United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.
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.
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unpublished per curiam opinion.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).
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.
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 (docket entry # 5). The case
is thus properly before this court for consideration on the
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
18 U.S.C. § 924(e)(2)(B) (emphasis added for
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 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.
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 previously imposed sentence violates
the constitution, and that he was only subject to the
ten-year statutory maximum sentence.
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 ...