Petition for Writ of Certiorari — Rickie Markiece Atkinson, Petitioner v. United States

Supreme Court briefFeb 23, 2023

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No. _______

IN THE

Supreme Court of the United States

RICKIE MARKIECE ATKINSON,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

G. ALAN DUBOIS

FEDERAL PUBLIC DEFENDER

EASTERN DISTRICT OF NORTH CAROLINA

JENNIFER C. LEISTEN

Counsel of Record

JACLYN L. TARLTON

ASSISTANT FEDERAL PUBLIC DEFENDERS

EASTERN DISTRICT OF NORTH CAROLINA

150 Fayetteville St.

Suite 450

Raleigh, N.C. 27601

(919) 856-4236

jennifer_leisten@fd.org

Counsel for Petitioner

QUESTIONS PRESENTED

Whether North Carolina breaking or entering is categorically

broader than generic burglary and cannot be a violent felony under

the Armed Career Criminal Act because entry is not a required

element of the offense.

II.

Whether North Carolina breaking or entering is categorically

broader than generic burglary and cannot be a felony under the

Armed Career Criminal Act because it can be committed by

breaking into vehicles and structures that house only property and

no people and does not present the necessary risk of violent

confrontation.

III.

Whether, in light of this Court’s decision in Wooden v. United

States, Mr. Atkinson’s Fifth and Sixth Amendment rights were

violated when he was sentenced as an Armed Career Criminal

without the Government alleging the different-occasions element in

an indictment or acquiring a knowing and voluntary guilty plea

that it could have proven that element to a jury beyond a

reasonable doubt.

LIST OF ALL DIRECTLY RELATED PROCEEDINGS

United States Court of Appeals for the Fourth Circuit: United States v. Atkinson,

No. 17-4589 (judgment entered Sept. 26, 2022)

United States District Court for the Eastern District of North Carolina:

United States v. Atkinson, No. 5:16-CR-250-D-1 (judgment entered Sept. 15,

2017)

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................... i

LIST OF ALL DIRECTLY RELATED PROCEEDINGS ............................................. ii

TABLE OF AUTHORITIES .......................................................................................... v

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

JURISDICTION............................................................................................................. 1

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

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

STATEMENT ................................................................................................................. 6

REASONS FOR GRANTING THE PETITION .......................................................... 11

I. THE FOURTH CIRCUIT'S DECISION CONTRAVENES TAYLOR, MATHIS,

AND STITT .................................................................................................................. 11

A. The "entry" element of North Carolina breaking or entering is overbroad

because an unprivileged entry is not required ................................................ 11

B. The "building" element of North Carolina breaking or entering is

overbroad because it reaches vehicles and structures that house only property

and no people and thus does not present the necessary risk of violent

confrontation to qualify as generic "burglary" ................................................. 16

II. THIS ISSUE IS IMPORTANT AND RECURS FREQUENTLY ......................... 18

III. THIS CASE IS AN EXCELLENT VEHICLE TO DECIDE THE QUESTION

PRESENTED ............................................................................................................... 19

IV. IN THE ALTERNATIVE, THE COURT SHOULD GRANT THE PETITION,

VACATE THE FOURTH CIRCUIT'S JUDGMENT, AND REMAND FOR

RECONSIDERATION IN LIGHT OF WOODEN V. UNITED STATES .................. 20

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

APPENDIX A: Opinion of the U.S. Court of Appeals for the Fourth Circuit (Sept. 26,

2022)........................................................................................................................ 1a

APPENDIX B: Order of the Supreme Court of the United States (Oct. 15, 2019) ... 7a

APPENDIX C: Opinion of the U.S. Court of Appeals for the Fourth Circuit (Jan. 14,

2019)........................................................................................................................ 8a

APPENDIX D: Judgment of the U.S. District Court for the Eastern District of North

Carolina (Sept. 15, 2017)...................................................................................... 14a

APPENDIX E: Sentencing Transcript of the U.S. District Court for the Eastern

District of North Carolina (May 23, 2017) .......................................................... 21a

APPENDIX F: Sentencing Transcript of the U.S. District Court for the Eastern

District of North Carolina (Sept. 12, 2017) ......................................................... 45a

APPENDIX G: Order of the U.S. Court of Appeals for the Fourth Circuit Denying

Hearing En Banc (May 17, 2022) ........................................................................ 79a

APPENDIX H: Order of the U.S. Court of Appeals for the Fourth Circuit Denying

Rehearing and Rehearing En Banc (Mar. 12, 2019) ........................................... 80a

APPENDIX I: Arraignment Transcript of the U.S. District Court for the Eastern

District of North Carolina (Feb. 6, 2017)............................................................. 81a

APPENDIX J: Indictment (Oct. 5, 2016) ................................................................ 109a

TABLE OF AUTHORITIES

CASES

Begay v. United States,

553 U.S. 137 (2008) ................................................................................................... 12

Commonwealth v. Cotto,

752 N.E.2d 768 (Mass. App. Ct. 2001) ..................................................................... 13

Descamps v. United States,

570 U.S. 254 (2013) .............................................................................................. 11-12

Greer v. United States,

141 S. Ct. 2090 (2021) ............................................................................................... 10

Greer v. United States,

938 F.3d 766 (6th Cir. 2019) ..................................................................................... 18

In re Whitley,

577 F. App’x 212 (4th Cir. 2014) ............................................................................... 19

James v. United States,

550 U.S. 192 (2007) ....................................................................................... 12, 14, 16

Johnson v. United States,

576 U.S. 591 (2015) .......................................................................................... 6, 14-16

Mathis v. United States,

579 U.S. 500 (2016) .................................................................. 3-5, 9-11, 13, 16-18, 20

Quarles v. United States,

139 S. Ct. 1872 (2019) .................................................................................... 11-12, 16

Rehaif v. United States,

139 S. Ct. 2191 (2019) ............................................................................................ 9-10

Robinson v. United States,

140 S. Ct. 129 (2019) ................................................................................................. 19

Shepard v. United States,

544 U.S. 13 (2005) ..................................................................................................... 12

