Hayes v. USA

Filing 18

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the motion to vacate, set aside or correct sentence 1 is granted. IT IS FURTHER ORDERED that defendant's sentence of imprisonment is reduced to time served, and his term of supervised release i s reduced to three years; all other portions of his sentence remain as previously imposed. IT IS FURTHER ORDERED that an amended Judgment is entered in Case No. 4:02CR536 CDP today, and the Clerk of Court is also directed to docket a copy of this Memorandum and Order in that criminal case. Signed by District Judge Catherine D. Perry on August 10, 2016. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RICO HAYES,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)

No. 4:16 CV 926 CDP

MEMORANDUM AND ORDER
Movant Rico Hayes seeks relief under 28 U.S.C. § 2255, relying on the
recently decided U.S. Supreme Court cases of Johnson v. United States, 135 S.Ct.
2551 (2015) and Welch v. United States, 136 S.Ct. 1257 (2016). Hayes was
sentenced to 188 months imprisonment under the Armed Career Criminal Act, 18
U.S.C. §924(3). The government concedes that were Hayes sentenced today he
would not be subject to the fifteen-year mandatory minimum sentence under the
ACCA. The government opposes the motion, however, arguing that Hayes is
really seeking relief under Descamps v. United States, 133 S.Ct. 2276 (2013). I
conclude that Johnson opened the door to the claim Hayes raises now, and that his
sentence under the ACCA violates his due process rights under the constitution.
Hayes has already served more time in jail than the proper statutory maximum
sentence, and so I will reduce his sentence to time served.

Background
On February 20, 2003, a jury convicted Rico Hayes of two counts of being a
felon in possession of a firearm in violation of 18 U.S.C. §922(g)(1). Criminal
Case No. 4:02CR536 DJS. On June 13, 2003, the Honorable Donald J. Stohr
sentenced him to concurrent sentences of 188 months in prison, after finding that
he had three previous convictions for violent felonies that supported imposition of
a sentence under the Armed Career Criminal Act, 18 U.S.C. §924(e). Two of
Hayes’ ACCA predicates were for burglary convictions under California Penal
Code §459. Hayes’ conviction and sentence were affirmed on appeal in an
unpublished per curiam opinion. United States v. Hayes, 87 Fed. Appx. 603, Case
No. 03-2639 (8th Cir. January 21, 2004).
In 2005 Hayes filed a motion to vacate, correct or set aside his sentence
under 28 U.S.C. § 2255. E.D. Mo. Case No. 4:05CV163 DJS. Judge Stohr denied
that motion and denied a certificate of appealability. Hayes did not appeal from
that denial. He later filed several petitions to file successive § 2255 motions,
which were denied.
After the Supreme Court decided Johnson, the Eighth Circuit Court of
Appeals granted Hayes’ petition for authorization to file a successive habeas
application in the district court. Case No. 16-2233 (8th Cir. June 22, 2016) (docket
entry #3). The Court of Appeals then ordered the matter transferred to this court
2

(docket entry # 5). The case is thus properly before this court for consideration on
the merits.1
Discussion
Hayes’ claim for relief relies on the interaction of several recent Supreme
Court cases interpreting the Armed Career Criminal Act, 18 U.S.C. §924(e). That
act enhances the sentences in felon in possession cases from a ten-year maximum
to a fifteen-year mandatory minimum if a defendant has three previous convictions
for a “violent felony.” The statute defines violent felony to include any felony
that:
(i)

has as an element the use, attempted use, or threatened use of physical
force against the person of another; or

(ii)

is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another.

