Heyward v. United States of America
ORDER denying as moot 3 Motion for Leave to Proceed in forma pauperis; granting 4 Motion to supplement the record; denying 10 Motion to Appoint Counsel. Signed by Magistrate Judge G. R. Smith on 9/19/16. (jlm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STANLEY LEE HAYWARD,
UNITED STATES OF AMERICA,
Case No. CV416-111
REPORT AND RECOMMENDATION
Stanley Lee Hayward 1 brings what the Government concedes is a
timely filed, first 28 U.S.C. § 2255 motion in which he seeks to exploit the
new rule announced in Johnson v. United States , 576 U.S. ___, 135 S. Ct.
2551 (2015), made retroactive by Welch v. United States , ___ U.S. ___,
136 S. Ct. 1257 (2016). CR408-203, doc. 35; doc. 41 (Government’s
response brief). This Court sentenced him to 180 months’ imprisonment
Until this ruling, the defendant’s last name has appeared on this Court’s docket
and in prior documents as “Heyward.” The Presentence Investigation Report (PSR)
confirms, however, that the “[t]he correct spelling of the defendant’s last name is
Hayward.” PSR at 1. Hayward himself appears to be confused. See CR408-203, doc.
42 at 4 (he signed his name “Hayward” to one of his briefs); doc. 43 at 1 (he typed his
name “Hayward” to another one of his briefs); id. at 7 (same brief, signed his name
“Heyward” over a pre-printed signature block that uses the “Hayward” spelling).
The Court concludes that “Hayward” is the actual spelling. It thus DIRECTS the
Clerk to amend the caption accordingly; all subsequent filings shall conform.
for violating 18 U.S.C. § 922(g)(1), with his sentence enhanced under 18
U.S.C. 924(e) for being an armed career criminal (with multiple felony
convictions) while in possession of a firearm and ammunition. Doc. 26 at
The Armed Career Criminal Act (ACCA) -- the statute Johnson
addressed -- provides enhanced penalties for defendants who are
(1) convicted of being felons in possession of firearms in violation of 18
U.S.C. § 922(g) and (2) have “three prior convictions . . . for a violent
felony or a serious drug offense, or both.” 18 U.S.C. § 924(e)(1). The
ACCA defines “violent felony” as, among other things, a felony that
“otherwise involves conduct that presents a serious potential risk of
physical injury to another.” Id. at § 924(e)(2)(B)(i). Johnson found that
“residual” clause so vague that it violates due process. See 135 S. Ct. at
2557. But crimes falling under that provision’s other clauses, known as
the “elements and “enumerated crimes” clauses, 2 are not affected by
Johnson’s holding. Id. at 2563.
As more thoroughly explained by the Eleventh Circuit:
ACCA gives three definitions of “violent felony.” First, § 924(e)(2)(B)(i) covers
any offense that “has as an element the use, attempted use, or threatened use
of physical force against the person of another.” This is known as the
“elements clause.” Second, § 924(e)(2)(B)(ii) covers any offense that “is
There is no dispute that Hayward’s 180-month sentence was
ACCA-enhanced by three prior felonies -- aggravated assault in violation
of O.C.G.A. § 16-5-21. See doc. 41-1 at 10 (1986 conviction for two counts
of aggravated assault); doc. 41-2 at 19 (1989 conviction for aggravated
assault plus gun-related charges); doc. 41-3 at 20 (1998 conviction for
aggravated assault plus other gun-related charges); Presentence
Investigative Report (PSR) 1111 26-27; doc. 43 (Hayward’s brief not
disputing any of these record facts). He contends, however, that § 16-521 is “overbroad for determining whether” he committed an “ACCA”
violent felony. Doc. 43 at 2. Furthermore, he argues, § 16-5-21 is
“indivisible because it has a single indivisible set of elements.” 3 Id.
burglary, arson, or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another.”
The first 9 words of that subsection are called the “enumerated crimes clause,”
and the last 13 are called the “residual clause.
In re Robinson , 822 F.3d 1196, 1197 (11th Cir. 2016). Prior felonies supporting an
ACCA enhancement are thus examined under this tripartite distinction, but it has
led to much litigation. See e.g., In re Leonard , ___ F.3d ___ 2016 WL 3885037 at *4
(11th Cir. July 13, 2016) (“Moreover, to qualify as an enumerated crime, ‘the least of
the acts criminalized’ under the [state burglary statute at issue] must be
‘encompassed by the generic federal offense’ of burglary. Moncrieffe v. Holder , 133 S.
