Case: 17-14594 Date Filed: 12/07/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-14594 Non-Argument Calendar ________________________
D.C. Docket Nos. 2:14-cv-00242-WKW-WC; 2:12-cr-00032-WKW-WC-1
TERRY DON NORTHCUTT,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court for the Middle District of Alabama ________________________
(December 7, 2018)
Before MARCUS, WILLIAM PRYOR and GRANT, Circuit Judges.
PER CURIAM:
Terry Don Northcutt, a federal prisoner proceeding with the assistance of
counsel, appeals the district court’s dismissal of his 28 U.S.C. § 2255 motion to
vacate, set aside, or correct his sentence. On appeal, Northcutt argues that the district Case: 17-14594 Date Filed: 12/07/2018 Page: 2 of 7
court erred in dismissing his § 2255 motion because 1972 Alabama second-degree
burglary is not an Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e),
predicate offense, under the statute’s use-of-force or enumerated offenses clauses,
after the Supreme Court’s decision in Johnson v. United States, 576 U.S. __, 135 S.
Ct. 2551 (2015), and that his counsel at sentencing was constitutionally deficient for
conceding at sentencing that his 1972 Alabama second-degree burglary conviction
qualified as an ACCA predicate offense. After thorough review, we affirm.
When reviewing the district court’s denial of a habeas petition, we review
questions of law and mixed questions of law and fact de novo, and findings of fact
for clear error. Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000).
First, we are unpersuaded by Northcutt’s claim that his 1972 Alabama second-
degree burglary is not an ACCA predicate offense under the statute’s use-of-force
or enumerated offenses clauses. Under the ACCA, a defendant convicted of being
a felon in possession of a firearm who has 3 or more prior convictions for a “serious
drug offense” or “violent felony” faces a mandatory-minimum 15-year sentence.
See 18 U.S.C. § 924(e)(1). The ACCA defines the term “violent felony” as any
crime punishable by a term of imprisonment 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. 2 Case: 17-14594 Date Filed: 12/07/2018 Page: 3 of 7
Id. § 924(e)(2)(B). The first prong of this definition is sometimes referred to as the
“elements clause,” while the second prong contains the “enumerated crimes” and,
finally, what is commonly called the “residual clause.” United States v. Owens, 672
F.3d 966, 968 (11th Cir. 2012). The Supreme Court in Johnson held that the residual
clause of the ACCA is unconstitutionally vague because it creates uncertainty about
how to evaluate the risks posed by a crime and how much risk it takes to qualify as
a violent felony. 135 S. Ct. at 2557-58, 2563. Thereafter, the Supreme Court held
that Johnson announced a new substantive rule that applies retroactively to cases on
collateral review. Welch v. United States, 136 S. Ct. 1257, 1264-65, 1268 (2016).
Although the ACCA’s enumerated crimes clause includes the offense of
burglary, not all state burglary statutes qualify as “burglary” under the ACCA. See
Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). In listing those offenses,
Congress referred only to their usual or generic versions -- not to all variants of the
offenses. See id. The Supreme Court established a uniform burglary definition,
holding that the generic meaning of burglary contained “an unlawful or unprivileged
entry into, or remaining in, a building or other structure, with intent to commit a
crime.” Taylor v. United States, 495 U.S. 575, 598 (1990). Thus, a person has been
convicted of burglary, for purposes of an ACCA 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 3 Case: 17-14594 Date Filed: 12/07/2018 Page: 4 of 7
intent to commit a crime. See id. at 599. The Supreme Court explained that burglary
convictions from states whose definitions are over-inclusive or “nongeneric” may
not generally be considered for sentence enhancement -- including, for example,
statutes that define burglary by including places other than buildings, like
automobiles -- are overbroad. Id.
Here, the applicable Alabama statute defined second-degree burglary as:
Any person who, in the daytime, with intent to steal or to commit a felony, breaks into and enters any inhabited dwelling house or any other house or building which is occupied by any person lodged therein, or any person who, either in the nighttime or daytime, with intent to steal or to commit a felony, breaks into and enters any uninhabited dwelling house, or any building, structure or enclosure within the curtilage of any dwelling house, though not forming any part thereof, or into any shop, store, warehouse or other building, structure or enclosure in which any goods, wares, merchandise, or other valuable thing is kept for use, sale, or deposit, provided such structure or enclosure other than a shop, store, warehouse, or building is specially constructed or made to keep such goods, wares, merchandise, or other valuable thing, is guilty of burglary in the second degree and shall on conviction be imprisoned in the penitentiary for not less than one year, nor more than ten years.
Ala. Code Tit. 14, § 86 (1940) (emphases added).
