Petition for Writ of Certiorari — Mark Norris, Petitioner v. United States

__________________________________________________________

NO. ____________

__________________________________________________________

IN THE UNITED STATES SUPREME COURT

_________________ TERM

__________________________________________________________

MARK NORRIS,

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 37402

(423) 756-4349

Counsel for Petitioner

__________________________________________________________

QUESTION PRESENTED FOR REVIEW

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”)?

ii

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…...…………………………………………………..4

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .........5

STATEMENT OF THE CASE AND FACTS ..................................................6

REASONS FOR GRANTING OF THE WRIT ..............................................11

ARGUMENT…………………………………...…………………………….14

Mr. Norris’s convictions for Tennessee aggravated burglary are not

“violent felonies” because he could have committed them by merely

attempting a burglary………………………..…………………………....….14

A.

Generic burglary requires an entry, not merely an

attempted entry……..………………………….…...…………..15

B.

Tennessee follows the minority rule, such that a mere

attempt may be treated as a burglary…………….……..….…...21

C.

The Sixth Circuit’s rational conflicts with James……………...26

D.

Mr. Norris's convictions could be for what was nothing

more than an attempted burglary………….…………....………28

iii

CONCLUSION ................................................................................................30

APPENDIX

1.

Order, United States Court of Appeals for the Sixth

Circuit, Mark Norris v. United States, Court of Appeals

No. 19-6030, denying certificate of appealability,

February 6, 2020…………………..………………….……....Appx 002

2.

Memorandum Opinion, United States District Court for the

Eastern District of Tennessee at Chattanooga, Mark Norris v.

United States, District Court Nos. 1:15-cr-25, 1:18-cv-66,

denying 28 U.S.C. § 2255 motion and denying certificate of

appealability, July 10, 2019…………………………..............Appx 007

3.

Judgment Order, United States District Court for the

Eastern District of Tennessee at Chattanooga, Mark Norris v.

United States, District Court No. 1:15-cr-25, 1:18-cv-66,

denying 28 U.S.C. § 2255 motion and denying certificate of

appealability, July 10, 2019…………………………..............Appx 013

4.

1988 Tennessee Jury Instructions, Burglary………………….Appx 015

iv

TABLE OF AUTHORITIES

Page

Supreme Court Cases:

Brumbach v. United States, 929 F.3d 791 (6th Cir. 2019)………………….……….8

Descamps v. United States, 570 U.S. 254 (2013)…………………....…….…..14-15

James v. United States, 550 U.S. 1928 (2007)………..……….………………passim

Johnson v. United States, 135 S. Ct. 2551 (2015)………..…………...............6, 7, 14

Moncrieffe v. Holder, 569 U.S. 184 (2013)………………………..……….…...…28

Morissette v. United States, 342 U.S. 246 (1952)………………………………….18

Quarles v. United States, 139 S. Ct. 1872 (2019)……………………….…11, 12, 15

Taylor v. United States, 495 U.S. 575 (1990)………………………..……12, 15, 27

United States v. Brown, 957 F.3d 679, 683 (6th Cir. 2020)

(No. 18-5356)……………….……………………………………………passim

United States v. Burris, 912 F.3d 386 (6th Cir. 2019) (en banc)……….….…….…28

United States v. Moore, 578 F. App’x 550 (6th Cir. 2014)……………..…………..22

United States v. Nance, 481 F.3d 882 (6th Cir. 2007)………………….……………8

United States v. Prater, 766 F.3d 501 (6th Cir. 2014)………………...…………....14

United States v. Stitt, 139 S. Ct. 399 (2018)…………..………………...7, 11, 12, 15

v

State Court Cases:

