Haynes v. United States of America

Filing 14

MEMORANDUM ORDER AND OPINION Entered by Judge Joe Billy McDade on 2/16/17 re 3 Amended MOTION to Vacate, Set Aside or Correct Sentence (2255) filed by Stacy M Haynes: Petitioner, Stacy M. Haynes's Amended Motion Under 28 U.S.C. &# 167; 2255 To Vacate, Set Aside, Or Correct Sentence 3 is GRANTED in part, DENIED in part and DISMISSED in Part; the Court passes no judgment on Petitioner's claim that he is actually innocent of his convictions for violating 18 U.S.C. § 1952. Petitioner's mandatory concurrent life sentences in United States v. Haynes, No. 96-cr-40034 (C.D. Ill.) are VACATED for resentencing. Also before the Court is Petitioner's original Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence 1 . That document is moot because the Court accepts the Amended Motion as properly filed. The Clerk shall terminate it from the electronic docket. This civil action is now TERMINATED. (TK, ilcd)

E-FILED

Thursday, 16 February, 2017 03:00:10 PM
Clerk, U.S. District Court, ILCD

IN THE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION

STACY M. HAYNES,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 4:16-cv-4106

MEMORANDUM OPINION & ORDER
This matter is before the Court on the Amended Motion Under 28 U.S.C. §
2255 To Vacate, Set Aside, Or Correct Sentence (Doc. 3) filed by Stacy M. Haynes
(the “Petitioner”). The motion has been fully briefed and is ready for decision. For
the reasons discussed below, the motion is GRANTED in Part, DENIED in Part and
DISMISSED in Part. Mr. Haynes will be resentenced.
I.

PRELIMINARY PROCEDURAL CONSIDERATIONS

The instant § 2255 motion (Doc. 3) is an amended successive motion.
Petitioner filed an original § 2255 motion in April 2000 that this Court heard and
denied. (See Doc.1, Haynes v. United States, No. 4:00-cv-4044 (C.D. Ill.)). Petitioner’s
first successive § 2255 motion (Doc. 1) only contained two claims that were
presented to the Seventh Circuit for authorization to proceed in this court.
Petitioner has since amended his first successive § 2255 motion to include two
additional claims. Since they were not presented to the Seventh Circuit panel, the
Government argues that they are unauthorized claims. Paragraph (4) of subsection
1

(b) of 28 U.S.C. § 2244 clearly states that a district court shall dismiss any claim
presented in a second or successive application that the court of appeals has
authorized to be filed unless the applicant shows that the claim satisfies the
requirements of this section. The term “application” is taken to refer to the habeas
relief petition itself, but in this case the term refers to the § 2255 motion. See 2-28
Federal Habeas Corpus Practice and Procedure § 28.3. Nevertheless, a convicted
prisoner is allowed to bring a successive attempt at habeas relief when such a
prisoner’s claim is based upon either a new rule of constitutional law or newly
discovered evidence. 28 U.S.C. §§ 2244(b)(4), 2255(h)(2).
Before addressing the issue of whether these two additional claims are
unauthorized, there is another ancillary issue to be decided, which is whether this
amended motion is even properly before the Court. The Amended Motion (Doc. 3)
was made without leave of Court and without the written consent of the
Government. Counsel for Petitioner was appointed in this matter pursuant to
Administrative Order 15-mc-1016 (available at http://www.ilcd.uscourts.gov/courtinfo/local-rules-and-orders/general-orders (last visited January 24, 2017)). That
Order does not state that amendments to the initial motion are presumptively
allowed although one might assume that the amendment of a pro se prisoner’s
application for habeas corpus, which is what the § 2255 motion really is, would
always naturally follow the appointment of counsel. Given the significance of the
motion and the hurdles a petitioner must face if she leaves out a viable claim and
tries to bring it up later in a subsequent action, there is great peril in leaving the

2

pro se petitioner’s pleading to stand without the input of the attorney appointed in
the case.
But 28 U.S.C. § 2242 provides that the application for habeas corpus “may be
amended or supplemented as provided in the rules of procedure applicable to civil
actions.” Rule 12 of the Rules Governing Section 2255 Proceedings for the United
States District Courts provides that the “Federal Rules of Civil Procedure and the
Federal Rules of Criminal Procedure, to the extent that they are not inconsistent
with any statutory provisions or these rules, may be applied to a proceeding under
these rules.” Moreover, the Federal Rules of Civil Procedure themselves also provide
that they apply to proceedings for habeas corpus. Fed. R. Civ. P. 81(a)(4). The
Seventh Circuit has specifically held that “[t]he rules governing § 2255 do not deal
with amendments for collateral review and therefore proposed amendments to §
2255 motions are governed by Fed. R. Civ. P. 15(a).” Rodriguez v. United States, 286
F.3d 972, 980 (7th Cir. 2002); see also Mayle v. Felix, 545 U.S. 644 (2005) (holding
the same).
Rule 15(a)(1) of the Federal Rules of Civil Procedure allows a party to amend
its pleading once as a matter of course within either twenty-one days after serving
it, or if the pleading is one to which a responsive pleading is required, twenty-one
days after service of a responsive pleading or twenty-one days after service of a
motion under Rule 12(b), (e), or (f), whichever is earlier. The first successive § 2255
motion (Doc. 1) was “served” upon Respondent on June 9, 2016 at the latest, which
is when the Clerk added a specific Assistant United States Attorney to this action
despite adding the United States of America as a party on June 6, 2016 when the
3

