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Hendrickson v. Kizziah

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

May 28, 2019

MARCO A. HENDRICKSON, Petitioner,
v.
GREGORY KIZZIAH, Respondent.

          MEMORANDUM OPINION & ORDER

          GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE

         Federal inmate Marco A. Hendrickson has filed original and supplemental pro se petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. [R. 1; R. 6.] This matter is before the Court to conduct the initial screening of the petition pursuant to 28 U.S.C. § 2243. Alexander v. Northern Bureau of Prisons, 419 Fed.Appx. 544, 545 (6th Cir. 2011).[1]

         I

         In December 2008, Hendrickson and two accomplices robbed a restaurant in Tulsa, Oklahoma at gunpoint. After one accomplice fired his gun several times into the ceiling and ordered everyone to get down on the floor, Hendrickson told an employee to open the register or he would shoot someone. The trio made off with $1, 200.00 but were arrested shortly thereafter. A grand jury issued an indictment charging all three participants with committing and aiding and abetting Hobbs Act robbery in violation of 18 U.S.C. §§ 1951, 2. Hendrickson was also charged with possessing a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c). Two months later, Hendrickson agreed to plead guilty to both charges without a written agreement.

         The presentence report concluded that Hendrickson's offense level was 24 and his criminal history was category VI. However, it further determined that he qualified as a career offender under § 4B1.1 of the Sentencing Guidelines because he had two or more prior convictions for a “crime of violence” or for a “controlled substance offense.” Specifically, he had prior convictions in Oklahoma for possessing an illegal sawed-off shotgun, escaping from a county jail, and possessing marijuana with intent to distribute. Application of the career offender enhancement raised his offense level to 32 but did not affect his criminal history category. Accounting for Hendrickson's acceptance of responsibility, application of the enhancement increased his guidelines range for the Hobbs Act robbery charge from 77 to 96 months to 151 to 188 months imprisonment. In addition, Hendrickson's accomplice had discharged a firearm during the robbery . Because those actions were attributable to Hendrickson as an aider and abettor, he was subject to a ten-year mandatory minimum sentence on the § 924(c) count. 18 U.S.C. § 924(c)(1)(A)(iii).

         In April 2009, the trial court sentenced Hendrickson at the bottom end of the guidelines range to 151 months imprisonment on the robbery charge and to a consecutive term of 120 months imprisonment on the § 924(c) conviction. Hendrickson did not file a notice of appeal. He later asserted that he had directed his attorney to do so, but his counsel stated that he had not. Hendrickson's untimely appeal was later dismissed for lack of jurisdiction by the Tenth Circuit Court of Appeals. United States v. Hendrickson, No. 4: 08-CR-197-JHP-2 (N.D. Okl. 2008).

         In April 2010, Hendrickson filed a motion to vacate pursuant to 28 U.S.C. § 2255. He contended that his counsel was ineffective because he failed to file a notice of appeal as directed, did not challenge the career offender enhancement, and did not challenge the application of the ten-year mandatory minimum sentence pursuant to § 924(c)(1)(A)(iii). The trial court denied that motion in January 2012, finding the first assertion not credible and the second two to be without legal merit. United States v. Hendrickson, No. 4: 08-CR-197-JHP-2, 2012 WL 262985 (N.D. Okl. Jan. 30, 2012).

         The Tenth Circuit granted a certificate of appealability in light of the Supreme Court's intervening decision in Alleyne v. United States, 570 U.S. 99 (2013) as to the claim regarding § 924(c)'s 10-year mandatory minimum. Alleyne held that the facts in § 924(c)(1)(A) which increase a mandatory minimum sentence, such as the discharge of a firearm in Hendrickson's case, are elements of the offense which must be found by the jury. Id. at 113-15. But because Alleyne was decided long after Hendrickson was indicted and pleaded guilty, the Tenth Circuit found that his counsel was not ineffective for failing to anticipate its holding. The court further concluded that before Alleyne was decided, “although the Sixth Amendment does entitle a defendant, like Mr. Hendrickson, to notice in an indictment of the elements of the crime with which he is charged, it does not guarantee him the right to notice of facts or theories of liability that merely support sentencing enhancements.” Accordingly, in light of the law in effect at the time of sentencing, application of the mandatory minimum was not inappropriate even though the indictment did not advise Hendrickson that he was subject to a sentencing enhancement as an aider or abettor to his accomplice's discharge of a firearm. United States v. Hendrickson, 592 Fed.Appx. 699, 701-05 (10th Cir. 2014).

         Following the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015) and upon permission from the Tenth Circuit, in 2016 Hendrickson filed a second motion under § 2255 challenging application of the career offender enhancement to his sentence. He contended that that his prior convictions for escape and possession of a sawed off shotgun could only qualify as “crimes of violence” under the residual clause found in U.S.S.G. § 4B1.2(a)(2), and that Johnson's invalidation of the similarly-worded residual clause found in 18 U.S.C. § 924(e)(2)(B) should extend to the comparable guidelines provision. But following the Supreme Court's decision in Beckles v. United States, 137 S.Ct. 886 (2017), the trial court found that contention to be without merit and denied the petition. United States v. Hendrickson, No. 4: 08-CR-197-JHP-2, 2017 WL 2405374 (N.D. Okl. June 2, 2017).

         II

         A

         Through his original and supplemented petitions in this matter, Hendrickson asserts variations of the two claims he asserted in his first and second motions under § 2255. In his original § 2241 petition, Hendrickson contends that his § 924(c) sentence was improperly enhanced to a ten-year mandatory minimum under § 924(c)(1)(A)(iii) because under Alleyne that enhancement and the facts supporting it had to be set forth in the indictment and found by a jury. [R. 1 at 2, 5-8]

         But Hendrickson may not assert this claim in a § 2241 petition. A prisoner may challenge the enhancement of his federal sentence in a § 2241 petition only in a narrow set of circumstances. To qualify, the petitioner must (1) have been sentenced under a mandatory guidelines regime before the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005) rendered the Sentencing Guidelines merely advisory; (2) point to a Supreme Court decision-issued after the petitioner's sentence became final and which is retroactively applicable to cases on collateral review-which establishes that as a matter of statutory interpretation one or more of his prior convictions were not for offenses that could properly be used to enhance his federal sentence; and (3) establish that the new decision could not have been invoked in an initial or successive § 2255 motion. Hill v. Masters, 836 F.3d 591, 595, 599-600 (6th Cir. 2016).

         Hendrickson does not meet these requirements. His sentence was imposed in 2009, long after Booker had rendered the sentencing guidelines advisory. A challenge to the enhancement of his sentence therefore fails to satisfy Hill's threshold requirement for cognizability. See Arroyo v. Ormond, No. 6: 17-CV-69-GFVT (E.D. Ky. 2017), aff'd, No. 17-5837 (6th Cir. April 6, 2018) (“Arroyo was sentenced in October 2006, after the Supreme Court's decision in Booker . . . On this basis alone, Arroyo's claim does not fall within Hill's limited exception for bringing a § 2241 habeas petition to challenge a federal sentence.”); Contreras v. Ormond, No. 6: 17-CV-329-GFVT (E.D. Ky.), aff&#3 ...


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