Our reading of the plain language of the statute reveals that 1972 Alabama
second-degree burglary is not broader than generic burglary, and in compliance with
Taylor, criminalizes unauthorized entry into, or remaining in, a building or other
structure, with intent to commit a crime therein. See id. Notably, the statute
criminalizes breaking and entering buildings and structures within the curtilage, not
4 Case: 17-14594 Date Filed: 12/07/2018 Page: 5 of 7
entry into the curtilage alone. Moreover, Alabama case law has expressly interpreted
the term “structure” narrowly, requiring it to “have the same characteristics of the
structures specifically named in the statute,” namely, “four walls and a roof, and, if
not resting on the earth’s surface as a floor, must have a floor of other material --
and must be susceptible of being entered by a human being.” Hulbert v. Alabama,
208 So. 2d 92, 93-94 (Ala. 1968) (quoting Chaney v. Alabama, 142 So. 104, 105
(Ala. 1932)).
Northcutt primarily claims that the statute is broader than generic burglary
because it criminalizes breaking and entering “enclosures within the curtilage,” and
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Case: 17-14594 Date Filed: 12/07/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-14594 Non-Argument Calendar ________________________
D.C. Docket Nos. 2:14-cv-00242-WKW-WC; 2:12-cr-00032-WKW-WC-1
TERRY DON NORTHCUTT,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court for the Middle District of Alabama ________________________
(December 7, 2018)
Before MARCUS, WILLIAM PRYOR and GRANT, Circuit Judges.
PER CURIAM:
Terry Don Northcutt, a federal prisoner proceeding with the assistance of
counsel, appeals the district court’s dismissal of his 28 U.S.C. § 2255 motion to
vacate, set aside, or correct his sentence. On appeal, Northcutt argues that the district Case: 17-14594 Date Filed: 12/07/2018 Page: 2 of 7
court erred in dismissing his § 2255 motion because 1972 Alabama second-degree
burglary is not an Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e),
predicate offense, under the statute’s use-of-force or enumerated offenses clauses,
after the Supreme Court’s decision in Johnson v. United States, 576 U.S. __, 135 S.
Ct. 2551 (2015), and that his counsel at sentencing was constitutionally deficient for
conceding at sentencing that his 1972 Alabama second-degree burglary conviction
qualified as an ACCA predicate offense. After thorough review, we affirm.
When reviewing the district court’s denial of a habeas petition, we review
questions of law and mixed questions of law and fact de novo, and findings of fact
for clear error. Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000).
First, we are unpersuaded by Northcutt’s claim that his 1972 Alabama second-
degree burglary is not an ACCA predicate offense under the statute’s use-of-force
or enumerated offenses clauses. Under the ACCA, a defendant convicted of being
a felon in possession of a firearm who has 3 or more prior convictions for a “serious
drug offense” or “violent felony” faces a mandatory-minimum 15-year sentence.
See 18 U.S.C. § 924(e)(1). The ACCA defines the term “violent felony” as any
crime punishable by a term of imprisonment 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. 2 Case: 17-14594 Date Filed: 12/07/2018 Page: 3 of 7
Id. § 924(e)(2)(B). The first prong of this definition is sometimes referred to as the
“elements clause,” while the second prong contains the “enumerated crimes” and,
finally, what is commonly called the “residual clause.” United States v. Owens, 672
F.3d 966, 968 (11th Cir. 2012). The Supreme Court in Johnson held that the residual
clause of the ACCA is unconstitutionally vague because it creates uncertainty about
how to evaluate the risks posed by a crime and how much risk it takes to qualify as
a violent felony. 135 S. Ct. at 2557-58, 2563. Thereafter, the Supreme Court held
that Johnson announced a new substantive rule that applies retroactively to cases on
collateral review. Welch v. United States, 136 S. Ct. 1257, 1264-65, 1268 (2016).
Although the ACCA’s enumerated crimes clause includes the offense of
burglary, not all state burglary statutes qualify as “burglary” under the ACCA. See
Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). In listing those offenses,
Congress referred only to their usual or generic versions -- not to all variants of the
offenses. See id. The Supreme Court established a uniform burglary definition,
holding that the generic meaning of burglary contained “an unlawful or unprivileged
entry into, or remaining in, a building or other structure, with intent to commit a
crime.” Taylor v. United States, 495 U.S. 575, 598 (1990). Thus, a person has been
convicted of burglary, for purposes of an ACCA 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 3 Case: 17-14594 Date Filed: 12/07/2018 Page: 4 of 7
intent to commit a crime. See id. at 599. The Supreme Court explained that burglary
convictions from states whose definitions are over-inclusive or “nongeneric” may
not generally be considered for sentence enhancement -- including, for example,
statutes that define burglary by including places other than buildings, like
automobiles -- are overbroad. Id.