action was opened and docketed. See Fed. R. Civ. P. 5; CDIL-LR 5.3. Petitioner did
not file the Amended Motion (Doc. 3) within twenty-one days of June 9, 2016, but
rather more than three months later on September 30, 2016.
Despite that, Rule 15(a)(2) also provides that in all other cases, a party may
amend its pleading only with the opposing party’s written consent or leave of court.
The docket does not reveal that the Government consented to the amendment and
leave of court was not sought. However, the rule provides further that the Court is
to freely give leave to amend a pleading when justice so requires. Given this
permissive standard and the unique significance of the pro se habeas application
discussed above, the Court finds it would be manifestly unfair to disallow the
Amended Motion now, especially when the Court arguably acquiesced to the
Amended Motion by entering an order directing the Government to respond to it. In
the future though, proper leave of court should be sought. With that out of the way,
the Court now turns to the issue of whether these two additional claims are indeed
unauthorized and thus not capable of being heard by this Court.
Petitioner’s first supplemental claim that he is actually innocent of the
convictions for violating 18 U.S.C. § 1952 cannot be heard by this Court. The
Seventh Circuit authorized Petitioner to move for relief for Johnson-related issues,
not this stand-alone actual legal innocence claim. Because the Court sees little
utility in forcing Petitioner to pursue this claim in a § 2241 petition in front of a
court unfamiliar with the case—the court in the district where he is in custody—it
has engaged in extensive research into whether it can retain jurisdiction over the
claim. Alas, the Court has found no applicable exceptions. This claim does not fit
4

into the exceptions carved out in §§ 2244(b) and 2255(h) because it clearly does not
rely on a new rule of constitutional law nor does it rely on newly discovered
evidence.
The Court was tempted to turn to its own inherent ability to prevent
miscarriages of justice in order to reach the claim. However, in United States v.
Williams, 790 F.3d 1059, the Tenth Circuit thoroughly and convincingly explained
why a district court lacks the authority to reach this type of unauthorized actual
innocence claim in light of the Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104-132, 110 Stat. 1214 (the “AEDPA”). That court explained that
in McQuiggin v. Perkins, 133 S. Ct. 1924 (U.S. 2013)—a case where the Supreme
Court held that in extremely rare circumstances, an actual innocence claim can
overcome 28 U.S.C. § 2244(d)(1)’s one year statute of limitations—the Supreme
Court recognized that where Congress had explicitly limited petitioners to evading
certain procedural bars in certain statutory provisions of the AEDPA, “Congress
clearly intended that courts may no longer invoke their common law miscarriage of
justice authority to allow petitioners to bypass the relevant procedural bar” and the
“courts must apply the exception as modified by Congress.” 790 F.3d at 1076 citing
McQuiggin, 133 S. Ct. at 1934. The Williams court found that the AEDPA clearly
modified the common law miscarriage of justice exception by imposing a clear and
convincing burden of proof and by requiring preauthorization of successive
applications for habeas relief from the appropriate courts of appeals. Id. at 1076.
This Court finds the Williams court’s explanation to be persuasive and concludes

5

that it may not utilize the miscarriage of justice exception to reach Petitioner’s
actual innocence claim. The claim is hereby dismissed.
Petitioner’s second supplemental claim—that his robbery convictions under
18 U.S.C. § 1951 do not qualify as predicate crimes of violence under post-Johnson
18 U.S.C. § 924(c)—was also not included in the first successive § 2255 motion (Doc.
1) given to the Seventh Circuit for authorization. However, it is clearly predicated
upon Johnson and thus the Court believes it is based upon a new rule of
constitutional law and well within the scope of the claims the Seventh Circuit
authorized this Court to reach. The Court will hear it.
II.

LEGAL STANDARDS

Section 2255 of Title 28 of the United States Code provides that a sentence
may be vacated, set aside, or corrected “upon the ground that the sentence was
imposed in violation of the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such sentence, or that the sentence was in
excess of the maximum authorized by law, or is otherwise subject to collateral
attack.” “Relief under § 2255 is an extraordinary remedy because it asks the district
court essentially to reopen the criminal process to a person who already has had an
opportunity for full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th
Cir. 2007). Thus, § 2255 relief is limited to correcting errors of constitutional or
jurisdictional magnitude or errors constituting fundamental defects that result in
complete miscarriages of justice. E.g., Kelly v. United States, 29 F.3d 1107, 1112
(7th Cir. 1994), overruled on other grounds by United States v. Ceballos, 26 F.3d
717 (7th Cir. 1994). “A § 2255 motion is not a substitute for a direct appeal.”
6

Coleman v. United States, 318 F.3d 754, 760 (7th Cir. 2003) (citing Doe v. United
States, 51 F.3d 693, 698 (7th Cir. 1995)). Generally, a § 2255 motion must be filed
within one year of the date the judgment against the petitioner became final. 28
U.S.C. § 2255(f)(1); Clay v. United States, 537 U.S. 522, 527 (2003) (“Finality
attaches when this Court... denies a petition for a writ of certiorari, or when the
time for filing a certiorari petition expires.”). However, sub-paragraph (f)(3) provides
that a § 2255 motion may be timely if it is brought within one year of the date on
which the right asserted was initially recognized by the Supreme Court, if that right
has been newly recognized by the Supreme Court and made retroactively applicable
to cases on collateral review. 28 U.S.C. § 2255(f)(3).
III.

