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Terry v. Shartle

United States District Court, D. Arizona

November 7, 2017

James Terry, Petitioner,
J.T. Shartle, Respondent.


          Honorable Cindy K. Jorgenson United States District Judge.

         On May 23, 2017, Magistrate Judge Eric J. Markovich issued a Report and Recommendation (“R&R”) (Doc. 44) in which he recommended this Court find that it has jurisdiction over Petitioner James Terry's § 2241 petition (Doc. 1), set an evidentiary hearing, and appoint counsel for Terry in his claim of actual innocence. (Doc. 44 at 25.) Terry's § 2241 petition asserts that the holding in Burrage v. United States, 134 S.Ct. 881 (2014), demonstrates that he is actually innocent of the sentencing enhancement for distribution of heroin resulting in death. (Id.) Because of this change in law, he has not previously been given an unobstructed shot at presenting this actual innocence claim, and his § 2241 petition qualifies under the “savings clause” of 28 U.S.C. § 2255(e). Therefore, he contends the Court may grant him relief and vacate his conviction. (Id.)

         After the R&R issued, both the parties filed objections (Docs. 47, 48), responses (Docs. 51, 53), and Terry filed a reply (Doc. 52). Soon thereafter, Terry also filed a Request for an Evidentiary Hearing (Doc. 54) and a Request for Release (Doc. 56). Terry has since filed a Writ of Mandamus with the Court of Appeals for the Ninth Circuit, which has been denied. (Doc. 57.) Then, on November 3, 2017, Terry filed a Motion to Expedite the Decision in the Above # Cause. (Doc. 58.)

         Standard of Review

         The standard of review applied to a magistrate judge's report and recommendation is dependent upon whether a party files objections - the Court need not review portions of a report to which a party does not object. Thomas v. Arn, 474 U.S. 140, 150 (1985). However, the Court must “determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1). Nonetheless, “while the statute does not require the judge to review an issue de novo if no objections are filed, it does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard.” Thomas, 474 U.S. at 154.

         Substitution of J.T. Shartle

         There being no objection by the parties, the Court adopts the Magistrate Judge's recommendation to substitute J.T. Shartle, Warden, as Respondent for “Mr. Shartle” pursuant to Rule 25(d) of the Federal Rules of Civil Procedure and Rule 43(c)(2) of the Federal Rules of Appellate Procedure.

         Factual and Procedural History

         No objections having been made to the magistrate judge's rendering of the procedural and factual history, the Court adopts those recitations. The Court will briefly reiterate facts mentioned in the R&R and supplement them with additional facts in the record that specifically address the objections by Terry and Respondent.

         Terry was indicted in the Middle District of Florida on July 22, 1997 for one count of distribution of heroin in violation of 21 U.S.C. § 841(a). See United States v. Terry, Case No. 8:97-CR-00273-SDM-TBM (“CR. Doc.”), Doc. 10. The indictment stated Terry “knowingly and intentionally distributed a quantity of heroin, a schedule I controlled substance, and as a result of the use of the substance, death resulted to Justin Hayden and George Bakun.” Id. The punishment for distribution of heroin resulting in death mandated an enhanced minimum sentence of twenty years to life. 21 U.S.C. § 841(b)(1)(C). In contrast, distribution of heroin without injury permitted a sentence of not more than twenty years' incarceration. Id.

         Terry pleaded guilty to knowingly and intentionally distributing heroin on October 28, 1997. (Doc. 11-2, Exh. 2.) During the guilty plea proceedings, Terry admitted the following:

THE COURT: Mr. Terry, did you deliver the heroin to this Gordon individual?
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 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?

(Doc. 11-2, Exh. 1 at 27.)

         Terry was scheduled for sentencing on July 14, 1998, but he absconded. (Doc. 11-3 at 22 [Tr. 78-79].) Mexican authorities later apprehended Terry and he was returned to the United States for sentencing. (Id.)

         The United States Probation Office prepared a Presentence Investigation Report (“PSR”) for Terry's sentencing. (Doc. 15.) The PSR detailed Terry's sale of heroin to Demian Gordon, who then resold it to George Bakun and Justin Hayden. (Id. at 6, ¶¶ 7-8) Both Bakun and Hayden ingested the heroin Terry distributed. (Id.) The PSR states that the same day as the sale, Bakun also ingested Xanax, cocaine, and acid, and Hayden also ingested Xanax. (Id.) Hayden was taken to the hospital for an overdose. (Id.) When released, Hayden returned to Gordon's residence where he ingested more heroin. (Id.) Bakun and Hayden were both found dead the following day. (Id.)