State v. Batts,

617 S.E.2d 724 (N.C. Ct. App. 2005) ........................................................................ 17

State v. Bost,

286 S.E.2d 632 (N.C. Ct. App. 1982) ........................................................................ 17

State v. Jones,

157 S.E.2d 610 (N.C. 1967) (per curiam) ................................................................. 12

State v. Lucas,

758 S.E.2d 672 (N.C. Ct. App. 2014) ........................................................................ 12

State v. Myrick,

291 S.E.2d 577 (N.C. 1982) ....................................................................................... 12

State v. Nichols,

150 S.E.2d 21 (N.C. 1996) ......................................................................................... 14

State v. Taylor,

428 S.E.2d 273 (N.C. Ct. App. 1993) ........................................................................ 18

State v. Watkins,

720 S.E.2d 844 (N.C. Ct. App. 2012) ........................................................................ 12

Taylor v. United States,

495 U.S. 575 (1990) ........................................................................ 3-5, 8-12, 14, 16-18

United States v. Alexis,

697 F. App’x 239 (4th Cir. 2017) ............................................................................... 19

United States v. Atkinson,

No. 17-4589, 2022 WL 4463152 (4th Cir. 2022) ................................................... 1, 18

United States v. Barrera,

No. 20-10368, 2022 WL 1239052 (9th Cir. 2022) ..................................................... 21

United States v. Beatty,

702 F. App’x 148 (4th Cir. 2017) ............................................................................... 19

United States v. Brooks,

857 F. App’x 159 (4th Cir. 2021) ............................................................................... 19

United States v. Brown,

Fourth Cir. No. 21-4253 (docketed May 21, 2021) ................................................... 22

United States v. Davidson,

802 F. App’x 800 (4th Cir. 2020) ............................................................................... 19

vii

United States v. Demby,

No. 21-4711, 2022 WL 17975014 (4th Cir. 2022) ..................................................... 18

United States v. Denton,

773 F. App’x 134 (4th Cir. 2019) ............................................................................... 19

United States v. Dodge,

963 F.3d 379 (4th Cir. 2020) ..................................................................................... 19

United States v. Dunlow,

834 F. App’x 47 (4th Cir. 2021)................................................................................. 19

United States v. Enyinnaya,

No. 18-4400, 2022 WL 396020 (4th Cir. 2022) ......................................................... 19

United States v. Evans,

924 F.3d 21 (2d Cir. 2019) ........................................................................................ 15

United States v. Fayson,

834 F. App’x 48 (4th Cir. 2021)................................................................................. 19

United States v. Goins,

No. 21-4686, 2022 WL 1552135 (4th Cir. 2022) ....................................................... 19

United States v. Hammonds,

No. 21-4316, 2022 WL 16835639 (4th Cir. 2022) ..................................................... 18

United States v. Harris,

794 F.3d 885 (8th Cir. 2015) ..................................................................................... 22

United States v. Haynes,

No. 19-12335, 2022 WL 3643740 (11th Cir. 2022) ................................................... 21

United States v. Hill,

771 F. App’x 195 (4th Cir. 2019) ............................................................................... 19

United States v. Holden,

No. 18-4804, 2022 WL 2901729 (4th Cir. 2022) ....................................................... 18

United States v. Ingram,

597 F. App’x 151 (4th Cir. 2015) ............................................................................... 19

United States v. Ingram,

758 F. App’x 332 (4th Cir. 2019) ............................................................................... 19

viii

United States v. Jones,

669 F. App’x 110 (4th Cir. 2016) ............................................................................... 19

United States v. Jones,

951 F.3d 1138 (9th Cir. 2019) ................................................................................... 18

United States v. Joy,

771 F. App’x 307 (4th Cir. 2019) ............................................................................... 19

United States v. Livingston,

442 F.3d 1082 (8th Cir. 2006) ................................................................................... 13

United States v. Lockamy,

613 F. App’x 227 (4th Cir. 2015) ............................................................................... 19

United States v. Lowery,

No. 20-4458, 2022 WL 72724 (4th Cir. 2022) ........................................................... 19

United States v. Maham,

767 F. App’x 532 (4th Cir. 2019) ............................................................................... 19

United States v. Man,

No. 21-10241, 2022 WL 17260489 (9th Cir. 2022) ................................................... 22

United States v. Marion,

821 F. App’x 264 (4th Cir. 2020) ............................................................................... 19

United States v. Martinez,

954 F.2d 1050 (5th Cir. 1992) ................................................................................... 15

United States v. McNatt,

727 F. App’x 68 (4th Cir. 2018)................................................................................. 19

United States v. Mendez,

No. 19-4050, 2022 WL 843900 (4th Cir. 2022) ......................................................... 18

United States v. Molette,

No. 18-4209, 2022 WL 563256 (4th Cir. 2022) ......................................................... 19

United States v. Montgomery,

974 F.3d 587 (5th Cir. 2020) ..................................................................................... 18

United States v. Mungro,

754 F.3d 267 (4th Cir. 2014) ............................................................................... 10, 18

United States v. Reed,

39 F.4th 1285 (10th Cir. 2022) ................................................................................. 21

United States v. Robinson,

714 F. App’x 275 (4th Cir. 2018) ............................................................................... 19

United States v. Simon,

827 F. App’x 341 (4th Cir. 2020) ............................................................................... 19

United States v. Sims,

933 F.3d 1009 (8th Cir. 2019) ................................................................................... 18

United States v. Smith,

645 F.3d 998 (8th Cir. 2011) ..................................................................................... 15

United States v. Solomon,

694 F. App’x 186 (4th Cir. 2017) ............................................................................... 19

United States v. Stitt,

139 S. Ct. 399 (2018) ............................................................................ 3-5, 8-12, 16-18

United States v. Stowell,

40 F.4th 882 (8th Cir. 2022) ..................................................................................... 22

United States v. Stowell,

No. 21-2234, 2022 WL 16942355 (8th Cir. Nov. 15, 2022) ...................................... 22

