United States District Court, D. Arizona
Honorable Cindy K. Jorgenson United States District Judge.
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.)
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 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.
of J.T. Shartle
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
and Procedural History
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.
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.
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
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.
(Doc. 11-2, Exh. 1 at 27.)
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.)
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.)
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.)
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
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.)
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.).
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.)
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,
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.