Petition for Writ of Certiorari — Xavier Demetrius Porter, Petitioner v. United States

No. 20N THE

THE

IIN

Supreme Court of tbe

the ZEIntteb

United estate.

States

ipuprente

_________

XAVIER DEMETRIUS

DEMETRIUS PORTER,

PORTER,

XAVIER

Petitioner,

v.

UNITED STATES

STATES OF AMERICA,

AMERICA,

UNITED

Respondent.

_________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

_________

PETITION FOR A WRIT OF CERTIORARI

_________

E

RIN R. C

HAPMAN*

CHAPMAN*

ERIN

Counsel of Record

HOGAN L

OVELLS US LLP

LOVELLS

HOGAN

555 Thirteenth St., N.W.

Washington, D.C. 20004

(202) 637-5600

erin.chapman@hoganlovells.com

** Appointed by the Sixth Circuit

under the Criminal Justice Act,

18 U.S.C. § 3006A

Counsel for Petitioner

QUESTION PRESENTED

Whether a federal court applying the categorical

approach is required to give significant weight to on

point dicta from the relevant State's

State’s highest court.

(i)

ii

11

PARTIES TO THE PROCEEDING

Xavier Demetrius Porter, petitioner on review, was

the petitioner-appellant below.

United States of America, respondent on review,

was the respondent-appellee below.

iii

111

RELATED PROCEEDINGS

United States Court of Appeals for the Sixth Circuit:

Porter v. United States, No. 18-5091 (6th Cir.

May 20, 2020) (reported at 959 F.3d 800);

Porter v. United States, No. 18-5091, 2018 WL

7135358 (6th Cir. Nov. 13, 2018) (granting application for a certificate of appealability in

part).

United States District Court for the Western District of Kentucky:

Porter v. United States, No. 3:13-CR-164, 2017

WL 5560697 (W.D. Ky. Nov. 17, 2017);

Porter v. United States, No. 3:13-CR-164, 2017

WL 5560657 (W.D. Ky. Apr. 24, 2017).

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED...........................................

PRESENTED

i

PARTIES TO THE PROCEEDING ............................ ii

RELATED PROCEEDINGS ......................................iii

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

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

1

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

STATUTORY PROVISIONS INVOLVED ................. 2

INTRODUCTION ........................................................ 3

STATEMENT .............................................................. 5

REASONS FOR GRANTING THE PETITION ......... 9

I.

THE DECISION BELOW CREATED

A CIRCUIT SPLIT

SPLIT............................................ 9

II. THE DECISION BELOW IS WRONG .......... 12

III. THIS CASE IS A GOOD VEHICLE

TO RESOLVE THIS IMPORTANT

QUESTION ..................................................... 18

CONCLUSION .......................................................... 23

APPENDIX

APPENDIX A—Sixth Circuit’s

Circuit's Opinion

(May 20, 2020) ................................................... 1a

la

APPENDIX B—Sixth Circuit’s

Circuit's Order

Granting Porter’s

Porter's Certificate of Appealability

(Nov. 13, 2018)................................................... 9a

v

V

TABLE OF CONTENTS—Continued

Page

APPENDIX C—District Court’s

Court's Opinion

Judge’s Findings

Adopting Magistrate Judge's

of Fact, Conclusions of Law and Recommendation

(Nov. 17, 2017)................................................. 16a

Judge’s FindAPPENDIX D—Magistrate Judge's

ings of Fact, Conclusions of Law and

Recommendation

(Apr. 24, 2017) ................................................. 22a

vi

TABLE OF AUTHORITIES

Page(s)

CASES:

CASES:

Avakian v. Citibank, N.A.,

773 F.3d 647 (5th Cir. 2014) .................................. 10

Beckles v. United States,

137 S. Ct. 886 (2017) ........................................ 19, 20

Bernhardt v. Polygraphic Co. of Am.,

350 U.S. 198 (1956)

(1956)................................................. 14

Brecht v. Abrahamson,

507 U.S. 619 (1993)

(1993)................................................. 15

Comm’r

Bosch’s Estate,

Comm'r v. Bosch's

387 U.S. 456 (1967)

(1967)........................................... 12, 16

Descamps v. United States,

570 U.S. 254 (2013)

(2013)............................................. 5, 11

Erie R. Co. v. Tompkins,

304 U.S. 64 (1938)

(1938)....................................... 13, 16, 18

Esquivel-Quintana v. Sessions,

137 S. Ct. 1562 (2017)

(2017)............................................. 19

Dep’t of Revenue,

Exxon Corp. v. Wisconsin Dep't

(1980)................................................. 13

447 U.S. 207 (1980)

Green v. State,

818 S.E.2d 535 (Ga. 2018) .............................. passim

Guaranty Tr. Co. of N.Y. v. York,

326 U.S. 99 (1945)

(1945)................................................... 16

Hawks v. Hamill,

288 U.S. 52 (1933)

(1933)................................... 3, 13, 14, 18

In re Sams,

830 F.3d 1234 (11th Cir. 2016) .............................. 17

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Johnson v. Fankell,

520 U.S. 911 (1997)

(1997)................................................. 12

Johnson v. United States,

559 U.S. 133 (2010)

(2010)..................................... 12, 13, 17

Johnson v. United States,

576 U.S. 591 (2015)

(2015)................................................... 6

Leocal v. Ashcroft,

543 U.S. 1

1 (2004)