Bailey v. State, 231 A.2d 469 (Del. 1967)……………………………..……….…..25

Commonwealth v. Burke, 467 N.E.2d 846 (Mass. 1984)……………..…………....17

Commonwealth v. Cotto, 752 N.E.2d 768 (Mass. App. 2001)…………………16, 17

Ferguson v. State, 530 S.W.2d 100 (Tenn. Crim. App. 1975)…………..…….23-24

Foster v. State, 220 So.2d 406 (Fla. Dist. Ct. App. 1969)……………….…….…..19

Hall v. State, 584 S.W.2d 819 (Tenn. Crim. App. 1979)…………...…….……….25

Hayes v. State, 656 S.W.2d 926 (Tex. Ct. App. 1983)………..…..…….….……...25

Mattox v. State, 100 N.E. 1009 (Ind. 1913)………………………………………..19

People v. Davis, 958 P.2d 1083 (Cal. 1998)……………….………………………19

People v. Rhodus, 303 P.3d 109 (Colo. App. 2012)………………………………..19

People v. Tragani, 449 N.Y.S.2d 923 (N.Y. Sup. Ct. 1982)……………..……19, 27

Russell v. State, 255 S.W.2d 881 (Tex. Crim. App. 1953)…………………17-18, 25

Sears v. State, 713 P.2d 1218 (Alaska Ct. App. 1986)…………………….………19

Stamps v. Commonwealth, 602 S.W.2d 172 (Ky. 1980)………………….………..19

State v. Crawford, 80 N.W. 193 (N.D. 1899)………………………………………19

State v. Crow, 517 S.W.2d 753 (Tenn. 1974)………………………………21, 22-23

State v. Faria, 60 P.3d 333 (Haw. 2002)………………………………….………..19

State v. Hodges, 575 S.W.2d 769 (Mo. Ct. App. 1978)…………………....……….19

vi

State v. Liberty, 280 A.2d 805 (Me. 1971)………………………….………..…….19

State v. Moore, 1990 Tenn. Crim. App. LEXIS 96

(Tenn. Crim. App. Feb. 7, 1990)…………………………….……………...25

State v. O’Leary, 107 A.2d 13 (N.J. 1954)…………………………………..……..19

State v. Sneed, 247 S.E.2d 658, 659 (N.C. App. 1978)……………………...……..19

State v. Summers, 1990 Tenn. Crim. App. LEXIS 681

(Tenn. Crim. App. Oct. 10, 1990)…………………………….………….…25

State v. Tixier, 551 P.2d 987 (N.M. App. 1976)…………………………...………21

State v. Williams, 873 P.2d 471 (Ore. App. 1994)……………………………..…..19

Walker v. State, 63 Ala. 49 (1879)…………………………………………..…….19

Statutes:

18 U.S.C. § 922……………………………………….………………………...…..6

18 U.S.C. § 924 (the “ACCA”)………………………….……………...…….passim

28 U.S.C. § 1254…………………………………………….……….……………..2

28 U.S.C. § 2255…………………………..……………….…………………….2, 6

11 Del. Code § 829(c)………………………………………………………….20, 24

Ariz. Rev. Stat. Ann. § 13-1501….……………………………….……………20, 25

Nev. Rev. Stat. § 193.0145………………………………………….……………..19

Tenn. Code Ann. § 39-14-401…………………………..………...………...…..5, 22

Tenn. Code Ann. § 39-14-402……………………………….………5, 21-22, 24, 25

vii

Tenn. Code Ann. § 39-14-403…………………………..…...……………….4, 5, 22

Tex. Penal Code Ann. § 30.02….…………………………..……………….…20, 25

Utah Code Ann. § 76-6-201…..……………….…………….…………………20, 25

Wash. Rev. Code § 9A.52.010(2)………………………………………………….19

Rules:

Supreme Court Rule 13……………………………………..………………………2

Supreme Court Rule 29.4…………………………………………………..……….2

Other Sources:

Iowa Jury Instr.–Crim. § 1300.12…………………………………….……………19

Okla. Uniform Jury Instr.–Crim. § 5-18…………………………………..……….19

Rex v. Hughes, 1 Leach 406, 407 (1785)………………….…….….…………..17-18

Richard S. Culp et al., Is Burglary a Crime of Violence?

An Analysis of National Data 1998-2007 (2015)………………..….……...28

Tennessee Pattern Jury Instructions, Criminal §§ 11.01, et seq……..…….….……25

USSG App. C, amend 798, at 118-22 (2016 Supp.)

(Reason for Amendment)…………………………………………………..27

Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law

§ 8.13 (1986)………………………………………………………………....17

Wayne R. LaFave’s Substantive Criminal Law § 21.1 (2d ed. 2003)......................20

viii

OPINIONS BELOW

1.

