Terry v. Shartle

Filing 44

REPORT AND RECOMMENDATION: The Magistrate Judge recommends that the District Judge enter an order SUBSTITUTING J.T. Shartle, Warden, as Respondent for "Mr. Shartle"; FINDING that Terry's allegations satisfy the requirements of the esca pe hatch and that the District Court has jurisdiction over Terry's § 2241 petition; FINDING that this matter should be set for an evidentiary hearing and that Petitioner should be appointed counsel for the hearing. Any party may serve and f ile written objections within fourteen days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen days after being served with a copy. Signed by Magistrate Judge Eric J Markovich on 5/23/2017. (See pdf for complete details) (DPS)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

James Terry,

No. CV-15-00107-TUC-CKJ (EJM)
Petitioner,

10
11

v.

12

REPORT AND
RECOMMENDATION

Unknown Shartle,

13

Respondent.

14
15
16

Pending before the Court is a petition for a writ of habeas corpus filed pursuant to

17

28 U.S.C. § 2241 by James Terry (“Terry” or “Petitioner”). (Doc. 1). Terry alleges that a

18

fairly recent Supreme Court case1 materially changed the substantive law for an element

19

of the offense that he was convicted of, and that this change in law applies retroactively

20

to cases on collateral review. He alleges that this Court has jurisdiction over the § 2241

21

petition because he has satisfied the stringent requirements of the “escape hatch” or

22

“savings clause” of 28 U.S.C. § 2255(e); specifically, the material and retroactive change

23

in the law demonstrates that he is actually innocent of the offense of conviction, and he

24

has not had an unobstructed procedural shot (i.e., on direct appeal or in his first § 2255

25

motion) at presenting this actual innocence claim.

26

Respondent argues that this Court does not have jurisdiction over the § 2241

27

petition because Terry has not met the requirements of the escape hatch for the following

28
1

Burrage v. United States, 134 S. Ct. 881 (2014)

1

reasons. (Doc. 11). First, Respondent contends that Burrage only dealt with a sentencing

2

enhancement and does not apply retroactively to cases on collateral review.2 Second,

3

Respondent argues that Terry had an unobstructed procedural shot to present this claim

4

on direct appeal and in his § 2255 motion. Third, Respondent argues that Terry cannot

5

demonstrate that he is actually innocent because he pled guilty to the requisite elements

6

of the offense as modified by this recent Supreme Court case.

7

As an initial matter, the Court notes that the proper respondent in an action for

8

habeas corpus is the Petitioner’s custodian. See 28 U.S.C. § 2242; Rumsfeld v. Padilla,

9

542 U.S. 426, 435–36 (2004). Petitioner named the respondent in this action as “Mr.

10

Shartle.” (Doc. 1). The Court will substitute the Warden of USP—Tucson, J. T. Shartle,

11

as Respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.

12

Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter

13

was referred to Magistrate Judge Markovich for a Report and Recommendation. For the

14

reasons discussed below, it is recommended that the District Court conclude that Terry’s

15

allegations satisfy the requirements of the escape hatch and, as such, that the District

16

Court has jurisdiction to review the merits of the instant petition. It is further

17

recommended that an evidentiary hearing on Petitioner’s actual innocence claim be

18

scheduled and that Terry be appointed counsel for that hearing.

19

I. FACTUAL AND PROCEDURAL BACKGROUND

20

A. The Proceedings in the Middle District of Florida

21

On July 22, 1997, a federal grand jury in the Middle District of Florida returned a

22

one count indictment charging Terry with distribution of heroin in violation of 21 U.S.C.

23

§ 841(a). The indictment further alleged that “as a result of the use of the substance, death

24

resulted to Justin Hayden and George Bakun.” See United States v. Terry, Case No. 8:97-

25

Cr-T-273-23TBM (M.D. Fla.) (“Cr. Doc.”)3 at Doc. 10. This “death results” enhancement

26
2

27
28

In the Supplemental Brief, Respondent concedes that Burrage is retroactive on
collateral review, but still argues that Burrage does not apply to the instant case because
Petitioner admitted the facts constituting but-for causation at his plea hearing. (Doc. 40).
3

Citations to “Cr. Doc.” Refer to the docket in Terry’s underlying criminal case.
-2-

1

triggered a 20-year mandatory minimum penalty and increased the statutory maximum

2

penalty from 20 years imprisonment to life imprisonment. See 21 U.S.C. § 841(b)(1)(C).

3

On October 28, 1997, Terry pled guilty to the indictment pursuant to a plea

4

agreement. (Doc. 11-2 Ex. 1) At the guilty plea hearing, Terry agreed to the following

5

facts: “On March 14, 1997, in Hillsborough County, Florida, the defendant delivered

6

heroin to [Demian Gordon] who in turn delivered the heroin to Justin Hayden and George

7

[Bakun]. As a result of their use of that heroin, Justin Hayden and George [Bakun] died.”

8

(Doc. 11-2 Ex. 1 at 27). The Magistrate Judge made further inquiry of Terry:

9

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

10

THE DEFENDANT: Yes, sir.

11

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?

12
13

THE DEFENDANT: Yes, sir.

14

16

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?

17

THE DEFENDANT: No, sir.

15

18
19
20
21
22
23
24
25
26

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
½ 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,

27
28

Citations to “E.D. Cal. Doc.” refer to documents filed in Terry’s § 2241 proceedings in
the Eastern District of California. Citations to “Doc.” refer to documents filed in the
instant proceedings.
-3-

but Hayden remained. After Bakun and his girlfriend
“partied” some more at the Days Inn at Fletcher Ave., and I275, 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.

1
2
3
4

8. After Hayden “partied” 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.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

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:

22

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

23
24
25
26
27
28

4

The District Court adopted these undisputed facts before imposing sentence. See
Sentencing Transcript (Doc. 11-3 Ex. 3 at 23 [Tr. 84]).
-4-

1

offense level adjustment (and thus, perhaps, a sentence lower
than the one he received).

2
3

(Doc. 11-3 Ex. 4 at 42–43).

4

On December 7, 2000, Terry filed a timely § 2255 motion in which he alleged,

5

inter alia, that Apprendi required that the “death results” facts be proven to a fact finder

6

beyond a reasonable doubt and that the “strict liability” nature of the statute was

7

unconstitutional. (Doc. 1-1 at 18–43). Relying on United States v. McIntosh, 236 F.3d

8

968 (8th Cir. 2001), the District Court concluded that the § 841(b)(1)(C) sentencing

9

enhancement “appl[ied] without regard to the principles of proximate cause,” and was

10

triggered “‘whenever death or serious injury is a consequence of the victim’s use of a

11

controlled substance that has been manufactured or distributed by that defendant.’” (Doc.