(2004)..................................................... 19

Lucky v. State,

689 S.E.2d 825 (Ga. 2010) .............................. passim

Mathis v. United States,

(2016)............................................. 21

136 S. Ct. 2243 (2016)

Mayle v. Felix,

545 U.S. 644 (2005)

(2005)................................................... 7

McKenna v. Ortho Pharm. Corp.,

622 F.2d 657 (3d Cir. 1980) .................................... 14

Moncrieffe v. Holder,

569 U.S. 184 (2013)

(2013)................................................. 18

New York v. Ferber,

458 U.S. 747 (1982)

(1982)........................................... 12, 13

Nicolas v. State,

44 A.3d 396 (Md. 2012)..................................... 10, 11

Nolan v. Transocean Air Lines,

(1961)................................................. 14

365 U.S. 293 (1961)

Stokeling v. United States,

139 S. Ct. 544 (2019) .......................................... 5, 21

United States v. Aparicio-Soria,

740 F.3d 152 (4th Cir. 2014) ............................ 10, 11

viii

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Castleman,

572 U.S. 157 (2014)

(2014)................................................. 20

United States v. Lopez,

514 U.S. 549 (1995)

(1995)................................................. 15

United States v. Morrison,

529 U.S. 598 (2000)

(2000)................................................. 15

United States v. Reyes,

866 F.3d 316 (5th Cir. 2017) .............................. 9, 10

Washington State Dep't

Dep’t of Licensing v. Cougar Den, Inc.,

(2019)......................................... 3, 13

139 S. Ct. 1000 (2019)

Welch v. United States,

(2016)............................................... 6

136 S. Ct. 1257 (2016)

West v. Am. Tel. & Tel. Co.,

311 U.S. 223 (1940)

(1940)........................................... 13, 15

STATUTES:

STATUTES:

Ga. Code Ann. § 16-8-41(a) ............................... 3, 6, 16

18 U.S.C. § 922 .......................................................... 20

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

5

922(g)(1)

18 U.S.C. § 922(g)(1)....................................................

18 U.S.C. § 924(a)(2) ............................................. 5, 19

18 U.S.C. § 924(c) .............................................. 6, 7, 17

18 U.S.C. § 924(c)(1)(A)(ii) .......................................... 5

18 U.S.C. § 924(c)(3)(A) ............................................. 17

18 U.S.C. § 924(e) ........................................................ 5

18 U.S.C. § 924(e)(1).......................................... 2, 5, 19

18 U.S.C. § 924(e)(2)(b) ............................................... 2

ix

TABLE OF AUTHORITIES—Continued

Page(s)

18 U.S.C. § 924(e)(2)(B)(i) ................................. passim

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

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

28 U.S.C. § 2255 ...................................................... 6, 7

OTHER

OTHER AUTHORITIES:

AUTHORITIES:

19 Fed. Prac. & Proc. Juris. § 4507 (3d ed.) ............. 14

Michelle Hackman, U.S. Immigration Courts’

Courts'

Backlog Exceeds One Million Cases,

Wall St. J. (Sept. 18, 2019, 9:22 pm ET)

https://tinyurl.com/y6638z3s .................................. 20

Backlog of Pending Cases in Immigration

Courts as of August 2020, Transactional

Records Access Clearinghouse –

— Immigration, Syracuse University,

https://tinyurl.com/qpglbbx (last visited

October 16, 2020) .................................................... 20

Philip L. Torrey, Unpacking the Rise in

Crimmigration Cases at the Supreme Court,

44 Harbinger 109 (2020)

(2020)......................................... 21

Sent’g Comm’n,

U.S. Sent'g

Comm'n, Mandatory Minimum

Penalties for Firearms Offenses in the Federal Criminal Justice System

(Mar. 2018), available at

https://tinyurl.com/yc249x7u ............................ 20, 21

U.S.S.G. § 4B1.1(a) .................................................... 20

IIN

N THE

THE

Supreme Court of tbe

the ZEIntteb

United estate.

States

ipuprente

_________

No. 20_________

XAVIER DEMETRIUS

DEMETRIUS PORTER,

PORTER,

XAVIER

Petitioner,

v.

UNITED

UNITED STATES

STATES OF AMERICA,

AMERICA,

Respondent.

_________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

_________

PETITION FOR A WRIT OF CERTIORARI

_________

Xavier Demetrius Porter respectfully petitions for a

writ of certiorari to review the judgment of the Sixth

Circuit in this case.

OPINIONS BELOW

Circuit’s opinion is reported at 959 F.3d

The Sixth Circuit's

800. Pet. App. 1a.

Circuit’s order grantla. The Sixth Circuit's

Porter’s motion for a certificate of appealability

ing Porter's

in part is unreported, but is available at 2018 WL

7135358. Id. at 9a. The District Court's

Court’s November

17, 2017 opinion is unreported, but available at 2017

judge’s

WL 5560697. Id. at 16a. The magistrate judge's

April 24, 2017 report and recommendation is unreported, but is available at 2017 WL 5560657. Id. at

22a.

(1)

2

JURISDICTION

The Sixth Circuit entered judgment on May 20,

2020. On March 19, 2020, the Court extended the

deadline to petition for a writ of certiorari to 150

days from the date of the lower court judgment. This

Court’s

Court's jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

18 U.S.C. § 922(g), in relevant part, 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 * * * possess in or affecting commerce, any

firearm or ammunition * * * .

18 U.S.C. § 924(e)(1), in relevant part, 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 * * *

such person shall be fined under this title and

imprisoned not less than fifteen years * * *.

18 U.S.C. § 924(e)(2)(b), in relevant part, provides:

“violent felony"

felony” means any crime

the term "violent

punishable by imprisonment for a term exceeding one year * * * that * * * has as an element the use, attempted use, or threatened

use of physical force against the person of another * * *.

