In re: JAMES ALLEN IRBY, III
US Court of Appeals for the Fourth Circuit, Shedd, June 1, 2017,
Sentencing (Federal) – The Armed Career Criminal Act (ACCA)– Second-degree retaliatory murder is a crime of violence under the “force clause” and not the The unconstitutionally vague “residual clause.”
Facts:
An informant gave the ATF information that James Irby had an illegal firearm. The ATF raided Irby’s home and recovered the weapon, resulting in Irby’s arrest and federal charges. Irby discovered the identity of the informant, shot him several times, and stabbed him 147 times.
A jury convicted Irby of second-degree murder in retaliation against a witness or informant, causing death with a firearm; and destruction of property by fire.
Irby did not appeal and filed an initial post-conviction motion, which was denied.
Irby then requested permission to file a second post-conviction motion claiming that murder might not be a “crime of violence” under the ACCA.
Held:
The Court disagreed, taking issue with “the absurdity” of saying that murder was not a crime of violence.
Post-Conviction – To be permitted a second post-conviction under 28 USC 2255, a defendant must: 1) show that his claim relies on a new and retroactive rule of constitutional law. 2) must make “a sufficient showing of possible merit to warrant a fuller exploration by the district court.”
ACCA – The Armed Career Criminal Act (ACCA), among other things, criminalizing and providing enhanced penalties for use or possession of a firearm during a crime of violence.
The ACCA defines “crime of violence” as a felony that either:
– (force clause) “has as an element the use, attempted use, or threatened use of physical force against the person or property of another”
OR
– (residual clause) “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”
The Supreme Court held that the “residual clause” was unconstitutionally vague.
From the Case: Because Irby was charged with murder (under the force clause), he has no right to challenge his conviction for vagueness