. Williams,

873 P.2d 471 (Ore. App. 1994) ............................................................................... 14

Taylor v. United States,

495 U.S. 575 (1990) ....................................................................... 6, 7, 10, 11, 14, 20

United States v. Ammons,

No. 17-5920/17-5922, 2019 U.S. App. LEXIS 32243 (6th Cir. Oct. 25, 2019)....... 11

United States v. Brown,

516 F. App’x 461 (6th Cir. 2013) ............................................................................. 6

United States v. Ghoston,

530 F. App’x 468 (6th Cir. 2013) ............................................................................. 7

United States v. Johnson,

Nos. 18-6006/6123, 2019 U.S. App. LEXIS 32246 (6th Cir. Oct. 25, 2019) .......... 11

United States v. Merriweather,

No. 18-5567, 2019 U.S. App. LEXIS 32520 (6th Cir. Oct. 29, 2019) ..................... 11

United States v. Nance,

481 F.3d 882 (6th Cir. 2007) ................................................................................... 10

United States v. Stitt,

860 F.3d 854 (6th Cir. 2017) (en banc) ................................................................. 7, 8

United States v. Stitt,

139 S. Ct. 399 (2018) ....................................................................................... ii, 9, 13

Walker v. State,

63 Ala. 49 (1879) ..................................................................................................... 13

vii

CONSTITUTIONAL PROVISIONS AND STATUTES

U.S. Const. amend. VI ................................................................................................... 2

18 U.S.C. § 922(g) ...................................................................................................... 2, 5

18 U.S.C. § 924(a)(2) ...................................................................................................... 6

18 U.S.C. § 924(e)....................................................................................................... 2, 6

18 U.S.C. § 924(e)(2)(B)(i) .......................................................................................... 3, 6

18 U.S.C. § 924(e)(2)(B)(ii)......................................................................................... 3, 6

28 U.S.C. § 1254(1) ........................................................................................................ 2

28 U.S.C. § 2255 ....................................................................................................passim

Ariz. Rev. Stat. Ann. § 13-1501(3) ............................................................................... 14

11 Del. Code § 829(c).................................................................................................... 14

Nev. Rev. Stat. § 193.0145 (1985) ............................................................................... 14

Tenn. Code Ann. § 39-14-402(a) .................................................................................... 3

Tenn. Code Ann. § 39-14-402(b) .................................................................................... 3

Tenn. Code Ann. § 39-14-402(b) (1989) ....................................................................... 17

Tenn. Code Ann. § 39-14-403 ........................................................................................ 3

1989 Tenn. Pub. ch. 591 .............................................................................................. 17

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 AUTHORITIES

Matthew Hale,

The History of the Pleas of the Crown (1736) ......................................................... 13

Iowa Jury Instructions

Criminal § 1300.12.................................................................................................. 14

Wayne R. LaFave,

Substantive Criminal Law § 21.1(b) (2d ed. 2003) ................................................ 14

Oklahoma Uniform Jury Instructions

Criminal § 5-18 ....................................................................................................... 14

Tennessee Pattern Jury Instructions

Criminal, Vol. 7 (2d ed. 1988) ................................................................................. 18

U.S. Sent’g Comm’n,

Quick Facts – Felon in Possession of a Firearm (2019) ......................................... 20

viii

No. 20-_______

__________________________________________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

__________________________________________________________________________

ROBBIE SHANE BATEMAN,

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

__________________________________________________________________________

PETITION FOR WRIT OF CERTIORARI

__________________________________________________________________________

Petitioner Robbie Shane Bateman respectfully petitions this Court for a writ

of certiorari to review the judgment of the United States Courts of Appeals for the

Sixth Circuit.

OPINIONS BELOW

The unpublished opinion of the United States Court of Appeals for the Sixth

Circuit appears at pages 1a to 4a of the appendix to this petition, and is available at

780 F. App’x 355 (6th Cir. 2019). The memorandum opinion and judgment order of

the district court granting § 2255 relief appear at pages 5a to 13a and 20a to 21a of

the appendix, respectively. The amended judgment of the district court imposing a

1

reduced sentence appears at pages 14a to 19a of the appendix.

JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 1254(1). The court of appeals’

judgment vacating the district court’s grant of relief under 28 U.S.C. § 2255 was

entered on October 16, 2019. Pet. App. 1a. This petition is timely filed under Supreme

Court Rule 13.1.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Sixth Amendment of the U.S. Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right to a . . .

trial[] by . . . jury[.]