3

Ga. Code § 16-8-41(a) provides:

A person commits the offense of armed robbery

when, with intent to commit theft, he or she

takes property of another from the person or

the immediate presence of another by use of

an offensive weapon, or any replica, article, or

device having the appearance of such weapon.

The offense of robbery by intimidation shall be

a lesser included offense in the offense of

armed robbery.

INTRODUCTION

The Armed Career Criminal Act (ACCA), like multiple federal criminal and immigration statutes,

requires a federal judge to step into a state court

judge’s shoes. Under ACCA, a prior state law convicjudge's

tion subjects a defendant to a sentence enhancement,

“violent

but only if the state law offense amounts to a "violent

felony” under the Act. It will not do so if only some

felony"

ways a person can commit the state law offense meet

Act’s definition of a violent felony; all of the ways

the Act's

must meet that definition. That means that federal

judges must decide what the state law offense requires.

As this Court has said over and over, when interpreting state laws, a federal judge must ask what a

state court judge would do. See, e.g., Washington

Dep’t of Licensing v. Cougar Den, Inc., 139 S.

State Dep't

Ct. 1000, 1010 (2019). And this Court has also made

clear that this role-playing exercise requires giving

significant weight to on point statements of state

law—even when those statements are not binding.

See Hawks v. Hamill, 288 U.S. 52, 59 (1933). That is

what a state court judge would do when interpreting

4

a state law, and so that is what a federal court judge

should do, too.

This basic principle applies to the ACCA. And yet,

the Sixth Circuit below declined to consider on point

dicta from the Georgia Supreme Court that bore on

whether petitioner’s

petitioner's prior Georgia conviction was an

ACCA predicate. As relevant here, the Act allows a

defendant’s federal sentence only

court to enhance a defendant's

when her predicate conviction involves a threat to a

person. 18 U.S.C. § 924(e)(2)(B)(i). But the Georgia

Supreme Court has said that Georgia’s

Georgia's armed robbery statute can be violated by a defendant who

threatens only property, not people. See Green v.

State, 818 S.E.2d 535, 540 (Ga. 2018); Lucky v. State,

689 S.E.2d 825, 828 (Ga. 2010) (same). As such, the

petitioner’s

petitioner's Georgia armed robbery conviction cannot

support an ACCA enhancement. Nevertheless, the

Sixth Circuit upheld the enhancement by writing off

multiple statements from the Georgia Supreme

Court as "loose

“loose language"

language” that need not be seriously

considered. Pet. App. 6a.

In doing so, the Sixth Circuit created a split among

the federal courts of appeals as to whether federal

courts applying the categorical approach may give no

State’s highest

weight to on point dicta from the State's

court. The Sixth Circuit’s

Circuit's approach undermines the

sovereignty of state courts and arrogates power to

federal courts in an area that is quintessentially left

to the states. And it has grave consequences for how

federal courts apply the categorical approach in

sentencing, immigration, and beyond.

This case offers a clean vehicle to address this important issue implicating the balance of state and

federal power. The Court should take it.

5

STATEMENT

1. The ACCA prescribes a sentence enhancement

1.

for defendants who possessed a firearm during the

commission of a crime despite three previous convic“violent felony."

felony.” 18 U.S.C. § 924(e). An

tions for a "violent

ACCA enhancement turns a conviction that would

otherwise carry a maximum penalty of ten years into

one with a minimum penalty of 15 years. See id.

§ 924(a)(2), (e)(1). Whether the ACCA enhancement

applies depends on the defendant's

defendant’s previous convic“violent felony"

felony” under

tions. A crime counts as a "violent

ACCA’s elements clause if it "has

“has as an element the

ACCA's

use, attempted use, or threatened use of physical

force against the person of another.”

another."

Id.

§ 924(e)(2)(B)(i). To determine whether a predicate

state offense satisfies that definition, a federal court

applies the "categorical

“categorical approach.”

approach." See, e.g., Stokeling v. United States, 139 S. Ct. 544, 555 (2019). That

approach requires the court to determine whether

the crime of conviction as enumerated by the state

legislature and state's

state’s highest court "sweeps

“sweeps more

than” the federal definition, regardless of

broadly than"

how the defendant actually committed the crime.

Descamps v. United States, 570 U.S. 254, 261 (2013).

2. In 2013, a federal grand jury indicted Porter on

18 counts related to a series of robberies of fast food

restaurants, convenience stores, and specialty shops

in Louisville, Kentucky. Pet. App. 2a; 23a. Porter

pled guilty to multiple counts of Hobbs Act robbery,

one count of brandishing a firearm during and in

relation to a crime of violence, and one count of being

a felon in possession of a firearm. Id. at 2a (citing 18

U.S.C. §§ 922(g)(1), 924(c)(1)(A)(ii)).

6

The presentence report identified Porter as eligible

for an ACCA sentence enhancement based on three

previous Georgia armed robbery convictions. Pet.

App. 10a; see also Ga. Code Ann. § 16-8-41(a). At the

time of Porter’s

Porter's sentencing, underlying crimes—like

Porter’s—that

Porter's—that were not one of the offenses specifically enumerated in the statute could count as violent

felonies only if they satisfied at least one of two

clauses: (1) the elements clause or (2) the residual

“involves

clause, which applied to a conviction that "involves

conduct that presents a serious potential risk of

physical injury to another.”

another."

18 U.S.C. § 924

(e)(2)(B)(ii). Without specifying which clause Porter

qualified under, the district court applied the ACCA

sentence enhancement and sentenced Porter to a

years’ incarceration. See Pet. App. 2a.

total of 30 years'

3. After the district court entered judgment, this

Court decided Johnson v. United States, 576 U.S. 591

ACCA’s residual

(2015). The Court concluded the ACCA's

clause was unconstitutionally vague—a ruling that

the Court later held applied retroactively. See id. at

597; Welch v. United States, 136 S. Ct. 1257, 1268

(2016). Porter filed a timely pro se motion to vacate

his sentence under 28 U.S.C. § 2255 in light of Johnson.

