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Northcutt v. United States

United States District Court, M.D. Alabama, Northern Division

September 26, 2017

TERRY DON NORTHCUTT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          W. KEITH WATKINS CHIEF UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         In May 2013, Petitioner Terry Don Northcutt received a 180-month sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), on his guilty-plea conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Northcutt's enhanced sentence under the ACCA was based upon three predicate violent felony convictions: (1) a 1972 Alabama conviction for second-degree burglary; (2) a 1976 Alabama conviction for assault with intent to murder; and (3) a 1985 Alabama conviction for first-degree assault.

         In April 2014, Northcutt filed a pro se 28 U.S.C. § 2255 motion, contending that his sentencing counsel was ineffective for conceding that his 1972 Alabama conviction for second-degree burglary under § 13A-7-6 of the Code of Alabama was a violent felony under the ACCA. The next year, in Johnson v. United States, 135 S.Ct. 2551 (2015), the Supreme Court held that the ACCA's residual clause is unconstitutionally vague. The Johnson Court reasoned: “[T]he indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant's sentence under the clause denies due process of law.” Id. at 2557. Subsequently, in Welch v. United States, 136 S.Ct. 1257 (2016), the Supreme Court held that Johnson announced a new substantive rule of constitutional law that applies retroactively in cases on collateral review. After the Supreme Court decided Johnson and Welch, Northcutt was permitted to amend his § 2255 motion to add a claim that his sentence was improperly enhanced under the ACCA's residual clause (“Johnson claim”), and counsel was appointed. In his § 2255 motion, Northcutt argues that none of his prior convictions qualifies as a “violent felony” for purposes of the ACCA.

         In a Recommendation, filed pursuant to 28 U.S.C. § 636(b), the Magistrate Judge finds that Northcutt's prior felony convictions qualify as violent felonies under the ACCA, notwithstanding Johnson's abolition of the ACCA's residual clause. He also concludes that Northcutt's sentencing counsel was not “ineffective for failing to challenge use of th[e 1972 Alabama second-degree burglary] conviction as an ACCA predicate conviction.” (Doc. # 33, at 17.) Accordingly, the Magistrate Judge recommends that Mr. Northcutt's § 2255 motion be denied.

         Northcutt filed objections to the Magistrate Judge's Recommendation. (Doc. # 39.) Based upon an independent and de novo review of those portions of the Recommendation to which objection is made, see 28 U.S.C. § 636(b), the Recommendation is due to be adopted and the objections are due to be overruled.[1]

         II. DISCUSSION

         Northcutt objects to the Recommendation's findings that his three prior convictions qualify as violent felonies under the ACCA and that his sentencing counsel was not ineffective for conceding that the ACCA applied to his 1972 Alabama conviction for second-degree burglary. The objections are addressed in turn.[2]

         A. 1972 Alabama Conviction for Second-Degree Burglary

         Northcutt argues that the Magistrate Judge incorrectly concludes that his 1972 Alabama conviction for second-degree burglary is a generic burglary and, thus, qualifies as a violent felony under the ACCA. Northcutt's corollary argument is that his counsel was ineffective for conceding the ACCA's applicability to this conviction. As explained, contrary to Northcutt's contentions, the Magistrate Judge's conclusions are well reasoned and correct.

         The ACCA encompasses a felony conviction that “is burglary, ” § 924(e)(2)(B)(ii), so long as the crime underlying the conviction satisfies the elements of generic burglary. See Taylor v. United States, 495 U.S. 575, 599 (1990) (“[A] person has been convicted of burglary for purposes of a § 924(e) enhancement if he is convicted of any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.”). If the state statute's “elements are the same as, or narrower than, those of the generic offense” of burglary, the prior burglary conviction will count as an ACCA predicate. Descamps v. United States, 133 S.Ct. 2276, 2281 (2013).

         Applying these principles, the Magistrate Judge analyzes Alabama's second-degree burglary statute then in effect, which was Title 14, § 86, of the Code of Alabama 1940 (“§ 86”). Employing the categorical approach, the Magistrate Judge concludes that the statutory elements of second-degree burglary are the same as, or narrower than, those of generic burglary. He also finds that Alabama courts have interpreted § 86 narrowly, criminalizing the unlawful entry into places that fall only within the locational element of generic burglary. (Doc. # 33, at 15-16 (first citing Hulbert v. Alabama, 208 So.2d 92 (Ala. 1968) (holding that a “pay telephone” was not a structure within the meaning of § 86); then citing Chaney v. Alabama, 142 So. 104, 105 (Ala. 1932) (holding that a gasoline pump was not a structure under a predecessor to § 86); and then citing United States v. Lafity, 47 F.3d 1166 (4th Cir. 1995) (unpublished decision) (discussing Chaney, 142 So. at 104))). The Magistrate Judge reasons that, because no reasonable construction of § 86 broadens the statute beyond the scope of generic burglary, Northcutt's 1972 Alabama conviction for second-degree burglary was a qualifying violent felony under the ACCA's enumerated-crimes clause. He further opines that, consequently, Northcutt's sentencing counsel was not ineffective for failing to challenge the use of that conviction as an ACCA predicate.

         Northcutt finds fault, however, in the Magistrate Judge's Recommendation. First, he seizes upon the word “curtilage” in § 86 and argues that it makes the offense broader than generic burglary because the curtilage is not a location included within the offense of generic burglary. But the Recommendation itself correctly explains why this argument is erroneous:

Section 86 does not criminalize the mere unlawful entry of the curtilage. By its language, it criminalizes the unlawful entry of various buildings and structures located within the curtilage of a dwelling house. Thus, the appearance of the word ‘curtilage' in § 86 does not, in itself, sweep the definition of second-degree burglary under § 86 beyond the scope of generic burglary and does not create the generic-burglary overbreadth issue inherent in, for instance, Florida's burglary statute, which allows a burglary ...

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