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.

The Appellate Lawyers Association welcomes newly confirmed Seventh Circuit Court of Appeals Judge Amy Coney Barrett as an esteemed new member of the organization. Judge Barrett has been a professor at Notre Dame Law School, where she teaches and researches in the areas of federal courts, constitutional law, and statutory interpretation, and practiced law at Miller, Cassidy, Larroca & Lewin in Washington, D.C.  She served as a law clerk for Justice Antonin Scalia of the United States Supreme Court and for Judge Laurence Silberman of the United States Court of Appeals for the District of Columbia Circuit. She received her Juris Doctor degree from Notre Dame Law School and her undergraduate degree from Rhodes College.

On November 15, 2017, the Appellate Lawyers Association and the South Asian Bar Association of Chicago will host a conversation with appellate strategist Kirk C. Jenkins, chair of the Appellate Task Force at Sedgwick LLP. Jenkins will discuss how data analytics can enhance appellate practices and whether data can help predict a case's result. Jenkins has focused his practice in appellate litigation for more than 20 years and has created a database containing approximately 275,00 data points from Illinois Supreme Court decisions from 1990 to 2016.

The event will be from 12:00 p.m. to 1:30 p.m. at the Union League Club of Chicago, 65 West Jackson Boulevard, Chicago, Illinois. Attendees to the event will receive one hour of MCLE credit. To register, please visit here. 

The Chicago Bar Association and the Chicago Bar Foundation will once again celebrate their Pro Bono Week from October 23 through October 27. Over the course of the week, there will be several complimentary events, including one titled “Justice: An Evening of Stories and Community” focusing on five-minute stories of justice from members of the crowd. That event will take place on Tuesday, October 24 from 6 to 8 p.m. at Revolution Brewing.

Another highlight of the week will be the 24th Annual Pro Bono and Community Service Fair, which will be presented by the Chicago Bar Association’s Young Lawyers Section. The fair provides the opportunity for attorneys and law students to meet with more than 40 different legal aid, pro bono, community service and mentoring organizations. The event will take place on Thursday, October 26 at the law firm of Kirkland & Ellis LLP (300 North State Street in Chicago) from 5 to 7 p.m.

To learn more about Pro Bono Week and to register, please visit here.

On October 23, the ALA will co-sponsor with the Diversity Scholarship Foundation and the Lesbian and Gay Bar Association of Chicago a fundraiser to support relief in Mexico and Puerto Rico after both have suffered tremendous damage from natural disasters. All profits raised from the event will be given in equal amounts to the Mexican Consul and the Puerto Rican Agenda.

The event will take place at Latinicity, 108 North State Street (Third Floor) in Chicago, beginning at 5 p.m. and ending at 7 p.m.

Guests at the event will include Illinois Congressman Luis V. Gutierrez and Carlos Martin Jimenez Macias, the Mexican General Consul in Chicago.

For more information about the event and to buy tickets, please click here.

On October 20, 2017, the Appellate Lawyers Association and the 7th Circuit Bar Association will present a panel discussion on significant cases recently decided by the United States Court of Appeals for the Seventh Circuit. The discussion will focus on civil, commercial, and criminal developments. It will also cover the Court’s recent en banc cases and Seventh Circuit decisions that will be decided this term by the United States Supreme Court. The event will be from 12:00 p.m. to 1:30 p.m. at the Union League Club of Chicago, 65 West Jackson Boulevard, Chicago, Illinois.

Our distinguished panelists will be Judge Gary Feinerman of the United States District Court for the Northern District of Illinois, Illinois Solicitor General David L. Franklin, and Michael A. Scodro, a partner at Mayer Brown and former Illinois Solicitor General. Scodro is also a past president of the Appellate Lawyers Association.

The Appellate Lawyers Association is excited to present this panel discussion with the 7th Circuit Bar Association. Attendees to the event will receive one hour of MCLE credit. Further details and instructions on how to register are available here. 

Former ALA President and Illinois Solicitor General Michael A. Scodro, now a partner at Mayer Brown, appeared on Chicago Tonight last night to discuss the "blockbuster" term for the United States Supreme Court. 