The district court referred Porter’s

Porter's petition to a

magistrate judge for a report and a recommendation.

Pet. App. 22a-23a. The magistrate recommended

dismissing the motion on the grounds that Johnson

“afford[ed]

relief” because the petition

"afford

[ed] Porter no relief"

appeared to be challenging his 924(c) conviction for

brandishing a firearm in relation to a crime of violence, not his ACCA sentence enhancement. See id.

at 26a-27a.

7

Porter objected to the findings. See id. at 1

11a.

la. Still

pro se, he argued that Johnson applied to his case

because, based on Johnson, he was actually innocent

of his ACCA enhancement, and his sentence was

imposed in violation of the Constitution. See id. at

10a-11a, 20a.

The district court nonetheless adopted the magisjudge’s recommendation and denied Porter’s

trate judge's

Porter's

§ 2255 motion. It concluded that because Porter did

not raise the ACCA argument in his original petition,

he had waived it. Id. at 20a-21a.

4. The Sixth Circuit granted Porter a certificate of

appealability and appointed counsel to represent him

on appeal. See id. at 12a-15a. The court concluded,

among other things, that reasonable jurists could

“whether the district court should

disagree about "whether

overlooked” the fact that Porter first raised his

have overlooked"

Johnson challenge to his ACCA sentence enhancement for being a felon in possession in his response

judge’s report and recommendato the magistrate judge's

tion. Id. at 13a. It also suggested that, in any event,

Porter’s

“may * * * be timely,"

timely,”

Porter's ACCA argument "may

“arguably 'relate

‘relate[s]

back’ to his

because it "arguably

[s] back'

§ 924(c) challenge."

challenge.” Id. (citing Mayle v. Felix, 545

U.S. 644, 649-650 (2005)). And since the Court had

yet to decide whether a conviction for Porter’s

Porter's prediarmed

cate

offenses—Georgia

robbery—

“constitute[d]

"constitute

[d] a violent felony without reference to

ACCA’s residual clause, reasonable jurists could

the ACCA's

claim.” Id.

debate the merits of Porter’s

Porter's underlying claim."

at 13a-14a.

Porter explained that his ACCA enhancement

could not stand after Johnson. Porter pointed to

multiple occasions where the Georgia Supreme Court

8

had stated that Georgia armed robbery criminalizes

threats to property. Id. at 6a; see also Green, 818

(“ ‘[U]se

weapon’ takes

S.E.2d at 540 ("[U]

se of an offensive weapon'

place when the weapon is used as an instrument of

actual or constructive force—that is, actual violence

exerted on the victim or force exerted upon the

victim’s fears of injury to

victim by operating on the victim's

*.”

the person, property, or character of the victim * * *."

(emphasis added)); Lucky, 689 S.E.2d at 828 (same).

That meant that Georgia armed robbery could not

“violent felony"

felony” under

categorically qualify as a "violent

ACCA’s elements clause because the clause only

ACCA's

applies to crimes that "ha[ve]

“ha[ve] as an element the use,

attempted use, or threatened use of physical force

against the person of another.”

another." 18 U.S.C. § 924

(e)(2)(B)(i) (emphasis added); Pet. App. 7a-8a. Porter’s ACCA enhancement was thus invalid.

ter's

5. The Sixth Circuit disagreed and affirmed.

While it noted that the parties had made arguments

about waiver and forfeiture, the Sixth Circuit below

chose to resolve the merits of Porter’s

Porter's ACCA argument. Pet. App. 3a. It reasoned that while, "[t]o

“[t]o be

there’s some loose language in a few cases

sure, there's

suggesting that a defendant can simply threaten a

person’s

‘property’ or 'character,'

‘character,’ "” "Georgia

“Georgia courts

person's 'property'

have never upheld a conviction for armed robbery

language.” Id. at 6a (quoting Green,

based on this language."

“ha[d]n’t shown

818 S.E.2d at 540). As such, Porter "ha[d]n't

a realistic probability that Georgia would apply its

statute to cases in which a defendant threatens only

a victim's

victim’s property.”

property." Id. at 7a (internal quotation

marks omitted).

This petition followed.

9

REASONS FOR GRANTING THE PETITION

I.

THE DECISION

CIRCUIT SPLIT.

BELOW

CREATED

A

By not giving any weight to clear statements in

multiple Georgia Supreme Court opinions, the decision below created a split among the federal courts of

appeals as to whether federal courts imposing federal sentences that rely on predicate state court convictions may disregard on point dicta from the relevant

state supreme court.

1. In the Fifth and Fourth Circuits, a federal court

must give significant weight to on point dicta from a

state supreme court. In United States v. Reyes, 866

F.3d 316, 321 (5th Cir. 2017), the Fifth Circuit relied

on dicta in an opinion from the relevant state supreme court to determine whether an offense count“crime of violence"

violence” under the sentencing

ed as a "crime

guidelines. The Fifth Circuit used a hypothetical in

the Illinois State Supreme Court’s

Court's discussion of an

unrelated issue—whether aggravated battery with a

firearm is a separate offense from aggravated battery—to decide the issue at hand: whether aggravated battery involving the use of a deadly weapon was

divisible. Id. Even though the Illinois Supreme

Court’s

Court's discussion concerned a hypothetical case not

before it, the Fifth Circuit followed the Illinois high

court’s decision. It did so, because "a

“a federal court

court's

tasked with interpreting state law must give state

weight.” Id.

supreme court dicta great weight."

