United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
L. FRIEDMAN United States District Judge.
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
FACTUAL AND PROCEDURAL BACKGROUND
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.
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.
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].
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].
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.
Ground One: Due Process Claim in Light of Johnson
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]. 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. The Court agrees.
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).
Grounds Two, Three, and Four
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 ...