18 U.S.C. § 922(g) provides:

It shall be unlawful for any person—

(1) who has been convicted in any court of, a crime punishable by

imprisonment for a term exceeding one year[]

to ship or transport in interstate or foreign commerce, or possess in or

affecting commerce, any firearm or ammunition; or to receive any

firearm or ammunition which has been shipped or transported in

interstate or foreign commerce.

18 U.S.C. § 924(e)(1) provides:

In the case of a person who violates section 922(g) of this title and has

three previous convictions by any court referred to in section 922(g)(1)

of this title for a violent felony or a serious drug offense, or both,

committed on occasions different from one another, such person shall be

fined under this title and imprisoned not less than fifteen years, and,

notwithstanding any other provision of law, the court shall not suspend

the sentence of, or grant a probationary sentence to, such person with

respect to the conviction under section 922(g).

2

18 U.S.C. § 924(e)(2)(B) provides:

As used in this subsection-- (B) 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 . . .

Tenn. Code Ann. § 39-14-402(a) provides:

A person commits burglary who, without the effective consent of the

property owner . . . [e]nters a building other than a habitation (or any

portion thereof) not open to the public, with intent to commit a felony,

theft or assault[.]

Tenn. Code Ann. § 39-14-403 provides:

Aggravated burglary is burglary of a habitation as defined in §§ 39-14401 and 39-14-402.

STATEMENT OF THE CASE

Overview. When Robbie Bateman was convicted in 2012 for being a felon in

possession of a firearm, courts accepted that any prior conviction for Tennessee

aggravated burglary counted as a “violent felony” for purposes of the enhanced

penalty under the Armed Career Criminal Act (ACCA). Robbie Bateman had seven

such convictions. He was sentenced to 188 months in prison under the ACCA.

Three years later, after this Court in Johnson struck down the ACCA’s residual

clause, Mr. Bateman filed for relief under 28 U.S.C. § 2255, asserting that after

3

Johnson his aggravated burglary convictions do not count as ACCA predicates. At the

time, the government agreed that Mr. Bateman’s entitlement to § 2255 relief

depended on the Sixth Circuit’s decision in Stitt, and that he should be granted relief

after the Sixth Circuit held in Stitt that, due to Tennessee’s overbroad definition of

“habitation,” Tennessee aggravated burglary does not count as a generic “burglary.”

Accordingly, the district court granted relief and reduced Mr. Bateman’s sentence to

71 months, and he was released in October 2017. The government appealed.

Four months later, this Court reversed Stitt, holding that Tennessee’s

definition of “habitation” matches the generic definition of building or structure. The

government thereafter urged the Sixth Circuit to reverse the district court’s grant of

relief, which would force Mr. Bateman to return to prison to serve out the remainder

of the ACCA prison term. Mr. Bateman resisted, urging the Sixth Circuit to affirm on

the ground that Tennessee’s definition of “entry”—unaddressed by Stitt—is so broad

that Tennessee treats what is really only attempted burglary as a completed

burglary. And attempted burglary, this Court has made clear, does not qualify as

“burglary” under the ACCA. But the Sixth Circuit rejected his argument, relying on

pre-Stitt precedent holding that Tennessee aggravated burglary qualifies as an ACCA

predicate.

The Court should grant certiorari because the Sixth Circuit has made an error

that not only requires many in Mr. Bateman’s shoes to return to prison, but many

defendants going forward to serve unlawful ACCA sentences. The question is of

crucial importance, as the ACCA increases the penalty range in firearms cases like

4

this one from a maximum of ten years to a minimum of fifteen years, and increases

the average sentence imposed by more than a decade. Because the Sixth Circuit relied

on binding circuit precedent to reject Mr. Bateman’s challenge, this case presents an

excellent vehicle in which to resolve the question. His petition for a writ of certiorari

should therefore be granted.

Factual background. In 2000, Robbie Shane Bateman pled guilty in Sevier

County, Tennessee to five counts of aggravated burglary, in violation of Tenn. Code

Ann. § 39-14-403, for offenses committed when he was 21 years old. (Presentence

Report (PSR) (revised Feb. 27, 2012) at ¶¶ 35, 36.) For these five offenses, he was

sentenced on the same day. (Id.) In 2004, he pled guilty to two more counts of

aggravated burglary, again sentenced on the same day for both. (Id. at ¶¶ 39, 40.)