The Fifth Circuit looked to this Court’s

Court's Erie cases,

“a federal court [to] identify and apply

which require "a

law.” Id. at 321 n.4. And "in

“in the absence of a

state law."

clearly controlling state supreme court opinion, the

analogous Erie inquiry calls on federal courts to

10

‘guess’

‘would decide.'

decide.’ "”

`guess' how a state supreme court 'would

“this 'guess'

‘guess’ is not a

Id. The court explained that "this

surmise of what the state law would become if the

state supreme court addressed the issue but rather

is.” Id.; see also Avakian v.

what the state law is."

Citibank, N.A., 773 F.3d 647, 651 (5th Cir. 2014)

“dicta” from state supreme court where

(relying on "dicta"

party had "pointed

“pointed to no other Mississippi Supreme

Court decision that undermines it").

it”). The Fifth

Circuit therefore interpreted Illinois law consistent

with the Illinois Supreme Court’s

Court's dicta.

The en banc Fourth Circuit has reached the same

conclusion. In United States v. Aparicio-Soria, 740

F.3d 152, 153 (4th Cir. 2014) (en banc), the court

considered whether Maryland resisting arrest was

“crime of violence"

violence” under U.S. Sencategorically a "crime

tencing Guideline § 2L1.2. To determine whether

“as an element the

Maryland resisting arrest had "as

use, attempted use, or threatened use of violent force

capable of causing physical pain or injury against

another person,”

person," the Court looked to dicta from the

state’s highest court. Id. at 155. In Nicolas v. State,

state's

44 A.3d 396 (Md. 2012), the Maryland Court of

Appeals considered a different question: whether the

offense of Maryland second degree assault merges

into the offense of Maryland resisting arrest. Id. at

408-409. The court concluded that it did, because in

‘force’ that is required to find a deMaryland the "“ 'force'

fendant guilty of resisting arrest is the same as the

‘offensive

contact’ that is required to find a

`offensive physical contact'

defendant guilty of the battery variety of second

degree assault.”

assault." Id. at 409.

The Fourth Circuit relied on that statement to

conclude that Maryland resisting arrest is categori-

11

“crime of violence."

violence.” See Aparicio-Soria,

cally not a "crime

740 F.3d at 155. The Fourth Circuit explained that

“[a]ccording

"[a]

ccording to the Court of Appeals of Maryland, the

force required for conviction pursuant to the Mary‘offensive

land resisting arrest statute is merely 'offensive

physical contact.'

contact.’ "

” Id. at 155, 157-158 (quoting

Nicolas, 44 A.3d at 409). And, as a result, the crime

was not a crime of violence within the meaning of the

federal guidelines. Id. The Fourth Circuit acknowledged that this statement was not the holding of

Nicolas. See id. at 156 n.4; see also id. at 164 (Wilkinson, J., dissenting) (faulting the majority for

“basing its entire conclusion on [a] bit of dicta").

dicta”).

"basing

Nevertheless, the Fourth Circuit followed it, because

“the law as articulated by Maryland’s

"the

Maryland's highest court

* * * is the law that binds us.”

us." Id. at 156.

2. In the Sixth Circuit, in contrast, a federal court

need not give weight to on point dicta from a state

supreme court. As the Sixth Circuit acknowledged

below, there are multiple Georgia Supreme Court

cases explaining that a defendant can commit Geor“threaten[ing]

gia armed robbery by "threaten

[ing] a person’s

person's

” Pet. App. 6a (quoting

‘property’

‘character.’ "

`property' or 'character.'

Green, 818 S.E.2d at 540 (Ga. 2018)). Because the

ACCA’s elements clause only applies to crimes that

ACCA's

“ha[ve] as an element the use, attempted use, or

"ha[ve]

threatened use of physical force against the person of

another,”

another," 18 U.S.C. § 924(e)(2)(B)(i) (emphasis added), that Georgia’s

Georgia's statute can be satisfied by threats

“sweeps

to property would be enough to show that it "sweeps

more broadly than"

than” the ACCA definition and thus

that a Georgia armed robbery conviction cannot

count as an ACCA predicate. Descamps, 570 U.S. at

261. Yet, instead of taking the Georgia Supreme

Court’s

“GeorCourt's statements as a strong indication that "Geor-

12

gia armed robbery can involve the use of force

against 'property'

‘property’ rather than a 'person,'"

‘person,’ ” the Sixth

Circuit disregarded those statements as "loose

“loose language.”

Pet.

App.

6a.

The

court

of

appeals

believed

guage."

“Georgia courts have never upheld a

that because "Georgia

language,”

conviction for armed robbery based on the language,"

the court need not give it significant weight. Id. The

courts of appeals are thus split on the issue.

II.

THE DECISION BELOW IS WRONG.

The decision below adopted the wrong approach.

In evaluating whether state crimes fit into federal

definitions, federal courts must give significant

weight to on point language from the relevant state

supreme court. In taking the opposite approach, the

Sixth Circuit below effectively re-wrote Georgia law.

It also undermined federalism values and acted in

tension with the values underlying Erie.

1. Federal courts are bound by on point interpretations of state law from state supreme courts. See,

e.g., Johnson v. United States, 559 U.S. 133, 138

(2010) (hereinafter "Curtis

“Curtis Johnson”).

Johnson"). The Court has

reaffirmed time and again that "state

“state law as announced by the highest court of the State is to be

followed.” Comm’r

Bosch’s Estate, 387 U.S. 456,

followed."

