By Su Wang,
Law Clerk to Justice Aurelia Pucinski, Illinois Appellate Court, First District 

In 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.

In 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.

Haynes 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.”

In 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.

On 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.