In late 2010, he pawned two firearms and then after a traffic stop was found

to be in possession of a .38 caliber revolver in his car, which he had stolen from his

brother-in-law. (Id. at ¶¶ 7, 10.) He admitted possessing all three firearms, and in

July 2011 pled guilty in the Eastern District of Tennessee to three counts of being a

felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). (Id. ¶ 2; Minutes,

No. 3:11-cr-42, R. 17.) Soon thereafter, he was charged in the Western District of

North Carolina for pawning another firearm in Asheville, North Carolina, also in late

2010. (PSR ¶ 3.) That case was transferred to the Eastern District of Tennessee (Rule

20 Transfer, Case No. 3:11-cr-144, R. 1), and Mr. Bateman pled guilty to that charge

as well, (Minutes, Case No. 3:11-cr-144, R. 9.) He was sentenced for all four felon-inpossession offenses at the same time.

5

The statutory penalty for each of Mr. Bateman’s offenses was zero to 120

months in prison, except that if he qualified for the enhancement under the ACCA,

the mandatory minimum increased to 180 months. 18 U.S.C. § 924(a)(2), (e). Mr.

Bateman qualifies for the ACCA’s enhanced penalty only if he has three prior

convictions for “violent felonies” committed on different occasions. Id. § 924(e)(2)(B).

The term “violent felony” is defined by three clauses: (1) The force clause, which

requires the offense to have “as an element the use, attempted use, or threatened

use of physical force against the person of another”; (2) the enumerated offenses

clause, which lists four qualifying offenses, including “burglary,” although for a

conviction to count as, e.g., a “burglary” it must have all the elements of what is

defined by federal courts to be a generic burglary, Taylor v. United States, 495 U.S.

575, 598 (1990); and, (3) the residual clause, which describes offenses that “otherwise

involve[] conduct that presents a serious potential risk of physical injury to another,”

requiring courts to assess the ordinary risk of physical injury posed by the typical

instance of the offense. Id. § 924(e)(2)(B)(i)-(ii).

The PSR determined that Mr. Bateman qualified for the ACCA’s enhanced

penalty, identifying the seven aggravated burglaries as ACCA predicates. (PSR ¶¶

28, 35, 36, 39, 40.) Mr. Bateman did not object to the determination that they qualified

as “violent felonies,” as it would have been fruitless given the broad sweep of the

residual clause. A conviction for Tennessee aggravated burglary (and even a

conviction for attempted Tennessee aggravated burglary) satisfied the ACCA’s

residual clause. United States v. Brown, 516 F. App’x 461, 465 (6th Cir. 2013) (holding

6

any Tennessee burglary satisfies the residual clause); United States v. Ghoston, 530

F. App’x 468, 469-70 (6th Cir. 2013) (so holding for Tennessee attempted aggravated

burglary); cf. Chaney v. United States, 917 F.3d 895, 900 (6th Cir. 2019) (declining to

“fault [petitioner] for not making an argument that would have had no practical effect

whatsoever given the then-viable residual clause,” as that “would be a harsh outcome

under any circumstances”). The district court therefore sentenced Mr. Bateman as an

armed career criminal and imposed a term of 188 months’ imprisonment, the bottom

of the applicable guideline range. (PSR ¶73; Judgment, No. 3:11-cr-42, R. 21;

Judgment, No. 3:11-cr-144, R. 11.)

In 2014, Mr. Bateman filed a counseled motion under 28 U.S.C. § 2255

asserting that, in light of Descamps v. United States, 133 S. Ct. 2276 (2013), his seven

aggravated burglary convictions were not for “generic” burglary as defined by the this

Court in Taylor, 495 U.S. at 598, and therefore were not “violent felonies” under the

ACCA. (Motion to Vacate, No. 3:11-cr-42, R. 24; Mem. in Support, No. 3:11-cr-42, R.

25.)1 As a result, he contended, he had been erroneously sentenced under the ACCA.

While that motion was pending, this Court struck down the ACCA’s residual

clause as unconstitutionally vague. Johnson v. United States, 135 S. Ct. 2551 (2015).

Then, in 2016, the Sixth Circuit granted en banc review in United States v. Stitt, 860

F.3d 854 (6th Cir. 2017) (en banc) (Stitt I), to revisit—in light of Johnson and

Descamps—the question whether Tennessee aggravated burglary qualifies as generic

1 Mr. Bateman hereafter cited only the documents as filed in Case No. 3:11-cr-42.

He contemporaneously filed these same documents in Case No. 3:11-cr-144.

7

burglary under the enumerated offenses clause. Mr. Bateman thereafter

supplemented his § 2255 motion to add a claim based on Johnson, noting the grant

of en banc review in Stitt I. (Supplement, R. 26.)

