Petition for Writ of Certiorari — Phillip L. Gilliam, Petitioner v. United States

NO. ____________

IN THE UNITED STATES SUPREME COURT

_________________ TERM

__________________________________________________________

PHILLIP L. GILLIAM,

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

Attorney for Mr. Phillip Gilliam

QUESTIONS PRESENTED FOR REVIEW

Does Tennessee’s aggravated 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 ..................................................7

REASONS FOR GRANTING OF THE WRIT ..............................................13

ARGUMENT…………………………………...…………………………….16

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

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

attempting a burglary………………………..…………………………....….16

A.

Generic burglary requires an entry, not merely an

attempted entry……..………………………….…...…………..17

B.

Tennessee follows the minority rule, such that a mere

attempt may be treated as a burglary…………….……..….…...23

C.

The Sixth Circuit’s rational conflicts with James……………...28

D.

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

more than an attempted burglary………….…………....………30

iii

CONCLUSION ................................................................................................32

iv

TABLE OF AUTHORITIES

Page

Supreme Court Cases:

Brumbach v. United States, 929 F.3d 791 (6th Cir. 2019)…………………….9

Conkright v. Frommert, 556 U.S. 1401 (2009)………………………….……11

Descamps v. United States, 570 U.S. 254 (2013)……………….…….…..16-17

Indiana State Police Pension Tr. v. Chrysler LLC, 556 U.S. 960

(2009)………………………………………………………………10-11

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

Johnson v. United States, 135 S. Ct. 2551 (2015)………..……...…........2, 7, 16

Moncrieffe v. Holder, 569 U.S. 184 (2013)………………….……..……...…30

Morissette v. United States, 342 U.S. 246 (1952)…………………………….20

Quarles v. United States, 139 S. Ct. 1872 (2019)…………………..…13, 14, 17

Taylor v. United States, 495 U.S. 575 (1990)…………………..…14, 17, 22, 29

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

United States v. Burris, 912 F.3d 386 (6th Cir. 2019) (en banc)…………30-31

United States v. Moore, 578 F. App’x 550 (6th Cir. 2014)…………………..24

United States v. Morris, 18-5183/18-5197, R. 63-2 (6th Cir July 17, 2020)…..11

United States v. Nance, 481 F.3d 882 (6th Cir. 2007)………………..….…….9

United States v. Prater, 766 F.3d 501 (6th Cir. 2014)…………………...…....16

United States v. Stitt, 139 S. Ct. 399 (2018)…………..….………...8, 13, 14, 17

v

United States v. Yerkes, 820 F. App’x 334 (2020)………………….……passim

State Court Cases:

Bailey v. State, 231 A.2d 469 (Del. 1967)………………………..……….…..27

Commonwealth v. Burke, 467 N.E.2d 846 (Mass. 1984)………………..…....19

Commonwealth v. Cotto, 752 N.E.2d 768 (Mass. App. 2001)……………18, 19

Ferguson v. State, 530 S.W.2d 100 (Tenn. Crim. App. 1975)………….…….26

Foster v. State, 220 So.2d 406 (Fla. Dist. Ct. App. 1969)……………..….…..21

Hall v. State, 584 S.W.2d 819 (Tenn. Crim. App. 1979)…………...…..…….27

Hayes v. State, 656 S.W.2d 926 (Tex. Ct. App. 1983)………..…..……...…...27

Mattox v. State, 100 N.E. 1009 (Ind. 1913)………………………….………..21

People v. Davis, 958 P.2d 1083 (Cal. 1998)……………….……….…………21

People v. Rhodus, 303 P.3d 109 (Colo. App. 2012)…………………………..22

People v. Tragani, 449 N.Y.S.2d 923 (N.Y. Sup. Ct. 1982)………...……21, 29

Russell v. State, 255 S.W.2d 881 (Tex. Crim. App. 1953)……………..…20, 27

Sears v. State, 713 P.2d 1218 (Alaska Ct. App. 1986)………….…….………21

Stamps v. Commonwealth, 602 S.W.2d 172 (Ky. 1980)…………….………..21

State v. Crawford, 80 N.W. 193 (N.D. 1899)…………………………………21

State v. Crow, 517 S.W.2d 753 (Tenn. 1974)…………………………23, 24-26

vi

State v. Faria, 60 P.3d 333 (Haw. 2002)…………………………….………..22

State v. Hodges, 575 S.W.2d 769 (Mo. Ct. App. 1978)…………….……..….21

State v. Liberty, 280 A.2d 805 (Me. 1971)………………………..…….…….21

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

(Tenn. Crim. App. Feb. 7, 1990)……………………..…….……...27-28

State v. O’Leary, 107 A.2d 13 (N.J. 1954)……………………………..……..21

State v. Sneed, 247 S.E.2d 658, 659 (N.C. App. 1978)………………………..21

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

(Tenn. Crim. App. Oct. 10, 1990)…………………………………..…27

State v. Tixier, 551 P.2d 987 (N.M. App. 1976)………………………………23

State v. Williams, 873 P.2d 471 (Ore. App. 1994)………………………..…..21

Walker v. State, 63 Ala. 49 (1879)……………………………………...…….21

Statutes:

