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In re Irby

United States Court of Appeals, Fourth Circuit

June 1, 2017

In re: JAMES ALLEN IRBY, III, Movant.

          Argued: September 22, 2016

         On Motion for Authorization to File Successive § 2255 Motion in the United States District Court for the District of Maryland, at Greenbelt. Deborah K. Chasanow, Senior District Judge. (8:03-cr-00490-DKC-1)

         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, 135 S.Ct. 2551 (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 ...


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