United States v. Strahl,

958 F.2d 980 (10th Cir. 1992) ................................................................................... 15

United States v. Street,

756 F. App’x 310 (4th Cir. 2019) ............................................................................... 19

United States v. Thomas,

2 F.3d 79 (4th Cir. 1993) ........................................................................................... 15

United States v. Thompson,

615 F. App’x 160 (4th Cir. 2015) ............................................................................... 19

United States v. Williams,

39 F. 4th 342 (6th Cir. 2022) .................................................................................... 21

Van Cannon v. United States,

890 F.3d 656 (7th Cir. 2018) ..................................................................................... 15

Wooden v. United States,

142 S. Ct. 1063 (2022) ................................................................................... 4-5, 20-22

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V..................................................................................................... 2

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

STATUTES

18 U.S.C. § 922(g) ...................................................................................................... 2, 6

18 U.S.C. § 922(g)(1) .................................................................................................. 3, 7

18 U.S.C. § 924(a)(2) ...................................................................................................... 3

18 U.S.C. § 924(a)(2) (2018)........................................................................................... 3

18 U.S.C. § 924(a)(8) ...................................................................................................... 3

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

18 U.S.C. § 924(e)(1) .................................................................................................. 3, 5

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

18 U.S.C. § 924(e)(2)(B)(ii)........................................................................................... 15

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

28 U.S.C. § 1291 ............................................................................................................. 1

Ark. Stat. Ann. § 5-39-202(a) ...................................................................................... 13

Fla. Stat. § 777.04(1).................................................................................................... 14

Fla. Stat. § 810.02(1).................................................................................................... 14

Iowa Code Ann. § 713.1 ............................................................................................... 13

N.C. Gen. Stat. § 14-54 .................................................................................................. 2

N.C. Gen. Stat. § 14-54(a).................................................................................... 4, 8, 12

N.C. Gen. Stat. § 14-54(c) ........................................................................................ 8, 17

SENTENCING GUIDELINES

U.S.S.G. § 4A1.3(a) ........................................................................................................ 8

OTHER SOURCES

Brief in Opposition, Reed v. United States, Supreme Court No. 22-336 (Dec. 12,

2022) .......................................................................................................................... 21

IN THE

Supreme Court of the United States

RICKIE MARKIECE ATKINSON,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioner Rickie Markiece Atkinson respectfully petitions for a writ of certiorari

to review the judgment of the United States Court of Appeals for the Fourth Circuit.

OPINIONS BELOW

The Fourth Circuit’s opinion is unreported, but is available at 2022 WL 4463152

(4th Cir. 2022). Pet. App. 1a-6a. The District Court’s judgment is available at Pet.

App. 14a-20a.

JURISDICTION

The District Court entered final judgment on September 15, 2017. Pet. App.

14a-20a. The Fourth Circuit had jurisdiction pursuant to 28 U.S.C. § 1291 and

entered judgment on September 26, 2022. Pet. App. 1a-6a. On December 23, 2022,

the Chief Justice extended the time for filing a petition for writ of certiorari to and

including February 23, 2023. This Court’s jurisdiction rests on 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the U.S. Constitution provides:

No person shall be held to answer for a capital, or otherwise infamous crime,

unless on a presentment or indictment of a Grand Jury, except in cases

arising in the land or naval forces, or in the Militia, when in actual service in

time of War or public danger; nor shall any person be subject for the same

offence to be twice put in jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor shall private property be

taken for public use, without just compensation.

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

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

public trial, by an impartial jury of the State and district wherein the crime

shall have been committed, which district shall have been previously

ascertained by law, and to be informed of the nature and cause of the

accusation; to be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defence.

North Carolina General Statutes §14-54 provides, in relevant part:

(a) Any person who breaks or enters any building with intent to commit any

felony or larceny therein shall be punished as a Class H felon.

***

(b) As used in this section, “building” shall be construed to include any

dwelling, dwelling house, uninhabited house, building under construction,

building within the curtilage of a dwelling house, and any other structure

designed to house or secure within it any activity or property.

18 U.S.C. § 922(g) provides, in relevant part:

It shall be unlawful for any person—

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

imprisonment for a term exceeding one year.

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

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

ammunition which has been shipped or transported in interstate or foreign

commerce.

18 U.S.C. § 924(a)(2) provides:

[T]he 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 the use of explosives, or

otherwise involves conduct that presents a serious potential risk of physical

injury to another

18 U.S.C. § 924(e)(1) provides:

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

previous convictions by any court referred to in section 922(g)(1) of this title

for a violent felony or a serious drug offense, or both, committed on occasions

different from one another, such person shall be fined under this title and

imprisoned not less than fifteen years, and, notwithstanding any other

provision of law, the court shall not suspend the sentence of, or grant a

probationary sentence to, such person with respect to the conviction under

section 922(g).

INTRODUCTION

For a single felon-in-possession offense, which normally carried a maximum

penalty of ten years of imprisonment 1, Mr. Atkinson was sentenced to twenty years.

That sentence was possible only because the District Court sentenced him as an

armed career criminal, increasing the applicable penalty to fifteen years to life

imprisonment. The Fourth Circuit affirmed that designation, defying this Court’s

decisions in Taylor v. United States, Mathis v. United States, and United States v.

Stitt, and breaking from authoritative decisions of other federal courts of appeals.

What is more, the Fourth Circuit did not have the opportunity to address this

At the time of the offense and at sentencing, felon-in-possession offenses were

subject to a statutory maximum sentence of ten years, absent an Armed Career

Criminal designation. 18 U.S.C. § 924(a)(2) (2018). Since then, Congress has

increased the maximum penalty to fifteen years. 18 U.S.C. § 924(a)(8) (2022).

Court’s decision in Wooden v. United States, which makes plain that the “different

occasions” element of the Armed Career Criminal Act must be alleged in the

indictment and either proven to a jury or admitted as part of a knowing and

voluntary guilty plea.

Mr. Atkinson is not an armed career criminal for three independent reasons.

First, North Carolina breaking or entering is broader than generic burglary because

it does not require an unprivileged entry. In Taylor, this Court explained that an

“unlawful or unprivileged entry” is a required element of generic burglary. 495 U.S.

575, 598 (1990). But in North Carolina, breaking without an unprivileged entry is

enough. The Fourth Circuit’s decision conflicts with Taylor and the decisions of

other federal courts of appeals post-Taylor holding that statutes that criminalize

breaking without entry cannot be generic burglaries under ACCA.