12

1-1 at 15–16 (quoting McIntosh, 236 F.3d at 972)). The District Court reasoned that “in

13

the instant case, Terry admitted during his plea colloquy all of the facts that were

14

necessary to support a maximum statutory sentence of life imprisonment pursuant to 21

15

U.S.C. § 841(b)(1)(C). Terry admitted that he had distributed heroin to Gordon, who, in

16

turn, had delivered the heroin to Hayden and Bakun, who had died after using the

17

heroin.” (Doc. 1-1 at 9). The Court continued, finding that “[t]his admission was the

18

equivalent of proof beyond a reasonable doubt and a finding by a jury that Terry’s

19

distribution of heroin caused a death.” Id. For those reasons, the District Court denied the

20

§ 2255 petition.

21

Terry’s request for a certificate of appealability was denied. (Cr. Doc. 100, 101,

22

106). On July 9, 2003, Terry filed another § 2255 motion which was also denied. (Cr.

23

Doc. 114, 188). Terry thereafter filed approximately 60 motions or applications for relief

24

and more than 15 appeals to the Eleventh Circuit, virtually all of which were denied. See

25

Doc. 6 at 4. Among those filings was a § 2241 habeas corpus petition filed in the Eastern

26

District of California on August 23, 2012. Terry v. United States, Case No. 1:12-cv-

27

01388-MJS-HC (E.D. Cal.) at Doc. 1 (“E.D. Cal. Doc.”). In that Petition, Terry made

28

numerous claims, including that he was actually innocent—the same claim he makes

-5-

1

again in this pending § 2241 Petition. See E.D. Cal. Doc. 10, Order of Magistrate Judge

2

referring Writ to District Judge (“He claims that he is innocent of the sentencing

3

enhancement based on death of the victims since he did not directly provide them with

4

heroin, but instead delivered it to Gordon who sold it to the victims.”). On October 31,

5

2012, the District Court denied the Petition and a certificate of appealability. (E.D. Cal.

6

Doc. 12). Terry filed a motion for reconsideration, which was denied by the District

7

Court. (E.D. Cal. Doc. 13, 19). In denying the motion, the District Court noted:

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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. § 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 must be
submitted to the jury and found beyond a reasonable doubt.” Id. at 887. Petitioner asserts
that Burrage applies retroactively to his petition, and therefore requires reversal of his
-6-

1

conviction (based on his guilty plea) and his sentence.

2

Petitioner’s case was assigned to United States District Court Judge Cindy K.

3

Jorgenson. In an Order dated July 8, 2015, Judge Jorgenson directed Respondent to

4

answer the petition within 20 days and referred the case to a Magistrate Judge for further

5

proceedings and a Report and Recommendation. (Doc. 6).

6

Respondent filed his response to the petition (after seeking and obtaining an

7

extension of his response time) on September 2, 2015. (Docs. 9, 10, 11). Respondent

8

argues that the petition is meritless for the following reasons: (1) the district court lacks

9

jurisdiction over this petition filed under 28 U.S.C. § 2241; (2) Burrage is not

10

retroactively applicable to collateral review; (3) Petitioner procedurally defaulted the

11

instant claim by failing to raise it in prior proceedings; and (4) the District Court also

12

does not have jurisdiction over the petition because Petitioner cannot show that he is

13

actually innocent given the factual basis of his guilty plea to the offense and his inability

14

to show that it is more likely than not that no jury would have convicted him of this

15

offense. (Doc. 11).5

16
17
18

Petitioner filed his reply on October 26, 2015, and later filed two supplements to
the reply on December 9, 2015 and April 6, 2016. (Docs. 27, 28, 30).
II. DISCUSSION

19

A. Jurisdiction

20

A federal prisoner challenging the legality of a sentence must generally do so by

21

motion raised in the sentencing court pursuant to 28 U.S.C. § 2255. Harrison v. Ollison,

22

519 F.3d 952, 954 (9th Cir. 2008). By contrast, a prisoner who wishes to challenge the

23
24
25
26
27
28

5

In his Supplemental Brief, Respondent also argues that Petitioner does not argue
but for causation, only proximate cause. The Court disagrees. While Petitioner’s
arguments are somewhat convoluted, it is clear from the claims set forth in the § 2241
Petition that Petitioner is raising an issue of but for causation under Burrage. The Court
also notes that Petitioner previously made arguments to the Eleventh Circuit and the
Eastern District of California regarding proximate cause—that he was not charged with
delivering heroin to the victims—but Burrage does not address proximate cause. To the
extent that Petitioner is attempting to raise this claim again now, the Court finds that this
proximate cause argument has no merit in the instant § 2241 Petition and the Court will
not address it.
-7-

1

manner, location, or conditions of the execution of a sentence must bring a petition

2

pursuant to 28 U.S.C. § 2241 in the custodial court. Hernandez v. Campbell, 204 F.3d

3

861, 864 (9th Cir. 2000). The restrictions on the availability of a § 2255 motion cannot be

4

avoided though a petition under § 2241. Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir.

5

2006).

6

The one exception to this general rule is what has been called the “escape hatch”

7

or “savings clause” of § 2255. Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000). The

8

escape hatch permits a federal prisoner to “file a habeas corpus petition pursuant to §

9

2241 to contest the legality of a sentence where his remedy under § 2255 is ‘inadequate

10

or ineffective to test the legality of his detention.’” Stephens, 464 F.3d at 897 (quoting

11

Hernandez, 204 F.3d at 864–865). The Ninth Circuit has made clear that the ban on

12

successive § 2255 petitions does not per se make § 2255 an inadequate or ineffective

13

remedy for purposes of the escape hatch.6 Lorentsen, 223 F.3d at 953. However, that

14

court has held that a § 2241 petition meets the escape hatch criteria (and the ban on

15

successive § 2255 petitions) where a petitioner: (1) makes a claim of actual innocence,

16

and (2) has not had an unobstructed procedural shot at presenting that claim. Alaimalo v.

17

United States, 645 F.3d 1042, 1047 (9th Cir. 2011).7 These two requirements of the

18

escape hatch are addressed in reverse order.

