In re Irby

• Decision Date: 01 June 2017
• Docket Number: No. 16-601,16-601
• Citation: 858 F.3d 231
• Parties: IN RE: James Allen IRBY, III, Movant.
• Court: U.S. Court of Appeals — Fourth Circuit

858 F.3d 231

IN RE: James Allen IRBY, III, Movant.

No. 16-601

United States Court of Appeals, Fourth Circuit.

Argued: September 22, 2016

Decided: June 1, 2017

ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Movant. Sujit Raman, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Respondent. ON BRIEF: James Wyda, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Movant. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, Brian Epshteyn, Student Law Clerk, John Perry, Student Law Clerk, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Respondent.

Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.

Motion for authorization denied by published opinion. Judge Shedd wrote the opinion, in which Judge Niemeyer and Judge Agee joined.

SHEDD, Circuit Judge:

A jury convicted James Allen Irby of second-degree murder in retaliation against a witness or informant, in violation of 18 U.S.C. §§ 1513(a)(1)(B) and 1111(a) ; causing death with a firearm, in violation of 18 U.S.C. §§ 924(c) and (j) ; and destruction of property by fire, in violation of 18 U.S.C. § 844(i). Irby did not appeal his convictions, and his initial 28 U.S.C. § 2255 motion was denied. Irby now moves for authorization to file a successive § 2255 motion, arguing that under Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), he should be allowed to challenge his § 924(c) conviction. Because Johnson does not aid Irby, we deny his motion.

I.

The underlying facts are not in dispute. In early January 2001, Terrence Deadwyler began cooperating with federal authorities in an effort to avoid a lengthy prison sentence from an ongoing drug trafficking case. As part of this cooperation, Deadwyler, through his attorney Tony Miles, informed agents with the Bureau of Alcohol, Tobacco, and Firearms (ATF) that an associate, Irby, possessed a gun in his apartment. ATF agents confirmed that Irby lived in the specified apartment, did not have a permit for a gun, and was a convicted felon. Several days later, the ATF executed a warrant at Irby's apartment and recovered a gun.

Irby, who was incarcerated and awaiting trial in D.C. Superior Court at the time, remained in custody pending a federal felon-in-possession charge. Irby was represented in the federal case by Deadwyler's attorney, Tony Miles. On Irby's behalf, Miles filed a request for disclosure of the informant. At that point, Miles discovered that Deadwyler was the informant and moved to recuse himself from Irby's case. At the same time, the federal prosecutors determined that revealing Deadwyler as the informant in Irby's case would harm other ongoing investigations and dismissed the case against Irby.

During his detention on the felon-in-possession charge, Irby's father passed away. Because Irby believed that the search warrant executed at the apartment he shared with his father caused his father's health to fail, he blamed the informant for his father's passing and turned his attention to uncovering the informant's identity. In March 2003, Irby and Deadwyler were together when Deadwyler took a call from his attorney. At the end of the call, Irby asked who Deadwyler's attorney was, and Deadwyler told him it was Miles. This revelation left Irby convinced that Deadwyler was the informant against him.

Around 1:00 a.m. on the morning of March 28, 2003, Irby entered Deadwyler's apartment and shot him three times—under the left eye, through the neck, and in the flank—with two shots coming from close range. Irby next proceeded to stab Deadwyler 174 times. He then retrieved Deadwyler's valuables and clothes, put them in a pile, and lit them on fire. The fire caused the evacuation of Deadwyler's apartment complex and significant property damage.

Irby later confided in his cousin that he was certain that Deadwyler was the informant and that Deadwyler had taken his father from him. Irby told his cousin Deadwyler's murder did not bother him because he "had put in work before." (J.A. 268). He also joked that he had set fire to Deadwyler's "cheap ass clothes" and explained that he stabbed Deadwyler after shooting him to "make sure it was over." (J.A. 268).

A federal grand jury indicted Irby on three charges: first-degree retaliatory murder (Count 1); causing death with a firearm (Count 2); and destruction of property by fire. Following a trial, the jury convicted Irby of Counts 2 and 3. On Count 1, the jury found Irby guilty of the lesser-included offense of second-degree retaliatory murder. The district court sentenced Irby to 38 years imprisonment. As previously mentioned, Irby's first § 2255 motion was denied. On May 7, 2016, Irby moved for authorization to file a successive § 2255 motion.