Order, United States Court of Appeals for the Sixth Circuit, Mark

Norris v. United States, Court of Appeals No. 19-6030, denying

certificate of appealability, February 6, 2020.

2.

Memorandum Opinion, United States District Court for the Eastern

District of Tennessee at Chattanooga, Mark Norris v. United States,

District Court Nos. 1:15-cr-25, 1:18-cv-66, denying 28 U.S.C. § 2255

motion and denying certificate of appealability, July 10, 2019.

3.

Judgment Order, United States District Court for the Eastern District of

Tennessee at Chattanooga, Mark Norris v. United States, District Court

No. 1:15-cr-25, 1:18-cv-66, denying 28 U.S.C. § 2255 motion and

denying certificate of appealability, July 10, 2019.

1

JURISDICTIONAL STATEMENT

Mr. Norris was sentenced under the Armed Career Criminal Act (the

“ACCA”), 18 U.S.C. § 924(e)(2)(B)(i) on July 8, 2015. On April 17, 2018 he

filed a motion to modify sentence under 28 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 February 2, 2020, 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 generally 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. However, in its March 19, 2020 Order, and in

response to COVID-19, the Court extended the time for filing a petition for

certiorari review to 150 days after the issuance of an order denying

discretionary review. 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

2

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.

3

PRAYER FOR RELIEF

Petitioner Mark Norris respectfully prays that a writ of certiorari issue to

review the order of the United States Court of Appeals for the Sixth Circuit.

However, the question presented in this case is also pending before the Sixth

Circuit in United States v. Brown, No. 18-5356. The Brown panel concluded

that it was bound by prior Sixth Circuit precedent—precedent which did not

address the “entry” element at issue here—to conclude that all Tennessee

aggravated burglary convictions under Tenn. Code Ann. § 39-14-403 are

generic. Brown, 957 F.3d 679, 683 (6th Cir. 2020) (Sixth Circuit Case No.

18-5356). However, it deemed the arguments regarding the entry element in

Tennessee burglary “weighty enough to warrant a response . . . on the merits

too”. Id. at 684. It thus proceeded to discuss the merits, and suggested that

Mr. Brown seek en banc rehearing. Id.

Upon Mr. Brown’s filing of a petition for panel rehearing or rehearing

en banc, the Sixth Circuit ordered the government to respond. That petition

remains pending. Thus, Mr. Norris alternatively requests that the Court hold

any decision in this case pending the outcome of Mr. Brown’s petition for

rehearing currently pending before the Sixth Circuit in Case No. 18-5356.

4

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The ACCA 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).

Tennessee defines burglary as occurring 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.

Tenn. Code Ann. § 39–14–402(a) (1995).

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.

5

STATEMENT OF THE CASE AND FACTS

Mr. Norris pled guilty to one count of being in possession of a firearm

as a convicted felon, under 18 U.S.C. § 922(g)(1). (Appx. at 2.) In 2015 he

was sentenced as an armed career criminal under 18 U.S.C. § 924(e), and thus

had a mandatory minimum of 15 years’ incarceration.

(Id.)

This

enhancement was based on two prior Georgia burglary convictions and

approximately three dozen Tennessee aggravated burglary convictions. (Id.)

After granting the government’s motion for a downward departure, Mr. Norris

was sentenced to serve 151 months of imprisonment. (Id.)

In December of 2017, Mr. Norris filed a pro se motion asking to correct

or modify his sentence.

(Id. at 2-3.)

That motion was later treated as a

motion to vacate under 28 U.S.C. § 2255, and was supplemented by appointed

counsel. (Id. at 3.) Mr. Norris’s argument was based on Johnson v. United

States, 135 S. Ct. 2551 (2015), which held that the residual clause of the ACCA

was void for vagueness.1 (Id. at 4.) He argued that, after Johnson and in the

1

Under the ACCA, a prior offense qualifies as a “violent felony” if it satisfies

the following definition:

(B) The term “violent felony” means any crime punishable by imprisonment

for a term exceeding one year . . . that –

6

absence of the residual clause, his prior Tennessee aggravated burglary

convictions no longer qualified as predicate convictions to trigger application

of the ACCA, and its 15-year mandatory minimum sentence. (Id. at 4).