Second, North Carolina breaking or entering is broader than generic burglary

because it includes breaking into any vehicle or structure “designed to house or

secure within it any activity or property,” N.C. Gen. Stat. § 14-54(a)—including a

storage trailer for tools and equipment, a trailer used to transport musical

equipment, and a travel trailer temporarily made “an area of repose.” These

locations do not present the risk of “violent confrontation” that are the touchstone of

generic burglary. United States v. Stitt, 139 S. Ct. 399, 406 (2018) (quoting Taylor,

495 U.S. at 598); id. at 407 (citing Mathis v. United States, 579 U.S. 500, 507

(2016)). The Fourth Circuit’s decision conflicts with Taylor, Stitt and Mathis.

Finally, Mr. Atkinson is not an armed career criminal for a third, more

fundamental reason, namely that the Government did not include in its indictment

an allegation that Mr. Atkinson satisfied a necessary element of the Armed Career

Criminal Act—that his qualifying felony convictions occurred on “occasions

different” from one another. Neither did Mr. Atkinson plead guilty to that

necessary element. These omissions violated Mr. Atkinson’s Fifth and Sixth

Amendment rights and conflict with this Court’s decision in Wooden, 142 S. Ct.

1063 (2022).

This Court should grant certiorari because the Fourth Circuit’s breaking-orentering holding conflicts with this Court’s decisions in Taylor, Mathis, and Stitt

and with the authoritative decisions of other federal courts of appeals addressing

statutes that criminalize breaking without entry.

These issues are also extraordinarily important: ACCA has drastic consequences

for criminal defendants. It dramatically increases the statutory penalties from a

statutory maximum of ten or fifteen years to a statutory minimum of fifteen years.

18 U.S.C. § 924(e)(1). In Mr. Atkinson’s case, his twenty-year sentence would have

been capped at half that term if he had not been deemed an armed career criminal.

The issues are also frequently recurring. In recent years, the Fourth Circuit has

decided more than thirty cases raising objections to North Carolina breaking or

entering as an ACCA predicate. And many of the courts of appeals have already

denied post-Wooden challenges to ACCA designations based on pre-Wooden circuit

precedent they claim to be bound by. Further percolation is unlikely to resolve

these issues. The time for the Court’s intervention is now.

The petition should be granted.

STATEMENT

1. The Armed Career Criminal Act imposes a dramatically increased

punishment for persons convicted of being a felon in possession of a firearm if they

have three or more previous convictions for “violent felonies.” 18 U.S.C. § 924(e).

Although, at the time of Mr. Atkinson’s offense and sentencing, violations of 18

U.S.C. § 922(g) were normally subject to a statutory maximum penalty of ten years

of imprisonment, ACCA provides that armed career criminals must be sentenced to

a term of at least fifteen years (up to life), a longer term of supervised release, and a

significantly increased offense level and criminal history category if they have the

requisite prior convictions. Those convictions include any crime “punishable by

imprisonment for a term exceeding one year” that

(i)

(ii)

has as an element the use, attempted use, or threatened use of physical

force against the person of another;

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). These provisions are known as the “force clause,” the

“enumerated-offense clause,” and the “residual clause.” This Court struck down the

residual clause as unconstitutionally vague in Johnson v. United States, 576 U.S.

591, 606 (2015).

2. In October 2016, Rickie Atkinson was charged in a three-count indictment.

Pet. App. 109a-111a. Relevant to this petition, he was charged in count one with

being a felon in possession of a firearm and ammunition in September 2015. Pet.

App. 109a. The indictment alleged that, at the time of the offense, Mr. Atkinson

had “at least three previous convictions * * * referred to in * * * [18 U.S.C.

§ 922(g)(1)], as defined in [18 U.S.C. § 924(e)(2)].” But it made no fact-specific

allegation that those prior convictions were for offenses that occurred on “occasions

different from one another.”

3. In February 2017, Rickie Atkinson pleaded guilty, pursuant to a written plea

agreement, to count one. That plea agreement referenced the penalties applicable if

Mr. Atkinson was or was not deemed to be an armed career criminal, but it

reflected no agreement about whether he qualified under the statute’s terms. It

reserved his right “to appeal from a sentence in excess of the applicable advisory

Guideline range that is established at sentencing and/or from a sentence that

exceeds 120 months’ imprisonment.” CAJA142 2. At the plea hearing, the District

Court also referenced the applicable penalties with or without the designation, but

did not ask Mr. Atkinson to admit that his prior felony convictions were for offenses

that occurred on “occasions different from one another.” Pet. App. 81a-108a.

4. The presentence report concluded that Mr. Atkinson was an armed career

criminal because of four prior convictions for North Carolina breaking or entering.

CAJA166. North Carolina defines “breaking or entering” as “any person who

CAJA refers to the joint appendix filed in the Court of Appeals.

breaks or enters any building with intent to commit any felony or larceny therein.”

N.C. Gen. Stat. § 14-54(a). It defines “building” as “any dwelling, dwelling house,

uninhabited house, building under construction, building within the curtilage of a

dwelling house, and any other structure designed to house or secure within it any

activity or property.” Id. § 14-54(c).

Mr. Atkinson objected to his armed career criminal designation, but the District

Court overruled the objection, calculating the advisory guideline range to be 180 to

188 months. The court upwardly departed under U.S.S.G. § 4A1.3(a) to an advisory

guideline range of 210 to 262 months. The District Court sentenced Mr. Atkinson to

240 months of imprisonment, to be followed by a five-year term of supervised

release. Pet. App. 14a-20a.

5. Mr. Atkinson appealed. After briefing was completed, this Court granted

certiorari in a pair of cases, United States v. Sims and United States v. Stitt, to

consider the definition of generic burglary under the Armed Career Criminal Act.

Mr. Atkinson’s case was held in abeyance.