19
20

1. Unobstructed Procedural Shot to Present Claims
In determining whether a petitioner had an unobstructed procedural shot to pursue

21
6

22
23
24
25
26
27
28

A petitioner can only file a successive § 2255 petition if the appropriate circuit
court certifies that the successive petition is based on: (1) newly discovered evidence
which would establish by clear and convincing evidence that no reasonable fact finder
would have found the petitioner guilty of the offense; or (2) a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable. 28 U.S.C. § 2255(h).
7

The Eleventh Circuit (the circuit in which Terry’s conviction arose), in a very
recent en banc decision, has significantly limited jurisdiction for a § 2241 petition. See
McCarthan v. Dir. Of Goodwill Industries-Suncoast, Inc., 851 F.3d 1076 (11th Cir.
2017). That court held that only § 2255 can be used to challenge the validity of a
petitioner’s “sentence,” and that § 2241 is limited to challenging a petitioner’s
“detention,” such as “his good time credits or the revocation of his parole.” The court
reasoned that allowing a petitioner to challenge the validity of his sentence in a § 2241
petition would essentially eliminate the bar on successive § 2255 petitions.
-8-

1

his claim, the court considers: (1) whether the legal basis for the petitioner’s claim arose

2

after s/he had exhausted his/her direct appeal and first § 2255 motion; and (2) whether the

3

law has changed in any way relevant to the petitioner’s claim after that first § 2255

4

motion. Harrison, 519 F.3d at 960. Once again, these two requirements are addressed in

5

reverse order.

6

a. Change in the law and the retroactivity of Burrage

7

“An intervening court decision must ‘effect a material change in the applicable

8

law’ to establish unavailability.” Alaimalo, 645 F.3d at 1047 (quoting Harrison, 519 F.3d

9

at 960). By contrast, a decision that merely further clarifies the statute of conviction

10

without materially varying the statutory construction set forth in prior case law does not

11

effect such a change. Id. at 1048. There is no doubt that Burrage effected a material

12

change in the law by materially varying the statutory construction set forth in prior case

13

law regarding the “death results” enhancement in 21 U.S.C. § 841(b)(1)(C). The more

14

difficult decision is whether that change applies retroactively to cases on collateral

15

review.8

16

At the time that Terry was convicted of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C)—

17

distributing heroin which resulted in the death of persons who used that substance—the

18

law was that the drug distributed need only be a contributing cause of the victim’s death.

19

In Burrage the Supreme Court held that to prove a violation of § 841(b)(1)(C), the

20

government had to prove to a jury beyond a reasonable doubt that the drug distributed

21

was either “an independently sufficient cause of the victim’s death” or the “but for” cause

22

of death. As discussed below, Burrage effected a material change to substantive law

23

because that decision narrowed the scope of § 841(b)(1)(C) by imposing the stricter

24

requirement for the causation element of this offense. Moreover, although the Supreme

25

Court (as usual) did not address whether Burrage should be applied retroactively to cases

26

on collateral review, this material change to a substantive area of law mandates that

27
28

8

Although Respondent conceded retroactivity in the Supplemental Brief, the
Court will still decide this issue here as a matter of law.
-9-

1

Burrage apply retroactively to Terry’s petition.

2

At the time Terry filed the instant § 2241 petition, several district courts had held

3

that Burrage did not apply retroactively, and other district courts found no authority to

4

support the retroactivity of Burrage. See Stewart v. United States, 2015 WL 477226 (E.D.

5

Wis. February 5, 2015); Alvarez v. Hastings, 2014 WL 4385703, at *1 (S.D. Ga. Sept. 5,

6

2014); De La Cruz v. Quintana, 2014 WL 1883707, at *6 (E.D. Ky. May 1, 2014)

7

(unable to find any authority making Burrage retroactively applicable); Taylor v. Cross,

8

2014 WL 1256371, at *3 (S.D. Ill. Mar. 26, 2014) (Burrage has not been found to apply

9

retroactively); Powell v. United States, 2014 WL 5092762, at *2 (D. Conn. Oct. 10,

10

2014); Gaylord v. United States, 2015 WL 433582 (C.D. Ill. Feb. 5, 2015); Bradley v.

11

Copenhaver, 2014 WL 6819542 (E.D. Cal. Feb. 2, 2014); United States v. Snider, 180 F.

12

Supp. 3d 780, 792–93 (D. Or.) (noting that the Supreme Court and the Ninth Circuit have

13

not yet decided whether Burrage announces a new substantive rule that applies

14

retroactively, and that other courts disagree on whether Burrage applies retroactively),

15

appeal dismissed, (Sept. 7, 2016); Potts v. Matevousian, 2015 WL 6703484, at *1 (E.D.

16

Cal. Nov. 3, 2015) (denying permission to file a second or successive motion under 28

17

U.S.C. § 2255 and citing the Third Circuit’s opinion denying the same because petitioner

18

“has not made a prima facie showing that his claim under Burrage . . . is based on a new

19

rule of constitutional law, made retroactive to cases on collateral review by the Supreme

20

Court, that was previously unavailable” and noting that “Burrage involved an issue of

21

statutory interpretation and did not announce a rule of constitutional law.” (internal

22

quotations and citations omitted)), certificate of appealability denied sub nom., (Mar. 4,

23

2016). These district courts based their conclusions on the premise that Burrage merely

24

addressed a sentencing enhancement and, like Apprendi and Alleyne, did not apply

25

retroactively to cases on collateral review. See also Dixon v. Warden of FCI Schuylkill,

26

647 F. App’x 62 (3d Cir. 2016) (petitioner could not resort to § 2241 petition to raise

27

Burrage claim because that decision did not decriminalize the conduct for which

28

petitioner was convicted, but rather applied Apprendi and Alleyne).

- 10 -

1

However, fairly recently two Circuit Courts have concluded that Burrage effected

2

a material change to a substantive area of the law, and therefore applies retroactively to

3

cases on collateral review. See Santillana v. Upton, 846 F.3d 779, 783–784 (5th Cir.

4

2017) (Burrage is retroactive because it is a substantive decision that interprets the scope

5

of a federal statute, and not an application of the procedural rule of Apprendi and

6

Alleyne); Krieger v. United States, 842 F.3d 490, 499–500 (7th Cir. 2016) (government

7

conceded that Burrage applied retroactively, but court still decided that fact as a matter of

8

law) (but also noting in footnote 1 that a number of district courts have found that

9

Burrage does not apply retroactively).9 This Court finds the retroactivity analysis in these

10

cases persuasive and similarly concludes that Burrage applies retroactively to Terry’s

11

petition.