18 U.S.C. § 922(g)(1)…………………………………...….……………...…..7

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

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

28 U.S.C. § 2255…………………………..………………….………….…2, 7

11 Del. Code § 829(c)…………………………………………………….22, 27

Ariz. Rev. Stat. Ann. § 13-1501….………………………………….……22, 27

Nev. Rev. Stat. § 193.0145…………………………………….……………..21

vii

Tenn. Code Ann. § 39-14-401……………………………..………...……..6, 24

Tenn. Code Ann. § 39-14-402………………………...………...…….…passim

Tenn. Code Ann. § 39-14-403……………..………………………….5-6, 9, 24

Tex. Penal Code Ann. § 30.02….…………………………..………….…22, 27

Utah Code Ann. § 76-6-201…..……………….……………….…………22, 27

Wash. Rev. Code § 9A.52.010(2)…………………………………………….21

Rules:

Supreme Court Rule 10(c)……………………………………………………13

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

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

Other Sources:

Iowa Jury Instr.–Crim. § 1300.12……………………………….……………21

Okla. Uniform Jury Instr.–Crim. § 5-18……………………………..……….21

Rex v. Hughes, 1 Leach 406, 407 (1785)……………………...…………..19-20

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

An Analysis of National Data 1998-2007 (2015)…………..….….…...30

Tennessee Pattern Jury Instructions, Criminal §§ 11.01, et seq……..…..……28

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

(Reason for Amendment)………………………………………….…..30

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

§ 8.13 (1986)…………………………………………………………....19

viii

Wayne R. LaFave’s Substantive Criminal Law § 21.1 (2d ed. 2003)...............22

ix

OPINIONS BELOW

Gilliam v. United States, Opinion, 18-5050, R. 53-2

(6th Cir. May 11, 2020)………………………………………Appx. 2-5

Gilliam v. United States, Memo. Opinion, 1:11-cr-108,1 R. 40

(E.D. Tenn Aug. 23, 2017)…………………………………...Appx. 6-13

United States v. Gilliam, Amended Judgment, 1:11-cr-108, R. 46

(E.D. Tenn Dec. 15, 2017)…………………..……………...Appx. 14-20

1

This document was simultaneously filed in the related Eastern District of

Tennessee civil docket number 1:14-cv-194. For brevity, all district court

case citations will be to the criminal docket, 1:11-cr-108.

1

JURISDICTIONAL STATEMENT

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

“ACCA”), 18 U.S.C. § 924(e)(2)(B)(i) on August 6, 2012. He later 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 granted his § 2255 motion, but the government appealed.

On May 11, 2020, the United States Court of Appeals for the Sixth Circuit

reversed and remanded his case for reinstatement of the ACCA sentence. He

filed a petition for en banc rehearing, which was denied on June 12, 2020.

This Court's jurisdiction is invoked under Title 28, United States Code,

Section 1254(1). Pursuant to Rule 13 of the Supreme Court and this Court’s

March 19, 2020 COVID-19 Order, the time for filing a petition for certiorari

review is 150 days after the issuance of an order denying a petition for

rehearing. 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, Mr. Phillip Gilliam, respectfully prays that a writ of certiorari

issue to review the order of the United States Court of Appeals for the Sixth

Circuit.

Alternatively, he asks that the Court hold this petition pending its review

of United States v. Yerkes, 820 F. App’x 334 (2020), a direct appeal which

addresses whether Georgia’s definition of “entry” in its burglary statute suffers

from the same overbreadth as that raised herein. In Yerkes, the Sixth Circuit

issued a divided opinion, with Judge Moore explaining in thorough detail how

the majority erroneously reached a conclusion in conflict with this Court’s

precedent.

Yerkes, 820 F. App’x at 339-46 (Moore, J. dissenting).

She

further explained why “generic burglary” does not encompass an “entry” made

by only an instrument that crosses the threshold of a building in only a failed

attempt to gain admittance. Id. The petition for certiorari in Mr. Yerkes case

is forthcoming.