The discussion included Gill v. Whitford, a case involving the constitutionality of gerrymandering in Wisconsin, Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case involving a baker who refused to create a wedding cake for a same-sex couple and his right to free speech, and Janus v. AFSCME, a case involving union fair-share fees. 



If the embedded video does not work, you may watch here.

On September 28, 2017, the Illinois Appellate Court, Third District, entered an administrative order on the filing of briefs. According to the order, electronically filed briefs will be considered the official original brief filed in the appellate court. However, the parties must file five duplicate paper copies of all briefs. The paper copies must bear the electronic file stamp and be filed within five days of the electronically filed copy. Lastly, the paper copies must comply with all applicable Supreme Court rules, including the color cover requirement as detailed in Supreme Court Rule 341.

Below is a copy of the order.

On November 8, 2017, the Appellate Lawyers Association will be co-sponsoring an event titled “Benefit for Higher Education in Haiti” with the Haitian American Lawyers Association of Illinois, along with several other bar associations.

The event will take place at the Hyatt Regency in Chicago (151 East Wacker Drive). The reception begins at 5:30 p.m. followed by dinner and a program at 6:30 p.m.  All proceeds will benefit the United Council for Higher Education in Haiti, a not-for-profit 501(c)(3) organization created by the legal community for the construction of a center for higher education in Haiti.

To learn more about the event, please visit the link. Tickets are $150 per person with various sponsorships at higher levels. There will be a silent auction at the event, for which the organizers are seeking donations. In addition, they are seeking volunteers to serve on their Planning Committee. Please email Mail@UCHEH.org for more information or to volunteer. 

By Josh Wolff
Law Clerk to Hon. Eileen O'Neill Burke, Illinois Appellate Court, First District

On September 15, 2017, the Illinois Supreme Court entered an order, amending several Supreme Court rules, all to be effective on November 1, 2017. The amendments, in large part, concerned word limits of several appellate documents. Here is a brief summary of the amendments:

Rule 303A

Under Rule 303A, involving expedited and confidential proceedings under the Parental Notification of Abortion Act, a petitioner who appeals the circuit court’s denial of a judicial waiver under the Act may file a brief statement of facts and memorandum of law in support of her petition. Together, those documents may not exceed 15 pages or now, alternatively, 4,500 words.

Rule 306

Under Rule 306, involving permissive interlocutory appeals, specifically, interlocutory orders affecting the care and custody of, or the allocation of parental responsibilities for unemancipated minors, or the relocation of unemancipated minors, a petition must be filed in the appellate court. In conjunction with the petition, the petitioner may file a memorandum of law, which may not exceed 15 pages or now, alternatively, 4,500 words. Similarly, a memorandum of law by the respondent may not exceed 15 pages or now, alternatively, 4,500 words.

Rule 307

Under Rule 307, involving interlocutory appeals as of right, specifically those involving the temporary restraining orders, a petition must be filed in the appellate court. In conjunction with the petition, the petitioner may file a memorandum of law, which may not exceed 15 pages or now, alternatively, 4,500 words. Similarly, a memorandum of law by the respondent may not exceed 15 pages or now, alternatively, 4,500 words.

Rule 315

Under Rule 315, involving petitions for leave to appeal from the appellate court to the Supreme Court, the petition is limited to 20 pages, or now, alternatively, 6,000 words, excluding only the appendix. Similarly, the respondent’s answer, which is optional to file, is limited to 20 pages, or now, alternatively, 6,000 words, excluding only the appendix.

Rule 341

Under Rule 341, involving the general format of appellate briefs, reply briefs may not exceed 20 pages, or alternatively, now may not exceed 6,000 words, excluding the cover, the statement of points and authorities, the Rule 341(c) certificate of compliance, the certificate of service and any matters appended to the brief under Rule 342(a).

Also, cross-appellants and cross-appellees are granted 30 additional pages, or alternatively, now 9,000 words. The cross-appellant’s reply brief may not exceed 20 pages, or alternatively, now may not exceed 6,000 words.

Rule 367

Under Rule 367, involving petitions for rehearing, unless authorized by the court, those petitions must be limited to 27 pages or alternatively, now may not exceed 8,100 words. Answers to petitions are similarly limited to 27 pages or alternatively, now may not exceed 8,100 words. Lastly, a reply is limited to 10 pages or alternatively, now may not exceed 3,000 words.