The district court denied that motion, relying upon this Court’s holding

in United States v. Stitt, 139 S. Ct. 399 (2018), which addressed the location

element of Tennessee burglary.

(See Appendix at 3.)

Finding that

reasonable jurists could not debate whether Mr. Norris qualified for the ACCA

enhancement, the district court also denied a certificate of appealability. (Id.)

Mr. Norris appealed, arguing that while Stitt foreclosed his original

argument before the district court, Tennessee’s aggravated burglary statute was

nonetheless overbroad, because the “entry” element swept in mere attempted

burglaries. (Id. at 4.) Specifically, he argued that unlike generic burglary in

the ACCA, a person can be convicted of “burglary” in Tennessee when they

(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) (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.

7

have only attempted an entry (by crossing the threshold, not with one’s body,

but only with an instrument used only in a failed attempt at access). Thus, he

argued, Tennessee burglary encompasses mere attempted burglary, and does

not qualify as a “generic burglary” under the ACCA.

The Sixth Circuit, however, declined to address the question on the

merits, noting that Mr. Norris had not raised the “entry” argument below. (Id.

at 3). It also held it was controlled by Brumbach v. United States, 929 F.3d

791, 794 (6th Cir. 2019), which in turn relied upon United States v. Nance, 481

F.3d 882, 888 (6th Cir. 2007), to conclude that all Tennessee aggravated

burglary convictions under Tenn. Code Ann. § 39-14-403 are generic. But,

neither Nance nor Brumbach addressed the issue raised here—whether

Tennessee’s aggravated burglary statute is overbroad on the “entry” element.

(Id. at 5.) Regardless, the Sixth Circuit denied his request for a certificate of

appealability. (Id.)

After that denial, the Sixth Circuit issued its opinion in Brown. Like

Mr. Norris’s panel, the Brown panel concluded it was bound by Nance and

Brumbach. Brown, 957 F.3d at 683. However, it proceeded to discuss the

merits due to the importance of the issue.

Id. at 684.

The Brown panel

concluded that at the time the ACCA was passed in 1986, a majority of states

8

limited the entry element of burglary to when either the individual’s body

crosses the threshold or when only an instrument crosses the threshold and that

instrument was used in an effort to complete a further crime (referred to herein

as the “instrument-for-crime” variant).

Id. at 688.

Thus, only a small

minority of states expanded “entry” to include those instances where only an

instrument crosses the threshold, but that instrument is used only in a failed

effort to gain admittance to the building (referred to herein as the “instrumentfor-attempted-entry” variant). See id.

Yet, despite concluding that the narrow instrument-for-crime view was

the majority view, and without citing James v. United States, 550 U.S. 192

(2007) (burglary does not include attempted burglaries), the Brown panel held

that the distinct forms of entry were merely a modest deviation—only an

“‘arcane distinction’ that Taylor would disavow.” Id. at 685. It thus opined

that the generic definition of burglary under the ACCA, unlike the majority

view amongst the states, is not limited the instrument-for-crime variant. Id.

at 684-85.

Mr. Brown filed a petition for en banc rehearing, and the Sixth Circuit

ordered the government to respond.

Mr. Norris’s case raises the identical

issue as that being litigated in Brown. Accordingly, he requests this Court

9

hold his case pending the outcome in Brown, or alternatively, to grant certiorari

review here.

10

REASONS FOR GRANTING OF THE WRIT

This Court has not yet defined what constitutes a sufficient “entry” for

generic burglary under the ACCA. Yet, because application of the ACCA has

such drastic consequences—application of a 15-year mandatory minimum, and

a sharp increase in an individual’s sentencing guideline range—its proper

interpretation (and thus scope) is an important question of federal law. And,

here it is a question that has not been, but should be, settled by this Court. See

Rules of the Supreme Court 10(c). Moreover, after Brown the Sixth Circuit

has now addressed this question “in a way that conflicts with relevant decisions

of this Court,” namely James, 550 U.S. 192; Stitt, 139 S. Ct. 399; and Quarles

v. United States, 139 S. Ct. 1872 (2019), and the cases they rely upon. Rules

of the Supreme Court 10(c).