12

In Krieger, the petitioner was initially charged under 21 U.S.C. §§ 841(a) and

13

(b)(1)(C) with distribution of a fentanyl pain patch which resulted in the death of her

14

friend who used the patch. 842 F.2d at 492–493. Because the government’s ability to

15

prove the “death results” enhancement faced heavy obstacles, the government obtained a

16

superseding indictment in which the “death results” enhancement was eliminated. Id. at

17

493. The petitioner pleaded guilty to the superseding indictment charging distribution of

18

the fentanyl patch with the specific exclusion that she was not pleading guilty to causing

19

the death of her friend. Id. Although the government dropped the “death results”

20

enhancement from the indictment—which would have required the government to prove

21

those facts beyond a reasonable doubt—the government sought to prove the “death

22

results” enhancement at sentencing by a preponderance of the evidence. Id. The district

23

court concluded that although the government had not proved the “death results”

24

enhancement beyond a reasonable doubt, the government had proved that enhancement

25

by a preponderance of the evidence. Id. at 495. For that reason, the district court had to

26

sentence the petitioner to the 20-year mandatory minimum sentence. Id.

27
28

9

In light of these recent cases, Respondent now concedes that Burrage applies
retroactively to cases on collateral review.
- 11 -

1

At the time of the petitioner’s appeal in Krieger, pursuant to the Supreme Court’s

2

decision in Apprendi, only facts that increased the statutory maximum penalty—not the

3

mandatory minimum penalty—had to be submitted to a jury and proved beyond a

4

reasonable doubt. Id. at 496. That changed when the Supreme Court decided Alleyne and

5

held that facts that increase a mandatory minimum sentence also have to be submitted to

6

the jury and proved beyond a reasonable doubt. Id. However, as the Krieger court noted,

7

Alleyne did not help the petitioner because the Seventh Circuit had held that Alleyne is

8

procedural and therefore cannot be applied retroactively on collateral review. Id. at 497.10

9

After the Supreme Court decided Burrage, the petitioner in Krieger filed a § 2255

10

petition arguing that Burrage applies retroactively to cases on collateral review and

11

required vacating her conviction. Id.

12

The Seventh Circuit first pointed out that the district courts “that have concluded

13

that Burrage cannot be applied retroactively have largely relied on the fact that the

14

Supreme Court has not so held.” 842 F.2d at 499. However, the court noted that both

15

district court and appellate courts may issue opinions “on initial petitions for collateral

16

review holding in the first instance that a new rule is retroactive in the absence of a

17

specific finding to that effect by the Supreme Court.” Id. at 498. Moreover, the court

18

concluded that to the extent that the district courts “thought that Burrage was just an

19

extension of the procedural rule in Alleyne, they were simply incorrect.” Id. at 499. The

20

Seventh Circuit acknowledged that Burrage did reference Alleyne in establishing that the

21

“death results” enhancement, which increases the mandatory minimum sentence, is an

22

element of the offense which has to be submitted to the jury and proven beyond a

23

reasonable doubt; however, the court found that this was a foundational issue and not

24

Burrage’s holding. Id. The court reasoned that the Burrage holding is not about who

25

decides a given question or the burden of proof, but rather what must be proved—i.e.,

26

“but for” causation of death. Id. at 499–500. Thus, the court concluded that the rule

27

announced in Burrage is substantive because it “narrow[s] the scope of a criminal statute

28
10

Similarly, Alleyne also does help the petitioner in the case at hand.
- 12 -

1

by interpreting its terms.” Id. at 497 (quoting Schriro v. Summerlin, 542 U.S. 348, 351–

2

52 (2004)). For that reason, the Krieger court held that the rule in Burrage applies

3

retroactively to cases on collateral review because it creates “‘a significant risk that a

4

defendant stands convicted of an act that the law does not make criminal or faces a

5

punishment that the law cannot impose upon him.’” Id. at 500 (quoting Schriro, 542 U.S.

6

at 352).

7

Subsequently, the Fifth Circuit in Santillana also held that Burrage applied

8

retroactively to the petitioner’s § 2241 petition. 846 F.3d at 781. In that case, the

9

petitioner was convicted after a jury trial of distribution of methadone which resulted in

10

the death of a person who used that controlled substance in violation of 21 U.S.C. §§

11

841(a)(1) and (b)(1)(C). Id. Burrage was decided after the petitioner’s direct appeal and

12

his first § 2255 petition. For those reasons, the petitioner filed a § 2241 petition arguing

13

that Burrage applied retroactively to his case, and that his conviction should be vacated

14

because there was insufficient evidence presented at trial to show that the methadone was

15

the “but for” cause of victim’s death. Id. The district court dismissed the petition for lack

16

of jurisdiction, and the petitioner appealed. Id.

17

The court began by distinguishing between a § 2241 petition (and the savings

18

clause) and a successive habeas petition filed under § 2255(h) for purposes of the

19

retroactivity analysis. A petitioner can only file a successive § 2255 petition if the

20

appropriate circuit court certifies that the successive petition is based on: (1) newly

21

discovered evidence which would establish by clear and convincing evidence that no

22

reasonable factfinder would have found the petitioner guilty of the offense; or (2) a new

23

rule of constitutional law, made retroactive to cases on collateral review by the Supreme

24

Court, that was previously unavailable. Id. at 782–783; see 28 U.S.C. § 2255(h). The

25

Santillana court pointed out that the Supreme Court in Tyler v. Cain, 533 U.S. 656, 662–

26

663 (2001), made clear that for purposes of a successive habeas petition under § 2255(h),

27

the Supreme Court must have held the rule to be retroactive to cases on collateral review.

28

Id. at 782. But, the Fifth Circuit concluded that the holding in Tyler results from the

- 13 -

1

specific statutory language set forth above for successive § 2255 petitions. Id. at 782–

2

783. The Fifth Circuit reasoned that:

3
4
5
6

[T]he retroactivity element of our savings-clause analysis [for
a § 2241 petition] is not tethered to a similar statutory
limitation. Our precedent requires only that a § 2241 petition
be based on a ‘retroactively applicable Supreme Court
decision,’ without specifying that the Supreme Court must
have made the determination of retroactivity.

