United States District Court, D. Arizona
REPORT AND RECOMMENDATION
J. Markovich United States Magistrate Judge.
before the Court is a petition for a writ of habeas corpus
filed pursuant to 28 U.S.C. § 2241 by James Terry
("Terry" or "Petitioner"). (Doc. 1).
Terry alleges that a fairly recent Supreme Court
materially changed the substantive law for an element of the
offense that he was convicted of, and that this change in law
applies retroactively to cases on collateral review. He
alleges that this Court has jurisdiction over the § 2241
petition because he has satisfied the stringent requirements
of the "escape hatch" or "savings clause"
of 28 U.S.C. § 2255(e); specifically, the material and
retroactive change in the law demonstrates that he is
actually innocent of the offense of conviction, and he has
not had an unobstructed procedural shot (i.e., on
direct appeal or in his first § 2255 motion) at
presenting this actual innocence claim.
argues that this Court does not have jurisdiction over the
§ 2241 petition because Terry has not met the
requirements of the escape hatch for the following reasons.
(Doc. 11). First, Respondent contends that Burr age
only dealt with a sentencing enhancement and does not apply
retroactively to cases on collateral review. Second,
Respondent argues that Terry had an unobstructed procedural
shot to present this claim on direct appeal and in his §
2255 motion. Third, Respondent argues that Terry cannot
demonstrate that he is actually innocent because he pled
guilty to the requisite elements of the offense as modified
by this recent Supreme Court case.
initial matter, the Court notes that the proper respondent in
an action for habeas corpus is the Petitioner's
custodian. See 28 U.S.C. § 2242; Rumsfeld
v. Padilla, 542 U.S. 426, 435-36 (2004). Petitioner
named the respondent in this action as "Mr.
Shartle." (Doc. 1). The Court will substitute the Warden
of USP-Tucson, J. T. Shartle, as Respondent pursuant to Rule
25(d) of the Federal Rules of Civil Procedure.
to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure,
this matter was referred to Magistrate Judge Markovich for a
Report and Recommendation. For the reasons discussed below,
it is recommended that the District Court conclude that
Terry's allegations satisfy the requirements of the
escape hatch and, as such, that the District Court has
jurisdiction to review the merits of the instant petition. It
is further recommended that an evidentiary hearing on
Petitioner's actual innocence claim be scheduled and that
Terry be appointed counsel for that hearing.
FACTUAL AND PROCEDURAL BACKGROUND
The Proceedings in the Middle District of Florida
22, 1997, a federal grand jury in the Middle District of
Florida returned a one count indictment charging Terry with
distribution of heroin in violation of 21 U.S.C. §
841(a). The indictment further alleged that "as a result
of the use of the substance, death resulted to Justin Hayden
and George Bakun." See United States v. Terry,
Case No. 8:97-Cr-T-273-23TBM (M.D. Fla.) ("Cr.
Doc.") at Doc. 10. This "death results"
enhancement triggered a 20-year mandatory minimum penalty and
increased the statutory maximum penalty from 20 years
imprisonment to life imprisonment. See 21 U.S.C.
October 28, 1997, Terry pled guilty to the indictment
pursuant to a plea agreement. (Doc. 11-2 Ex. 1) At the guilty
plea hearing, Terry agreed to the following facts: "On
March 14, 1997, in Hillsborough County, Florida, the
defendant delivered heroin to [Demian Gordon] who in turn
delivered the heroin to Justin Hayden and George [Bakun]. As
a result of their use of that heroin, Justin Hayden and
George [Bakun] died." (Doc. 11-2 Ex. 1 at 27). The
Magistrate Judge made further inquiry of Terry:
THE COURT: Mr. Terry, did you deliver the heroin to this
THE DEFENDANT: Yes, sir.
THE COURT: And you're aware of the fact that Mr. Justin ~
excuse me, Mr. Hayden and Mr. Barkman [Bakun] passed on as a
result of using the heroin?
THE DEFENDANT: Yes, sir.
THE COURT: You're not required to make any additional
statements with regards to the fact, but I always allow the
defendants an opportunity to do so if they think it's
important. Do you want to add anything to these facts?
THE DEFENDANT: No, sir.
United States Probation Office prepared a Presentence
Investigation Report ("PSR"), which reported the
Offense Conduct, and to which Terry did not object. (Doc. 15
Ex. 2). The PSR provided:
7. On March 14, 1997, [Demian] Gordon purchased two grams of
heroin from Terry. Gordon then sold approximately 1/2 gram to
George Bakun and 1 gram to Justin Hayden, both age 24, at his
residence in Tampa, Florida. Throughout the day, in addition
to the heroin, Bakun ingested other drugs, including Xanax,
cocaine, and "acid"; and Hayden ingested Xanax.
Some of the drug usage occurred at Gordon's residence.
Later the same day, Bakun left Gordon's residence, but
Hayden remained. After Bakun and his girlfriend
"parried' some more at the Days Inn at Fletcher
Ave., and 275, in Tampa, they went to sleep. When Bakun's
girlfriend woke up the next morning, Bakun was dead. The
official cause of death was "acute drug
intoxication-heroin due to chronic drug use." In effect,
Bakun died from an overdose of heroin.
8. After Hayden "parried" at Gordon's
residence, he overdosed on the heroin. He was then taken to
University Community Hospital of Carrollwood by a friend.
After being treated for the overdose, they returned to
Gordon's residence, where Hayden ingested more heroin.
Terry was also at the residence, but left later. Sometime on
March 15 Hayden also died of a heroin overdose.
Id. at ¶¶ 7-8.