In light of these developments, the government asked the district court to defer

ruling on Mr. Bateman’s still-pending § 2255 motion, acknowledging that if the Sixth

Circuit “were to conclude that aggravated burglary is not a qualifying felony under

the enumerated-offense clause, but only under the now-invalid residual clause, [Mr.

Bateman] would then be eligible for relief.” (Motion to Defer Ruling, R. 28.)

Approximately a year later, in June 2017, the Sixth Circuit held in Stitt I that

Tennessee aggravated burglary is not a generic “burglary” because Tennessee’s

statutory definition of “habitation” includes places that are not structures (vehicles),

and it held the statute is indivisible. Stitt, 860 F.3d at 857-58. The result was that no

conviction for Tennessee aggravated burglary could satisfy the enumerated-offenses

clause. Id. at 862. That meant that in light of Johnson no such conviction could count

as an ACCA predicate.

In the wake of Stitt I, the government agreed that Mr. Bateman’s prior

Tennessee aggravated burglary convictions “no longer count as violent felonies under

the ACCA,” and further that (1) “absent those convictions, [Mr. Bateman] has

insufficient other prior convictions to be subject to the ACCA’s enhanced penalties”;

(2) he is “eligible for § 2255 relief”; and (3) he was entitled to a sentence reduction.

(Joint Status Report, R.31.) The district court, noting that “it is undisputed that [Mr.

Bateman] no longer qualifies as an armed career criminal under the ACCA,” granted

8

the motion, vacated the sentence, and ordered resentencing. (Mem. Op., R. 32;

Judgment Order, R. 33.)

Before resentencing, but after Mr. Bateman’s sentence had been vacated, the

government filed a sentencing memorandum in which it urged the district court to

impose a sentence of 120 months, the statutory maximum in absence of the ACCA

enhancment. (Gov’t Sent’g Mem., R. 34.) In a footnote appended to its citation to Stitt

I, the government said that it “maintains that Stitt was wrongly decided and

preserves that issue for possible further review should Stitt be undermined or

overruled by subsequent authorities.” (Id.) The district court imposed a sentence of

71 months. (Amended Judgment, R. 37.)

The government appealed and had the case held in abeyance until this Court

reversed Stitt I. This Court held that the “relevant language” of Tennessee’s burglary

statute—its definition of “habitation”—was narrow enough that Tennessee

aggravated burglary falls within the scope of generic “burglary.” United States v.

Stitt, 139 S. Ct. 399, 406 (2018) (Stitt II). Specifically, it held that the term

habitation’s “coverage of vehicles designed or adapted for overnight use [does not]

take[] the statute outside the generic burglary definition.” Id. at 407. The Court did

not determine that Tennessee aggravated burglary is necessarily a generic burglary

in every respect because it did not examine all aspects of the Tennessee statute; nor

did it hold that the offense is necessarily a violent felony under the ACCA. Id. at 40608.

Relying on Stitt II, the government asked the Sixth Circuit to reverse the grant

9

of § 2255 relief. In response, Mr. Bateman asked the court to affirm on the ground

that Tennessee’s definition of “burglary” is overbroad for yet another reason,

unaddressed by Stitt II. (Sixth Cir. Appellee Br. at 16-35.) He showed that Tennessee

follows a minority rule for defining its “entry” element of burglary, broader than the

“entry” element in Taylor’s generic definition of “entry,” permitting conviction for

burglary even if the putative entry was merely the crossing of the structure’s

threshold with an instrument used to try to make entry. Because Tennessee law

endorses such a broad concept of “entry,” Mr. Bateman’s burglary convictions do not

count as a generic burglary or, consequently, as ACCA predicates. That fact leaves

Mr. Bateman still without any ACCA predicates.

The Sixth Circuit nevertheless reversed. It held that it was bound by pre-Stitt

I precedent holding that Tennessee burglary is generic burglary. Pet. App. 2a (relying

on Brumbach v. United States, 929 F.3d 791, 795 (6th Cir. 2019), cert. denied, No. 196969 (Jan. 27, 2020); United States v. Nance, 481 F.3d 882, 888 (6th Cir. 2007)). The

court remanded the case to the district court with instructions to reinstate the

original 188-month sentence. Id. On March 12, 2020, the district court reinstated the

sentence. (Order, No. 3:11-cr-42, R. 64; Order, No. 3:11-cr-144, R. 22.)

REASONS FOR GRANTING THE PETITION

I.

