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Terry v. Shartle

United States District Court, D. Arizona

May 23, 2017

James Terry, Petitioner,
v.
Unknown Shartle, Respondent.

          REPORT AND RECOMMENDATION

          Eric J. Markovich United States Magistrate Judge.

         Pending 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 case[1] 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.

         Respondent 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.[2] 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.

         As an 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.

         Pursuant 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. The Proceedings in the Middle District of Florida

         On July 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.")[3] 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. § 841(b)(1)(C).

         On 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 Gordon individual?
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.

Id.

         The 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.

         On July 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. 6]).[4]

         Terry 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).

         On 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.

         Terry's 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 Court noted:

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, 35).

         B. The Instant Proceedings

         On 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. ยง 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 ...


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