FACTUAL BACKGROUND

Petitioner, Stacy M. Haynes, was convicted of several crimes after
committing several armed robberies in the Quad Cities area of Iowa and Illinois in
the mid-nineties. Specifically, as to the Illinois robberies Petitioner was convicted of
three counts of Hobbs Act robbery in violation of 18 U.S.C. § 1951, as to the Iowa
robberies he was convicted of three counts of interstate travel in aid of racketeering
in violation of 18 U.S.C. § 1952, and lastly, he was also convicted of six counts of
using and carrying a firearm in furtherance of a crime of violence under 18 U.S.C. §
924(c). The Government timely filed a notice of intent to seek a mandatory life
sentence under 18 U.S.C. § 3559(c)(1) on each of the Hobbs Act robbery counts and
the interstate travel in aid of racketeering counts. This Court found that Petitioner
had the requisite number of prior “serious violent felonies” because he had twice
been convicted of residential burglary in Illinois on two prior separate occasions. So
7

it sentenced him accordingly after a jury convicted him. The following table will
help keep straight what count corresponded to what offense and what sentence.
Count
1
2

3
4

5
6
81
9

10
11

12
13

Offense of Conviction
Robbery of Illinois Hy-Vee in violation of
18 U.S.C. § 1951
Use of a firearm in relation to Count 1 in
violation of 18 U.S.C. §924(c)
Travel in Violation of 18 U.S.C. § 1952 for
robbing Eagle Food Centers in Iowa
Use of a firearm in relation to Count 3 in
violation of 18 U.S.C. §924(c)
Travel in Violation of 18 U.S.C. § 1952 for
robbing Jewel Food Store in Iowa
Use of a firearm in relation to Count 5 in
violation of 18 U.S.C. §924(c)
Robbery of Illinois K-Mart in violation of 18
U.S.C. § 1951
Use of a firearm in relation to Count 8 in
violation of 18 U.S.C. §924(c)
Travel in Violation of 18 U.S.C. § 1952 for
robbing Venture in Iowa
Use of a firearm in relation to Count 10 in
violation of 18 U.S.C. §924(c)
Robbery of Illinois Hy-Vee in violation of
18 U.S.C. § 1951
Use of a firearm in relation to Count 12 in
violation of 18 U.S.C. §924(c)

Sentence
Life

§ 3559 Applied
Yes

5 years consecutive to life
and each and every other
924(c) conviction
Life

No

20 years consecutive to
life and each and every
other 924(c) conviction
Life

No

20 years consecutive to
life and each and every
other 924(c) conviction
Life

No

20 years consecutive to
life and each and every
other 924(c) conviction
Life

No

20 years consecutive to
life and each and every
other 924(c) conviction
Life

No

20 years consecutive to
life and each and every
other 924(c) conviction

No

Yes

Yes

Yes

Yes

Yes

Years passed and then in 2015 the Supreme Court held in Johnson v. United
States, 135 S. Ct. 2551, that the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii) was
void for vagueness and later held in Welch v. United States, 136 S. Ct. 1257 (U.S.
2016), that Johnson applies retroactively to cases on collateral review. Johnson
announced a new rule of constitutional law and Welch explicitly made it retroactive

1 In

case one is curious, the jury failed to convict Petitioner of Count 7 of the Indictment; it
too was a Hobbs Act robbery charge but without the involvement of a firearm.

8

to cases on collateral review. Johnson’s rule was not announced until June 2015 and
thus was previously unavailable to Petitioner for use in his initial § 2255 motion
filed several years earlier. Since Johnson was decided, the Seventh Circuit has held
that the “residual clause” of 18 U.S.C. § 16(b) is unconstitutionally vague, United
States v. Vivas-Ceja, 808 F.3d 719, 723 (7th Cir. 2015), the pre-August 1, 2016
Amendment “residual clause” of the United States Sentencing Guidelines §
4B1.2(a)(2) was unconstitutionally vague, United States v. Hurlburt, 835 F.3d 715,
721 (7th Cir. Aug. 29, 2016), and that 18 U.S.C. § 924(c)’s “residual clause” is also
unconstitutionally vague. United States v. Cardena, 842 F.3d 959, 996 (7th Cir.
2016).
IV.
A.

DISCUSSION

18 U.S.C. § 3559(c)(1) Enhanced Mandatory Life Sentence
Applied to Counts 1, 3, 5, 8, 10, and 12.

Recognizing the encouraging handwriting on the wall, Petitioner now moves
to vacate his six concurrent mandatory life sentences under 18 U.S.C. § 3559(c)(1)
because that statute’s definition of the term “serious violent felony” utilizes
language almost identical to language that has been held to be unconstitutionally
vague. See 18 U.S.C. § 3559(c)(2)(F)(ii). The Court found that Petitioner qualified for
the enhanced sentence under 18 U.S.C. § 3559 because he had Illinois residential
burglary convictions that qualified as “serious violent felonies.” However,
residential burglary is not one of the specifically enumerated offenses in 18 U.S.C. §
3559(c)(2)(F)(i). Thus, residential burglaries only qualified as “serious violent
felonies” under 18 U.S.C. § 3559(c)(2)(F)(ii)’s equivalent “residual clause.” The
9

