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United States v. Hayes

United States District Court, W.D. Virginia, Roanoke Division

January 4, 2019



          Hon. Glen E. Conrad Senior United States District Judge

         Harvey 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.


         Hayes 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. § 924(e).

         During 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 follows:

[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 protection.
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.

         Hayes 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.

         On 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).

         On 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).

         On June 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.

         On 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.

         Although 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 ...

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