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Hinkson v. C. Gomez

United States District Court, E.D. Kentucky, Southern Division, London

July 19, 2018

DAVID ROLAND HINKSON PETITIONER
v.
C. GOMEZ, Acting Warden RESPONDENT

          MEMORANDUM OPINION AND ORDER

          David L. Bunning United States District Judge

         Petitioner 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         In 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.

         In May 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 2002).

         In 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 2004).

         In June 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 (2011).

         Hinkson's 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).

         On June 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).

         Hinkson's 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 case.

         II. ANALYSIS

         The 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 ...


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