Government concedes that if 18 U.S.C. § 3559(c)(2)(F)(ii)’s “residual clause” is found
to be unconstitutional then Petitioner’s residential burglaries could not qualify as
“serious violent felonies.” It offers no meaningful opposition to Petitioner’s claim as
it recognizes both that the language at issue is almost identical to the language in
the residual clauses that have been found unconstitutionally vague and that the
Court is bound by circuit precedent. 2
Accordingly, the Court sees no reason to not follow circuit precedent and
therefore finds that 18 U.S.C. § 3559(c)(2)(F)(ii)’s “residual clause” is so similar to
the “residual clauses” at issue in Vivas-Ceja, Hurlburt and Cardena that this Court
is compelled to conclude that it too is unconstitutionally vague. The Court’s
application of 18 U.S.C. § 3559(c) to Petitioner cannot stand. He must be
resentenced on Counts 1, 3, 5, 8, 10, and 12. The Pre-Sentence Investigation Report
prepared for Petitioner calculated a total offense level of 37 and a criminal history
category of VI, which placed Petitioner in the range of 360 months to life for Counts
1, 3, 5, 8, 10, and 12.
B.

Use and Carry of a Firearm 18 U.S.C. § 924(c) Offenses in
relation to the Convictions for Violating 18 U.S.C. §§ 1951
(Counts 1, 3, and 12) and 1952 (Counts 5, 8, and 10): Counts 2, 4,
6, 9, 11, and 13.

Petitioner also claims that his § 924(c) convictions based on Hobbs Act
robbery convictions under 18 U.S.C. § 1951 (Counts 2, 9 and 13) and his § 924(c)
convictions based on interstate travel in support of racketeering convictions under
2 The

Government did briefly recount the reasons it believes these precedential cases were
wrong in order to preserve the issues upon appeal. There is little reason for this Court to
discuss them, as this Court cannot overrule the Seventh Circuit. The Court notes that such
objections have been made and are part of the record.

10

18 U.S.C. § 1952 (Counts 4, 6, and 11) must be overturned as well because of
Johnson and subsequent cases applying Johnson’s holding. Petitioner argues that
these predicate convictions must be overturned as a consequence of the voiding of
the residual clause of § 924(c) and the fact that a Hobbs Act robbery can be
accomplished without the use of physical force, as that term is understood in the
case law. All six of the § 924(c) convictions hinge to a varying degree on whether
“robbery” as defined in 18 U.S.C. § 1951(b)(1) has as an element “the use, attempted
use, or threatened use of physical force against the person or property of another.”
18 U.S.C. § 924(c)(3)(A).
Section 924(c)(1)(A) states in relevant part that “any person who, during and
in relation to any crime of violence… uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm, shall, in addition to the
punishment provided for such crime of violence” be subjected to some very severe
penalties. “Crime of violence” was defined as an offense that is a felony and—
(A) has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
(B) that 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.
18 U.S.C. § 924(c)(3). Cardena held that 18 U.S.C. § 924(c)(3)’s residual clause is
unconstitutionally vague under the principles set forth in Johnson. 842 F.3d at 996
(“we hold that the residual clause in 18 U.S.C. § 924(c)(3)(B) is also
unconstitutionally vague.”). Thus, a crime of violence under § 924(c)(3) can only be a

11

felony that “has as an element the use, attempted use, or threatened use of physical
force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A).
Petitioner argues that the definition of “crime of violence” utilized in 18
U.S.C. § 1952 in his trial is the definition provided for in 18 U.S.C. § 16(b) as it
existed before Johnson and Vivas-Ceja were decided, and thus includes the phrase
“any other offense that is a felony and that, 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,” commonly referred to as the “residual clause.”
Petitioner argues further that the presence of this residual clause renders it broader
than the post-Johnson, post-Cardena version of § 924(c)(3)’s residual clause and
renders the two statutes incapable of matching up under the familiar categorical
approach originally espoused in Taylor v. United States, 495 U.S. 575, 600 (1990)
and later elucidated in Mathis v. United States, 136 S. Ct. 2243 (2016). In other
words, viewing the definition of “crime of violence” as an element of the § 1952
offense, that element is broader than the definition of the § 924(c)(3) residual clause
because the § 1952 offense encompassed the pre-Vivas-Ceja version of §16(b).
Therefore, the two statutes do not match up under the categorical approach as
explained by the Supreme Court in Mathis.
The Government responds that Mathis is not properly applicable to this case.
This is supposedly so because in Mathis, the court was concerned with whether a
sentencing judge had properly determined whether the defendant had qualifying
convictions for an enhanced sentence under 18 U.S.C. § 924(e). Whereas here, in
contrast, a jury found that Petitioner had engaged in a crime of violence under 18
12

