United States District Court, E.D. Kentucky, Southern Division
MARCO A. HENDRICKSON, Petitioner,
GREGORY KIZZIAH, Respondent.
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE
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).
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.
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. §
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).
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).
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).
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).
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]
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).
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 ...