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). “As used in this section, ‘enter’

means: (1) Intrusion of any part of the body; or (2) Intrusion of any object in

physical contact with the body or any object controlled by remote control,

electronic or otherwise.” Tenn. Code Ann. § 39–14–402(b) (1995). And,

Tennessee’s aggravated burglary statute incorporates this definition, as

5

“aggravated burglary” means “burglary of a habitation as defined in §§ 39-14401 and 39-14-402.” Tenn. Code Ann. § 39-14-403.

6

STATEMENT OF THE CASE AND FACTS

Mr. Gilliam is a man with no history of violence. Despite that, when

he was originally convicted of being in possession of a firearm as a convicted

felon, under 18 U.S.C. § 922(g)(1), he received the ACCA’s 15-year mandatory

minimum sentence due solely to his prior non-violent Tennessee aggravated

burglary convictions.

He later had that sentence reduced to time-served

(amounting to approximately 53 months of incarceration) after filing a motion

under 28 U.S.C. § 2255 and Johnson, 135 S. Ct. 2552 (finding the residual

clause of the ACCA void for vagueness2). During his release he lived in the

community, productively, without any violations or modifications of his

2

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 –

(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

supervised release.

He did so well, in fact, that on January 22, 2020, the

district court granted his motion for early termination of his supervised release.

The government, however, had appealed the district court’s grant of

§ 2255 relief pending the outcome of this Court’s decision in United States v.

Stitt, 139 S. Ct. 399 (2018). While the government appeal was pending, this

Court determined in Stitt that Tennessee’s aggravated burglary statute was not

overbroad on the locational element because the term “habitation” was limited

to buildings or other vehicles and structures that had been adapted for overnight

accommodation. See id.

While acknowledging that Stitt foreclosed his original argument before

the district court, Mr. Gilliam argued that Tennessee’s aggravated burglary

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

attempted burglaries.

Specifically, Mr. Gilliam argued that unlike generic

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

when they have only attempted an entry (by crossing the threshold, not with

one’s body, but with an instrument used only in a failed attempt at access).

Thus, Mr. Gilliam argued, Tennessee aggravated burglary encompasses mere

attempted burglary, and does not qualify as a “generic burglary” under the

ACCA.

8

While Mr. Gilliam’s case was pending, the Sixth Circuit issued its

opinion in United States v. Brown.

957 F.3d 679 (6th Cir. 2020).

When

issuing the opinion here, the panel specifically relied on Brown. The Brown

panel 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. Brown, 957

F.3d at 683. However, Brown proceeded to discuss, in dicta, 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 as well as the common law limited the entry element

of burglary.

Id. at 688.

To count as an “entry” for burglary either the

individual’s body must cross the threshold or when only an instrument crosses

the threshold that instrument must be used or intended to be used to complete a

further crime within (referred to herein as the “instrument-for-crime” variant).

Id. at 688. Only a small minority of states defined “entry” expansively, to

include those instances where an instrument crosses the threshold and is used

9

only in a failed effort to gain admittance to the building (referred to herein as

the “instrument-for-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 to the instrument-for-crime variant. Id.

at 684-85.

The Sixth Circuit pointed to the reasoning in Brown when

reversing and remanding Mr. Gilliam’s case for reapplication of the ACCA.

Mr. Gilliam filed a petition for en banc rehearing, which was denied, but

he also filed a motion to stay the mandate.

The Sixth Circuit granted his

request to stay the mandate, which required a finding of “(1) a reasonable

probability that four Justices will consider the issue sufficiently meritorious to

grant certiorari or to note probable jurisdiction; (2) a fair prospect that a

majority of the Court will conclude that the decision below was erroneous; and

(3) a likelihood that irreparable harm will result from the denial of a stay.”

Indiana State Police Pension Tr. v. Chrysler LLC, 556 U.S. 960, 960 (2009)

10

(quoting Conkright v. Frommert, 556 U.S. 1401, 1402 (2009) (Ginsburg, J., in

chambers)).

Undersigned is also aware of two additional individuals whose cases

raise this “entry” argument and who remain out of custody. In United States

v. Morris the Sixth Circuit also granted Mr. Morris’s motion to stay the

mandate, and he will be filing a petition for certiorari review in the coming

months. 18-5183/18-5197, R. 63-2 (6th Cir July 17, 2020). In addition, Mr.

Brown, the subject of the Brown opinion noted above, also filed a petition for

en banc rehearing. The Sixth Circuit ordered the government to respond, but

ultimately denied rehearing, leaving the Brown opinion intact. Mr. Brown

remains out of custody at this time, with a self-report date in February of 2021,

and he will be filing a petition for certiorari review in the coming months.

During this same time period the Sixth Circuit also issued a divided

opinion in Yerkes, 820 F. App’x 334, a direct appeal which addressed whether

Georgia’s definition of “entry” in its burglary statute suffers from the same

overbreadth at issue here.