II.

A.

To qualify for authorization to file a successive § 2255 motion, Irby must show, inter alia , that his motion relies on a "new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court." 28 U.S.C. § 2255(h)(2). We recently explained that § 2255(h) requires a claimant like Irby to make two showings. See In re Hubbard , 825 F.3d 225, 229 (4th Cir. 2016). First, Irby must show that his claim relies on a new and retroactive rule of constitutional law. Second, Irby must make "a sufficient showing of possible merit to warrant a fuller exploration by the district court." Id. (internal quotation marks omitted). Under this standard, Irby must make a "plausible" claim for relief, id. at 230, because "[m]ere citation of a new rule in a successive motion is not sufficient," Donnell v. United States , 826 F.3d 1014, 1016 (8th Cir. 2016).

To satisfy Hubbard's requirements, Irby points to Johnson . In Johnson , the Supreme Court ruled that the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague. Johnson's holding was made retroactive by Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016). Assuming that Johnson would apply to § 924(c), we deny Irby authorization to file a successive § 2255 motion because he does not make a plausible claim for relief.

B.

Section 924(c) is a penalty provision that mandates an enhanced sentence for a defendant who uses or carries a firearm during, as relevant here, a "crime of violence." 18 U.S.C. § 924(c)(1)(A). A "crime of violence" is defined as a felony offense that:

(A) Has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) That by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Id. § 924(c)(3). Subsection A is commonly called the force clause and subsection B the residual clause. "In determining whether an offense is a crime of violence under either clause, we utilize the categorical approach, which focuses solely on the elements of the offense, rather than on the facts of the case." United States v. McNeal , 818 F.3d 141, 152 (4th Cir. 2016). See also United States v. Evans , 848 F.3d 242, 245-46 (4th Cir. 2017) ("[W]e apply the elements-based categorical approach" to § 924(c) and "analyze only the elements of the offense in question, rather than the specific means by which the defendant committed the crime").

We briefly note the categorical approach is a particularly bad fit in § 924(c) cases because § 924(c) is a firearms enhancement provision that penalizes, in broad terms, the use of a firearm during violent crimes. While Irby posits multiple hypotheticals on how a person can commit second-degree retaliatory murder without using direct force, "[o]ne is left to ask when, if ever, would someone be facing a firearms enhancement ... by pointing a laser at an airplane" or convincing a child to jump out of a second-story window. United States v. Checora , 155 F.Supp.3d 1192, 1200 (D. Utah 2015).

In this case, the absurdity of Irby's position is magnified because Irby was also convicted of violating § 924(j), which makes it a crime to "cause [ ] the death of a person through the use of a firearm" in the course of committing a § 924(c) offense. 18 U.S.C. § 924(j). The jury was instructed that it could convict Irby only if the Government "prove[d] that the defendant inflicted an injury or injuries upon Terrence Deadwyler using a firearm from which Terrence Deadwyler died," (J.A. 52), an action that indisputably required the "use of force," yet the categorical approach requires us to ignore this fact in reviewing whether second-degree retaliatory murder is a crime of violence, continuing the "protracted ruse for paradoxically finding even the worst and most violent offenses not to constitute crimes of violence." United States v. Doctor , 842 F.3d 306, 313 (4th Cir. 2016) (Wilkinson, J. concurring).

Our precedent requires application of that approach, however, and accordingly, we must address whether Irby's second-degree retaliatory murder conviction is categorically a crime of violence under the force clause.

C.

Section 1513, the retaliatory murder statute, makes it an offense to intentionally kill another person in retaliation for, inter alia, providing a law enforcement officer with "any information" regarding "the commission" of a "Federal offense." 18 U.S.C. § 1513(a)(1)(B). The punishment for retaliatory murder is specified in 18 U.S.C. § 1111, the federal murder statute, which defines murder as "the unlawful killing of a human being with malice aforethought." Section 1111(a) explains that:

Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a

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