Brown was correct that at the time the ACCA was passed in 1986 a

majority of states defined “entry” in a narrow way—by requiring that when an

instrument (but not the body) crosses the threshold of a building that instrument

must be used in an effort to commit a further crime within. Brown, 957 F.3d

at 688.

A state which allows the element of “entry” to be met when an

instrument (but not the body) crosses the threshold in only an attempt to gain

admittance is thus broader than the element of “entry” utilized by most states.

11

See id. And, importantly, this Court has already held that attempted burglary

does not qualify as a “generic burglary.” James, 550 U.S. at 197. The Sixth

Circuit in Brown ran afoul of this Court’s precedent by concluding that despite

the fact that the majority view of “entry” is the narrow view, “generic burglary”

in the ACCA is encompasses broader statutes. Brown, 957 F.3d at 683-84, 688.

But, this Court has always defined the generic definition of burglary in

the ACCA by looking primarily to the “‘prevailing view in the modern codes’

and what modern statutes ‘generally require’ and ‘typically describe.’”

Taylor v. United States, 495 U.S. 575, 598 (1990). Indeed, its two most recent

jaunts into this topic both emphasized the majority view in 1986 as establishing

the contours of “generic burglary.” Stitt, 139 S. Ct. at 406; Quarles, 139 S.

Ct. at 1878. Moreover, the Brown opinion never cited James, and thus did not

explain how its conclusion comports with this Court’s pronouncement that

attempted burglary does not qualify as “generic burglary.”

The Sixth Circuit has thus interpreted an important question of federal

law, currently unaddressed by this Court, in a way that conflicts with the

relevant decisions of this Court.

This case presents the Court with the

opportunity to define the element of “entry” for generic burglary in the ACCA,

and thus certiorari review is appropriate. Or, alternatively, because the Sixth

12

Circuit is currently considering whether to revisit Brown en banc, it would also

be appropriate to hold Mr. Norris’s case pending the outcome in Brown.

The ACCA, and it’s harsh 15-year mandatory minimum sentence, an

enhancement that mandates a sentence 5 years longer than the otherwise

applicable 10-year statutory maximum, was wrongly applied to Mr. Norris.

No individual should be subjected to the ACCA in the absence of complete

certainty that he qualifies for that enhancement.

Here, Mr. Norris’s only

potential predicates are non-violent burglaries, and under Tennessee law, the

government was only ever required to prove an attempted, but failed, entry.

This Court should grant certiorari review to define the scope of the “entry”

element of generic burglary.

13

ARGUMENT

Mr. Norris’s convictions for Tennessee 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.

Norris’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, one’s burglary

conviction must be for generic “burglary,” not merely attempted burglary.

To determine whether Mr. Norris’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 his Tennessee burglary

offense to the elements of generic burglary.

Id.

If the elements of the

Tennessee burglary “are the same as, or narrower than, those of [generic

14

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, 495 U.S. at 598.

Stitt addressed just one element of this

generic definition: the term “structure,” as that term meant when Congress

enacted the ACCA in 1986. Stitt, 139 S. Ct. at 405. 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. 2

Generic burglary also requires an “entry,” an element unaddressed by

Stitt. According to the common law and a majority of jurisdictions, an “entry”

2

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 intent to commit a crime at any

time while unlawfully present in a building or structure.” Quarles, 139 S. Ct.

1872. Quarles also did not address generic “entry,” so its outcome does not

affect Mr. Norris’s arguments here.

15

is made when any part of the person, such as a hand, crosses the threshold of a

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 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), then an “entry” is made when the

instrument crosses the threshold and thus a burglary is committed.

See

Brown, 957 F.3d at 688 (acknowledging that the majority of jurisdictions in

1986 “limited an ‘entry by instrument’ ‘to the situation where the instrument is

used to remove property from the premises or injure or threaten an occupant’”

(collecting cases and statutes)). As noted above, Mr. Norris refers to this as

the “instrument-for-crime” variant.

The minority view, in contrast, is that if the threshold was crossed with

only an instrument, used only in a failed effort to gain admittance (e.g., a

screwdriver used to pry at the door), then no “entry” is made, and instead only

16

an attempted burglary is committed. As also noted above, Mr. Norris will

refer to this as the “instrument-for-attempted-entry” variant.