6. This Court issued its decision in Sims and Stitt in December 2018, holding

that generic burglary “includes burglary of a structure or vehicle that has been

adapted or is customarily used for overnight accommodation.” United States v. Stitt,

139 S. Ct. 399, 403 (2018). The Court confirmed that each statute must be

evaluated on its own merits and, if its elements are broader than those of generic

burglary, it does not qualify as generic burglary under the Act. Id. at 403-404. The

Court reaffirmed its holding in Taylor, 495 U.S. at 599, that Missouri breaking and

entering falls outside the Act because it includes breaking and entering into “any

boat or vessel or railroad care” and thus includes “ordinary boats and vessels often

at sea (and railroad cars often filled with cargo, not people).” Id. at 407. And it

reaffirmed its holding in Mathis, 579 U.S. at 520, that an Iowa statute including

breaking into vehicles or similar structures used “for the storage or safekeeping of

anything of value” was broader than generic burglary. Id. The Court vacated and

remanded Sims’s sentence to explore his argument that Arkansas residential

burglary is overbroad because it covers burglary of a vehicle where a homeless

person occasionally sleeps. Stitt, 139 S. Ct. at 407-408.

7. The panel in Mr. Atkinson’s case issued an unpublished per curiam opinion

affirming his sentence without referencing Taylor, Mathis, Sims, or Stitt at all. Pet.

App. 1a-6a. It rejected Mr. Atkinson’s argument without explanation, holding only

that “North Carolina Breaking and Entering’s ‘building’ element sweeps no broader

than generic burglary’s ‘building’ element” and that Mr. Atkinson was properly

designated as an armed career criminal. Pet. App. 8a-13a.

Mr. Atkinson filed a petition for rehearing and rehearing en banc, explaining the

panel decision’s conflict with Taylor and Mathis, but the court declined to order

rehearing. Pet. App. 80a.

8. After the Fourth Circuit denied Mr. Atkinson’s petition for rehearing, this

Court decided Rehaif v. United States, 139 S. Ct. 2191 (June 21, 2019), reversing

longstanding circuit precedent and explaining that the Government “must show

that the defendant knew he possessed a firearm and also that he knew he had the

relevant status when he possessed it.” 139 S. Ct. at 2194 (emphasis added). Mr.

Atkinson petitioned for certiorari, arguing that he was not an armed career criminal

under Taylor, Mathis, and Stitt, and also that the Fourth Circuit should have the

opportunity to reconsider the propriety of his conviction in light of Rehaif. This

Court granted certiorari, vacated the Fourth Circuit’s judgment, and remanded to

that court for reconsideration. Pet. App. 7a.

9. On remand, the case was held in abeyance pending a decision in Greer v.

United States, 141 S. Ct. 2090 (2021). In Greer, this Court reversed the Fourth

Circuit and held that Rehaif errors are not structural and even plain Rehaif errors

must be accompanied by a showing that “if the District Court had correctly advised

him of the mens rea element of the offense, there is a ‘reasonable probability’ that

he would not have pled guilty.” Id. at 2097.

10. In light of this decision, Mr. Atkinson filed a petition for initial hearing en

banc, acknowledging that Greer foreclosed relief on his Rehaif claim and reasserting

his argument that North Carolina breaking or entering is not a violent felony under

ACCA. The Fourth Circuit declined to hear the case en banc and issued an opinion

relying on its pre-Mathis and Stitt decision in United States v. Mungro, 754 F.3d

267 (4th Cir. 2014), to hold that North Carolina breaking or entering is a violent

felony and Mr. Atkinson’s armed career criminal designation was therefore

appropriate. Pet. App. 2a-4a. The Fourth Circuit panel also affirmed the District

Court’s upward departure. Pet. App. 4a-6a.

This petition followed.

REASONS FOR GRANTING THE PETITION

THE FOURTH CIRCUIT'S DECISION CONTRAVENES TAYLOR,

MATHIS, AND STITT

To determine whether a prior conviction is a violent felony under the ACCA, this

Court applies the categorical approach. Quarles v. United States, 139 S. Ct. 1872

(2019). Under the categorical approach, the court “focus[es] solely on whether the

elements of the crime of conviction sufficiently match the elements of generic

burglary, while ignoring the particular facts of the case.” Mathis, 59 U.S. at 504;

see also Descamps v. United States, 570 U.S. 254, 265 (2013) (applying the

categorical approach to hold that state offense is overbroad and noting that

defendant’s actual conduct “makes no difference”). A prior state conviction is a

proper ACCA predicate only if it has the same elements, or is defined more

narrowly than, the generic federal crime. Descamps, 570 U.S. at 261. If, by

contrast, the prior offense “sweeps more broadly than the generic crime,” id., the

prior offense cannot serve as a predicate “even if the defendant’s actual conduct (i.e.,

the facts of the crime) fits within the generic offense’s boundaries.” Mathis, 579

U.S. at 504.

A. The “entry” element of North Carolina breaking or entering is

overbroad because an unprivileged entry is not required.

North Carolina breaking or entering is broader than generic burglary because it

can be completed without entry. In Taylor, this Court defined generic burglary as

having “the basic elements of unlawful or unprivileged entry into, or remaining in, a

building or structure, with intent to commit a crime.” Taylor, 495 U.S. at 598; see

Mathis, 579 U.S. at 504 (generic burglary consists of “unlawful or unprivileged

entry into * * * a building or other structure, with intent to commit a crime.”)

(quoting Taylor, 495 U.S. at 598); Shepard v. United States, 544 U.S. 13, 17 (2005)

(same); James v. United States, 550 U.S. 192, 197 (2007) (same); Begay v. United

States, 553 U.S. 137, 145 (2008) (same); Stitt, 139 S. Ct. at 405 (same); Quarles, 139

S. Ct. at 1875, 1877 (same). If a statute permits conviction without entry, it cannot

be a match for generic burglary. See Descamps, 570 U.S. at 277 (“Because generic

unlawful entry is not an element, or an alternative element, of [California Penal

Code Ann.] § 459, a conviction under that statute is never for generic burglary.”).

But North Carolina breaking or entering can be completed by breaking alone.

The plain text of Section 14-54(a) permits conviction on a finding of either breaking

or entry. The North Carolina Supreme Court confirms that understanding: “[B]y

the disjunctive language of [14-54(a)], the state meets its burden by offering

substantial evidence that defendant either ‘broke’ or ‘entered’ the building with the

requisite unlawful intent.” State v. Myrick, 291 S.E.2d 577, 579 (N.C. 1982); see

also State v. Jones, 157 S.E.2d 610, 611 (N.C. 1967) (per curiam) (breaking a

window with intent to commit a felony “therein completes the offense even though

the defendant is interrupted or otherwise abandons his purpose without actually

entering the building”); see also State v. Watkins, 720 S.E.2d 844, 850 (N.C. Ct. App.

