Haynes v. United States of America

Filing 9

MEMORANDUM OPINION & ORDER entered by Judge Joe Billy McDade on 1/25/2017: IT IS ORDERED that 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 and DI SMISSED 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 sentence in United States v. Haynes, No. 96-cr-40034 (C.D. Ill.) is VACAT ED for resentencing. His convictions for violating 18 U.S.C. § 924(c) are VACATED as well. 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. (SEE FULL WRITTEN ORDER AND OPINION)(JRK, ilcd)

E-FILED

Wednesday, 25 January, 2017 03:30:09 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 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
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action was opened and docketed. See Fed. R. Civ. P. 5; CDIL-LR 5.3. The Amended
Motion (Doc. 3) was not filed 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 habeas application discussed
above, the Court finds it would be manifestly unfair to disallow the Amended
Motion at this point in time, 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

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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 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.”
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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, Petitioner was convicted of three counts of Hobbs Act
robbery in violation of 18 U.S.C. § 1951, three counts of interstate travel in aid of
racketeering in violation of 18 U.S.C. § 1952, and 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 it

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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 Applies
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

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.

1

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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 ago. 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 handwriting on the wall, Petitioner now moves to vacate his

mandatory life sentence 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” but residential burglary is not
one of the enumerated offenses in 18 U.S.C. § 3559(c)(2)(F)(i). Thus, they only
qualified as “serious violent felonies” under 18 U.S.C. § 3559(c)(2)(F)(ii)’s “residual
clause”. The Government concedes that if 18 U.S.C. § 3559(c)(2)(F)(ii)’s “residual
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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 clauses that have been found unconstitutionally vague and
that the Court is bound to follow 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 and 1952: Counts 2, 4,
6, 9, 11, and 13.
Petitioner’s next claim is that his § 924(c) convictions for Counts 4, 6, and 11,

which related to his interstate travel in support of racketeering convictions under
18 U.S.C. § 1952, must be overturned as well because of Johnson and subsequent
cases applying Johnson’s holding.

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.
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2

Section 924(c) 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)’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) can only be a
felony that has as an element the use, attempted use, or threatened use of physical
force against the person or property of another.
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 § 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.” Petitioner argues further that the presence of this residual
clause renders it broader than the post-Johnson, post-Cardena version of § 924(c)(3)
and renders the two statutes incapable of matching up under the familiar

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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) offense
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 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 U.S.C. §
924(c), 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.

12

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).
So now, the discussion segues into Counts 3, 5, and 10 and the statutory
definition of the term “robbery.” Petitioner also claims that his § 924(c) violations in
relation to his three Hobbs Act robbery convictions under 18 U.S.C. § 1951, Counts
2, 9, and 13, must be overturned because of the voiding of the residual clause and
the fact that a Hobbs Act robbery can be accomplished without the use of physical
force. Rather than discuss them separately, the discussion will now focus on all six §
924(c) counts because in the Court’s opinion, they all ultimately hinge to varying
degree on the definition of “robbery” in 18 U.S.C. § 1951(b)(1).
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
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
13

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
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
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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 Petitioner’s argument has 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 these 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
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
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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 disagrees with the Government 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 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
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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).
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). DeSilva is
distinguishable from this case because there, the nature of the ultimate crime was
such that there had to have been an element of physical 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, the jury could
have found that the Hobbs Act robbery occurred without finding that physical force
was utilized and therefore, these § 924(c) convictions predicated on the Hobbs Act
17

robberies directly under § 1951 cannot stand, nor can the § 924(c) convictions
predicated on the Hobbs Act robberies indirectly as § 1952 underlying offenses.
Next, the Government relies on the harmless error doctrine as to the § 924(c)
convictions predicated on the § 1952 offenses and argues that Petitioner cannot
establish that he was harmed by the inclusion of the residual clause in the
instruction to the jury essentially because the facts demonstrate that he used actual
threatened force to effectuate the robberies. (Doc. 7 at 20). Petitioner replies that
because the crime of violence definition is indivisible, there is no alternative
instruction under which Petitioner could have been convicted and so there is no way
Petitioner can be found to not have been harmed. The Court agrees with Petitioner.
On collateral review, the harmless-error doctrine standard to be applied is
whether the error had a “substantial and injurious effect or influence in the jury’s
verdict.” Sorich v. United States, 709 F.3d 670, 674 (7th Cir. 2013) (citing Brecht v.
Abrahmson, 507 U.S. 619, 623 (1993). The Government argues that since we know
without a doubt Petitioner used real threatened force and violence—pointing a gun
at the robbery victims to rob stores—the jury would have concluded a crime of
violence occurred regardless of the presence of the residual clause, so Petitioner was
not harmed. Haynes used a gun to scare his victims into giving them money; period.
Since it is clear that he used threatened real force to effectuate his robberies, the
Court should ignore that the statute he violated punishes conduct that encompasses
more than physical force. This is a common sense approach but the Court believes
this argument ignores the whole point of Mathis and the correct application of the
categorical approach.
18