This distinction started with the common law, which took the more

restrictive, instrument-for-crime approach.

Brown, 957 F.3d at 688

(collecting cases and statutes, and citing Wayne R. LaFave & Austin W.

Scott, Substantive Criminal Law § 8.13(b), at 467–68 (1986)).

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. Hughes, 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).

17

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.

As of 1986, when Congress enacted the ACCA, the vast majority of

states defined burglary 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, Morissette v. United States, 342 U.S. 246, 263

(1952), it follows that the vast majority of states were following the instrumentfor-crime rule as of 1986. See also Brown, 957 F.3d at 688 (noting that in

1986 a majority of jurisdictions had retained the narrow, common-law rule, i.e.,

the instrument-for-crime rule).

Indeed, almost every single court that had

18

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 . . . envisioned . . . an adoption

by the courts of common-law . . . definitions of both bodily and instrumental

entry”); see also Nev. Rev. Stat. § 193.0145 (1985); Wash. Rev. Code §

9A.52.010(2) (1985).3

3

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 the rule 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 the rule was

new: State v. Faria, 60 P.3d 333, 339 (Haw. 2002), and People v. Rhodus, 303

P.3d 109, 113 (Colo. App. 2012).

19

Accordingly, the leading modern treatise on the subject, Wayne R.

LaFave, Substantive Criminal Law—the treatise relied upon by the Brown

panel, and by this Court when defining generic “burglary” in the first place, see

Taylor, 495 U.S. at 598—reports that the instrument-for-crime rule is still the

blackletter rule on burglary “entry.”

Id. § 21.1(b) (2d ed. 2003); see also

Brown, 957 F.3d at 688 (relying upon LaFave’s treatise). 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..

As of 1986, states deviating from that rule were few. By statute, four

states had defined “entry” against the grain, to include instrument-forattempted-entry. 11 Del. Code § 829(c); 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 include instruments used for only attempted entries. One was an

intermediate court of appeals in New Mexico that, after acknowledging the

20

common-law majority rule, simply announced that in its “opinion” an

instrument-for-attempted-entry rule was better. State v. Tixier, 551 P.2d 987,

989 (N.M. Ct. App. 1976).

The other was the Tennessee Supreme Court.

State v. Crow, 517 S.W.2d 753, 755 (Tenn. 1974).

B.

Tennessee follows the minority rule, such that a mere attempt

may be treated as a burglary.

Tennessee law allows individuals to be convicted of aggravated burglary

even if the proof showed only an attempted burglary.

This is because

Tennessee follows the less restrictive, instrument-for-attempted-entry approach

when a person uses an instrument to cross the threshold of a 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

21

felony, theft or assault or commits or attempts to commit a

felony, theft or assault.

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.

In Crow, 517 S.W.2d at 755, 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 Tennessee Supreme Court first acknowledged

both the majority and minority rules regarding instruments by citing authority

stating each. Id. at 754 (discussing the majority rule and, for the minority rule,

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).

22

stating that some cases hold “entry of the hand or an instrument to be sufficient

to supply the element of entry”).

It ultimately found the proof sufficed to

show an entry (and conviction for burglary) because the jury could find:

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 instrument-for-attempted-entry view.

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

23

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.

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

broader, instrument-for-attempted-entry 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). 5 Accordingly, by using the “any”

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

Tennessee had certainly adopted the instrument-for-attempted-entry rule.

5

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 instrument-for-attempted-entry view of burglary-byinstrument, 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

24

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

instrument-for-attempted-entry 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); Tenn. Pattern Jury Instr.–

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

statutes); 6 Tenn. Code Ann. § 39-14-402(b) (1989).

With respect to the

“entry” requirement, the law in Tennessee has been the same ever since Crow

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 followed the instrument-for-crime view; but adopting the

instrument-for-attempted-entry 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. § 76-6201(4) (“‘Enter’ means: (a) intrusion of any part of the body; or (b) intrusion

of any physical object under control of the actor.”).

6

Mr. Norris attaches for the Court’s convenience these pattern burglary

instructions in their entirety, as they are no longer in use and are difficult to

obtain. See Appx 15-35.