The Sixth Circuit has made a serious error that requires many

defendants in Mr. Bateman’s shoes to return to prison.

Many defendants like Mr. Bateman received reduced sentences—and were

released from prison—due to the combined effect of Johnson and the Sixth Circuit’s

10

en banc decision in Stitt.2 After this Court reversed Stitt I, defendants like Mr.

Bateman are now being forced to return to prison to serve many more years of an

ACCA sentence. But they should not have to return. The Sixth Circuit should have

held that the reversal of Stitt was immaterial because Tennessee aggravated

burglary,

notwithstanding this Court’s ruling on Tennessee’s “habitation”

requirement, categorically fails to qualify as a violent felony due to Tennessee’s broad

definition of “entry.”

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). Generic burglary is a completed offense, and does not

include attempted burglary. James v. United States, 550 U.S. 192, 198 (2007). Under

the categorical approach, a prior burglary conviction “qualifies as an ACCA predicate

only if the statute’s elements are the same as, or narrower than, those of the generic

offense.” Descamps v. United States, 570 U.S. 254, 257 (2013). By operation of its

unusual definition of “entry,” Tennessee treats some attempted burglaries as if they

were completed burglaries. As a result, the aggravated burglary statute sweeps more

broadly than generic burglary.

See, e.g., Dawson v. United States, Nos. 17-5930/5931, 2019 U.S. App. LEXIS 34627

(6th Cir. Nov. 20, 2019); United States v. Merriweather, No. 18-5567, 2019 U.S. App.

LEXIS 32520 (6th Cir. Oct. 29, 2019); United States v. Johnson, Nos. 18-6006/6123,

2019 U.S. App. LEXIS 32246 (6th Cir. Oct. 25, 2019); United States v. Ammons, No.

17-5920/17-5922, 2019 U.S. App. LEXIS 32243 (6th Cir. Oct. 25, 2019).

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A.

Generic burglary requires an entry by the person or by an

instrument used to commit the intended felony.

The common law and a majority of jurisdictions make clear that an “entry” is

made when any part of the 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). They also address the 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. But 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 (which Mr. Bateman will

call the “instrument-for-crime rule”), and in contrast 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

instrument-for-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.

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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,3 the vast majority of states

defined burglary in their respective codes as requiring an entry, without any

statutory definition of “entry.” See infra. Because a court should presume that an

undefined statutory term comports with the common law, Morissette v. United States,

342 U.S. 246, 263 (1952), it naturally follows 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 v. State, 63 Ala. 49, 51 (1879); 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

3 When defining generic “burglary,” the courts must ascertain the majority rule as

of the date of the ACCA’s enactment in 1986. See United States v. Stitt, 139 S. Ct.

399, 405 (2018).

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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).4

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) (2d ed. 2003). 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 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.; see Taylor, 495 U.S. at 580, 593, 598 & nn.3-4 (placing significant reliance on

LaFave’s treatise to define generic burglary).

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. 11 Del. Code § 829(c);5 Ariz. Rev. Stat. Ann. § 13-

Before 1986, three additional states also indicated they would follow the

instrument-for-crime 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 Jury Instr. – Crim. § 1300.12;

and Okla. Uniform Jury Instr. – Crim. § 5-18. 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

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.

5

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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 any-instrument 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.

In State v. Crow, 517 S.W.2d 753, 755 (Tenn. 1974), 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 754-55. The appellate court reversed, finding proof of an “entry” lacking. 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

Id. at 470. But in light of the statute’s broader language, it adopted the anyinstrument rule.

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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 through a door frame

trying, but failing, to make entry. Id. In other words, this 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 likewise sufficient to show only a

violation of the any-instrument definition of “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,

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like all Tennessee burglary, required an “entry.”

Id. at 102. Citing Crow, the

Tennessee Court of Criminal Appeals sustained the conviction. Id.

The bottom line is that, as of 1986, just six jurisdictions had deviated from the

long-standing and traditional instrument-for-crime rule.6 Accordingly, this Court

should hold that a “generic” burglary requires an entry by the person or by an

instrument used to commit the felony.

B.

In 1989, Tennessee codified by statute its broader, anyinstrument rule.

If Crow were not clear enough, in 1989 Tennessee adopted by statute the

broader, any-instrument rule, defining “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); 1989 Tenn. Pub. ch. 591. The government itself

argued in the Sixth Circuit that when a state code uses this “any” instrument

language, the state (e.g., Delaware, Arizona, Texas or Utah) has certainly adopted

the any-instrument rule. (Gov’t Reply Br. at 8-9.) Accordingly, by using the “any”

instrument language, the Tennessee code makes it clear that, at least by 1989,

Tennessee had likewise certainly adopted the any-instrument rule.

