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United States v. Hayes

United States District Court, E.D. Wisconsin

March 31, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
GREGORY WESLEY HAYES, Defendant.

DECISION AND ORDER

HON. RUDOLPH T. RANDA, U.S. District Judge.

This matter is before the Court on pro se Defendant Gregory Wesley Hayes’ motion pursuant to 18 U.S.C. §§ 3583(b) and (c) to modify the conditions of his supervised release. (ECF No. 544.) Hayes cites United States v. Thompson, 777 F.3d 368 (7th Cir. 2015), and related cases. Hayes also filed a motion for reconsideration (ECF No. 552) of this Court’s previous order denying his motion to dismiss.

RECONSIDERATION

Hayes filed his motion to modify the conditions of supervised release on January 28, 2016. On February 3, the Court ordered Plaintiff United States to file a response within 30 days. The government filed its response on March 4, but did not serve a copy on Hayes, so he was unaware that the response had been filed. On March 9, Hayes filed a motion to dismiss for want of prosecution premised on his belief that the government had not responded to his motion. On March 15, the Court denied Hayes’ motion to dismiss and ordered the government to mail a copy of its response to Hayes.

Hayes now moves for reconsideration of the denial of his motion to dismiss, contending that the government’s response was not timely filed. Rule 45(a) of the Federal Rules of Criminal Procedure governs the calculation of time, and it provides that the day of the event triggering the time period is excluded. See Fed. R. Crim. P. 45(a)(1)(A). Therefore, the February 3 date of the Court’s Order was excluded, and the 30-day time period began to run on February 4. Thirty days from February 4 was March 5 (February had 29 days this year). Because March 5 was a Saturday, the 30-day period continued to run until the end of the next day that was not a Saturday, Sunday, or legal holiday. See Fed. R. Crim. P. 45(a)(1)(C). The government’s filing deadline was March 7, thus its March 4 response was timely. Hayes’ motion for reconsideration is denied.

MODIFICATION OF SUPERVISED RELEASE CONDITIONS

In his motion for relief pursuant to 18 U.S.C. §§ 3583(b) and (c), Hayes states that this Court should vacate many of the conditions of supervised release because the sentencing Court did not explain how they comported with the sentencing factors listed in § 3553(a) and that they are overbroad. He also states that clarification must be provided regarding the meaning of “association, ” citing the condition that he not associate or communicate with any member, prospect, or associate member of the Black Gangsters Disciples or any other gang.

The United States indicates that analysis of Hayes’ claim based on the facts is impossible because he has not provided a transcript and that even if he had, the Thompson line of cases is not retroactive under Teague v. Lane, 489 U.S. 288, 299-301 (1989).

Factual Background

In March 1996, Hayes pleaded guilty to one count of conspiracy to possess with intent to distribute cocaine, three counts of possession with intent to distribute cocaine, and seventeen counts of use of a telephone to facilitate the commission of a felony. (Docket No. 201.) On February 28, 1997, United States District Judge Thomas J. Curran sentenced him to 336 months in prison, to be followed by five years of supervised release. Judgment was entered on March 5, 1997, followed by an amendment of that Judgment on March 10, 1997, to reflect the proper Guideline imprisonment range. (Docket Nos. 364, 367.)

Hayes appealed the denial of a motion to suppress evidence obtained through a wiretap and a wiretap extension, the application of several sentencing enhancements, and the district court’s calculation of his relevant conduct. United States v. Adams, 125 F.3d 586, 595-97 (7th Cir. 1997). Hayes’ conviction was affirmed on appeal. Id. at 597.

Hayes filed a motion pursuant to § 2255 which was summarily denied. (Docket Nos. 415, 416.) Hayes’ appeal of that decision was dismissed. (Docket No. 426.) Hayes also filed a motion for resentencing, which was denied initially and upon reconsideration. (Docket Nos. 451-453, 457.) That denial was reaffirmed on appeal. (ECF No. 465.)[1]

On February 27, 2008, the action was reassigned to this Court. Hayes filed a motion for clarification of the original judgment. (ECF No. 515), which this Court denied (ECF No. 516). Hayes’ appeal was dismissed as untimely. (ECF No. 525.)

Hayes filed a motion to reduce his sentence pursuant to U.S.S.C. Amendment 782 (ECF No. 526) which this Court granted to the extent that his sentence of imprisonment was reduced from 336 months to 312 months, with all provisions of the March 5, 1997, judgment to remain in effect (ECF No. 539). ...


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