Haynes v. United States

RICKY DOUGLAS HAYNES, JR., Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Case No: 6:15-cv-1392-Orl-28GJK

6:07-cr-54-Orl-28GJK

6:07-cr-73-28KRS

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

August 31, 2018

ORDER

Petitioner Ricky Douglas Haynes, Jr. is again before the Court seeking post-conviction relief pursuant to 28 U.S.C. § 2255, and again he has a legitimate complaint. In 2007, this Court sentenced Mr. Haynes on five criminal charges, and after Mr. Haynes established through an initial § 2255 petition that the sentence on one of those counts was illegal, the Court resentenced him in 2012. The Presentence Report (PSR) showed that Mr. Haynes qualified as a career offender under § 4B1.1 of the United States Sentencing Guidelines ("USSG" or "Guidelines") and that he fell within criminal history category VI, with a resulting advisory guideline range of 322-387 months. The Court and its officers—the prosecutor, defense counsel, and the probation officer—dropped the ball by failing to notice that the PSR incorrectly counted prior convictions in determining Mr. Haynes's career offender eligibility and criminal history category. No challenge to the improper inclusion of convictions was raised at that time. The failure to make such a challenge at the 2012 resentencing constituted ineffective assistance of counsel in violation of the Sixth Amendment, entitling Mr. Haynes to relief on his second § 2255 petition.

I. Procedural History

On April 18, 2007, the Government filed an indictment in case number 6:07-cr-54 [hereinafter Criminal Case 6:07-cr-54], charging Mr. Haynes with one count of possession with intent to distribute five grams or more of crack cocaine,¹ one count of using and carrying a firearm in furtherance of a drug trafficking crime,² and one count of possession of a firearm by a convicted felon.³ (Criminal Case 6:07-cr-54, Doc. 1). One month later, on May 16, 2007, the Government indicted Mr. Haynes in a second case—number 6:07-cr-73 [hereinafter Criminal Case 6:07-cr-73]—on two counts of possession and distribution of five grams or more of crack cocaine.⁴ (Criminal Case 6:07-cr-73, Doc. 1). On May 24, 2007, Criminal Case 6:07-cr-73 was transferred to the undersigned for consideration with Criminal Case 6:07-cr-54. (Criminal Case 6:07-cr-73, Doc. 17). From then on, the Court managed the cases together, though they were never formally consolidated. Mr. Haynes entered guilty pleas to all counts in both cases with no written plea agreement. (See Criminal Case 6:07-cr-54, Doc. 42; Criminal Case 6:07-cr-73, Doc. 44).

A. Initial Sentence—September 10, 2007

Pending sentencing, the Court ordered the Probation Office to prepare a PSR.⁵ On September 10, 2007, after review of the PSR, the Court held a sentencing hearing. (See Criminal Case 6:07-cr-54, Docs. 56 & 156; Criminal Case 6:07-cr-73, Docs. 35 & 43).

The PSR calculated a guideline score showing that Mr. Haynes had a total offense level of 29 and fell within criminal history category VI. (See PSR ¶¶ 44 & 63). These calculations resulted in a guideline sentencing range of 151-188 months. But the Probation Office also determined that Mr. Haynes was eligible to receive an enhanced sentence under either the Armed Career Criminal Act ("ACCA")⁶ or the career offender provisions of USSG § 4B1.1. (Id. ¶¶ 45-47). Because the § 4B1.1 career offender enhancement resulted in the highest range under the Guidelines, the Probation Office applied that enhancement. (Id. ¶ 47). With application of § 4B1.1's career offender provisions, Mr. Haynes remained in criminal history category VI⁷ and scored an offense level of 37; that level was then reduced by 3 points pursuant to USSG § 3E1.1(a) and (b) for acceptance of responsibility, giving Mr. Haynes a total offense level of 34. (Id. ¶ 46). With these adjustments, the guideline sentencing range increased to 262-327 months, and after addition of the minimum consecutive 60-month penalty required by 18 U.S.C. § 924(c) for Count Two of Criminal Case 6:07-cr-54, the range became 322-387 months. (Id.).

Section 4B1.1 clearly spells out the criteria for enhancement as a career offender. To qualify as a career offender, the Government must establish, among other things, that "the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." USSG § 4B1.1(a). In this case, the PSR identified three prior convictions to satisfy this requirement: (1) resisting arrest with violence in Case No. 94-32187 in the Circuit Court, Brevard County, Florida (sentencing date September 17, 1996); (2) carrying a concealed firearm in Case No. 99-1346 in the Circuit Court, Brevard County, Florida (sentencing date February 7, 2002); and (3) possession with intent to distribute cocaine base in Case No. 6:00-cr-182 in the United States District Court, Middle District of Florida, Orlando Division (sentencing date April 20, 2001). (PSR ¶ 45).