7

Id. at 783. The court pointed out that “our caselaw establishes that new [Supreme Court]

8

decisions interpreting federal statutes that substantively define criminal offenses

9

automatically apply retroactively.” Id. (internal quotations omitted). The court explained

10

that such decisions apply “retroactively because they ‘necessarily carry a significant risk

11

that a defendant stands convicted of an act that the law does not make criminal . . . .” Id.

12

at 782 (quoting Schriro, 542 U.S. at 352.) Accordingly, the court then turned to the

13

retroactivity of Burrage.

14

The Fifth Circuit, like the Seventh Circuit in Krieger, held that Burrage is a

15

substantive decision that interprets the scope of a federal criminal statute. Id. at 783. The

16

court reasoned that Burrage narrows the scope of 21 U.S.C. § 841(b)(1)(C) in requiring

17

the stricter requirement of “but for” causation. Id. As in Krieger, the Fifth Circuit

18

concluded that the Burrage holding is not about who decides a given question or the

19

standard of proof—which are the province of Apprendi and Alleyne—but rather is about

20

what must be proved. Id. For that reason, the court held that Burrage applied

21

retroactively to the § 2241 petition.

22

This Court also concludes that Burrage effected a material change to a substantive

23

area of law and applies retroactively to cases on collateral review for the following

24

reasons. As in Santillana, the case at hand involves a § 2241 petition, so the retroactivity

25

element of this Court’s savings-clause or escape hatch analysis is not tethered to the

26

statutory limitation in 28 U.S.C. § 2255(h)—i.e., that the Supreme Court must hold that

27

its decision, which was based on constitutional grounds, applies retroactively to cases on

28

collateral review. Therefore, both the district courts and/or the Ninth Circuit may issue

- 14 -

1

opinions “holding in the first instance that a new rule is retroactive [to cases on collateral

2

review] in the absence of a specific finding to that effect by the Supreme Court.” See

3

Krieger, 842 F.3d at 498; Santillana, 846 F.3d at 783; Bousley, 118 S. Ct. at 1610

4

(decisions of Supreme Court holding that a substantive criminal statute does not reach

5

certain conduct can be applied retroactively by lower courts on collateral review);

6

Schriro, 542 U.S. at 351–52 (when a Supreme Court decision results in a “new rule,” that

7

rule applies to all criminal cases still pending on direct review; as to convictions that are

8

final, only a new substantive rule—like one narrowing the scope of a criminal statute—

9

applies retroactively).

10

Moreover, as pointed out by both the Fifth and Seventh Circuits, Burrage is not

11

about who decides a sentencing enhancement (judge or jury) or the standard of proof (by

12

a preponderance or beyond a reasonable doubt), but rather how an element of the offense

13

is proven. Indeed, the Supreme Court in Burrage made clear that the offense of

14

distributing a controlled substance that results in the death of a person who uses that

15

substance “has two principal elements: (i) knowing or intentional distribution of heroin,

16

and (ii) death caused by (‘resulting from’) the use of that drug. § 841(b)(1)(C).” 134 S.

17

Ct. at 887. The Supreme Court then went on impose a stricter requirement to prove the

18

second element—that the distributed drug was the “but for” cause of death, and not

19

merely a contributing factor. Id. at 892; see Schriro, 542 U.S. at 354 (“A decision that

20

modifies the elements of an offense is normally substantive rather than procedural.”).

21

That substantive decision narrowed the scope of 21 U.S.C. § 841(b)(1)(C), and therefore

22

created a significant risk that a defendant stands convicted of an act that the law does not

23

make criminal or faces a punishment that the law cannot impose upon him.

24

In conclusion, this Court concludes that Burrage effected a material change in the

25

law applicable to the proof required for an element of the Petitioner’s offense of

26

conviction—i.e., that Petitioner’s distribution of drugs was the “but for” cause of the

27

victims’ deaths. Burrage expressly overruled settled law in the circuit courts regarding

28

the proof required for the “death results” enhancement in 21 U.S.C. § 841(b)(1)(C). This

- 15 -

1

Court also concludes that this change to a substantive area of law requires Burrage to be

2

applied retroactively on collateral review. For those reasons, and for the reasons that

3

follow, the legal basis for Petitioner’s actual innocence claim did not become available

4

until Burrage was decided and after the Petitioner’s direct appeal and his first § 2255

5

petition concluded.

6
7

b. The legal basis for petitioner’s claim arose after direct appeal
and first § 2255 petition

8

The government argues that Petitioner’s actual innocence claim made pursuant to

9

Burrage was available on direct appeal and when he filed his first § 2255 petition. This

10

Court disagrees. The Ninth Circuit has held that “[f]or purposes of determining whether a

11

claim was unavailable under § 2241, a court looks to whether controlling law [in the

12

Circuit of conviction] foreclosed petitioner’s argument.” Alaimalo, 645 F.3d at 1048; see

13

also Stephens, 464 F.3d at 898 (because Supreme Court’s decision in Richardson was

14

decided several years after the Tenth Circuit denied petitioner’s first § 2255 motion,

15

petitioner never had an unobstructed procedural shot to raise his claim). In Alaimalo, the

16

court further held that “[t]he mere possibility that the [Circuit Court] would overrule its

17

previous holdings en banc [does] not make [a petitioner’s] actual innocence claim

18

‘available’ to him for the purposes of 2241.” 645 F.3d at 1048. If that were the law, then

19

“there would be a legal basis for any actual innocence claim that is currently foreclosed”

20

by the law in the circuit where the conviction occurred. Id. (emphasis in original). The

21

court concluded that “[r]equiring a petitioner to raise all theoretically possible actual

22

innocence claims in his first § 2255 motion would put an unreasonable burden on

23

petitioners and the courts.” Id. at 1048–1049.

24

Here, as in Alaimalo, Petitioner could simply not have raised his claim of actual

25

innocence in an effective fashion prior to Burrage, which was decided well after he

26

exhausted his direct appeal and his first § 2255 motion. In fact, Petitioner did raise his

27

claim of “but for” causation to the Middle District of Florida and the Eleventh Circuit,

28

- 16 -

1

but was denied relief because of settled circuit precedent.11 Thus, prior to Burrage,

2

Petitioner’s argument as to “but for” causation was ineffective because it was foreclosed

3

by controlling law. Accordingly, the undersigned concludes that Petitioner did not have

4

an unobstructed procedural shot at presenting his actual innocence claim on appeal or in

5

his first § 2255 motion and, for that reason, he may now raise that claim in a § 2241

6

petition.

