Northcutt v. United States of America (INMATE 3)

Filing 42

MEMORANDUM OPINION AND ORDER: it is ORDERED as follows: (1) Petitioner's 41 objections are OVERRULED; (2) The 33 Recommendation of the Magistrate Judge is ADOPTED; (3) Northcutt's 28 USC 2255 motion is DENIED; (4) This action is DISMISSED with prejudice; and (5) Northcutt is DENIED a certificate of appealability. Signed by Chief Judge William Keith Watkins on 9/26/2017. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
TERRY DON NORTHCUTT,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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) CASE NO. 2:14-CV-242-WKW
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[WO]
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MEMORANDUM OPINION AND ORDER
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 guiltyplea 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 seconddegree 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.

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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

1

Northcutt received new appointed counsel on August 17, 2017, after the Federal
Defender was permitted to withdraw from representation. (Doc. # 40.) Although the objections
ultimately lack merit, Northcutt’s present counsel filed a plethora of thoughtful objections.
2

The facts and applicable law are set out in more detail in the Recommendation and are
not repeated here except as necessary to understand the court’s decision.
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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 seconddegree 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.

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(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
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generic-burglary overbreadth issue inherent in, for instance, Florida’s
burglary statute, which allows a burglary conviction when a defendant
burglarizes the curtilage itself. See, e.g., United States v. Esprit, 841
F.3d 1235, 1240– 41 (11th Cir. 2016).
(Doc. # 33, at 15 n.9 (emphasis added).)
Second, Northcutt contends that § 86 is overbroad (and thus is a non-generic
burglary).

For instance, according to Northcutt, § 86 is overbroad because it

criminalizes entries into buildings that are initially lawful and entries made by a tool
(rather than by a person). But this line of argument is undeveloped, contradicts
Alabama courts’ strict construction of § 86, and does not find support in the statutory
language.
Section 86 requires a “break[ing] into and entering,” which implies
unlawfulness. (See, e.g., Doc. # 33, at 13 (observing that § 86 proscribes unlawful
entries).) Northcutt submits no Alabama case law interpreting a “breaking into” as
encompassing a lawful entry. Cf. Mathis v. United States, 136 S. Ct. 2243, 2248
(2016) (observing that “this Court found that a California statute swept more broadly
than generic burglary because it criminalized entering a location (even if lawfully)
with the intent to steal, and thus encompassed mere shoplifting” (citing Taylor, 495
U.S. at 591).
Additionally, in his § 2255 original briefing (but not in his objections),
Northcutt cites an Alabama decision interpreting a predecessor to § 86, which held
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that boring a hole through the floor of a corn crib completed the entry because the
tool “aid[ed] in the consummation of the criminal intent.”

Walker v. State, 63 Ala.

49, 51 (1879) (“[W]hen, as in this case, the instrument is employed, not only to
break, but to effect the only entry contemplated, and necessary to the consummation
of the criminal intent; when it is intruded within the house, breaking it, effecting an
entry, enabling the person introducing it to consummate his intent, the offense is
complete.”); (Doc. # 29, at 11–12.) Northcutt does not explain, though, why entry
by a tool in the circumstances set out in Walker, if sufficient under § 86 to effect an
entry, would render § 86 broader than generic burglary.

He fails to cite any

authority to support this contention, which is contrary to the Tenth Circuit’s holding
in United States v. Cartwright, 678 F.3d 907 (10th Cir. 2012).
In Cartwright, the Tenth Circuit rejected the argument that the “generic
definition of burglary contemplates a personal, physical bodily breaking and
entering.” Id. at 912 (“[W]hen the Supreme Court issued Taylor, ‘entry’ included
situations where a person used a tool or an instrument to achieve his felonious
purpose. No language in Taylor indicates the Supreme Court sought to exclude
entry by tool from the definition of ‘entry.’” (internal citation omitted) (citing
Taylor, 495 U.S. 575)).

These arguments do not demonstrate any error in the

Magistrate Judge’s Recommendation.

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Third, and finally, it is not necessary to address Northcutt’s argument that § 86
is not divisible.

“If the statute is generic,” which the Recommendation correctly

finds that § 86 is, “all convictions under the statute necessarily count as ACCA
predicates.”

United States v. Howard, 742 F.3d 1334, 1345 (11th Cir. 2014).

“[T]here is no need for further analysis” to determine whether the statute is divisible
or whether the modified categorical approach applies.
B.

Id.

1976 Alabama Conviction for Assault with Intent to Murder
Northcutt next contends that, contrary to the Recommendation’s finding, his

1976 Alabama conviction for assault with intent to murder is not a qualifying violent
felony under the ACCA’s elements clause.