2012) (vacating first-degree burglary conviction and entering judgment on the lesser

included offense of breaking or entering because the State presented evidence of

breaking but not of entry); State v. Lucas, 758 S.E.2d 672, 678 (N.C. Ct. App. 2014)

(“Although * * * the State failed to prove that either Defendant actually entered the

home * * * the entry of judgment on felonious breaking or entering is appropriate.”).

Although North Carolina’s scheme is rare, it is not unique. Arkansas and Iowa

also have statutes whose text can be satisfied by proof of breaking alone. See Ark.

Stat. Ann. § 5-39-202(a) (“A person commits the offense of breaking or entering if for

the purpose of committing a theft or felony he or she breaks or enters into any

[enumerated structure or vehicle].”); Iowa Code Ann. § 713.1 (“[O]r any person

having such intent [to commit a felony, assault, or theft therein] who breaks an

occupied structure, commits burglary.”). These statutes have been deemed

categorically broader than burglary, albeit on other grounds. See Mathis, 579 U.S.

at 520 (“Because the elements of Iowa’s burglary law are broader than those of

generic burglary [by covering vehicles in addition to structures], Mathis’s

convictions under that law cannot give rise to an ACCA sentence.”); United States v.

Livingston, 442 F.3d 1082, 1087 (8th Cir. 2006) (“We hold that breaking or entering

a vehicle for purposes of committing a theft under Arkansas law [§ 5-39-202]) is not

a violent felony for purposes of the ACCA.”).

Courts considering attempted burglary statutes provide more guidance.

Breaking, but not entering, is typically categorized as attempted burglary or

attempted breaking and entering. See, e.g., Commonwealth v. Cotto, 752 N.E.2d

768, 772 (Mass App. Ct. 2001) (“[A]ssume in the case at bar that the defendant had

broken the window, but upon seeing [a witness], dropped the infernal device and

ran. In this scenario, he may be found guilty of attempted breaking and entering as

well as attempted arson, but not of arson or breaking and entering.”). Indeed the

North Carolina Supreme Court has described breaking or entering in terms

strikingly similar to attempt, finding that when defendants “opened the door[,]

although [they] had not entered” the building, felonious breaking or entering “was

complete upon the finding by the jury of the overt act and felonious intent which

was amply supported by the evidence.” State v. Nichols, 150 S.E.2d 21, 22 (N.C.

1996).

Attempted burglary is not a violent felony under ACCA. This Court, in James,

550 U.S. 192, explained that Florida attempted burglary “is not ‘burglary’ because it

does not meet the definition of burglary under ACCA that this Court set forth in

Taylor v. United States.” James, 550 U.S. at 197 3. This was so because Florida

attempted burglary could be satisfied when a defendant committed an act toward

commission of burglary but fell short of “entering or remaining in a structure or

conveyance with the intent to commit an offense therein.” Id.; Fla. Stat. §§

810.02(1), 777.04(1); see James, 550 U.S. at 227 (Scalia, J., dissenting) (“the full

extent of the risk that burglary poses—the entry into the home that makes burglary

such a threat to the physical safety of its victim—is necessarily absent in attempted

burglary, however ‘attempt’ is defined”).

The Second, Fourth, Fifth, Seventh, Eighth, and Tenth Circuits, analyzing

attempted burglary statutes, have held those statutes similarly do not qualify as

Although this Court ultimately held that the offense qualified as a violent

felony under the residual clause, that holding was abrogated by Johnson, 576 U.S.

at 606.

enumerated burglary. See United States v. Evans, 924 F.3d 21, 24 (2d Cir. 2019)

(New York attempted burglary “qualified as a violent felony only under ACCA’s

voided residual clause”); United States v. Thomas, 2 F.3d 79, 80 (4th Cir. 1993)

(New Jersey’s attempted burglary statute “does not contain the elements required

for ‘burglary’ as that term is used in 924(e)”); United States v. Martinez, 954 F.2d

1050, 1053 (5th Cir. 1992) (Texas’s attempted burglary statute “does not require

that the offender enter (or remain in) a building or structure” and therefore cannot

qualify as enumerated burglary); Van Cannon v. United States, 890 F.3d 656, 658

(7th Cir. 2018) (“Iowa attempted burglary was a residual-clause offense and no

longer counted toward Van Cannon’s ACCA total” following Johnson); United States

v. Smith, 645 F.3d 998, 1003 (8th Cir. 2011) (Minnesota attempted burglary could

only qualify as a violent felony under the residual clause because “[a]ttempted

burglary is not an enumerated offense”); United States v. Strahl, 958 F.2d 980 (10th

Cir. 1992) (Utah’s attempted burglary statute did not qualify as attempted burglary

because the Tenth Circuit could “not conclude that Congress intended implicitly to

include attempted burglary as a violent offense when it specified burglary as a

violent felony under § 924(e)(2)(B)(ii)”).

This Court and other federal courts of appeals confirm that breaking without

entry is not a qualifying violent felony under ACCA. Certiorari is warranted to

resolve this conflict.

B. The “building” element of North Carolina breaking or entering is

overbroad because it reaches vehicles and structures that house only

property and no people and thus does not present the necessary risk

of violent confrontation to qualify as generic “burglary.”

The touchstone of generic burglary’s locational element is whether committing

the offense in a particular vehicle or structure “present[s] a serious risk of violence”

to another person. Stitt, 139 S. Ct. at 407; see Quarles, 139 S. Ct. at 1879 (“Congress

‘singled out burglary’ because of its ‘inherent potential for harm to persons.’ ”)

(quoting Taylor, 495 U.S. at 588); James, 550 U.S. at 203, overruled by Johnson, 576

U.S. 591 (“’The main risk of burglary arises not from the simple physical act of

wrongfully entering onto another’s property, but rather from the possibility of a

face-to-face confrontation between the burglar and a third party—whether an

occupant, a police officer, or a bystander—who comes to investigate.”); Taylor, 495

U.S. at 588 (“The fact that an offender enters a building to commit a crime often

creates the possibility of a violent confrontation between the offender and an

occupant, caretaker, or some other person who comes to investigate.”).

