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United States v. Hayes

United States District Court, District of Columbia

June 9, 2017

EVERETTE LEE HAYES, JR., Defendant. Civil Action No. 16-1321 (PLF)


          PAUL L. FRIEDMAN United States District Judge.

         The matter before the Court is defendant Everette Lee Hayes, Jr.'s motion to vacate his sentence under 28 U.S.C. § 2255. Mr. Hayes asks this Court to vacate his sentence in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), applied retroactively to cases on collateral review through Welch v. United States, 136 S.Ct. 1257 (2016). Upon consideration of the parties' briefs and the relevant legal authorities, the Court will deny the motion.[1]


         In 2004, a jury convicted Mr. Hayes of one count of unlawful possession of a firearm by a prior convicted felon, in violation of 18 U.S.C. § 922(g)(1). See Judgment (Dec. 20, 2004) at 1 [Dkt. 44]. Because of Mr. Hayes's three previous convictions for a violent felony or serious drug offense, he was subject to a mandatory minimum sentence of 15 years. See 18 U.S.C. § 924(e)(1). Under the then-mandatory United States Sentencing Guidelines, Judge James Robertson sentenced Mr. Hayes to 235 months' imprisonment followed by five years of supervised release. See Judgment at 2-3.

         Mr. Hayes appealed his conviction and sentence. See Judgment, No. 04-3173 (D.C. Cir. May 10, 2007) at 2 [Dkt. 51]. The D.C. Circuit initially vacated Mr. Hayes's sentence and remanded to this Court for the limited purpose of reconsidering the sentence in light of the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005). See Order, No. 04-3173 (D.C. Cir. Oct. 31, 2005) at 1 [Dkt. 46]. On remand, Judge Robertson imposed the same sentence of 235 months' imprisonment, stating that the sentence was justified under 18 U.S.C. § 3553(a)(2) and not greater than necessary. See Memorandum (Nov. 7, 2006) at 3 [Dkt. 48]. Returning to the court of appeals Mr. Hayes's primary arguments related to the denial of his motions to suppress his statements and a weapon and the district court's use of his prior convictions to enhance his sentence. See Judgment, No. 04-3173 at 2. The D.C. Circuit affirmed the district court's judgment. Id.

         In April 2008, Mr. Hayes filed a motion to vacate his sentence under 28 U.S.C. § 2255, arguing ineffective assistance of counsel at trial. See Petition for Writ of Habeas Corpus at 1, 8 [Dkt. 54]. Judge Robertson denied his Section 2255 motion, and the D.C. Circuit affirmed that decision on appeal. See Memorandum Order (Dec. 2, 2008) at 1 [Dkt. 66]; Judgment, No. 08-3119 (D.C. Cir. Feb. 26, 2010) at 1 [Dkt. 72].

         In 2016, this case was reassigned to the undersigned following Judge Robertson's retirement. On June 25, 2016, Mr. Hayes filed an abridged Section 2255 motion through counsel, the Federal Public Defender for the District of Columbia (“FPD”), following the Supreme Court's rulings in Johnson v. United States, 125 S.Ct. at 2563, and Welch v. United States, 136 S.Ct. at 1268, that the residual clause of the Armed Career Criminal Act (“ACCA”) is unconstitutionally vague and applies retroactively to cases on collateral review. See Abridged Mot. at 1. Because this was Mr. Hayes's second Section 2255 motion, Mr. Hayes, through the FPD, also sought and was granted authorization from the D.C. Circuit to file a second or successive post-conviction motion. See Order, No. 16-3063 (D.C. Cir. July 5, 2016) at 1 [Dkt. 75]. Mr. Hayes then filed a pro se Section 2255 motion, seeking post-conviction relief based on Johnson and three other grounds. See Mot. at 5-9. This Court later permitted the Federal Public Defender to withdraw as counsel, and Mr. Hayes proceeds on his motion pro se. See Order, (Oct. 26, 2016) at 1 [Dkt. 79].


         A federal prisoner may file a motion to vacate, set aside, or correct a sentence that was imposed “in violation of the Constitution or law of the United States . . . or was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . .” 28 U.S.C. § 2255(a). Because Mr. Hayes is proceeding pro se, the Court liberally construes his motion. See United States v. Peterson, 916 F.Supp.2d 102, 104 (D.D.C. 2013). Mr. Hayes states four grounds on which he claims his sentence should be vacated: (1) a due process violation in light of Johnson; (2) a due process violation for the United States' failure to give notice of “what constitutes an offense[] against the Laws of the United States”; (3) a violation of Article I, Section 8, Clauses 1-18 of the Constitution; and (4) a violation of the Tenth Amendment to the Constitution. See Mot. at 4-8.

         A. Ground One: Due Process Claim in Light of Johnson

         Under ACCA, a defendant convicted of a violation of 18 U.S.C. § 922(g) is subject to a mandatory minimum of fifteen years' imprisonment if the sentencing court determines that the defendant has three prior convictions for a violent felony or a serious drug offense. 18 U.S.C. § 924(e)(1). Mr. Hayes argues that, in light of Johnson, his conviction was based on the unconstitutionally vague residual clause of ACCA and that his offenses are no longer “violent felonies” that qualify him as an armed career criminal. See Mot. at 4. The government responds that Mr. Hayes's sentence pursuant to ACCA was not based on any violent felonies, but appropriately rested on at least three serious drug offenses; it provides certified copies of convictions to support its argument. See Opp. at 5 [Dkt. 83]; Ex. A at 2, 19, 21 [Dkt. 83-1].[2] The government asserts that Johnson is irrelevant to Mr. Hayes's motion, and Mr. Hayes therefore is not entitled to relief under Section 2255. See id. at 1.[3] The Court agrees.

         The Supreme Court's decision in Johnson did not “call into question” the application of ACCA to serious drug offenses. 135 S.Ct. at 2563. A “serious drug offense” includes “an offense under State law, involving manufacturing, distributing, or possessing with an intent to manufacture or distribute, a controlled substance . . ., for which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). Mr. Hayes has at least three drug convictions that qualify as serious drug offenses: (1) a 1990 conviction for possession of phencyclidine (“PCP”) with intent to distribute in Maryland, (2) a 1992 conviction for attempted distribution of PCP in the District of Columbia, and (3) a 1995 conviction for distribution of PCP in Maryland. See Opp. at 6; Ex. A. The Court agrees with the government that each of these qualifies as a predicate drug conviction and that Mr. Hayes therefore is an armed career criminal under ACCA. The residual clause invalidated in Johnson did not affect his sentence. The Court therefore concludes that Johnson is inapplicable to this case and affords Mr. Hayes no relief. See United States v. Darling, 619 F. App'x 877, 880 n.5 (11th Cir. 2015); United States v. Sadm, No. cr08-0021, 2016 WL 5081163, at *3-4 (W.D. Va. Sept, 16, 2016).

         B. Grounds Two, Three, and Four

         Mr. Hayes asserts three additional grounds for post-conviction relief. See Mot. at 4-8; supra at 3. The remaining grounds are procedurally barred for three reasons. First, Mr. Hayes's motion is untimely. Untimely Section 2255 motions, absent equitable tolling, are time-barred and must be dismissed. United States v. Cicero,214 ...

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