         At sentencing, Terry stated he had reviewed the PSR and did not object to the statement of facts, but merely to the possible increase in his sentence for failing to appear on the initial sentencing date. (Doc. 11-3 at 3-4.)

         The court calculated Terry's offense level as 40 with a criminal history of VI. (Id. at 23.) After adopting the facts in the PSR, the court imposed a life sentence. (Id. at 25.) The district judge explained to Terry, “I have sentenced you where I have for the reasons I have stated, specifically because of the two deaths involved, your absconding, your record, your intractability, and, frankly, your manifest lack of rehabilitation or contrition.” (Id. at 25 (emphasis added).)

         Terry appealed, and the Eleventh Circuit Court of Appeals affirmed his conviction. See United States v. Terry, 204 F.3d 1120 (11th Cir. 1999). While his appeal was still pending, Terry filed a § 2255 habeas petition, which was dismissed for lack of jurisdiction. (Doc. 48-1 at 5.)

         Terry later filed another Motion to Vacate, Set Aside, or Correct a Sentence Pursuant to 28 U.S.C. § 2255, alleging seven grounds for relief. (Doc. 1-1 at 2.) Among them, Terry claimed that the 21 U.S.C. § 841(b)(1)(C) penalty is unconstitutionally vague and should not be interpreted as a “strict liability” enhancement. (Id. at 15.) In other words, the enhancement under § 821(b)(1)(C) should only apply if the drug in question was the actual cause of death. (Id.).

         The court denied Terry's § 2255 habeas petition, and determined that the statements made by Terry at the plea hearing were sufficient to trigger the § 841(b)(1)(C) sentencing enhancement. (Id. at 9.) The court found that even though there was no factual finding that the heroin was the cause of death, Terry was still subject to the enhancement. (Id.) Citing United States v. McIntosh, 236 F.3d 968 (8th Cir. 2001), the court stated that the enhancement applied to Terry because “section 841(a)(1) [] imposes strict liability on the person who distributes the drugs, regardless of whether the user's death was reasonably foreseeable.” (Doc. 1-1 at 16.)

         Furthermore, the court stated that Terry's admission to distribution of heroin causing death was tantamount to a factual determination of causation. (Id. at 9.) “This admission was the equivalent of proof beyond a reasonable doubt and a finding by a jury that Terry's distribution of heroin caused the death.” (Id.) The court denied a certificate of appealability. (CR. Doc. 100, 101, 106.)

         Terry filed a successive § 2255 habeas petition in the Middle District of Florida on July 9, 2003, which was also denied. (Doc. 48-1; Cr. Doc. 148-2 in 8:97-273-SDM-TDM (M.D. FL.).) In addition to numerous other filings, on August 23, 2012, Terry filed a § 2241 habeas petition in Eastern District of California. Terry v. United States, Case No. 1:12-CV-01388-MJS-HC (E.D. Cal) (“E.D. Cal. Doc.”), Doc. 1. In this petition, Terry claimed he was actually innocent of the enhancement for distribution of heroin with death resulting, because he did not directly distribute the heroin to the victims. Id. Terry alleged he was innocent because he merely sold heroin to Gordon, who later distributed to the deceased. (E.D. Cal. Doc. 10 at 2.) He argued that Gordon was the only one who could be charged with the enhancement, since Gordon's actions resulted in death, not Terry's. (E.D. Cal. Doc. 1 at 4.) This led to an illegal sentence which should be vacated. (Id.) The District Court denied the petition, but granted a certificate of appealability. (E.D. Cal. Doc. 10.) Terry filed a motion for reconsideration, which the court denied, noting:

Here, Petitioner plead to the factual basis of the crime, and does not deny that he distributed drugs to Gordon who then distributed 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.

(E.D. Cal. Doc. 19 at 2-3.) The Ninth Circuit denied a certificate of appealability in the matter. (E.D. Cal. Doc. 24, 35.)

         Instant ...

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