Illustrating this focus on the risk of “violent confrontation,” the Missouri statute

at issue in Taylor was “beyond the scope” of ACCA because the law “criminalized

breaking and entering ‘any boat or vessel, or railroad car’ ” and thus included

“ordinary boats and vessels, often at sea (and railroad cars often filled with cargo,

not people).” Stitt, 139 S. Ct. at 407 (explaining that the burglary statute in Taylor

was broader than generic burglary because it was not limited to “circumstances

where burglary is likely to present a serious risk of violence”). The Iowa burglary

statute in Mathis was similarly overbroad because it covered “ordinary vehicles”

and other structures that were used “for the storage or safekeeping of anything of

value.” Id. Unlike these two statutes, the one at issue in Stitt was no broader than

generic burglary because it was limited to burglaries of vehicles or other structures

“customarily used or adapted for overnight accommodation” and was therefore

“more clearly focus[ed] upon circumstances where burglary is likely to present a

serious risk of violence.” Id.

North Carolina’s breaking or entering statute suffers from the very same flaws

that rendered those in Taylor and Mathis fatally overbroad. Like the Missouri

breaking and entering statute in Taylor, North Carolina’s covers “any dwelling,

dwelling house, uninhabited house, building under construction, building within the

curtilage of a dwelling house, and any other structure designed to house or secure

within it any activity or property,” N.C. Gen. Stat. § 14-54(c) (emphasis added), and

“nowhere restrict[s] its coverage * * * [only] to vehicles or structures customarily

used or adapted for overnight accommodations.” See Stitt, 139 S. Ct. at 407 (noting

that the Missouri statute’s use of the word ‘any’ ” rendered it broader than generic

burglary). And just like the Iowa statute in Mathis, which was overbroad for

encompassing structures and vehicles used “for the storage or safekeeping of

anything of value,” id., North Carolina’s breaking or entering statute expressly

covers vehicles or structures that are “designed to house or secure within [them]

any activity or property,” N.C. Gen. Stat. § 14-54(c) (emphasis added); see State v.

Bost, 286 S.E.2d 632, 634 (N.C. Ct. App. 1982) (breaking into a storage trailer for

tools and equipment on a construction site); State v. Batts, 617 S.E.2d 724, at *2-*3

(N.C. Ct. App. 2005) (breaking into a trailer used to transport musical equipment);

State v. Taylor, 428 S.E.2d 273, 274 (N.C. Ct. App. 1993) (breaking into a travel

trailer temporarily made “an area of repose”).

Several Circuits have faithfully applied Stitt, Mathis, and Taylor to conclude

that statutes that allow for conviction based on burglary of structures and vehicles

that house only property and no people are categorically broader than generic

burglary and are not violent felonies. See United States v. Jones, 951 F.3d 1138

(9th Cir. 2019) (focusing on risk of violent confrontation post-Stitt); Greer v. United

States, 938 F.3d 766 (6th Cir. 2019) (same); United States v. Sims, 933 F.3d 1009

(8th Cir. 2019) (same); United States v. Montgomery, 974 F.3d 587 (5th Cir. 2020)

(same).

II.

THIS ISSUE IS IMPORTANT AND RECURS FREQUENTLY

As explained above, the consequences of an ACCA designation are enormous: A

fifteen-year mandatory minimum applies to a crime that Congress otherwise caps at

ten (or fifteen) years, a longer term of supervised release is authorized, and both the

offense level and criminal history category under the Guidelines increase. Mr.

Atkinson’s is a case in point: His sentence is twice as long as it otherwise would

have been.

What is more, this issue recurs often. The Fourth Circuit has resolved more

than thirty cases presenting the issue since Mungro was decided 4.

United States v. Demby, No. 21-4711, 2022 WL 17975014 (4th Cir. 2022);

United States v. Hammonds, No. 21-4316, 2022 WL 16835639 (4th Cir. 2022);

United States v. Atkinson, No. 17-4589, 2022 WL 4463152 (4th Cir. 2022); United

This Court’s review is needed.

III.

THIS CASE IS AN EXCELLENT VEHICLE TO DECIDE THE

QUESTION PRESENTED

The issue is squarely presented in this case. If it were not for prior convictions

for North Carolina breaking or entering, Mr. Atkinson would not be an armed

career criminal and the sentence he received would have been in excess of the

statutory maximum sentence and illegal. Mr. Atkinson expressly preserved the

right to challenge his sentence in his plea agreement, and the issue has been fully

presented to the lower courts in a sentencing memorandum and oral argument in

the district court, as well as briefing on the merits and in a petition for initial

States v. Holden, No. 18-4804, 2022 WL 2901729 (4th Cir. 2022); United States v.

Mendez, No. 19-4050, 2022 WL 843900 (4th Cir. 2022); United States v. Enyinnaya,

No. 18-4400, 2022 WL 396020 (4th Cir. 2022); United States v. Molette, No. 18-4209,

2022 WL 563256 (4th Cir. 2022); United States v. Goins, No. 21-4686, 2022 WL

1552135 (4th Cir. 2022); United States v. Lowery, No. 20-4458, 2022 WL 72724 (4th

Cir. 2022); United States v. Brooks, 857 F. App’x 159 (4th Cir. 2021); United States

v. Fayson, 834 F. App’x 48 (4th Cir. 2021); United States v. Dunlow, 834 F. App’x 47

(4th Cir. 2021); United States v. Simon, 827 F. App’x 341 (4th Cir. 2020); United

States v. Marion, 821 F. App’x 264 (4th Cir. 2020); United States v. Dodge, 963 F.3d

379 (4th Cir. 2020); United States v. Davidson, 802 F. App’x 800 (4th Cir. 2020);

United States v. Denton, 773 F. App’x 134 (4th Cir. 2019); United States v. Joy, 771

F. App’x 307 (4th Cir. 2019); United States v. Hill¸771 F. App’x 195 (4th Cir. 2019);

United States v. Maham, 767 F. App’x 532 (4th Cir. 2019); United States v. Ingram,

758 F. App’x 332 (4th Cir. 2019); United States v. Street, 756 F. App’x 310 (4th Cir.

2019); United States v. McNatt, 727 F. App’x 68 (4th Cir. 2018); United States v.