25

issued in 1974: a conviction could be sustained based on the broad instrumentfor-attempted-entry view.

C.

The Sixth Circuit’s rational conflicts with James.

Even though the majority view in 1986 excluded the instrument-forattempted-entry view from the burglary definition, the Brown panel concluded

the distinction was meaningless.

See Brown, 957 F.3d at 685.

But this

ignores the clear conceptual difference between attempted and completed

burglaries, a distinction that has been repeated by courts and treatises for

centuries. Indeed, Congress and this Court have recognized that a completed

burglary and an attempted burglary are two different crimes. Importantly,

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. Attempted burglary simply does not

qualify as a generic burglary. Id. at 197.

What is more, James made it clear that the degree of dangerousness

could not be of controlling significance.

The James Court presumed that

attempted burglary 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 attempt offense a generic burglary since a federal sentencing court’s

26

task is to define “burglary” as understood by Congress in 1986, not to classify

as “burglary” any dangerous crime that is similar. See id. at 197. Completed

burglary of whatever sort is not the same offense as attempted burglary.

That

distinction is “common-sense.” Tragani, 449 N.Y.S.2d at 926.

James instead establishes that attempts that are as dangerous as burglary

are covered by the residual clause. 550 U.S. at 197, 202-04; see Taylor, 495

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

falling beyond scope of “burglary”). The residual clause is now gone, but

James’s interpretation of “burglary” remains binding.

Congress justifiably

wanted to incapacitate the most dangerous individuals who had proven by their

prior conduct that they are willing to repeatedly engage in intentional violence.

But, as Mr. Norris—who has no violence in his background at all—exemplifies,

typical burglaries and attempted burglaries do not involve such violence.

Congress’s belief that burglary, is “inherently dangerous,” has since been

proven false—a fact that caused the United States Sentencing Commission to

remove burglary crimes from its career offender enhancement. USSG App.

C, amend 798, at 118-22 (2016 Supp.) (Reason for Amendment) (explaining

that “‘several recent studies’ by outside researchers find[] that burglaries rarely

result in physical violence and that attempted burglaries were significantly less

27

likely to be violent than completed burglaries” (citing Richard S. Culp et al., Is

Burglary a Crime of Violence? An Analysis of National Data 1998-2007 at xi,

29, 34, 36-38 (2015). 7 Erroneous presumptions about the inherent

dangerousness of burglary are not sufficient to read into generic burglary

attempts, when that was not the majority view of burglary in 1986.

D.

Mr. Norris’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 banc) (quoting Moncrieffe v. Holder, 569

U.S. 184, 190-91 (2013)).

As shown above, the “least of the acts

criminalized” by the Tennessee aggravated burglary statute is the act of sticking

an instrument through a door frame in a failed effort to pry it open—that is, the

act of attempting a burglary without making a generic “entry.” Therefore,

sentencing courts must presume that a conviction for Tennessee aggravated

burglary rested upon nothing more than an attempted burglary. Sentencing

courts must, in other words, presume that a conviction for Tennessee burglary

7

Available at https://www.ncjrs.gov/pdffiles1/nij/grants/248651.pdf (last

visited July 2, 2020).

28

is not a generic burglary. See James, 550 U.S. at 198 (attempted burglary is

not generic burglary).

In sum, Tennessee’s unusually broad definition of “entry” renders its

burglary statute overbroad.

Mr. Norris’s convictions for Tennessee

aggravated burglary do not qualify as generic “burglary” convictions. He was

thus erroneously denied § 2255 relief and erroneously denied a certificate of

appealability. He is thus wrongly serving a sentence based on the ACCA’s

15-year mandatory minimum.

29

CONCLUSION

In consideration of the foregoing, Mr. Norris urges the Court to hold his

case pending the outcome of the pending petition for en banc rehearing in

Brown, Sixth Circuit Case Number 18-5356, or alternatively to grant certiorari

review in order to resolve this important question of federal law.

He

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:_ /s/ Erin Rust

Erin P. Rust

Assistant Federal Community Defender

835 Georgia Avenue, Suite 600

Chattanooga, Tennessee 37402

(423) 756-4349

30