By Su Wang,
Law Clerk to Justice Aurelia Pucinski, Illinois Appellate Court, First District
Haynes v. United States, No. 17-1680
(7th Cir. 2017), the Court of Appeals held that it lacked jurisdiction to
review the partial denial of a section 2255 (28 U.S.C. § 2255) motion to vacate
until after resentencing on certain counts.
1988, Stacy Haynes was convicted of 12 federal crimes after committing several
armed robberies in Iowa and Illinois. As to the Iowa robberies, Haynes was
convicted of three counts of interstate travel in aid of racketeering (18
U.S.C. § 1952). As to the Illinois robberies, he was convicted of three counts
of Hobbs Act robbery (18 U.S.C. § 1951). Haynes was also convicted of six
counts of using and carrying a firearm in furtherance of a crime of violence
(18 U.S.C. § 924(c)). Pursuant to 18 U.S.C. § 3559(c)(1), the Government sought
a mandatory life sentence on each count of Hobbs Act robbery and interstate
travel in aid of racketeering. The district court sentenced Haynes accordingly,
after finding that he had the requisite number of prior “serious violent
felonies” because of two prior residential burglary convictions in Illinois.
was unsuccessful on direct appeal and collateral attack under section 2255
until the United States Supreme Court made its decision in Johnson v. United States, 135 S. Ct. 2551 (2014), retroactive on
collateral review (Welch v. United States,
136 S. Ct. 1257 (2016)), and the Seventh Circuit allowed Haynes to pursue
another collateral attack. In Johnson,
the Supreme Court held that the definition of “violent felony” in the residual
clause of the Armed Career Criminal Act (18 U.S.C. § 924(e)(2)(B)(ii)) was
unconstitutionally vague. The residual clause defined “violent felony” to
include an offense that “involves conduct that presents a serious potential
risk of physical injury to another.”
the case at bar, the district court determined that Johnson, as construed in United
States v. Vivas-Ceja, 808 F.3d 719, 723 (7th Cir. 2015), and United States v. Cardena, 842 F.3d 959,
996 (7th Cir. 2016), implied the invalidity of another residual clause, one
that Haynes’s life sentences depend upon, i.e.,
18 U.S.C. § 3559(c)(2)(F)(ii). The district court did not set aside any of
Haynes’s convictions but concluded that his § 1952(a)(2) convictions should be
classified in the same manner as the § 1951 offense because Haynes’s interstate
travel “set the stage” for the robberies.
appeal, Haynes contended that interstate travel in aid of racketeering did not
satisfy the elements clause of § 924(c)(3)(A). The Seventh Circuit, however, declined
to consider the issue, noting that the resentencing ordered on the § 1951 and §
1952 convictions may affect the sentences on the § 924(c) convictions, and that
a defendant generally must wait until the entire prosecution is complete before
taking an appeal. Citing its agreement with five circuits holding that every
count in a multi-count situation must be resolved before the decision may be
appealed as to any count, the Seventh Circuit held that “whether a § 2255
proceeding concerns one count or many counts, when a district court orders
resentencing on any count, the decision is not final until the new sentence has
been imposed.” See United States v.
Hammer, 564 F.3d 628, 632-34 (3d Cir. 2009); United States v. Hayes, 532 F.3d 349, 352 (5th Cir. 2008); United States v. Futch, 518 F.3d 887,
894 (11th Cir. 2008); United States v.
Stitt, 459 F.3d 483, 485-86 (4th Cir. 2006); and United States v. Martin, 226 F.3d 1042, 1048 (9th Cir. 2000). Because
the district court had yet to resentence Haynes, the Seventh Circuit dismissed
Haynes’s appeal for want of jurisdiction.
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