Comm'r v. Bosch's

465 (1967). That is so because "[n]

“[n]either

either this Court

nor any other federal tribunal has any authority to

place a construction on a state statute different from

State,”

the one rendered by the highest court of the State,"

and thus the interpretation of a state statute by the

State’s supreme court is "binding

“binding on federal courts."

courts.”

State's

Johnson v. Fankell, 520 U.S. 911, 916 (1997). In

“the construction that a state court gives a

short, "the

state statute is not a matter subject to [a federal

court’s] review."

review.” New York v. Ferber, 458 U.S. 747,

court's]

13

767 (1982); see also Exxon Corp. v. Wisconsin Dep't

Dep’t of

Revenue, 447 U.S. 207, 226 n.9 (1980) (explaining

“matter[s]

construction” are

that "matter

[s] of state statutory construction"

for "the

“the [State’s]

Supreme

Court,

as

the final arbiter

[State's]

State’s law").

law”). To "construe

“construe [state law] to

of that State's

mean what the [State’s]

[State's] Supreme Court has said it

“to overstep the bounds of [a federal

does not,”

not," is "to

court’s] authority.”

court's]

authority." Cougar Den, Inc., 139 S. Ct. at

1010.

This is true when a federal court uses the categorical approach to decide whether a predicate state

court conviction fits within a federal statutory definition. In Curtis Johnson v. United States, for example, the Court explained that federal courts analyzing how state crimes fit into federal definitions are

“bound by [a State] Supreme Court’s

"bound

Court's interpretation

law.” 559 U.S. at 138.

of state law."

It is also true when a federal court sitting in diversity applies state law. Under Erie Railroad Co. v.

Tompkins, federal courts sitting in diversity must

apply "the

“the law of the state * * * declared by its

Legislature in a statute or by its highest court."

court.” 304

“the highest

U.S. 64, 78 (1938). That is so because "the

court of the state is the final arbiter of what is state

law.” West v. Am. Tel. & Tel. Co., 311 U.S. 223, 236

law."

“[w]hen it has spoken, its pronouncement

(1940). So, "[w]hen

is to be accepted by federal courts as defining state

law unless it has later given clear and persuasive

indication that its pronouncement will be modified,

restricted.” Id.

limited or restricted."

Federal courts must also follow directions from

state Supreme Courts when those statements are not

“considered

holdings. This Court has said that "considered

dictum” in cases from state high courts should be

dictum"

14

considered. Hawks, 288 U.S. at 59. In Hawks, the

Court explained that federal courts should act "with

“with

reluctance” before disregarding dicta

caution and reluctance"

from state supreme courts because "Mlle

“[t]he stranger

from afar, unacquainted with the local ways, permits

himself to be guided by the best evidence available,

the directions or the counsel of those who dwell upon

spot.” Id. at 60. And this Court has previously

the spot."

granted, vacated, and remanded a case to a court of

appeals with instructions to consider "relevant

“relevant

dictum” from the appropriate state supreme court.

dictum"

See Nolan v. Transocean Air Lines, 365 U.S. 293,

295-296 (1961).

In fact, in the Erie context this court has actually

instructed federal courts to look to dicta from state

supreme courts in order to determine state law. In

Bernhardt v. Polygraphic Co. of America, 350 U.S.

198 (1956), the Court explained that when it was

unclear whether a 46-year-old precedent from the

relevant state supreme court should decide the

question, the court was to look to "legislative

“legislative movement,”

“subsequent rulings or dicta,"

dicta,” and whether

ment," "subsequent

“undermine[d].” Id. at 204-205

the old rule had been "undermine[d]."

(emphasis added). And the leading treatise agrees

state’s highest court"

court”

that “[c]onsidered

lc]onsidered dicta by the state's

provides "reliable

“reliable indicia of how the state tribunal

might rule."

rule.” 19 Fed. Prac. & Proc. Juris. § 4507 (3d

ed.) (quoting McKenna v. Ortho Pharm. Corp., 622

F.2d 657, 662 (3d Cir. 1980)).

Such an approach makes sense. After all, state

supreme courts are not themselves bound by holdings in prior decisions. See Bernhardt, 350 U.S. at

204. So, a statement that a state supreme court has

repeated multiple times across a number of years—

15

like a prior holding of the state supreme court—is

not foolproof, but it is a good indication of what state

law is. Plus, this Court instructed that even intermediate appellate court decisions are "not

“not to be

disregarded by a federal court unless it is convinced

by other persuasive data that the highest court of the

otherwise.” West, 311 U.S. at 237.

state would decide otherwise."

That is so because, even though they are not binding

on the state supreme court, they offer an important

“datum for ascertaining state law."

law.” Id. The same is

"datum

true of on point, yet non-binding, statements in state

supreme court decisions.

And for good reason. Making criminal laws is a

quintessential state power. United States v. Lopez,

514 U.S. 549, 561 n.3 (1995) ("Under

(“Under our federal

‘States possess primary authority for

system, the 'States

law.’ ")

”) (quoting

defining and enforcing the criminal law.'

Brecht v. Abrahamson, 507 U.S. 619, 635 (1993)).

Indeed, this Court has explained that there is "no

“no

better example of the police power, which the Founders denied the National Government and reposed in

crime.”

the States, than the suppression of violent crime."

United States v. Morrison, 529 U.S. 598, 618 (2000).

As such, permitting federal courts to disregard clear

indications from state courts as to what state law is

arrogates to federal courts a quintessential state-law

power: "defining

“defining * * * the criminal law."

law.” Lopez, 514

U.S. at 561 n.3.

Allowing federal courts to give no weight to on

point statements from state supreme courts also

undermines state sovereignty.