Ct. 1678, 1684 (2013).”); Ziglar v. United States , ___ F. Supp. 3d ___, 2016 WL
4257773 at * 8 (M.D. Ala. Aug. 11, 2016).
More specifically, he relies on Descamps v. United States , ___ U.S. ___, 133 S. Ct.
2276, 228 (2013) (holding, under the “categorical approach” used by courts to analyze
prior state convictions for ACCA enhancement purposes, that a prior conviction
qualifies as an ACCA predicate offense only if that statute's elements are the same as,
or narrower than, those of what’s known as the ACCA’s “generic offense”). Hayward
says that §16-5-21 is overbroad because it sweeps more broadly than the generic
crime, so “a conviction under that statute cannot count as [an ACCA] predicate
[offense] even if he committed the offense in the generic form.” Doc. 43 at 3.
Because § 16-5-21 “does not list each violent felony,” he further contends, it is
These Descamps -based arguments dial directly into the ganglionic complexity
suffusing this area of law. As one court recently explained:
To determine whether a prior conviction is a qualifying conviction, the
court must engage in what is referred to as “the categorical approach.” See
Taylor v. United States , 495 U.S. 575, 599 (1990). Under the categorical
approach, the court must “identify ‘the minimum criminal conduct necessary
for conviction under a particular statute.’ ” United States v. Hill , ___ F.3d
____, 2016 WL 4120667, at *3 (2d Cir. Aug. 3, 2016). The court may only
examine the elements contained in the statutory definition of the predicate
offense -- not the underlying facts of conviction -- to determine whether the
conviction meets the criteria of a certain category of offense. Taylor , 495 U.S.
at 577. Elements are the “‘constituent parts' of a crime's legal definition -- the
things the ‘prosecution must prove to sustain a conviction.’” Mathis v. United
States , 136 S. Ct. 2243, 2248 (2016) (quoting Black's Law Dictionary 634 (10th
ed. 2014)). Facts, however, are “mere real-world things -- extraneous to the
crime's legal requirements.” Id . If a person can be convicted under the statute
without engaging in conduct that is categorically violent, a conviction under
that statute cannot serve as a qualifying conviction under the categorical
approach. Descamps v. United States , ___ U.S. ____, 133 S. Ct. 2276, 2288
There are, however, a “narrow range of cases” in which a court may look
“beyond the statutory elements” of the crime to determine whether it is a
qualifying conviction under the ACCA. Descamps , 133 S. Ct. at 2283-84.
When a statute defines a crime by listing alternative elements, sentencing
courts employ what is referred to as the “modified categorical approach” to
discern which of the alternative elements is integral to the defendant's
conviction. Mathis , 136 S. Ct. at 2249. Under that approach, courts look to a
limited class of documents to determine “what crime, with what elements, a
defendant was convicted of” before comparing that crime's elements to those of
the generic offense. Id .; see Shepard v. United States , 544 U.S. 13, 23 (2005)
(identifying which documents may be considered).
Wiggan v. United States , 2016 WL 4179838 at * 5 (D. Conn. Aug. 5, 2016).
Finally, he argues that § 16-5-21 “does not qualify as a violent felony
under” § 924(e)(2)’s “elements” or “enumerated offense” clauses “and
thus, is not a generic crime of 16-5-21(a)(2).” Id.
Hayward’s convictions for aggravated assault count as violent
felonies under the ACCA’s elements clause. That clause categorizes as
violent felonies those crimes that have “as an element the use, or
attempted use, or threatened use of physical force against the person of
another.” 18 U.S.C. § 924(e)(1)(2)(B)(i). Aggravated assault -- in the
1985 and 1998 versions that existed when Hayward violated it (PSR at
1111 26-27) -- undeniably fits that bill. See O.C.G.A. § 16-5-21 (“A person
Hayward’s “divisibility argument implicates the “modified categorical approach”
analyzed by Mathis. After Mathis, resort to the “modified categorical approach” to
determine whether a prior conviction constitutes a valid predicate offense to apply
the career offender enhancement is not proper where a statute merely defines an
alternative factual means to commit a single, indivisible offense, rather than defining
several alternative elements to create multiple, separate offenses. Mathis , 136 S. Ct.
at 2248-53; see also Sutton v. Quintana , 2016 WL 4595213 at * 2 (E.D. Ky. Sept. 2,
2016) (“ Mathis teaches that a criminal statute is divisible, thus permitting resort to
the “modified categorical approach” of Shepard v. United States , 544 U.S. 13 (2005)
and review of charging documents to determine whether the conviction was for a
“violent felony,” only when it defines multiple criminal offenses by setting forth
alternative criminal elements. In contrast, a criminal statute is indivisible when it
defines only one offense, even where it sets forth alternative factual means of
committing that single offense. Mathis , 136 S. Ct. at 2248-53.”) (emphasis added).
