Castelman Supersedes Torres-Miguel; Murder Is Crime of Violence

In re Irby: Irby was arrested for being a felony in possession of a firearm. The Government eventually dismissed that charge rather than disclose the identity of the informant whose tip led to the search that discovered the firearm. Back on the street, Irby figured out the informant was Deadwyler (they shared the same attorney), whom Irby blamed for his father's death (due to stress brought on by the search and arrest). Irby went to Deadwyler's home, shot him three times, stabbed him 147 times (to "make sure it was over"), and burned a pile of his possessions. He was then convicted after a jury trial of second-degree retaliatory murder, causing death with a firearm under 924(c), and destruction of property by fire. After the Supreme Court's 2015 decision in Johnson, Irby sought permission from the Fourth Circuit to file a second or successive 2255 motion because his murder conviction was not a "crime of violence" as required to sustain his 924(c) conviction.

The Fourth Circuit denied that permission. Relying on the two-step method laid out in Hubbard, the court concluded that even if Johnson was applicable retroactively to 924(c) cases, Irby could not make a "plausible" claim for relief because second-degree murder is still a crime of violence that involves an element of physical force under the Supreme Court's 2010 Johnson decision. After reviewing that decision (and noting that it was applying the categorical approach only because precedent required it), the court looked to the Supreme Court's decision in Castleman which "expounded on what it means to use  physical force." What it means is that force is used even when it really isn't - such as when a person is poisoned - and it doesn't matter if the victim is harmed indirectly, rather than directly. This makes "it pellucid that second-degree retaliatory murder is a crime of violence" because it requires the use of force. Most notably, the court held that it's prior decision in Torres-Miguel, if it was ever intended to apply beyond threat offenses, "the distinction we drew in Torres-Miguel between indirect and direct applications of force and our conclusion that poison 'involves no use or threatened use of force,' no longer remains valid in light of Castelman's explicit rejection of such a distinction." Nowhere does the court deal with the argument that Castleman is limited to "force" in the domestic violence context and should not apply outside that area.