7

2. Actual Innocence for Purposes of the “Escape Hatch”

8

“To establish actual innocence for purposes of habeas relief, a petitioner must

9

demonstrate that, in light of all the evidence, it is more likely than not that no reasonable

10

juror would have convicted him.” Alaimalo, 645 F.3d at 1047 (internal quotations and

11

citation omitted). The Ninth Circuit has held that “[a] petitioner is actually innocent when

12

he was convicted for conduct not prohibited by law.” Id. However, that court has “not yet

13

resolved the question whether a petitioner may ever be actually innocent of a noncapital

14

sentence for the purposes of qualifying for the escape hatch.” Marrero v. Ives, 682 F.3d

15

1190, 1193 (9th Cir. 2012).

16

In Marrero, the court concluded it did not have jurisdiction of the § 2241 petition

17

under the escape hatch because the petitioner was making a purely legal claim—that he

18

was incorrectly treated as a career offender—“that had nothing to do with factual

19

innocence.” 682 F.3d at 1193. The court noted that “some of our sister circuits have

20

recognized exceptions to the general rule that a petitioner cannot be actually innocent of a

21

noncapital sentence under the escape hatch.” Id. at 1194. Those exceptions generally fall

22

into three categories: (1) a petitioner may be actually innocent of a sentencing

23

enhancement, and qualify for the escape hatch, if he was factually innocent of the crime

24

that served as the predicate conviction for the enhancement; (2) a petitioner may qualify

25

for the escape hatch if he received a sentence for which he was statutorily ineligible; and

26

(3) a petitioner may be actually innocent of a sentencing enhancement if the sentence

27
11

28

The Court also notes that Petitioner was not afforded an evidentiary hearing to
present medical testimony on the but for causation issue when he filed his first § 2255
petition because the law at the time was clear that § 841(b)(1)(C) imposed strict liability.
- 17 -

1

resulted from a constitutional violation. Id. at 1194–1195. The Marrero court did not

2

endorse any of these exceptions recognized by other circuits because the petitioner did

3

not claim he was factually innocent of the predicate offense, did not claim he was

4

statutorily ineligible for the sentence he received, and did not allege a constitutional

5

violation. Id. at 1195.

6

Here, Petitioner relies, in part, on the second exception to make his actual

7

innocence claim. Specifically, Petitioner argues that he was statutorily ineligible for the

8

life sentence that he received because the government could not prove the “death results”

9

enhancement beyond a reasonable doubt. For that reason, he maintains that his statutory

10

maximum sentence was 20 years, and the life sentence imposed was unlawful.

11

At the time Marrero was decided, many other circuit courts had held that a

12

petitioner generally cannot assert a cognizable claim of actual innocence of a noncapital

13

sentencing enhancement in a § 2241 petition. See Marrero, 682 F.3d at 1193–1194. But,

14

several of these circuits had noted, in dicta, that if a § 2241 petition alleged that a

15

petitioner was sentenced to a greater term of imprisonment than authorized by the statute

16

of conviction, then the petitioner may qualify for the escape hatch based on a claim of

17

actual innocence. See Gilbert v. United States, 640 F.3d 1293, 1323 (11th Cir. 2011);

18

Trenkler v. United States, 536 F.3d 85, 99 (1st Cir. 2008). The Seventh Circuit and the

19

Sixth Circuit have since explicitly held that the savings clause applies to a § 2241 petition

20

when the petitioner is alleging that his sentence exceeded beyond that authorized by the

21

sentencing scheme. See Brown v. Caraway, 719 F.3d 583 (7th Cir. 2013); Hill v. Masters,

22

836 F.3d 591 (6th Cir. 2016).

23

In Brown, the Seventh Circuit held that a petitioner may utilize the savings clause

24

of § 2241 to challenge the misapplication of the career offender Sentencing Guideline

25

where the petitioner was sentenced in the pre-Booker era when the Sentencing Guidelines

26

were mandatory. 719 F.3d at 588. The Seventh Circuit reached that conclusion even

27

though the petitioner’s sentence did not exceed the statutory maximum for the offense of

28

conviction. The court pointed out that the text of the savings clause focuses on the

- 18 -

1

legality of the prisoner’s detention, and does not limit its scope to testing the legality of

2

the underlying conviction. Id. The court reasoned that “sentences imposed pursuant to

3

erroneous interpretations of the mandatory guidelines bear upon the legality of the

4

petitioner’s detention for purposes of the savings clause.” Id. Thus, the court concluded

5

that the misapplication of mandatory sentencing guidelines “represents a fundamental

6

defect that constitutes a miscarriage of justice corrigible in a § 2241 proceeding.” Id.

7

Subsequently, the Sixth Circuit in Hill relied on the reasoning of the Seventh

8

Circuit in Brown in also holding that the savings clause of § 2241 may be utilized to

9

challenge the misapplication of the career offender Sentencing Guideline at the time

10

when those guidelines were mandatory. 836 F.3d at 599. In Hill, the Sixth Circuit noted

11

that in Kirk v. United States, 481 F. App’x 249 (6th Cir. 2012) (per curiam), it granted a

12

§ 2255 petition where the defendant’s erroneous classification as an armed career

13

criminal resulted in a sentence that well exceeded the statutory maximum authorized for

14

the offense of conviction. 836 F.3d at 597. The court reasoned that “[s]erving a sentence

15

imposed under mandatory guidelines (subsequently lowered by retroactive Supreme

16

Court precedent) shares similarities with serving a sentence imposed above the statutory

17

maximum. Both sentences are beyond what is called for by law, and both raise a

18

fundamental fairness issue.” Id. at 599 (internal citation omitted).

19

The undersigned finds the reasoning of the Sixth and Seventh Circuits persuasive,

20

and it should govern the actual innocence analysis for the statutory sentencing

21

enhancement in the case at hand. In both Brown and Hill, the sentence imposed did not

22

exceed the statutory maximum for the offense of conviction, but both courts still found

23

that the savings clause applied to the § 2241 petition because the petitioners were actually

24

innocent of the sentencing guideline enhancement. By contrast, here, Petitioner may well

25

have received a sentence (life) that far exceeded the statutory maximum for the offense of

26

conviction (20 years). Compare Green v. Ives, 2017 WL 1055963, at *2 (D. Or. Mar. 20)

27

(pursuant to Marrero, district court found it did not have jurisdiction over § 2241 petition

28

where petitioner “d[id] not argue that he was statutorily ineligible to receive a career

- 19 -

1

offender enhancement such that his sentence exceeded the statutory maximum.”), appeal

2

docketed, No. 17-35281 (9th Cir. March 31, 2017). Thus, even more so than in Brown

3

and Hill, the possibility that Petitioner’s sentence is beyond what is called for by law

4

raises a fundamental fairness issue and a potential miscarriage of justice corrigible in a §

5

2241 proceeding. For these reasons, the Count finds that Petitioner has established that he

6

may be actually innocent of the “death results” sentencing enhancement for purposes of

7

the escape hatch.