In Mathis, the criminal engaged in a black and white textbook generic
burglary but the Supreme Court held that he could not be subjected to the ACCA
enhancement under § 924(e) because the statute the burglar was convicted under
had broader elements than the generic burglary statute to which the ACCA applied.
136 S. Ct. at 2250. Thus, the primary lesson one takes away from Mathis is that
when applying the categorical approach, courts have to ignore the actual facts
underlying the offense and apply theoretical boundaries embodied by the elements
of the offense. That is the law as explained in Mathis, 136 S. Ct. at 2248 that
originated in Taylor, 495 U.S. at 599-602; it cannot be circumvented.
Here, Petitioner was found to have used a firearm while engaged in a “crime
of violence” as used in 18 U.S.C. § 1952(a)(2), which at the time meant “an offense
that has as an element the use, attempted use, or threatened use of physical force
against the person or property of another” or a felony “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.” (Doc. 7 at 18 referencing 18 U.S.C.
§ 16; see United States v. Haynes, Given Jury Instructions filed as Exhibit A
attached hereto). Those clauses communicate two different ways an offense can be
deemed a crime of violence, not two separate crimes of violence from which a
factfinder could pick and choose. Because part of the definition was void at the time,
the definition was too broad. The jury was never called upon to specify which clause
of the “crime of violence” definition they were concluding applied. Thus, the error
here is much more like a structural error rather than a mere trial error. See Arizona

19

v. Fulminante, 499 U.S. 279, 307–08 (1991) (discussing difference between
structural and trial errors).
C.

Procedural Default
Generally courts must decide whether a petitioner procedurally defaulted a

claim before reaching the merits of the claim. The Court discusses procedural
default here because the substance of the claims and why they are meritorious
sheds light on whether one of the exceptions offered to excuse the procedural default
is legitimate.
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,
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
20

States, 523 U.S. 614, 623 (1998). It is clear that Petitioner was convicted of
overbroad statutory definitions, but these convictions were the 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 proper versions
of § 924(c) and §16(b) in their deliberations, they could, and probably would, have
still found Petitioner guilty. So, the Court cannot find that Petitioner is actually
innocent of the underlying offenses for the purpose of excusing procedural default. 3
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.
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

No one should construe this discussion to relate to Petitioner’s stand-alone actual
innocence claim that was dismissed. (See supra at 4-5).
21
3

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 so it is obvious that he
suffered an actual and substantial disadvantage from these convictions. Frady also
instructs that courts are to assess “whether the ailing instruction by itself so
infected the entire trial that the resulting conviction violates due process.” Id. at
169 (internal quotations and citations omitted). As the Court explained earlier in
rejecting the harmless error argument, utilizing a crime of violence definition that
was overbroad rendered the convictions untenable. That analysis is equally
applicable here.

22

Although it is easy to say that the jury could have still found Petitioner guilty
of these offenses had they had the proper definition of crime of violence before them,
there is no way to be absolutely sure. Moreover, taking this position would be the
functional equivalent of forcing the petitioner to prove that his jury concluded his
crimes of violence fell under the elements clause of § 924(c) rather than the now
defunct residual clause. Clearly, he has no feasible way of accomplishing that feat.
Furthermore, the Court has found no basis in the law to impose such an onerous
standard. See In re Chance, 831 F.3d 1335, 1340-41 (11th Cir. 2016) (explaining,
albeit in dicta, why it is incorrect to make a § 2255 petitioner prove that he was
sentenced under the residual clause in order to secure relief on a Johnson claim).
In short, just as the mismatch of elements saved Mathis from an ACCA
sentence, the mismatch of elements brought on by the presence of constitutionally
void clauses in the jury instructions here saves Petitioner from the § 924(c)
convictions. Petitioner is receiving a uniquely rare chance that this Court believes is
required by law. The seriousness of his conduct is not lost upon the Court. Should
he be resentenced in such a manner that he is freed from the custody of the Bureau
of Prisons, the Court sincerely hopes the Petitioner makes good use of this rare
opportunity and lives a productive life rather than revert to his past criminal
conduct.
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
23

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.
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 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
sentence in United States v. Haynes, No. 96-cr-40034 (C.D. Ill.) is VACATED for
resentencing. His convictions for violating 18 U.S.C. § 924(c) are VACATED as well.
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 25th day of January, 2017.

s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
24

EXHIBIT A