U.S.C. § 924(c)(3), the underlying offense being a Hobbs Act robbery that has the
use of physical force against a person or property as an element. Moreover, each of
Counts 1, 3, 5, 8, and 10 contained language that accused Petitioner of displaying a
firearm while committing the offense.
The Court sees no meaningful distinction between whether the sentencing
judge or the jury made the finding. As most recently observed in Cardena, the
categorical approach is utilized to determine whether a statute qualifies as a crime
of violence under § 924(c). 842 F.3d at 997. The categorical approach is the same
whether one is dealing with § 924(c), as here, or with § 924(e), as in Mathis. A
finding was made that resulted in a penalty being assessed against the Petitioner.
The only relevant inquiry is whether or not the finding was made with a proper
definition of the “crime of violence” element.
The Government explains that to convict Petitioner on the § 924(c) Counts 4,
6, and 11, the jury had to find beyond a reasonable doubt that he violated § 1952 by
travelling interstate and committing the Hobbs Act robberies alleged in Counts 3, 5,
and 10, each of which alleged that the crime of violence at issue was a “robbery” as
that term is defined in 18 U.S.C. § 1951(b)(1). (Doc. 7 at 17-18; see also United
States v. Haynes, No. 96-cr-40034, Doc. 5 at 2-4, 7).
The Government concedes that the Petitioner’s jury was instructed that the
robberies at issue required the taking or obtaining of property from a person “by
means of actual or threatened force, or violence or fear of injury, immediate or
future, to his person or property.” (Doc. 7 at 19). The Hobbs Act defines the term
“robbery” to mean “the unlawful taking or obtaining of personal property from the
13

person or in the presence of another, against his will, by means of actual or
threatened force, or violence, or fear of injury, immediate or future, to his person or
property, or property in his custody or possession, or the person or property of a
relative or member of his family or of anyone in his company at the time of the
taking or obtaining.” 18 U.S.C. § 1951(b)(1). If the Hobbs Act robbery can be
accomplished without the use of physical force, then its elements are too broad to
match up with the appropriate “crime of violence” term in § 924(c) under the
categorical approach as explained by the Supreme Court in Mathis, 136 S. Ct. 2243.
This is so because the crime of violence is an indivisible element of the § 924(c)
offense. As far as this Court has researched, no jury—certainly not the
Petitioner’s—was ever asked to unanimously decide on whether they concluded a §
924(c) offense was warranted under the elements clause or the now-defunct residual
clause, regardless of whatever language was included in the counts of the charging
instrument.
Moreover, the parties agree that when applying the categorical approach, a
court presumes “the conviction rested on the least serious acts that could satisfy the
statute,” United States v. Armour, 840 F.3d 904, 908 (7th Cir. 2016), and that the
“least serious act” would be fear of injury to property. Rather than recapitulate the
Petitioner’s argument further, the Court will quote him directly:
Indeed, under the Hobbs Act’s definition of robbery, the fear of injury
need not even be immediate but can be in the future, and the property
need not even belong to the immediate victim as the property can
belong to someone else. See id. This alone prevents Hobbs Act robbery
from qualifying as a crime of violence under § 924(c)’s force clause,
because as just explained, that clause requires violent (i.e., strong)
physical force against a person or property. But property can quite
14

obviously be injured without the use of violent force – or even any force
at all. As a means of compelling a victim to surrender valuable
property against his will, a threat to deface a victim’s Picasso painting
with a magic marker pen, to black out lines in rare documents, or to
flush drugs down the toilet is likely to be as or more effective as a
threat to punch the victim in the face. Each involves a clear “threat of
injury” and thus each would satisfy the elements of Hobbs Act robbery,
but only the threat to punch the victim in the face involves the use of
violent physical force. In short, although the threats to property
described above involve physical actions, they do not involve physical
force within the meaning of Johnson v. United States, 559 U.S. 133,
140 (2010) (“physical force” means “violent force” – that is “strong
physical force,” which is “capable of causing physical pain or injury to
another person.”).
(Doc. 3 at 19 (emphasis added)). The Court finds the Petitioner’s argument is not
without merit. The Government responds by citing cases for the proposition that the
Hobbs Act “fear of injury” is equivalent to the threatened use of physical force. See
United States v Duncan, 833 F.3d 751, 755 (7th Cir. 2016); Armour, 840 F.3d at 907.
The Court finds those cases and their holdings are either not applicable, or not
persuasive, as the case may be, for the following two reasons.
First, those Seventh Circuit cases cited by the Government dealt exclusively
with the fear of bodily injury. The plain language of the statute provides that a
Hobbs Act robbery can be accomplished by causing a victim to have “fear of injury”
to property, and “damage” to property can be accomplished without any force
whatsoever. The language of the term “fear of injury” seems broad enough to
encompass instances of the loss of economic value rather than only a physical
destruction brought about through the use of physical force. A case the Government
cites in its opposition brief makes this point clearly. “Hobbs Act robbery under §
1951, however, prohibits ‘the unlawful taking or obtaining of personal property from
15