8

Finally, putting aside the uncertainty in the Ninth Circuit as to whether a petitioner

9

can ever be actually innocent of a sentencing enhancement, this Court also finds that

10

petitioner satisfies the actual innocence prong of the escape hatch based on his claim of

11

factual innocence and the Supreme Court’s reasoning in Burrage. The Supreme Court

12

made clear that the offense of distributing a controlled substance that results in the death

13

of a person who uses that substance “has two principal elements: (i) knowing or

14

intentional distribution of heroin, and (ii) death caused by (‘resulting from’) the use of

15

that drug. § 841(b)(1)(C).” 134 S. Ct. at 887. In fact, the Supreme Court pointed out that

16

a violation of 21 U.S.C. § 841(a)—distribution of heroin—is “a lesser included offense”

17

of the more serious offense of distribution of a drug that resulted in death, and that it was

18

“undisputed that [the petitioner was] guilty of that lesser included offense.” Id. at n.3.

19

Burrage is rather unique because while it clearly involved a sentencing

20

enhancement, that enhancement constitutes an element of a more serious offense—

21

distribution of drugs that resulted in death. See Santillana, 846 F.3d at 785 (court

22

concluded that based on the indictment and jury instruction on causation, “we cannot say

23

that what the jury did find was criminal activity”). This situation is unlike most cases

24

involving sentencing enhancements, see Hill and Brown, supra, that are part of the same

25

offense of conviction. As in Burrage, the Petitioner here is clearly still guilty of

26

distributing heroin under 21 U.S.C. § 841(a), which is a lesser included offense of 21

27

U.S.C. § 841(b)(1)(C). But he has alleged that he is actually innocent of the more serious

28

offense. For that reason as well, this Court has jurisdiction over this § 2241 petition under

- 20 -

1

the escape hatch.

2

B. The Merits of the Petition

3

As discussed above, the undersigned has made the threshold determination that

4

this Court has jurisdiction over Terry’s § 2241 petition because he has satisfied the

5

requirements of the escape hatch: (1) he has not had an unobstructed procedural shot to

6

pursue his claim under Burrage; and (2) the sufficiency of his allegations of actual

7

innocence. Thus, Petitioner has cleared his first significant hurdle for habeas relief. But,

8

as discussed below, there are other hurdles that he still faces, and he can only clear those

9

hurdles by making the requisite showing that he is actually innocent at an evidentiary

10

hearing.

11

The Supreme Court has “strictly limited the circumstances under which a guilty

12

plea may be attacked on collateral review.” Bousley, 118 S. Ct. at 1610 (“It is well settled

13

that a voluntary and intelligent guilty plea made by an accused, who has been advised by

14

competent counsel, may not be collaterally attacked.”). One such circumstance is a claim

15

of actual innocence. Id. at 1611. As noted above, “[t]o establish actual innocence for

16

purposes of habeas relief, a petitioner must demonstrate that, in light of all the evidence,

17

it is more likely than not that no reasonable juror would have convicted him.” Alaimalo,

18

645 F.3d at 1047.

19

The record currently before this Court does not support Terry’s claim of actual

20

innocence, which is based on the argument that the government cannot prove that the

21

heroin he distributed was the “but for” cause of the victims’ deaths. Unlike in Burrage,

22

Krieger, and Santillana, the instant record does not contain testimony of doctors,

23

coroners, or medical professionals—either at a trial or a sentencing hearing—addressing

24

the cause of the victims’ deaths in the case at hand.12 The only evidence before the Court

25
12

26
27
28

In contrast to the record in the instant case, in Krieger, at the sentencing hearing
the petitioner called “a forensic toxicologist who testified regarding problems with
evidence collection and who challenged the determination of the cause of death” and
“presented evidence that the investigators and doctor performing the autopsy focused
exclusively or primarily on the fentanyl evidence while ignoring evidence related to the
many other drugs in [the victim’s] system.” The district court concluded by a
preponderance of the evidence that the fentanyl was the but for cause of the victim’s
- 21 -

1

as to the cause of death is the autopsy reports, which both show that the victims died of a

2

heroin overdose. See Doc. 20 (autopsy reports for George Bakun and Justin Hayden, both

3

listing the cause of death as “Acute Drug Intoxication, Heroin, due to Chronic Drug

4

Abuse”). Although Petitioner disputes the conclusions in the autopsy reports and argues

5

that the victims died from a combination of drugs, he has not presented evidence or

6

pointed to facts in the record that either cast doubt on the conclusions in the autopsy

7
8
9
10
11
12
13
14
15

death, but found that the government would not be able to prove the cause of death
beyond a reasonable doubt. 842 F.3d at 493–95. The Seventh Circuit found that “given
the district court’s language, we cannot say with any certainty that the district court made
a finding that but for the fentanyl that Krieger supplied, [the victim] would not have died.
In fact, the district court did not use the term ‘but for’ anywhere in the order.” Id. at 501.
Similarly, in Santillana, on direct appeal the petitioner conceded that all of the
medical experts concluded that methadone was at least a contributing cause of death, but
argued that a stronger degree of causation was required for § 841(b)(1)(C). 846 F.3d at
781. In addressing the § 2241 petition, the Fifth Circuit noted that the indictment stated
that the cause of the victim’s death ‘‘was acute mixed drug intoxication. More
specifically, the combination of methadone and benzodiazepine (‘Xanax’) in [the
victim’s] body caused a synergistic central nervous and respiratory depression that led to
irreversible anoxic brain injury . . . .” and that the indictment made no reference to
causation other than stating that the victim’s use of methadone resulted in his death. Id. at
785. The Fifth Circuit found that:

16

The district court instructed the jury that “[i]f you find the
defendant guilty of distributing methadone, then you must
determine if the Government has proved beyond a reasonable
doubt that [the victim’s] death resulted from his use of
methadone distributed by the defendant.” Based on the
indictment and instruction, we cannot say that the jury found
that methadone was a but-for cause of death. Moreover,
unlike in Christopher, we cannot say that what the jury did
find was criminal activity. It is possible that it found that
methadone was merely a contributing cause of death, the
exact problem in Burrage.

