Tuesday, December 15, 2015

Judge White: TN definition of "habitation" may make Aggravated Burglary non-generic

Today's published opinion in United States v. Priddy, No. 15-5136, is most exciting for Judge White's partial concurrence.

First, the meat of the case. Mr. Priddy was charged with two counts of felon in possession. He has prior Tennessee convictions that include three for Aggravated Burglary, one for Robbery, and two for Burglary. Mr. Priddy wanted his attorney to objection to his ACCA classification. Counsel noted at sentencing, "I think he falls into the Armed Career Criminal category" and "the [prior convictions] that give rise to the application of [the ACCA enhancement] are three aggravated burglaries, then two burglaries of a business or of some other thing that was not a residence, and a robbery."

The Sixth Circuit discussed the difference between waiting an issue and forfeiting an issue and concluded, "... where the defendant has 'explicitly agreed' that a particular guideline calculation or enhancement applies to his sentence, any challenge to that enhancement on appeal is waived." Normally, the Sixth "does not review" waived issues, but decided to give Mr. Priddy "the benefit of the doubt" and conduct plain error analysis of his claims.

The Sixth Circuit then described Tennessee Aggravated Burglary: "[a]ggravated burglary occurs when an individual enters a habitation 'without effective consent of the property owner' and ... intends to commit a felony." It pointed to its finding in United States v. Nance, 481 F.3d 882 (6th Cir. 2007) that Tennessee aggravated burglary is a generic burglary for ACCA purposes.

What Nance and the majority in Priddy both failed to do, however, is look to Tennessee's definition of "habitation" in TN Stat 39-14-401:
a) any structure, including buildings, module units, mobile homes, trailers, and tents, which is designed or adapted for the overnight accommodation of persons,
b) "a self-propelled vehicle that is designed or adapted for the overnight accommodation of persons and is actually occupied at the time of initial entry by the defendant, and
c) includes each separately secured or occupied portion of the structure or vehicle and each structure appurtenant to or connected with the structure or vehicle.

In her concurrence, Judge White noted this "expansive definition" "likely renders [Tennessee's] aggravated burglary statute broader than Taylor's definition of generic burglary." She questioned the continued validity of Nance and pointed to alternate holdings in Ozier and Lara.

Whether Tennessee's Aggravated Burglary statute is divisible, and how far it is divisible, is still somewhat in debate. The Sixth Circuit has held the statute indivisible and has held it divisible. Contrary to the Sixth's holding in Lara, there is argument to be made that, though "habitation" has a list of alternate situations, a sentencing court should not delve into those facts, as a jury would not need to find what sort of habitation was burgled in order to find a defendant guilty of Aggravated Burglary.

The plain error analysis in this case limits its use for the position that Tennessee Aggravated Burglary is a predicate offense for ACCA. Judge White's concurrence indicates the "habitation" issue is still a live issue that counsel should be aware of.

Tuesday, December 01, 2015

Habeas Law: How to Count to Two

The Anti-Terrorism and Effective Death Penalty Act, passed in the wake of the bombing of the Murrah Federal Building in Oklahoma City, imposes a labyrinthine set of rules that must be followed by those seeking federal habeas relief.  In particular, these rules strongly disfavor the filing of "second" or "successive" habeas petitions.  Ordinarily, an inmate who files a second or successive petition must first seek the permission of a court of appeals to do so, and the appellate court may give its permission only under limited circumstances.

Things get hairier, though, when an inmate files a habeas petition, the petition is fully litigated, the state court subsequently enters some new judgment, and the inmate seeks to file another petition.  Is this new petition, premised on the new judgment but raising claims directed at the original conviction, a first or second petition?

That's what today's decision in King v. Morgan seeks to answer.

In 2004, DeLawrence King was convicted of two counts of murder and one count of felonious assault.  After exhausting his state court remedies, he ultimately sought federal habeas relief, which was denied.  (The Sixth Circuit affirmed that denial.)  King then filed a motion for resentencing in the state trial court, arguing that in imposing its sentence, that court had erred in the imposition of post-release control.  The state court granted the motion and re-sentenced King, creating a new judgment.  So King filed a new habeas petition, challenging both the new sentence and the original conviction.

In an opinion by Judge Sutton {joined by Judges Boggs and White), the Sixth Circuit holds that King's claims regarding his original conviction should be treated as being part of a first petition for habeas relief.   The panel notes that in so holding, it joins the majority of circuit courts to consider the issue.  (The lone outlier is the Seventh Circuit, which reached the opposite conclusion in a 2-1 decision.)  The Supreme Court's 2010 decision in Magwood v. Patterson, which requires that a petition that challenges only the new judgment in circumstances similar to King's be treated as a first petition, weighs heavily in the Sixth Circuit's reasoning; the Magwood court took a "judgment-based approach" rather than a "claims-based approach" to figure out the first-or-second question.  Also, Judge Sutton recounts several practical concerns that favor treating such petitions as first petitions.

One other nugget:  the opinion specifically praises King's appointed counsel, Erin Murphy, for her work on the case.  According to her bio, Murphy was a law clerk to Judge Sykes (7th Circuit) and Chief Justice Roberts following her magna cum graduation from Georgetown Law.  (The name may be familiar to SCOTUS-watchers, as she successfully argued on behalf of the RNC in McCutcheon v. FEC.)  It's not often that a pro se habeas litigant lucks into such high-powered appellate counsel.