United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
L. Bunning United States District Judge
David Roland Hinkson is an inmate at the United States
Penitentiary (“USP”)-McCreary in Pine Knot,
Kentucky. Proceeding without a lawyer, Hinkson filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. (Doc. # 1). This matter is before the Court to
conduct an initial screening of Hinkson's petition. 28
U.S.C. § 2243; Alexander v. N. Bureau of
Prisons, 419 Fed.Appx. 544, 545 (6th Cir. 2011). For the
reasons set forth below, the Court must deny relief.
FACTUAL AND PROCEDURAL BACKGROUND
2002, Hinkson was indicted by a federal grand jury in the
United States District Court for the District of Idaho for
various financial crimes, including money laundering, income
tax evasion, failure to file income tax returns, and failure
to collect and pay payroll taxes (his “tax
case”). United States v. Hinkson, No.
3:02-cr-00142-BLW-RCT (D. Idaho 2002). While he was awaiting
trial on his tax case, a federal grand jury in Idaho returned
an eleven-count indictment against Hinkson for soliciting the
murders of three federal officials involved in the tax case:
the United States District Judge presiding over the case, the
prosecuting Assistant United States Attorney
(“AUSA”), and the IRS Special Agent assigned to
the case (his “murder-solicitation case”).
United States v. Hinkson, No. 1:04-cv-127-RCT-1 (D.
Idaho 2004). The first three counts charged Hinkson with
soliciting James Harding to kill the three federal officials
in violation of 18 U.S.C. § 373 in January 2003. Counts
four through six charged that Hinkson made a second request
to Harding in March 2003. Counts seven through nine charged
Hinkson with soliciting Elven Joe Swisher to murder these
same three individuals in December 2002 or January 2003.
Counts ten and eleven charged Hinkson with threatening to
kill the children of the AUSA and the IRS Special Agent in
violation of 18 U.S.C. § 115. Id.
2004, a jury found Hinkson guilty in his criminal tax trial.
Sentencing in Hinkson's tax case was continued until the
conclusion of his murder-solicitation trial. United
States v. Hinkson, No. 3:02-cr-00142-BLW-RCT (D. Idaho
January 2005, the jury in Hinkson's murder-solicitation
trial acquitted Hinkson on counts one through three, ten, and
eleven, and were unable to reach a verdict on counts four
through six. However, the jury convicted Hinkson on counts
seven through nine, the counts involving his solicitation of
Swisher to murder the three federal officials. United
States v. Hinkson, No. 1:04-cv-127-RCT-1 (D. Idaho
2005, the court sentenced Hinkson in both cases to a total
term of imprisonment of 516 months. Specifically,
Hinkson's sentence breaks down as follows:
The total term in [the tax case] consists of: terms of 12
months each on counts 1-3, 17 & 26; terms of 60 months
each on counts 4-16; and terms of 120 months each on counts
31, 33-38, 40-42. All such terms in [the tax case] shall be
served concurrently with each other but consecutive to the
imprisonment imposed in [the murder-solicitation case]. The
total term in [the murder solicitation case] consists of
terms of 120 months each on counts 7, 8 and 9, which shall
run consecutively to one another and consecutively to
criminal [tax case]. An additional 36 months shall run
consecutively to counts 7, 8 and 9 pursuant to 18 U.S.C.
§ 3147. The total imprisonment term of 396 months
imposed in [the murder-solicitation case] shall not begin to
run until the Defendant has completed service of the total
imprisonment term of 120 months imposed in [the tax case].
United States v. Hinkson, No. 3:02-cr-00142-BLW-RCT
(D. Idaho 2002) (Docs. # 370, 374 therein); United States
v. Hinkson, No. 1:04-cv-127-RCT-1 (D. Idaho 2004) (Docs.
# 266, 267 therein). Hinkson's motion for a new trial in
his murder-solicitation case was denied by the trial court.
United States v. Hinkson, No. 1:04-cv-127-RCT-1 (D.
Idaho 2004) (Doc. # 244 therein). Although a divided
three-judge panel of the Ninth Circuit reversed the denial of
Hinkson's motion for a new trial, United States v.
Hinkson, 526 F.3d 1262 (9th Cir. 2008), upon rehearing,
an en banc panel of the Ninth Circuit vacated the three-judge
panel decision and affirmed the trial court. United
States v. Hinkson, 585 F.3d 1247, 1263-64, 1267 (9th
Cir. 2009) (en banc). The United States Supreme Court denied
certiorari. Hinkson v. United States, 131 S.Ct. 2096
motion to vacate, set aside or correct his sentence filed
pursuant to 28 U.S.C. § 2255 was denied and his request
for a certificate of appealability was denied by the United
States Court of Appeals for the Ninth Circuit. United
States v. Hinkson, No. 1:12-cv-196-RCT (D. Idaho 2012)
(Docs. # 15, 20 therein). Hinkson's subsequent petition
for a writ of habeas corpus under 28 U.S.C. § 2241,
filed in the United States District Court for the Eastern
District of California, was also denied, as was his request
for a certificate of appealability. Hinkson v.
Copenhaver, No. 1:13-cv-1571-AWI-JLT (E.D. Calif. 2013).
14, 2018, Hinkson filed an Application for Permission to File
a Second or Successive Habeas Corpus Petition with the United
States Court of Appeals for the Ninth Circuit, seeking relief
from his sentence pursuant to the United States Supreme
Court's decisions in Johnson v. United States,
135 S.Ct. 2551 (2015) and Sessions v. Dimaya, 138
S.Ct. 1204 (2018). Hinkson v. United States, No.
18-71748 (9th Cir. 2018).
current § 2241 petition filed in this Court argues that
he is entitled to relief because: (1) with respect to the
solicitation of murder charges for which he was convicted, he
is “actually innocent” of those convictions
because they should have been brought as one charge, not
three; (2) solicitation to commit murder is not a crime of
violence; and (3) because solicitation is not a crime of
violence, his 10-year sentences for his three solicitation
convictions should run concurrently, thus his 30-year
sentence in his solicitation case should be reduced to 10
years and should run concurrent with his sentence in his tax
Court conducts an initial review of habeas corpus petitions.
28 U.S.C. § 2243; Alexander, 419 Fed.Appx. at
545. A petition will be denied “if it plainly appears
from the petition and any attached exhibits that the
petitioner is not entitled to relief.” Rule 4 of the
Rules Governing § 2254 Cases in the United States
District Courts (applicable to § 2241 petitions pursuant
to Rule 1(b)). The Court evaluates Hinkson's petition
under a more lenient standard because he is not represented
by an attorney. Erickson v. Pardus, 551 U.S. 89, 94
(2007). At this stage of the proceedings, the ...