14, 1998, Terry failed to appear for sentencing and a bench
warrant was issued. (Cr. Doc. 36, 37). After being
apprehended in Mexico, Terry was eventually returned to the
Middle District of Florida. (Cr. Doc. 41; Doc. 15 Ex. 2 at
¶ 13). On November 12, 1998, the District Court
sentenced Terry to life imprisonment. (Cr. Doc. 48; Doc. 15
Ex. 3). At sentencing, Terry made no objection to the factual
accuracy of the PSR. (Doc. 15 Ex. 3 at 4 [Tr.
appealed, alleging that (1) his guilty plea was involuntary,
(2) the Court erred in allowing the Government to (a)
withdraw its previously filed motion for downward departure,
(b) object to a reduction for acceptance of responsibility
and (c) oppose a sentence at the low end of the guidelines,
and (3) the Court erred in denying acceptance of
responsibility. (Cr. Doc. 51). On December 9, 1999, in an
unpublished opinion, the Eleventh Circuit Court of Appeals
affirmed Terry's conviction, finding that:
Upon review of the plea agreement, the presentence
investigation report, the plea transcript, and the sentencing
transcript, and upon consideration of the briefs of the
parties, we find no cause for setting aside Terry's
sentence. Terry's guilty plea was not induced by an
improper Government promise; the district court did not abuse
its discretion in denying Terry's request to withdraw his
guilty plea; and Terry, in a valid plea agreement, waived his
right to challenge on appeal the district court's denial
of his request for an offense level adjustment (and thus,
perhaps, a sentence lower than the one he received).
(Doc. 11-3 Ex. 4 at 42-43).
December 7, 2000, Terry filed a timely § 2255 motion in
which he alleged, inter alia, that Apprendi
required that the "death results" facts be proven
to a fact finder beyond a reasonable doubt and that the
"strict liability" nature of the statute was
unconstitutional. (Doc. 1-1 at 18-43). Relying on United
States v. Mcintosh, 236 F.3d 968 (8th Cir. 2001), the
District Court concluded that the § 841(b)(1)(C)
sentencing enhancement "appl[ied] without regard to the
principles of proximate cause, " and was triggered
'"whenever death or serious injury is a consequence
of the victim's use of a controlled substance that has
been manufactured or distributed by that
defendant.'" (Doc. 1-1 at 15-16 (quoting
Mcintosh, 236 F.3d at 972)). The District Court
reasoned that "in the instant case, Terry admitted
during his plea colloquy all of the facts that were necessary
to support a maximum statutory sentence of life imprisonment
pursuant to 21 U.S.C. § 841(b)(1)(C). Terry admitted
that he had distributed heroin to Gordon, who, in turn, had
delivered the heroin to Hayden and Bakun, who had died after
using the heroin." (Doc. 1-1 at 9). The Court continued,
finding that "[t]his admission was the equivalent of
proof beyond a reasonable doubt and a finding by a jury that
Terry's distribution of heroin caused a death."
Id. For those reasons, the District Court denied the
§ 2255 petition.
request for a certificate of appealability was denied. (Cr.
Doc. 100, 101, 106). On July 9, 2003, Terry filed another
§ 2255 motion which was also denied. (Cr. Doc. 114,
188). Terry thereafter filed approximately 60 motions or
applications for relief and more than 15 appeals to the
Eleventh Circuit, virtually all of which were denied.
See Doc. 6 at 4. Among those filings was a §
2241 habeas corpus petition filed in the Eastern District of
California on August 23, 2012. Terry v. United
States, Case No. 1:l2-cv-01388-MJS-HC (E.D. Cal.) at
Doc. 1 ("E.D. Cal. Doc"). In that Petition, Terry
made numerous claims, including that he was actually
innocent-the same claim he makes again in this pending §
2241 Petition. See E.D. Cal. Doc. 10, Order of
Magistrate Judge referring Writ to District Judge ("He
claims that he is innocent of the sentencing enhancement
based on death of the victims since he did not directly
provide them with heroin, but instead delivered it to Gordon
who sold it to the victims."). On October 31, 2012, the
District Court denied the Petition and a certificate of
appealability. (E.D. Cal. Doc. 12). Terry filed a motion for
reconsideration, which was denied by the District Court.
(E.D. Cal. Doc. 13, 19). In denying the motion, the District
Here, Petitioner plead to the factual basis of the crime, and
does not deny that he distributed drugs to Gordon who then
distributed the drugs to two individuals who died from using
the drugs. While Petitioner did not personally deliver the
drugs to the end users, he has made an insufficient showing
that he is actually innocent of delivering drugs that
eventually caused the deaths of two people.
Id. The Ninth Circuit Court of Appeals denied a
request for certificate of appealability. (E.D. Cal. Doc. 24,
The Instant Proceedings
March 18, 2015, Terry filed a pro se Petition for a
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 in
the District of Arizona. (Doc. 1). Petitioner's
allegations essentially boil down to the argument that he is
"actually innocent" of the 21 U.S.C. §
841(b)(1)(C) sentencing enhancement because, under the
Supreme Court's holding in Burrage v. United
States,134 S.Ct. 881 (2014), it was never proven that
the victims' use of heroin was the "but for"
cause of their deaths. (Doc. 6 at 4). In Burrage,
the Supreme Court held that where the drug distributed by the
defendant was not an independently sufficient cause of death
or serious bodily injury, the defendant could not be liable
under the penalty enhancement of 21 U.S.C. §
841(b)(1)(C) unless the drug distributed by the defendant was
the "but for" cause of death or injury. 134 S.Ct.
at 892. The Court further noted that "[b]ecause the
'death results' enhancement increased the minimum and
maximum sentences to which Burrage was exposed, it is an
element that ...