18 U.S.C. § 924(e)(2)(B) (emphasis added for “residual clause”).
When Hayes was initially sentenced, his California burglary convictions
qualified as violent felonies under the “enumerated acts” subsection of the ACCA,
that is, they were considered burglaries under the first portion of subsection
(e)(2)(B)(ii). He was thus subject to the fifteen-year-to-life imprisonment range
under the ACCA, instead of the ten-year statutory maximum otherwise applicable
1

As discussed at the hearing held on August 1, 2016, the authorization to file a successive
petition does not provide any guidance on the merits of movant’s claim to relief; it merely allows
this Court to consider the claim on the merits.
3

to felon in possession cases under 18 U.S.C. §924(a)(2). In Descamps v. United
States, 133 S.Ct. 2276 (2013), however, the Supreme Court held that a conviction
under the very California burglary statute Hayes was convicted of could not be
considered one of the enumerated offenses for ACCA enhancement purposes. But
Descamps did not provide a basis for relief for people such as Hayes, for two
reasons. First, Descamps was a rule of statutory interpretation and was not a rule
of constitutional law made retroactive to cases on collateral review. Headbird v.
United States, 813 F.3d 1092, 1097 (8th Cir. 2016); Ezell v. United States, 778
F.3d 762, 766 (9th Cir. 2015). Second, the crime of burglary under the California
statute remained covered by the “residual clause” of the ACCA. See Talmore v.
United States, 585 Fed. Appx. 567 (9th Cir. 2014) (rule of United States v. Park,
649 F.3d 1175 (9th Cir. 2011), that California burglary convictions were violent
felonies under the residual clause was not changed by Descamps). Thus, before
Johnson was decided, movant Hayes had no basis to obtain relief under §2255.
In Johnson v. United States, 135 S.Ct. 2551 (2015), the Supreme Court held
that the residual clause of the ACCA was unconstitutionally vague. More recently,
the Supreme Court held that Johnson had announced a new substantive rule that
applied retroactively to cases on collateral review. Welch v. United States, 136
S.Ct. 1257 (2016). On the basis of Johnson and Welch, movant argues that his

4

previously imposed sentence violates the constitution, and that he was only subject
to the ten-year statutory maximum sentence.
The government opposes the requested relief, arguing that this is really a
claim brought under Descamps. The government concedes that were Hayes to be
sentenced today, he would not be considered an Armed Career Criminal. But the
government argues that at the time Hayes was sentenced his California burglary
convictions qualified under the “enumerated” clause of the ACCA, and that
Johnson cannot change his status.
This argument ignores the reality of Johnson. Hayes’ two California
burglary convictions can no longer qualify as “violent felonies” under either the
enumerated clause or the residual clause of the §924(e)(2)(b)(ii). Even if
Descamps had been a retroactive new rule, it would not have provided Hayes any
relief, because the burglary convictions still qualified under the residual clause.
Johnson’s holding that the residual clause is unconstitutional is what provides the
basis for relief for Hayes in this case. The government’s argument that a claim
was based on Descamps instead of Johnson in similar circumstances has been
rejected by other district courts. See United States v. Ladwig, 2016 WL 3619640,
Case No. 2:03-CR-00232RHW (E. D. Wash. June 28, 2016); United States v.
Navarro, 2016 WL 1253830, No. 2:10-CR-2104-RMP (E. D. Wash. March 10,
2016).
5

I conclude that the 188 month sentence violated due process because it
exceeds the 10-year statutory maximum for the federal offense of being a felon in
possession of a firearm.2 Hayes is nearing the completion of his 188 month
sentence, with an estimated release date of September 21, 2016; he is apparently
now housed at a residential re-entry center. I will therefore reduce his sentence to
time served.
Accordingly,
IT IS HEREBY ORDERED that the motion to vacate, set aside or correct
sentence [1] is granted.
IT IS FURTHER ORDERED that defendant’s sentence of imprisonment is
reduced to time served, and his term of supervised release is reduced to three years;
all other portions of his sentence remain as previously imposed.
IT IS FURTHER ORDERED that an amended Judgment is entered in
Case No. 4:02CR536 CDP today, and the Clerk of Court is also directed to docket
a copy of this Memorandum and Order in that criminal case.

______________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 10th day of August, 2016.
2

The five-year term of supervised release previously imposed is also invalid, as the maximum
term of supervised release for a felon in possession not covered by the ACCA is only three years.
Without the ACCA enhancement, Hayes’ sentencing guidelines would have recommended a
range of 110 to 137 months imprisonment.
6