17
18
19
20
21
22
23
24
25
26
27
28

Id.
In Burrage, the court noted that the victim was a long-time drug user who died
following an extended drug binge, which included injecting heroin purchased from the
petitioner. 134 S. Ct. at 885. At trial, two medical experts testified that the victim had
multiple drugs in his system at the time of death and that the heroin was a contributing
factor, but neither expert could say whether the victim would have lived had he not taken
the heroin. Id. at 885–86. In reversing the petitioner’s sentence, the Supreme Court found
that “[t]he language Congress enacted [in § 841(b)(1)(C)] requires death to ‘result from’
use of the unlawfully distributed drug, not from a combination of factors to which drug
use merely contributed.” Id. at 891.
- 22 -

1

reports or support his argument as to the cause of death.13

2

Nevertheless, the undersigned concludes that an evidentiary hearing is warranted

3

because, contrary to Respondent’s arguments, neither the autopsy reports nor the

4

Petitioner’s guilty plea definitively establish that heroin was the but for cause of the

5

victims’ deaths. The autopsy reports clearly show, as in Burrage, Krieger, and Santillana,

6

that both victims had multiple drugs in their systems. Again, the conclusion reached in

7

the autopsy reports is that the victims died as a result of a heroin overdose. But given the

8

presence of other drugs noted in the autopsy reports, it is unclear from the reports if

9

heroin was the but for cause of death. Relatedly, and importantly, neither the parties nor

10

the trial court were focused on but for causation, given the settled law on the death results

11

enhancement at the time of Petitioner’s conviction. The same was true at the time of

12

Petitioner’s direct appeal and his first § 2255 petition. Thus, no record was developed on

13

causation for purposes of the death results enhancement, either at sentencing or during

14

the § 2255 proceeding. For these reasons, this Court cannot conclude that the autopsy

15

reports definitively establish that heroin was the but for cause of death; rather, an

16

evidentiary hearing is required to develop the record on causation.

17

Additionally, the record before this Court also does not support Respondent’s

18

argument that Terry admitted when he pled guilty that the heroin was the “but for” cause

19

of the victims’ deaths. During his guilty plea hearing, Terry admitted, in response to the

20

Magistrate Judge’s question, that the victims “passed on as a result of using the heroin.”

21

(Doc. 11-1 Ex. 1 at 27). That was the only questioning or statement made as to the cause

22

of the victims’ deaths. The phrase “as a result” does not establish that the heroin was an

23

independent cause of death or the “but for” cause of death; it leaves open the possibility

24

that the heroin was a contributing factor in the deaths, which is not legally sufficient

25

under Burrage. See Krieger, 842 F.3d at 501 (district court used the “death resulting

26
27
28

13

Petitioner asserts that, at sentencing, his lawyer both noted the combination of
drugs referenced in the autopsy reports and disputed the reports’ conclusions about the
cause of the victims’ deaths. But these arguments of Petitioner’s attorney are not
evidence as to the cause of death.
- 23 -

1

language” throughout its opinion and never used the term “but for” in that opinion;

2

Seventh Circuit concluded that “we cannot say with any certainty that the district court

3

made a finding that but for the fentanyl that [defendant] supplied, [the victim] would not

4

have died.”).

5

In fact, when the District Court in the Middle District of Florida denied Terry’s

6

first § 2255 petition based on his guilty plea, it cited McIntosh’s holding that the §

7

841(b)(1)(C) sentencing enhancement “appl[ied] without regard to the principles of

8

proximate cause,” and was triggered “whenever death or serious injury is a consequence

9

of the victim’s use of a controlled substance.” (Doc. 1-1 at 15–16). Thus, the Middle

10

District of Florida concluded that a violation of § 841(a)(1) imposes strict liability,

11

regardless of whether the victim’s death was reasonably foreseeable, which was the law

12

at the time. Id. at 16. This Court cannot similarly conclude that the phrase “as a result” is

13

alone sufficient to establish “but for” causation as required by Burrage. See Krieger,

14

supra.

15

For all of these reasons, the undersigned finds that an evidentiary hearing is

16

required to enable Petitioner to present evidence on the cause of the victims’ deaths

17

and/or evidence that undercuts the conclusion in the autopsy reports. Likewise,

18

Respondent is free to present evidence that supports the findings in the autopsy reports or

19

otherwise demonstrates the requisite standard of proof on causation. If the District Court

20

adopts the Magistrate Judge’s recommendations that this Court has jurisdiction over

21

Terry’s § 2241 petition and that an evidentiary hearing is warranted, the Court should

22

appoint counsel to represent Petitioner at that hearing.

23
24
25

III.

RECOMMENDATION

For the reasons delineated above, the Magistrate Judge recommends that the
District Judge enter an order:

26

(1) SUBSTITUTING J.T. Shartle, Warden, as Respondent for “Mr. Shartle”

27

pursuant to Rule 25(d) of the Federal Rules of Civil Procedure and Rule 43(c)(2) of the

28

Federal Rules of Appellate Procedure; and

- 24 -

1
2

(2) FINDING that Terry’s allegations satisfy the requirements of the escape hatch
and that the District Court has jurisdiction over Terry’s § 2241 petition; and

3

(3) FINDING that this matter should be set for an evidentiary hearing on

4

Petitioner’s actual innocence claim and that Petitioner should be appointed counsel for

5

the hearing.

6

Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2) of the Federal Rules of Civil

7

Procedure, any party may serve and file written objections within fourteen (14) days after

8

being served with a copy of this Report and Recommendation. A party may respond to

9

another party’s objections within fourteen (14) days after being served with a copy. Fed.

10

R. Civ. P. 72(b)(2). No replies shall be filed unless leave is granted from the District

11

Court. If objections are filed, the parties should use the following case number: CV-15-

12

107-TUC-CKJ.

13

Failure to file timely objections to any factual or legal determination of the

14

Magistrate Judge may result in waiver of the right of review. The Clerk of the Court shall

15

send a copy of this Report and Recommendation to all parties.

16

Dated this 23rd day of May, 2017.

17
18
19
20
21
22
23
24
25
26
27
28

- 25 -