This Court has

emphasized that a key reason for honoring state

court interpretations of state law is to ensure that

federal courts are not overstepping their authority

16

and "invad[ing]

“invad[ing] rights * * * reserved by the Constitustates.” Erie, 304 U.S. at 80;

tion to the several states."

Bosch’s Estate, 387 U.S. at 465 (explaining that even

Bosch's

when a case is "not

“not a diversity case,"

case,” the principles

underlying Erie still apply). Indeed, respecting state

courts’ interpretations of state law ensures

supreme courts'

“the proper distribution of judicial power between

"the

courts.” Guaranty Tr. Co. of N.Y.

State and federal courts."

v. York, 326 U.S. 99, 109 (1945).

Giving significant weight to clear statements from

state supreme courts also ensures that federal courts

do not overstep their constitutional authority. As the

Court in Erie explained, when a federal court atcourt’s clear

tempts to supersede a state supreme court's

“an

statement as to what its law means that is "an

unconstitutional assumption of powers by the Courts

States.” Erie, 304 U.S. at 79.

of the United States."

2. The Sixth Circuit’s

Circuit's decision below is at odds

with these fundamental principles. As the Sixth

Circuit acknowledged, the Georgia Supreme Court

has on multiple occasions clearly stated that Porter’s

Porter's

crime of conviction, Georgia armed robbery, can be

carried out by threatening property, not people. See

Pet. App. 6a (quoting Green, 818 S.E.2d at 540);

accord Lucky, 689 S.E.2d at 828. Georgia’s

Georgia's armed

“[a] person commits the

robbery statute says that "[a]

offense of armed robbery when, with intent to commit theft, he or she takes property of another from

the person or the immediate presence of another by

use of an offensive weapon, or any replica, article, or

weapon.” Ga.

device having the appearance of such weapon."

Code Ann. § 16-8-41(a). For years, the Georgia

statute’s requireSupreme Court has said that the statute's

ment that a weapon be used is satisfied "when

“when the

17

weapon is used as an instrument of actual or constructive force—that is, actual violence exerted on

the victim or force exerted upon the victim by operating on the victim's

victim’s fears of injury to the person,

victim.” Lucky, 689

property, or character of the victim."

S.E.2d at 828 (emphases added). And it reiterated

this requirement two years ago. See Green, 818

S.E.2d at 540.

If the Sixth Circuit had given significant weight to

this clear language from the Georgia Supreme Court,

it would have been forced to conclude that Porter’s

Porter's

“violent felon[ies]"

felon[ies]”

convictions could not count as "violent

under ACCA. This is so because unlike the nearly

identically worded elements clause of 18 U.S.C.

ACCA’s elements clause does not include

§ 924(c), ACCA's

within its gambit crimes that involve threats to

property but not people.

Compare 18 U.S.C.

§ 924(c)(3)(A) (including crimes that have as an

“against the person or propelement the use of force "against

erty of another”

another" (emphasis added)); with id.

§ 924(e)(2)(B)(i) (including crimes that have as an

“against the person of

element use of force merely "against

another”);

another"); accord In re Sams, 830 F.3d 1234, 1237

(“Notably, the ACCA's

ACCA’s

(11th Cir. 2016) (per curiam) ("Notably,

elements clause only involves the use of force

‘against

`against the person of another,’

another,' while the [§ 924(c)]

use-of-force clause involves the use of force 'against

‘against

”). Rather, for a

the person or property of another.’

another.' ").

crime to fit within the elements clause of ACCA, it

must categorically require "force

“force capable of causing

physical pain or injury to another person."

person.” Curtis

Johnson, 559 U.S. at 140 (emphasis added). A crime

that can be accomplished—in the words of the Georvictim’s

gia Supreme Court—“by

Court—"by operating on the victim's

fears of injury to * * * property"

property” plainly falls outside

18

ACCA’s statutory definition. Green, 818 S.E.2d at

ACCA's

540. Because the "minimum

“minimum conduct criminalized by

statute”—robbing someone by threatening

the state statute"—robbing

their property not their person—does not count as a

“violent felony"

felony” under ACCA, Georgia armed robbery

"violent

“violent felony."

felony.” Moncrieffe v.

is categorically not a "violent

Holder, 569 U.S. 184, 191 (2013).

The Sixth Circuit below went astray by concluding

that because the on point statements from the Georgia Supreme Court were not formal holdings, the

Sixth Circuit did not have to give them any weight.

That was error. The Georgia Supreme Court’s

Court's

repeated affirmations that Georgia armed robbery

criminalizes threats to property offers "the

“the best

evidence available”

available" on how the Georgia Supreme

Court views the issue. Hawks, 288 U.S. at 60. By

disregarding that evidence, the Sixth Circuit below

did precisely what Hawks warned against: it purported to understand Georgia law better than the

Georgia Supreme Court, even though the Sixth

Circuit judges were "stranger

“stranger[s]

[s] from afar, unacways.” Id. Accordingly, the

quainted with the local ways."

Sixth Circuit below was wrong to not give any weight

to on point dicta from the Georgia Supreme Court.

By not taking seriously the Georgia Supreme Court’s

Court's

statements as to what Georgia law is, the Sixth

Circuit "invaded

“invaded rights * * * reserved by the Constistates.” Erie, 304 U.S. at 80.

tution to the several states."

This Court’s

Court's correction is essential.

III. THIS CASE IS A GOOD VEHICLE TO

RESOLVE THIS IMPORTANT QUESTION.

This case presents a good opportunity to address an

important issue that goes to the heart of how power

is distributed in our federal system. And allowing

19

the decision below to stand will hurt criminal defendants, States, and federalism.