But here it is questionable whether Hayward can even invoke Descamps and thus
enmesh the Court into a divisibility analysis. See Ziglar , 2016 WL 4257773 at *1
(Decamps is not retroactively available on collateral review); Leonard, 2016 WL
3885037 at * 9 n.7 (concurrence collecting Eleventh Circuit cases ruling, inter alia,
that “ Descamps cannot serve as a basis for any Johnson claim”) (quotes and cite
commits the offense of aggravated assault when he or she assaults . . .
[w]ith a deadly weapon. . . .”). See doc. 41 at 3-4 (detailing Hayward’s
prior felonies, to which Hayward neither objects nor disputes); doc. 43 at
2 (Hayward’s recitation of § 16-5-21; Neesmith v. United States , 2016 WL
1688780 at * 2 (S.D. Ga. Apr. 26, 2016)). An ACCA enhancement
requires “the elements of the statute of conviction, not [ ] the facts of
each defendant's conduct,” Taylor v. United States , 495 U.S. 575, 601
(1990). Hayward pled guilty to state court indictments charging him
with aggravated assaults by shooting at people with a firearm -- on the
state statute’s elements, that’s a clear “use of physical force against the
person of another.” 18 U.S.C. § 924(e)(2)(B). 4
The Eleventh Circuit has held that an analogous Florida aggravated assault
is categorically a violent felony under the ACCA's elements clause. Turner v.
Warden Coleman FCI (Medium) , 709 F.3d 1328, 1337-38 & n.6 (11th Cir.
2013), abrogated on other grounds by Johnson, 576 U.S. ___, 135 S.Ct. 2551,
192 L.Ed.2d 569. In Turner, we reasoned that an aggravated assault
conviction “will always include as an element the threatened use of physical
force against the person of another.” Id . at 1338 (quotations marks and
alteration omitted). This Court noted that it was not necessary to review the
underlying facts of the conviction to classify aggravated assault as a violent
felony because, by its own terms, the offense required a threat to do violence to
the person of another.
In re Hires, 825 F.3d 1297, 1301 (11th Cir. 2016); Ziglar, 2016 WL 4257773 at * 9.
Because Hayward’s priors fall under the ACCA’s elements clause,
there is no Johnson claim and Descamps does not even apply:
Again, Descamps addressed whether the modified categorical
approach could be used when examining whether a prior felony
conviction qualified as a predicate violent felony under the
enumerated clause. Descamps had nothing to do with the residual
clause. Johnson , on the other hand, held that the residual clause is
unconstitutionally vague. Johnson had nothing to do with the
circumstances under which the modified categorical approach could
be used. Accordingly, because [Hayward’s] convictions qualified
under the elements clause, that settles the matter for Johnson residual clause purposes regardless of whether those convictions
would count were [Hayward] being sentenced today.
Hires , 825 F.3d at 1303.
Hayward’s three prior ACCA predicate convictions qualified under the
elements clause without regard to the ACCA's residual clause; his § 2255
motion therefore must be DENIED . The Court also DENIES as moot
his motion for leave to proceed in forma pauperis because there is no
filing fee for § 2255 motions. Doc. 37. The Court GRANTS his motion
to supplement the record, doc. 38, but DENIES his motions for
appointment of counsel. Docs. 44 & 45. Finally, the Court DIRECTS
the Probation Office to file the PSR in the record, under seal.
Applying the Certificate of Appealability (COA) standards set forth
in Brown v. United States , 2009 WL 307872 at * 1-2 (S.D. Ga. Feb. 9,
2009), the Court discerns no COA-worthy issues at this stage of the
litigation, so no COA should issue either. 28 U.S.C. § 2253(c)(1); Rule
11(a) of the Rules Governing Habeas Corpus Cases Under 28 U.S.C. §
2255 (“The district court must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant.”) (emphasis added).
Any motion for leave to appeal in forma pauperis therefore is moot.
SO REPORTED AND RECOMMENDED, this 19th day of
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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