See § 924(e)(2)(B)(i) (defining

“violent felony” as including any felony that “has as an element the use, attempted
use, or threatened use of physical force against the person of another” (elements
clause)). He argues that, at the time of his offense and conviction, under Alabama
law, it was possible to commit an assault without using actual, attempted, or
threatened physical force as required under the elements clause of the ACCA.
(Doc. # 41, at 12.)
The Magistrate Judge recited the relevant history of the Alabama crime of
assault with intent to commit murder. Observing that the crime’s elements were
defined by common law, the Magistrate Judge could “conceive of no act involving

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an assault with the intent to take the life of another person that would not have as an
element the intentional ‘use, attempted use, or threatened use of physical force
against the person of another.’”

(Doc. # 33, at 19–20 (quoting § 924(e)(2)(B).)

Northcutt cites no authority that sheds doubt on the Magistrate Judge’s
cognition. For instance, Northcutt cites Dickson v. State, 106 So. 619 (Ala. 1925),
to support his position that, under Alabama common law, assault with intent to
murder can be “accomplished by omissions,” and not by physical force.

(Doc.

# 41, at 10.) But, under Alabama law, it is more than an omission to abandon a
helpless infant and discard him like a piece of rubbish, alone and unprotected in
inclement weather; there is an affirmative act, which one learned treatise has
categorized as a weapon of force.

See 6A C.J.S. Assault § 81 (citing Dickson, 106

So. at 619). The weapon “used to administer the force” is the exposure of the infant
to extreme weather. Id. While Northcutt’s argument lacks force, the offense of
assault with intent to murder underlying his conviction has the requisite ACCA
force.3
Northcutt also challenges the government’s proof at sentencing as to the fact of the prior
convictions. He fails to mention that he raised this same argument on appeal, and the Eleventh
Circuit rejected it. See United States v. Northcutt, 554 F. App’x 875, 879 (11th Cir. 2014)
(holding that “the district court did not err in relying upon the government’s submitted documents
to prove the fact of Northcutt’s three predicate convictions for the ACCA enhancement”).
Northcutt does not argue any grounds or cite any authority that would permit him to make this
argument again in a § 2255 motion. See United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir.
2000) (“Once a matter has been decided adversely to a defendant on direct appeal it cannot be relitigated in a collateral attack under section 2255.” (alteration and citation omitted)).
3

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C.

1985 Alabama Conviction for First-Degree Assault
Finally, Northcutt challenges the Recommendation’s finding that his 1985

Alabama conviction for first-degree assault is a violent felony under the ACCA’s
elements clause.

At bottom, Northcutt contends that there were no Shepard

documents delineating under which alternative offense element Northcutt’s
conviction arose. (See Doc. # 41, at 16); see also Shepard v. United States, 544
U.S. 13, 18–19 (2005).

The argument is superficial and amounts to an

impermissible attempt to reassert an argument that the Eleventh Circuit rejected on
direct appeal.
The indictment charging Northcutt with first-degree assault provided that he
“did, with intent to cause serious physical injury to another person, cause serious
physical injury to Gerald Wayne Bennett, by means of a deadly weapon, to wit:

a

knife, in violation of § 13A-6-20 of the Code of Alabama, 1975 as amended.”
Although Northcutt is correct that the indictment did not specifically cite subsection
(a)(1) of § 13A-6-20, the indictment parallels the language of subsection (a)(1).
See Ala. Code § 13A-6-20(a)(1) (“(a) A person commits the crime of assault in the
first degree if:

(1) With intent to cause serious physical injury to another person,

he or she causes serious physical injury to any person by means of a deadly weapon
or a dangerous instrument.”).

Not only does the indictment belie Northcutt’s

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argument, but his argument amounts to a trivial variation of one he made on appeal
unsuccessfully; he has given no reason why he should be permitted to make the
argument again in this § 2255 proceeding, see supra n.3.
In short, the Recommendation correctly concludes that Northcutt’s firstdegree assault conviction is a qualifying violent felony under the ACCA’s elements
clause because the offense “has as an element the use, attempted use, or threatened
use of physical force against the person of another.”

§ 924(e)(2)(B). Moreover,

because Northcutt’s second-degree burglary conviction counts under the ACCA,
sentencing counsel’s failure to contest the use of that conviction under the ACCA
does not rise to the level of ineffective assistance of counsel.

Northcutt’s

arguments to the contrary, as highlighted above, are not persuasive.
III. CONCLUSION
The Magistrate Judge’s recommended decision that this court reject
Northcutt’s collateral challenge to his ACCA-enhanced sentence and to his counsel’s
performance at sentencing contains no error, and the objections to that recommended
decision lack merit. According, it is ORDERED as follows:
(1)

Petitioner’s objections (Doc. # 41) are OVERRULED;

(2)

The Recommendation of the Magistrate Judge (Doc. # 33) is

ADOPTED;

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(3)

Northcutt’s 28 U.S.C. § 2255 motion is DENIED;

(4)

This action is DISMISSED with prejudice; and

(5)

Northcutt is DENIED a certificate of appealability.

A final judgment will be entered separately.
DONE this 26th day of September, 2017.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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