Terry v. Shartle
Decision Date | 23 May 2017 |
Docket Number | No. CV-15-00107-TUC-CKJ (EJM),CV-15-00107-TUC-CKJ (EJM) |
Parties | James Terry, Petitioner, v. Unknown Shartle, Respondent. |
Court | U.S. District Court — District of Arizona |
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 case1 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 followingreasons. (Doc. 11). First, Respondent contends that Burrage 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.
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" enhancementtriggered 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: (Doc. 11-2 Ex. 1 at 27). The Magistrate Judge made further inquiry of Terry:
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:
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 anoffense level adjustment (and thus, perhaps, a sentence lower than the one he received).
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 (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. 1:12-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 makesagain 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,...
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