Mr. Haynes's attorney objected to the proposed finding that Mr. Haynes was eligible to be sentenced under the ACCA but did not object to Mr. Haynes being qualified for an enhanced sentence as a career offender under USSG § 4B1.1. (Criminal Case 6:07-cr-54, Doc. 156 at 4-8, 13; Criminal Case 6:07-cr-73, Doc. 43 at 4-8, 13). The Court did not sentence Mr. Haynes under the ACCA but instead applied the career offender provisions of USSG § 4B1.4(b) as recommended in the PSR. The Court sentenced Mr. Haynes to three concurrent terms of 322 months in prison in Criminal Case 6:07-cr-54, (Doc. 57 in that case), and to two concurrent terms of 322 months in prison in Criminal Case 6:07-cr-73, (Doc. 36 in that case). The sentences in both cases ran concurrent to one another, for a total of 322 months' imprisonment.

B. First Appeal—2007 to 2008

Mr. Haynes appealed the judgment and sentence, and appellate counsel filed an Anders⁸ brief. During the pendency of Mr. Haynes's appeal, the Eleventh Circuit reconsidered one of its prior decisions and held that a prior conviction in Florida for carrying a concealed firearm—one of the three predicate career offender offenses listed in Mr. Haynes's PSR—is not a "crime of violence" within the meaning of the career offender provisions of §§ 4B1.1 and 4B1.2 of the Guidelines. United States v. Archer, 531 F.3d 1347 (11th Cir. 2008); see also United States v. Archer, 243 F. App'x 564 (11th Cir. 2007) (initial opinion holding that carrying a concealed weapon does constitute a "crime of violence"). But aside from his prior carrying-a-concealed-firearm conviction, Mr. Haynes ostensibly still qualified as a career offender because the other two predicate prior convictions—resisting arrest with violence and possession with intent to distribute crack cocaine—appeared to be sufficient predicate offenses for career offender designation under USSG § 4B1.1. See United States v. Rolon, 445 F. App'x 314, 328-29 (11th Cir. 2011) (resisting an officer with violence qualifies as a crime of violence for career offender sentencing); USSG § 4B1.2(b) (defining "controlled substance offense" for purposes of § 4B1.1).

On October 22, 2008, the Eleventh Circuit Court of Appeals, per curiam, affirmed Mr. Haynes's convictions and sentences, finding "no arguable issues of merit." United States v. Haynes, 297 F. App'x 856, 857 (11th Cir. 2008).

C. First 28 U.S.C. § 2255 Petition—July 6, 2009

On July 6, 2009, following his unsuccessful appeal, Mr. Haynes filed his first 28 U.S.C. § 2255 petition seeking relief on various grounds. (Civil Case 6:09-cv-1157, Doc. 1). Two of the grounds raised in the petition are germane here: (1) that the sentence imposed for the offense of felon in possession of a firearm (Count Three in Criminal Case 6:07-cr-54) exceeded the ten-year statutory maximum for that crime; and (2) that counsel was ineffective in not objecting to all three prior convictions forming the basis for career offender status. (Civil Case 6:09-cv-1157, Doc. 1 at 7 & Doc. 4 at 2-5). As to the latter ground, Mr. Haynes made a general and vague argument that the Government did not prove that he had been convicted of the qualifying felonies and that he had not actually committed those crimes. (Civil Case 6:09-cv-1157, Doc. 4 at 3-5). In other words, his challenge was only that the Government had not proved that he had committed the qualifying offenses.

The Government conceded that the sentence for felon in possession of a firearm was illegal and that Mr. Haynes should be resentenced for that offense. (Civil Case 6:09-cv-1157, Doc. 12 at 12). As to all other claims, the Government objected. (Civil Case 6:09-cv-1157, Doc. 12 at 9-13 & Doc. 21 at 7-11). In a written order, the Court addressed all of the issues Mr. Haynes raised in his § 2255 petition, as supplemented. (Civil Case 6:09-cv-1157, Doc. 36).⁹ The Court granted relief to the extent that the sentence imposed for possession of a firearm by a convicted felon was illegal but denied relief on all other claims.(See id.). The order directed the magistrate judge to appoint counsel to represent Mr. Haynes at the resentencing hearing, scheduled for April 26, 2012. (See id. at 17).

D. Resentencing Hearing—April 26, 2012

During the resentencing proceeding, newly appointed defense counsel asked the Court to restructure the sentence to conform to the Court's original sentencing intent. (See Criminal Case 6:07-cr-54, Doc. 133). Counsel urged the Court to accomplish this by modifying the sentences imposed in Criminal Case 6:07-cr-54 to a 262-month sentence for Count One, a consecutive 60-month sentence for Count Two, and a concurrent 120-month sentence for Count Three. (Id. at 2-3). Having determined that Mr. Haynes's other claims were meritless, the Court was cautious about modifying the sentences imposed in any other count. But pursuant to United States v. Watkins, 147 F.3d 1294 (11th Cir. 1998), the Court ultimately agreed to restructure the sentences in Criminal Case 6:07-cr-54 and imposed the...