the person or in the presence of another, against his will’ by various different
methods. The statute thus does not punish behavior that merely results in physical
injury.” United States v. Wheeler, No. 15-CR-216, 2016 WL 783412, at *4 (E.D. Wis.
Jan. 6, 2016), report and recommendation adopted, No. 15-CR-216-PP, 2016 WL
799250 (E.D. Wis. Feb. 29, 2016). Mere touching alone is not enough to show
physical force. Duncan, 833 F.3d at 754. There are items in this world that possess
some value simply because no one else has touched them; rare baseball cards devoid
of fingerprints, rare comic books wrapped in thick plastic that have never been
opened, for example. These items would lose value if slightly handled directly in a
loving fashion, let alone in a haphazard or forceful manner calculated to physically
harm the item, and the owners fear the resulting injury—the loss of pecuniary
value—so they take great measures to protect these items from normal wear and
tear of handling. Given that recognition—that the statute punishes conduct that
does not merely result in physical injury—it is difficult for this Court to understand
how it can conclude “robbery by fear of injury… necessarily involves a threat to use
physical force if the robber’s demands are not met” as the Government argues. See
Wheeler, 2016 WL 783412 at *4-5.
Second, the Court is skeptical of the Government’s argument that the term
“fear of injury” that appears in the definition of Hobbs Act “robbery” is the
equivalent of the threatened use of physical force as a matter of statutory
interpretation. This Court reads the statute to mean that a robbery is effectuated
when either force, violence or fear of injury to the person or property of another are
utilized to take a possession. 18 U.S.C. § 1951(b)(1). The statute would not include
16

these three terms “force”, “violence”, “fear of injury” disjunctively as alternate
means of violating the statute if they all meant the same thing. The Court will
spare the reader from another table however, the reader should understand that the
language of the statute provides several distinct definitional combinations that
explain the different ways in which one can violate this statute. For example, one
could use immediate actual force, or future threatened force, or future fear of injury,
or immediate fear of injury, all to effectuate an unlawful taking. In short, the
statute utilizes these three terms to bring within its purview a broader range of
conduct than it could have done otherwise if the terms all meant the same thing.
The Court believes this reading of the statute better comports with the familiar
canon of statutory interpretation that a court should not interpret a statute in such
a way that renders any part of it superfluous or otherwise ineffective. See Duncan v.
Walker, 533 U.S. 167, 174 (2001).
Nevertheless, the Government also relies on the very recent case, United
States v. Anglin, 2017 WL 359666 (7th Cir. Jan. 25, 2017), in which the Seventh
Circuit squarely held that a Hobbs Act robbery qualifies as a “crime of violence”
under 18 U.S.C. § 924(c)(3)(A). After reciting the statutory definition of robbery, the
Anglin court wrote “[c]ommitting a [Hobbs Act robbery] necessarily requires using
or threatening force.” 2017 WL 359666, at *7. Although the opinion does not
discuss whether the statute is broad enough to allow one to commit the robbery by
inducing fear of injury to property without force under the statute, the language of
the holding is broad and unequivocal and leaves little room for a contrary holding
by a subordinate court. Moreover, while the appellant in Anglin only cursorily
17

presented the issue of what is the meaning of “fear of injury” in his briefing to the
Seventh Circuit, the Government addressed the issue fully. It argued to the
appellate court that, “‘[f]ear of injury’ follows the phrase ‘actual or threatened force,
or violence.’ In statutory construction, ‘[t]hat several items in a list share an
attribute counsels in favor of interpreting the other items as possessing that
attribute as well.’ Beecham v. United States, 511 U.S. 368, 371 (U.S. 1994).
Accordingly, ‘fear of injury’ shares the attribute of ‘force’ with the ‘first three items
in the list’ in the statute, and ‘it is best understood as fear of injury from the use of
force.”’ (Doc. 30 at 33, United States v. Anglin, No. 15-3625). The Seventh Circuit
had to have considered the Government’s argument regarding the meaning of “fear
of injury” in the calculus of their decision.
Given Anglin’s holding, this Court concludes that Petitioner’s three
convictions under 18 U.S.C. § 924(c)(3) based directly upon Hobbs Act robbery as
the predicate “crime of violence” (Counts 2, 9, and 13) remain valid under Johnson
v. United States, 135 S. Ct. 2551 (U.S. 2015) and United States v. Cardena, 842 F.3d
959, 996 (7th Cir. 2016). That is so because if the Hobbs Act robbery necessarily
requires using or threatening force, then it clearly suffices as a “crime of violence”
under 18 U.S.C. § 924(c)(3)(A).
As for the § 924(c) convictions predicated on the 18 U.S.C. § 1952 convictions
based upon Hobbs Act robberies as the predicate “crimes of violence,” logic would
suggest that they too must stand in light of Anglin. Petitioner’s argument was that
the elements of the § 1952 offense are (1) traveling in interstate commerce; (2) with
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the intent to commit a “crime of violence” to further unlawful activity; and (3)
thereafter committing or attempting to commit such “crime of violence” to further
unlawful activity. According to Petitioner, these elements of the offense do not have
the use, attempted use or threatened use of physical force against the person or
property of another. This is supposedly so because the actual “crime of violence”
committed is simply a means of establishing the “crime of violence” element.
The Court disagrees with this aspect of the Petitioner’s argument. Section
924(c) applies to “crimes of violence” and 18 U.S.C. § 1952 uses the same term. If
the crime alleged to be the “crime of violence” for the § 1952 conviction has as an
element the use or threatened use of force, then § 924(c) is inherently satisfied.
Here, the ultimate “crime of violence” alleged in the Indictment was robbery and the
definition of “robbery” given was from 18 U.S.C. § 1951(b)(1). In order to find
Petitioner guilty of the § 924(c) violations, Petitioner’s jury had to find he committed
or attempted to commit Hobbs Act robberies, which Anglin holds necessarily
requires using or threatening force. That means the use or threat of force was an
implicit element of each of the § 924(c) convictions predicated on the § 1952
convictions, which were in turn predicated on Hobbs Act robberies.
Very recently, this Court concluded that a crime of violence used in a § 924(c)
conviction was sound under Mathis (and the cases that preceded Mathis) because
the underlying crime was ultimately one where the jury was compelled to find that
the defendant had engaged in the use of violent force. See DeSilva v. United States,
No. 4:16-CV-4134, 2016 WL 6495393 (C.D. Ill. Nov. 2, 2016). In DeSilva, the nature
of the ultimate crime was such that there had to have been an element of physical
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force in order for the jury to find DeSilva guilty of the § 924(c) offense. See id. at *6
(underlying offense was attempted Illinois aggravated battery with a firearm which
obviously fit as the use or carrying of a firearm while committing a crime of
violence). Here, Anglin makes clear that the underlying Hobbs Act robbery
necessarily has as an element the use or threatened use of force. 2017 WL 359666,
at *7. Therefore, these § 924(c) convictions predicated on the Hobbs Act robberies
directly as the ultimate crime of violence are elementally sound and remain valid
after Johnson. This is so even though Petitioner may question the validity of his
underlying convictions for violating 18 U.S.C. § 1952.
The Government charged Petitioner with three counts of unlawfully
travelling interstate to further racketeering activity in violation of 18 U.S.C. § 1952.
The elements of that statute that the Government needed to prove were that
Petitioner 1) travelled interstate with the intent to 2) commit a crime of violence to
further unlawful activity and 3) thereafter did commit or attempted to commit that
crime of violence to further the unlawful activity. The statute does not define “crime
of violence,” so the definition of that term comes from 18 U.S.C. § 16. However, §
1952 does define “unlawful activity” and robbery is not one of the listed offenses
that suffices as “unlawful activity” although “extortion” is, and that is what the
Government alleged constituted the unlawful activity. Arguably, this was
questionable given that extortion entails taking one’s property with consent while
robbery entails taking one’s property against their will. 3 This illogical discrepancy,

