Argued: September 22, 2016
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)
S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt,
Maryland, for Movant.
Raman, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Respondent.
Wyda, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Baltimore, Maryland, for Movant.
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.
NIEMEYER, SHEDD, and AGEE, Circuit Judges.
for authorization denied by published opinion. Judge Shedd
wrote the opinion, in which Judge Niemeyer and Judge Agee
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.
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.
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.
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.
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.
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).
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 ...