Robinson, 714 F. App’x 275 (4th Cir. 2018), vacated on other grounds by Robinson v.

United States, 140 S. Ct. 129 (2019); United States v. Alexis, 697 F. App’x 239 (4th

Cir. 2017); United States v. Solomon, 694 F. App’x 186 (4th Cir. 2017); United States

v. Beatty, 702 F. App’x 148 (4th Cir. 2017); United States v. Jones, 669 F. App’x 110

(4th Cir. 2016); United States v. Thompson, 615 F. App’x 160 (4th Cir. 2015); United

States v. Lockamy, 613 F. App’x 227 (4th Cir. 2015); United States v. Ingram, 597 F.

App’x 151 (4th Cir. 2015); In re Whitley, 577 F. App’x 212 (4th Cir. 2014).

hearing en banc in the court of appeals. The issue is cleanly presented and the

Court should grant the petition to set this issue to rights.

IV.

IN THE ALTERNATIVE, THE COURT SHOULD GRANT THE

PETITION, VACATE THE FOURTH CIRCUIT’S JUDGMENT, AND

REMAND FOR RECONSIDERATION IN LIGHT OF WOODEN V.

UNITED STATES

Mr. Atkinson’s armed career criminal designation cannot stand for another

reason: The Government never alleged in the indictment facts necessary to

establish that his qualifying prior felony convictions were for crimes that occurred

on occasions different from one another and those facts were never admitted as part

of Mr. Atkinson’s guilty plea.

Last Term, this Court explained that the Armed Career Criminal Act has “two

separate statutory conditions.” Wooden, 142 S. Ct. at 1070 5. The Government must

first prove that the defendant “has previously been convicted of three violent

felonies” and must then prove that “those three felonies were committed on

‘occasions different from one another.’ ” Id. (quoting 18 U.S.C. § 924(e)(1)). That

second element requires a factfinding inquiry that is “multi-factored in nature” and

must consider “a range of circumstances * * * relevant to identifying episodes of

criminal activity.” Id. at 1070-1071. Because this element goes beyond “the simple

fact of a prior conviction,” Mathis, 579 U.S. at 511, the Government must allege the

different-occasions element in an indictment and either prove it to the jury beyond a

Wooden was decided the day before Mr. Atkinson’s petition for initial hearing

en banc was filed; the petition did not address Wooden and the panel did not

address its impact on Mr. Atkinson’s case.

reasonable doubt or secure an admission to it as part of a guilty plea. The

Government has conceded as much in its filings before this Court. See, e.g., Brief in

Opposition, Reed v. United States, No. 22-336, at 6 (Dec. 12, 2022) (“the government

agrees that the different-occasions inquiry requires a finding of fact by a jury or an

admission by the defendant”). And it has conceded the issue “is important and

frequently recurring and may eventually warrant this Court’s review in an

appropriate case.” Id.

In Wooden, the Court did not reach this question because the defendant “did not

raise it.” 142 S. Ct. at 1068 n.3. But Justice Gorsuch explained that the question

“simmers beneath the surface” of every ACCA case, leaving “little doubt” that courts

will need to address it “soon.” Id. at 1087 n.7 (Gorsuch, J., concurring in the

judgment).

Many have done so. And the courts that have considered the issue identified in

Wooden have largely confirmed that further percolation is unlikely to be fruitful.

The Sixth and Tenth Circuits have published opinions that adhere to prior

precedent allowing judicial determination of the different-occasions element.

United States v. Williams, 39 F.4th 342, 351 (6th Cir. 2022); United States v. Reed,

39 F.4th 1285, 1295-1296 (10th Cir. 2022). The Ninth and Eleventh Circuits have

done so in unpublished decisions. United States v. Barrera, No. 20-10368, 2022 WL

1239052, at *2 (9th Cir. 2022), petition for certiorari pending, Supreme Ct. No. ______ (Feb. 17, 2023); United States v. Haynes, No. 19-12335, 2022 WL 3643740, at

*5 (11th Cir. 2022), petition for certiorari pending, Supreme Ct. No. 22-6682. But

the Ninth Circuit has also assumed without holding, in an unpublished decision,

that a judge’s determination that violent felonies were committed on different

occasions was a prejudicial Apprendi error. United States v. Man, No. 21-10241,

2022 WL 17260489, at *1-*2 (9th Cir. 2022).

In United States v. Stowell, 40 F.4th 882 (2022), a divided Eighth Circuit panel

concluded that it was bound by circuit precedent to conclude that the occasions

different element involves “recidivism-related facts” that do not need to be

submitted to the jury. Stowell, 40 F.4th at 885 (quoting United States v. Harris,

794 F.3d 885, 887 (8th Cir. 2015)). Judge Kelly dissented, explaining that she

would have vacated and remanded for resentencing to allow the district court to

consider the question in the first instance, with the benefit of Wooden. Id. at 886887. The Eighth Circuit has since granted Mr. Stowell’s petition for rehearing en

banc but has not yet set a date for oral argument. Stowell, No. 21-2234, 2022 WL

16942355 (8th Cir. Nov. 15, 2022)

The Fourth Circuit has scheduled oral argument in a case raising this issue for

March 10, 2023. United States v. Rico Brown, 4th Cir. No. 21-4253.

The Court should grant the petition, vacate the Fourth Circuit’s decision, and

remand for further proceedings.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

G. ALAN DUBOIS

FEDERAL PUBLIC DEFENDER

EASTERN DISTRICT OF NORTH CAROLINA

JENNIFER C. LEISTEN

Counsel of Record

JACLYN L. TARLTON

ASSISTANT FEDERAL PUBLIC DEFENDERS

EASTERN DISTRICT OF NORTH CAROLINA

150 Fayetteville St., Suite 450

Raleigh, N.C. 27601

(919) 856-4236

jennifer_leisten@fd.org

FEBRUARY 2023

Counsel for Petitioner

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