Here, the applicable Alabama statute defined second-degree burglary as:
Any person who, in the daytime, with intent to steal or to commit a felony, breaks into and enters any inhabited dwelling house or any other house or building which is occupied by any person lodged therein, or any person who, either in the nighttime or daytime, with intent to steal or to commit a felony, breaks into and enters any uninhabited dwelling house, or any building, structure or enclosure within the curtilage of any dwelling house, though not forming any part thereof, or into any shop, store, warehouse or other building, structure or enclosure in which any goods, wares, merchandise, or other valuable thing is kept for use, sale, or deposit, provided such structure or enclosure other than a shop, store, warehouse, or building is specially constructed or made to keep such goods, wares, merchandise, or other valuable thing, is guilty of burglary in the second degree and shall on conviction be imprisoned in the penitentiary for not less than one year, nor more than ten years.
Ala. Code Tit. 14, § 86 (1940) (emphases added).
Our reading of the plain language of the statute reveals that 1972 Alabama
second-degree burglary is not broader than generic burglary, and in compliance with
Taylor, criminalizes unauthorized entry into, or remaining in, a building or other
structure, with intent to commit a crime therein. See id. Notably, the statute
criminalizes breaking and entering buildings and structures within the curtilage, not
4 Case: 17-14594 Date Filed: 12/07/2018 Page: 5 of 7
entry into the curtilage alone. Moreover, Alabama case law has expressly interpreted
the term “structure” narrowly, requiring it to “have the same characteristics of the
structures specifically named in the statute,” namely, “four walls and a roof, and, if
not resting on the earth’s surface as a floor, must have a floor of other material --
and must be susceptible of being entered by a human being.” Hulbert v. Alabama,
208 So. 2d 92, 93-94 (Ala. 1968) (quoting Chaney v. Alabama, 142 So. 104, 105
(Ala. 1932)).
Northcutt primarily claims that the statute is broader than generic burglary
because it criminalizes breaking and entering “enclosures within the curtilage,” and
because the Alabama case law only addresses the definition of the word “structure”
as it is used in the statute, and not the word “enclosure.” But Northcutt cites no case
law to support his claim that Alabama courts define “enclosure” any more broadly
than they define “structure,” and our research has revealed no authority to this effect.
Rather, the only case we’ve located -- an unpublished one from the Fourth Circuit -
- has held that the 1972 Alabama definition of second-degree burglary corresponded
to the generic definition, and squarely rejected this argument. United States v.
Lafity, 47 F.3d 1166, *6-7 (4th Cir. 1995) (per curiam) (unpublished). Thus,
because 1972 Alabama second-degree burglary is substantively similar to, or
narrower than, generic burglary, we hold that Northcutt’s 1972 Alabama second-
5 Case: 17-14594 Date Filed: 12/07/2018 Page: 6 of 7
degree burglary offense qualifies as an ACCA predicate offense under the
enumerated offenses clause.
Nor do we agree with Northcutt’s claim that his sentencing counsel was
constitutionally deficient for conceding that his 1972 Alabama second-degree
burglary conviction qualified as an ACCA predicate offense. The United States
Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to have the Assistance of Counsel for his defen[s]e.” U.S. Const. Amend.
VI. The mere physical presence of an attorney for the defendant at trial is not
sufficient to satisfy this constitutional requirement. Instead, the right to counsel is
the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668,
685-86 (1984). A defendant is entitled to the effective assistance of counsel not only
during the guilt or innocence phase of a criminal trial, but also during sentencing.
See Jones v. United States, 224 F.3d 1251, 1259 (11th Cir. 2000). A prisoner
alleging ineffective assistance of counsel must prove his case by a preponderance of
the competent evidence, which is a heavy burden but not an insurmountable one.
Putman v. Head, 268 F.3d 1223, 1243 (11th Cir. 2001).
The benchmark for judging a claim of ineffective assistance of counsel is
whether counsel’s performance so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.
Strickland, 466 U.S. at 686. To make a showing, a prisoner must prove two things.
6 Case: 17-14594 Date Filed: 12/07/2018 Page: 7 of 7
First, the prisoner must show that counsel’s performance was deficient. Second, the
prisoner must establish that the deficient performance prejudiced the defense. Id. at
687. To satisfy this second prong, the defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. Id. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id.
Here, the district court did not err in finding that Northcutt’s trial counsel was
not constitutionally deficient. First, as we’ve already held, 1972 Alabama second-
degree burglary is an ACCA predicate offense under the enumerated offenses clause,
making it unlikely he was prejudiced by his counsel’s concession at sentencing.
Moreover, the record indicates that Northcutt’s counsel made a strategic decision at
sentencing to argue that the government failed to prove the conviction, which if
successful, would have resulted in Northcutt being sentenced under the lesser
guideline range. Id. at 693. Accordingly, Northcutt has failed to prove that his
counsel’s performance was deficient or that he faced prejudice based on that
deficiency, and we affirm.
AFFIRMED.