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).

6

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Although there is no need to further establish this point, it is reassuring that

ever since the Tennessee Supreme Court issued Crow in 1974, this any-instrument

rule has been reiterated repeatedly by Tennessee cases and jury instructions. Hall v.

State, 584 S.W.2d 819, 821 (Tenn. Crim. App. 1979); State v. Summers, 1990 Tenn.

Crim. App. LEXIS 681, *3-4 (Tenn. Crim. App. Oct. 10, 1990); State v. Moore, 1990

Tenn. Crim. App. LEXIS 96, *4 (Tenn. Crim. App. Feb. 7, 1990); Tennessee Pattern

Jury Instr. – Crim., Vol. 7 at §§ 11.01, 11.02, 11.03 (2d ed. 1988) (pre-1989 burglary

statutes); Tenn. Code Ann. § 389-14-402(b) (1989).

Because Tennessee follows the minority rule, permitting conviction for mere

attempted burglary, a post-1989 Tennessee conviction for aggravated burglary

cannot qualify as generic burglary for ACCA purposes. Descamps, 570 U.S. at 257.

The district court was correct to reduce Mr. Bateman’s sentence to 71 months.

C.

The government’s counterargument conflicts with James.

In the court below, the government argued that when someone sticks a

screwdriver through a doorframe to try to make entry, that crime is just as dangerous

as sticking a coat hanger through a window to snag an item, and so the distinction

between the instrument-for-crime rule and the any-instrument rule is not significant

enough to define the contours of generic burglary. It calls the distinction “arcane.”

(Gov’t Reply Br. at 13-14.)

What the government ignores is that there is a clear conceptual difference

between the two rules, which is why the distinction has been repeated over and over

again by courts and treatises for centuries. The coat-hanger scenario is a completed

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burglary because the defendant made entry in the manner intended to commit the

crime therein; in contrast, the screwdriver scenario is an attempted burglary because

the defendant only tried to make the desired entry.

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 v. United States, 550 U.S. 192, 200

(2007). Accordingly, the James Court held that Florida attempted burglary does not

qualify as a generic burglary. Id. at 197.

Plus, 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 that is similar to burglary. See id. at 197. 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

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Taylor, 495 U.S. at 600 n.9 (explaining the residual clause might cover break-in

crimes falling beyond scope of “burglary”).

In effect, the government seeks to compensate for the loss of the residual clause

by ignoring an age-old distinction between burglary and attempted burglary and by

lumping the two crimes together. This Court should reject that effort.

II.

This case presents an excellent vehicle to resolve this important

question.

This question is of exeptional importance and is recurring. Each year,

hundreds of federal defendants are sentenced under the ACCA. See U.S. Sent’g

Comm’n, Quick Facts – Felon in Possession of a Firearm 1 (2019) (showing that 288

offenders were sentenced under the ACCA in fiscal year 2018). The effect is severe.

The ACCA increase the minimum penalty by at least five years, with the average

increase in the sentence imposed being 127 months longer than for those sentenced

without the ACCA—over a decade longer. Id. at 2. Burglary offenses are common

predicate offenses.

This is an excellent vehicle to decide the question presented. Mr. Bateman’s

case perfectly reflects the ACCA’s severity, as it will increase the 71-month sentence

he received upon the grant of relief to a mandatory minimum of 15 years and a

guideline range of 188-235 months. This issue is of great importance not only to the

many defendants in Mr. Bateman’s shoes who will be sent back to prison based on

Stitt II (some of whom have done so well after release that the district court

terminated their supervised release early, e.g. Phillip Gilliam v. United States, No.

1:11-cr-108 (E.D. Tenn.) (appeal pending, Sixth Cir. No. 18-5050)), but also to every

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defendant going forward who may be subject to the ACCA’s harsh penalty based on

Tennessee burglary convictions.

CONCLUSION

The petition for a writ of certiorari should be granted.

ELIZABETH B. FORD

Federal Community Defender

JENNIFER NILES COFFIN

Assistant Federal Defender

Counsel of Record

Federal Defender Services

of Eastern Tennessee, Inc.

800 South Gay Street, Suite 2400

Knoxville, Tennessee 37929

(865) 637-7979

Counsel for Robbie Shane Bateman

March 13, 2020

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