The jury instruction provided in Petitioner’s trial defined extortion in this way. It should
be noted that the Seventh Circuit pattern instructions demonstrate that a Hobbs Act

3

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while perhaps calling into question whether Petitioner was properly convicted of
violating § 1952, however, means nothing to the question of whether the “crime of
violence” at the heart of the § 1952 offense matches up categorically with the “crime
of violence” defined in 18 U.S.C. § 924(c). Anglin makes clear that the Hobbs Act
robbery satisfies the elements clause of § 924(c)(3)(A). 2017 WL 359666, at *7. The
Hobbs Act robbery also satisfies the elements clause of the “crime of violence”
definition, 18 U.S.C. § 16(a), since the language is the same as in 18 U.S.C. §
924(c)(3)(A). See 18 U.S.C. §§ 16(a) and 924(c)(3)(A) (crime of violence is “an offense
that has as an element the use, attempted use, or threatened use of physical force
against the person or property of another.”).
C.

Procedural Default

The Government asserts that Petitioner procedurally defaulted both his
claim that his three § 924(c) counts predicated on his § 1952 offenses violate
Johnson and his claim that his three § 924(c) counts predicated on his § 1951
offenses violate Johnson. Petitioner failed to pursue either claim on direct appeal. A
petitioner may not generally pursue a claim on collateral review that he failed to
raise on direct appeal unless he demonstrates cause and prejudice or that he is
actually innocent. Massaro v. United States, 538 U.S. 500, 504 (2003). The rule is
prudential in nature; it does not originate from any statutory or constitutional
source. Id. The goal of the rule, which originated in the context of § 2254 petitions,

extortion can be “robbery” or “non-robbery.” The “non-robbery” extortion offense has the
victim’s consent as an element while the “robbery” extortion offense does not. See Seventh
Circuit Pattern Criminal Jury Instructions Section 1951.

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is to ensure finality of convictions and reservation of scarce federal judicial
resources. See McClesky v. Zant, 499 U.S. 467, 490-91 (1991).
Petitioner primarily argues that he is actually innocent of the § 924(c)
offenses related to his § 1952 convictions. The Court disagrees. The actual innocence
standard enquires into whether “in light of all the evidence, it is more likely than
not that no reasonable juror would have convicted [petitioner].” Bousley v. United
States, 523 U.S. 614, 623 (1998). Petitioner’s argument is that he was convicted of
overbroad statutory definitions as a result of legal developments not factual
deficiencies. There is ample evidence that the Petitioner committed six crimes of
violence under the elements clause of §924(c) in that he indisputably robbed stores
at gunpoint and threatened use of physical force against several persons by
threatening to shoot them if they did not comply with him. The Court does not have
much doubt that had the jurors been given the current proper versions of § 924(c)
and §16(b) in their deliberations, they could, and probably would, have still found
Petitioner guilty. Therefore, the Court cannot find that Petitioner is actually
innocent of the underlying offenses for the purpose of excusing procedural default. 4
Petitioner clearly asserts that actual innocence precludes a finding of
procedural default. (Doc. 8 at 4-6). And the Court does not agree. However, the
Court interprets Petitioner’s brief discussion of the evolution of the categorical
approach and the rationale of Johnson (Doc. 8 at 6-7) as an argument that the
novelty of his claims also excuses his procedural default.
4 No

one should construe this discussion to relate to Petitioner’s stand-alone actual
innocence claim that was dismissed. (See supra at 4-6).