1. Resolving the question presented is urgently

important because it has serious consequences for

criminal defendants. ACCA enhancements transform a crime that would otherwise carry a maximum

penalty of ten years into one with a minimum penalty of 15 years. See 18 U.S.C. § 924(a)(2), (e)(1). That

means that a federal court's

court’s refusal to give significant weight to clear language from a state supreme

court in an ACCA case can result—as it did here—in

a defendant receiving a significant sentence enhancement that he would not have received had his

case been heard in the Fifth or Fourth Circuits. The

same goes for federal courts applying state supreme

court precedent to determine whether someone

qualifies for deportation. This Court should not

allow the accident of geography to determine such

consequential questions.

The question presented is also important because it

has far-reaching effects. For one, the question colors

how federal courts address multiple federal statutory

schemes. Federal courts are frequently tasked with

determining whether prior state court convictions fit

within federal statutory definitions. They must do so

when applying the Armed Career Criminal enhancement at issue here, as well as when considering whether someone is deportable under the Immigration and Nationality Act due to a qualifying

conviction. See, e.g., Leocal v. Ashcroft, 543 U.S. 1, 7

(2004); Esquivel-Quintana v. Sessions, 137 S. Ct.

1562, 1568 (2017). So, too, when considering various

provisions of the Federal Sentencing Guidelines.

See, e.g., Beckles v. United States, 137 S. Ct. 886, 890

20

(2017) (discussing U.S.S.G. § 4B1.1(a) careeroffender enhancement based on prior convictions

“under federal or state law"

law” (emphasis added)).

"under

Federal courts must also rely on decisions of state

courts when determining whether a defendant meets

the requirements for a conviction under 18 U.S.C.

§ 922 for illegally possessing a firearm. See, e.g.,

United States v. Castleman, 572 U.S. 157, 161 (2014).

This question is important because it frequently

recurs.

Statutory schemes that require federal

courts to interpret state crimes are the subject of

frequent litigation in federal courts. In recent years,

around 400 defendants a year have received an

Sent’g Comm’n,

ACCA enhancement.

See U.S. Sent'g

Comm'n,

Mandatory Minimum Penalties for Firearms Offenses

in the Federal Criminal Justice System 17 fig.3 (Mar.

“Mandatory Minimum Penalties

2018) (hereinafter "Mandatory

for

Firearms

Offenses”),

available

at

Offenses"),

Plus, deportation

https://tinyurl.com/yc249x7u.

proceedings are currently occurring at a record pace.

As of August 2020, more than 1.2 million deportation

cases are pending across the country. See Backlog of

Pending Cases in Immigration Courts as of August

2020, Transactional Records Access Clearinghouse Immigration,

Syracuse

University,

https://tinyurl.com/qpglbbx (last visited October 16,

2020). And since January 2017 deportation cases

pending in federal courts have nearly doubled. See

Michelle Hackman, U.S. Immigration Courts’

Courts' Backlog Exceeds One Million Cases, Wall St. J. (Sept. 18,

2019, 9:22 pm ET) https://tinyurl.com/y6638z3s.

It is no surprise then that in the last four years

alone, this Court has decided two cases where federal

courts have had to look to state court interpretations

21

of state law. See Stokeling, 139 S. Ct. at 553-555

(2019) (applying state supreme court decisions to

“violent

determine whether Florida robbery was a "violent

felony”);

Mathis

v.

United

States,

136

S.

Ct.

2243,

felony");

2256 (2016) (applying a state supreme court decision

to determine whether listed items in Iowa’s

Iowa's burglary

law were elements or means); cf. Philip L. Torrey,

Unpacking the Rise in Crimmigration Cases at the

Supreme Court, 44 Harbinger 109, 109 (2020) (noting

that in the last three terms the Court has decided or

granted ten cases involving the application of the

categorical approach).

Correcting the Sixth Circuit’s

Circuit's error below is particularly important because of the outsize role that

the Sixth Circuit plays in applying ACCA. Indeed, in

the most recent year on record, 17.8 percent of all

ACCA cases nationwide came out of the Sixth Circuit—more than all but one other federal court of

appeal. See Mandatory Minimum Penalties for

Firearms Offenses, supra at 36.

2. This case is a good vehicle to address this important question. For one, the opinion below considered the merits of the ACCA issue. Because the

decision below chose to focus on the merits of the

question, this Court need not second-guess that

decision. See Pet. App. 3a. And the government

waived its waiver argument by failing to raise it in

the district court. Cf. id. at 16a-30a (making no

mention of any waiver argument).

argument).11

1

Although the Sixth Circuit below did not address the forfei'

ture of Porter’s

Porter's ACCA argument, the Sixth Circuit indicated

when granting Porter’s

Porter's certificate of appealability that his

22

The issue is clearly presented because the Sixth

Circuit below acknowledged the on point precedent

from the Georgia Supreme Court. See id. at 6a. And

resolving the question presented would resolve the

ACCA issue, because if the Sixth Circuit below had

followed the Georgia Supreme Court’s

Court's clear language, it would have had to have concluded that

Porter was not eligible for an ACCA enhancement.

See, supra, pp. 17-18.

claim could be timely because it related back to his original

petition, and also that the district court may have erred by not

overlooking Porter’s

Porter's forfeiture. See Pet. App. 13a.

23

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

CHAPMAN*

E

RIN R. C

HAPMAN*

ERIN

Counsel of Record

LOVELLS

H

OGAN L

OVELLS US LLP

HOGAN

555 Thirteenth St., N.W.

Washington, D.C. 20004

(202) 637-5600

erin.chapman@hoganlovells.com

** Appointed by the Sixth Circuit

under the Criminal Justice Act,

18 U.S.C. § 3006A

Counsel for Petitioner

O

CTOBER 2020

OCTOBER