The majority in Yerkes adopted wholesale the

reasoning in Brown. Id. at 336-38. But, Judge Moore dissented, explaining

in detail that the majority’s conclusion (which rested on Brown) not only

ignores this Court’s clear, controlling precedent, but is also based on three

11

additional errors—an erroneous view of the early common law, an erroneous

assertion that the difference between the two types of entry by instrument is

insignificant, and an erroneous, excessive, reliance on comparative levels of

risk of violence. Id. at 342-44 (Moore, J., dissenting). Mr. Yerkes will be

filing a petition for certiorari post haste, and Mr. Gilliam asks this Court to hold

the instant petition pending its review of Yerkes.

12

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, a

potential life sentence, 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 and Yerkes, 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 and the common law 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 684, 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”

13

utilized by most states. See id. It is instead merely an attempted burglary.

Yerkes, 820 F. App’x at 343 (Moore, J., dissenting). 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, and here,

ran afoul of this Court’s precedent. Despite the fact that the majority view of

“entry” is the narrow view, the Sixth Circuit erroneously concluded that

“generic burglary” in the ACCA is not so limited. Brown, 957 F.3d at 68384, 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

14

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, it would also be

appropriate to hold this case pending the Court’s review of the Yerkes petition

for certiorari review, which will be filed forthwith and addresses the same

question in a divided panel opinion from a direct appeal.

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

was wrongly applied to Mr. Gilliam. No individual should be subjected to the

ACCA in the absence of complete certainty that he qualifies for that

enhancement. Here, Mr. Gilliam’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.

15

ARGUMENT

Mr. Gilliam’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.

Gilliam’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. Gilliam’s 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 offenses to the

elements of generic burglary. Id. If the elements of Tennessee burglary “are

the same as, or narrower than, those of [generic burglary],” then his conviction

16

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 in the majority of

state jurisdictions 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. 3

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

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

3

More recently, this Court addressed yet another aspect of generic burglary,

holding that generic “remaining-in” burglary (a form of generic burglary under

Taylor) “occur[s] when the defendant forms the 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. Gilliam’s arguments here.

17

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

structure. Yerkes, 820 F. App’x at 336, 337 (quoting Brown, 957 F.3d at 684,

688; see also 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.

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. Gilliam refers to this as the “instrument-forcrime” 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

18

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

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

19

in Hughes); Russell v. State, 255 S.W.2d 881, 884 (Tex. Crim. App. 1953)

(adhering to common-law rule as stated in Hughes).

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

20

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

interpreted “entry” by 1986 had endorsed the common law’s narrow

instrument-for-crime 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).4

4

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

21

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

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).

22

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

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;

23

(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). 5 “As used in this section, ‘enter’

means: (1) Intrusion of any part of the body; or (2) Intrusion of any object in

physical contact with the body or any object controlled by remote control,

electronic or otherwise.” Tenn. Code Ann. § 39–14–402(b) (1995). And,

Tennessee’s aggravated burglary statute incorporates this definition, as

“aggravated burglary” means “burglary of a habitation as defined in §§ 39-14401 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,

5

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).

24

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,

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,

25

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

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.

26

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

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.

6

The broad language of Tennessee’s 1989 statutory definition of “entry” is

just like that of the statutes in Delaware, Arizona, Utah and Texas, which in

1986 had also adopted the 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

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.”).

27

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); 7 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

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

7

Mr. Gilliam 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. 21-41.

28

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

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. Gilliam—who has no violence in his background at all—

29

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” (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) (which further explained that attempted burglaries were significantly

less likely to be violent than completed burglaries)).8 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. Gilliam’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,

8

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

visited Nov. 9, 2020).

30

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

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

aggravated burglary statute overbroad.

Mr. Gilliam’s convictions do not

qualify as generic “burglary” convictions. He was thus erroneously denied

§ 2255 relief and is wrongly facing the prospect of returning to prison to serve

a 15-year mandatory minimum sentence, despite his excellent rehabilitation

and despite the fact that he doesn’t have a single incident of violence in his life.

31

CONCLUSION

In consideration of the foregoing, Mr. Gilliam submits that the petition

for certiorari should be granted, the order of the Sixth Circuit Court of Appeals

vacated, and his case remanded for re-imposition of his time-served, nonACCA sentence.

Alternatively, he asks that the Court hold this petition pending its review

of Yerkes, 820 F. App’x 334, a direct appeal resulting in a divided opinion

addressing whether Georgia’s definition of “entry” suffers from the same

overbreadth as that raised herein. The petition for certiorari in Mr. Yerkes’s

case is forthcoming and will be filed post haste.

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

32