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A petitioner can establish cause for his procedural default by demonstrating
that there was no reasonable basis in existing law for him to bring the claim on
direct appeal. Reed v. Ross, 468 U.S. 1, 14-15 (1984) (cited in Bousley, 523 U.S. at
622). This is not the same argument as futility. Bousley, 523 U.S. at 622 (noting
that the petitioner there also raised the issue of futility in addition to novelty).
Petitioner argued his appeal in 1998. This Court was unable to find a single case in
the legal databases it searched that dealt with voidness of the residual clause before
2000. Thus, this is a far cry from the situation in Bousley, where “the Federal
Reporters were replete with cases involving” the issue there when the petitioner
presented his direct appeal and the novelty argument was rejected on that basis.
523 U.S. at 622. Moreover, the issues of the residual clause’s “shoddy
draftsmanship” and possible vagueness did not even come before the Supreme
Court until 2007 in James v. United States, 550 U.S. 192, 229 (2007) (Scalia, J.,
dissenting). In short, this is one of those rare cases where the petitioner has
demonstrated cause for his procedural default by demonstrating that there was no
reasonable basis in existing law for him to bring the claim on direct appeal.
A petitioner still needs to establish that he was prejudiced for his procedural
default to be excused. The prejudice that a petitioner must establish in these sorts
of claims was articulated in United States v. Frady, 456 U.S. 152, 168-70 (1982),
which requires a showing of actual and substantial disadvantage. Petitioner’s §
924(c) crimes netted him a total of 105 consecutive years of imprisonment beyond
the six concurrent life sentences for the § 1951 and § 1952 convictions, so it is
obvious that he suffered an actual and substantial disadvantage from these
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convictions. For these reasons, the Court finds that Petitioner’s procedural default
is excused and the merits of his claims were properly addressed.
D.

Evidentiary Hearing

Rule 8 of the Rules Governing Section 2255 Proceedings for the United States
District Courts requires courts to determine whether evidentiary hearings are
required in instances where the § 2255 motion has survived screening. The Court
does not find that such a hearing is necessary here. However, because both the
parties and the Court referenced the jury instructions given in the underlying
criminal case, United States v. Haynes, No. 96-cr-40034, and such instructions are
not accessible via the Court’s EM/ECF system, the Court obtained a copy from the
Clerk of Court and attaches them as an exhibit to this Opinion & Order. If the
parties have an objection to the authenticity of the jury instructions, they may file
an appropriate motion.
E.

Certificate of Appealability

Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United
States District Courts requires the district court to “issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” Accordingly, the
Court must determine whether to grant Petitioner a certificate of appealability
pursuant to 28 U.S.C. § 2253(c)(2).
According to 28 U.S.C. § 2253, a habeas petitioner will only be allowed to
appeal issues for which a certificate of appealability has been granted. Sandoval v.
United States, 574 F.3d 847, 852 (7th Cir. 2009). A petitioner is entitled to a
certificate of appealability only if he can make a substantial showing of the denial of
24

a constitutional right. Id. (citing 28 U.S.C. § 2253(c)). Under this standard, a
petitioner must demonstrate that “reasonable jurists could debate whether the
petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
Consistent with the discussion above, the Court finds that reasonable jurists
could differ with the Court’s treatment of Petitioner’s § 2255 motion. Other jurists
may opine that the elements of the underlying Hobbs Act robbery offenses cannot be
deemed subsumed within the elements of the 18 U.S.C. § 1952 offenses for purposes
of analyzing whether the element of use of force, attempted force or threatened force
was present in the 18 U.S.C. § 924(c) offenses. Furthermore, the Court has
expressed skepticism with the Government’s argument that “fear of injury” is
equivalent to the “threatened use of physical force” in the statutory definition of
robbery in 18 U.S.C. § 1951. The Anglin decision—although holding that Hobbs Act
robbery necessarily requires using or threatening force—did not address that the
Hobbs Act’s definition of “robbery” includes “fear of injury” to property as well as
fear of injury to the person of another. That aspect of the robbery definition seems
ripe for debate amongst reasonable jurists. Therefore, the Court certifies these
issues for appeal pursuant to 28 U.S.C. § 2253(c)(2).
V.

CONCLUSION

Petitioner, Stacy M. Haynes’s Amended Motion Under 28 U.S.C. § 2255 To
Vacate, Set Aside, Or Correct Sentence (Doc. 3) is GRANTED in part, DENIED in
part and DISMISSED in Part; the Court passes no judgment on Petitioner’s claim
25

that he is actually innocent of his convictions for violating 18 U.S.C. § 1952.
Petitioner’s mandatory concurrent life sentences in United States v. Haynes, No. 96cr-40034 (C.D. Ill.) are VACATED for resentencing.
Also before the Court is Petitioner’s original Motion Under 28 U.S.C. § 2255
To Vacate, Set Aside, Or Correct Sentence (Doc. 1). That document is moot because
the Court accepts the Amended Motion as properly filed. The Clerk shall terminate
it from the electronic docket. This civil action is now TERMINATED.

Entered this 16th day of February, 2017.

s/ Joe B. McDade
JOE BILLY McDADE
United States District Court Judge

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EXHIBIT A

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