United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Senior United States District Judge
Lee Hayes, Jr., through counsel, has filed an amended motion
to vacate his federal conviction under 28 U.S.C. § 2255.
The matter is presently before the court on the threshold
issue of whether the motion is successive for purposes of
§ 2255(h). The issue has been fully briefed and is ripe
for decision. For the reasons that follow, the court
concludes that the motion is successive and that it must be
dismissed without prejudice for lack of jurisdiction.
was indicted by a federal grand jury in the Western District
of Virginia on January 19, 2006. Count One of the indictment
charged him with possession of a firearm after having been
convicted of a crime punishable by a term of imprisonment
exceeding one year, in violation of 18 U.S.C. §§
922(g)(1) and 924(e). Hayes entered a plea of guilty to that
count on July 7, 2006. Under the terms of the written plea
agreement, Hayes acknowledged that he would be subject to an
enhanced mandatory minimum term of imprisonment of fifteen
years under the Armed Career Criminal Act, 18 U.S.C. §
the guilty plea hearing conducted pursuant to Rule 11 of the
Federal Rules of Criminal Procedure, an Assistant United
States Attorney was called upon to offer evidence in support
of the defendant's plea of guilty. Proceeding by proffer,
the prosecutor summarized the government's evidence as
[T]he events that led to this charge took place on the 6th of
December, 2005, in the town of Vinton, in the Western
District of Virginia.
That night, Officer [Craig] Frye, of the Vinton Police
Department, was on patrol in what is known as a high-crime
area of the town. He observed Mr. Hayes seated in a vehicle.
He walked up to the vehicle, just to see what was going on,
spoke to Mr. Hayes, [and] eventually asked Mr. Hayes for
consent to pat him down.
Mr. Hayes stepped out of the vehicle at some point during
that and in fact did consent to being patted down. Almost
immediately the officer felt a pistol in Mr. Hayes'
pocket. He asked Mr. Hayes about it, after it had been
removed. Mr. Hayes said he had been in a dispute earlier,
where he had been punched, and had the pistol for his
Mr. Hayes is indeed a felon who had not received clemency. It
was a firearm that was found in Mr. Hayes' pocket,
designed to expel a projectile by means of explosion, and
that firearm had moved in interstate or foreign commerce. And
this is Mr. Hayes.
Plea Hr'g Tr. 29-30, Docket No. 88. In response to
subsequent questions from the court, the defendant and his
attorney indicated that they agreed with the prosecutor's
summary of the evidence. Id. at 30-31. The court
ultimately accepted Hayes' plea and adjudged him guilty
of the offense charged in Count One of the indictment.
Id. at 34.
appeared for sentencing on September 25, 2006. At that time,
the court concluded that Hayes qualified as an armed career
criminal. The court sentenced him to a term of imprisonment
of 180 months, pursuant to 18 U.S.C. § 924(e). Hayes did
not appeal his conviction or sentence.
August 6, 2010, Hayes filed a pro se motion under 28 U.S.C.
§ 2255, claiming that he was improperly sentenced as an
armed career criminal and that his defense attorney provided
ineffective assistance. The court conditionally filed the
motion and advised Hayes that the motion appeared to be
untimely. After granting Hayes an opportunity to present
additional argument on that issue, the court summarily
dismissed the motion as untimely filed. United States v.
Haves, No. 7:06CR00002, 2010 U.S. Dist. LEXIS 103487
(W.D. Va. Sept. 30, 2010). The United States Court of Appeals
for the Fourth Circuit denied a certificate of appealability
and dismissed Hayes' appeal. United States v.
Haves, 408 Fed.Appx. 758 (4th Cir. 2011).
November 16, 2011, Hayes filed another motion that was
docketed as a § 2255 motion, in which he sought
dismissal of the indictment based on the Fourth Circuit's
decision in United States v. Simmons, 649 F.3d 237
(4th Cir. 2011). The government moved to dismiss the motion
on the basis that it was successive. The court granted the
government's motion on March 30, 2012. United States
v. Haves. No. 7:06CR0002, 2012 U.S. Dist. LEXIS 46308
(W.D. Mar. 30, 2012).
27, 2016, Hayes, through counsel, moved to vacate his
sentence under § 2255 based on the Supreme Court's
decision in Johnson v. United States, 135 S.Ct. 2551
(2015). Hayes simultaneously filed a motion to stay
consideration of the petition pending a decision by the
Fourth Circuit as to whether Hayes was authorized to file a
successive § 2255 motion. On June 28, 2016, the Fourth
Circuit denied Hayes' motion for authorization "on
the ground that the holding in Johnson would entitle
Hayes to no relief." In re Hayes, No. 16-9460
(4th Cir. June 28, 2016). That same day, Hayes moved to
withdraw his § 2255 motion. The court granted the motion
to withdraw on June 29, 2016.
April 30, 2018, the government filed an omnibus motion for
voluntary disclosure of grand jury and other materials in 55
closed criminal cases, pursuant to its obligations under
Brady v. Maryland. 373 U.S. 83 (1963) and Giglio
v. United States. 405 U.S. 150 (1972). See United
States v. Keegan. No. 7:14CR00029, Dkt. No. 32 (W.D. Va.
Apr. 30, 2018). The motion sought permission to disclose
potential impeachment information concerning Craig Frye,
which had come to the government's attention between
April and June of 2017. Id. The motion also
requested that the Federal Public Defender's Office be
appointed to represent each of the defendants identified by
the government. The motion was granted on May 16, 2018.
Frye was the primary witness against Hayes, this case was not
included in the initial list of 55 cases provided by the
government. On September 20, 2018, the Federal Public
Defender's Office notified the United States
Attorney's Office that it believed disclosure may also be
required in the instant case. The government concurred with
that assessment. Accordingly, on September 24, 2018, the
government moved for voluntary disclosure of the relevant
materials and requested that ...