HINKSON v. WARDEN
ORDER DENYING WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 AND DIRECTING ENTRY OF FINAL JUDGMENT - Mr. Hinkson has failed to satisfy the savings clause of § 2255(e). The petition for a writ of habeas corpus is denied. The dismissal of this action is with prejudice. Judgment consistent with this Order shall now issue. (SEE ORDER.) Copy sent to petitioner via US Mail. Signed by Judge Jane Magnus-Stinson on 11/18/2021.(TPS)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
DAVID R. HINKSON,
ORDER DENYING WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241
AND DIRECTING ENTRY OF FINAL JUDGMENT
Petitioner David R. Hinkson, a federal inmate currently housed at the Butner Federal
Medical Center, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 while
incarcerated in this district. Mr. Hinkson contends that, under Mathis v. United States, 136 S. Ct.
2443 (2016), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), his sentences for solicitation to
commit murder under 18 U.S.C. § 373 should not run consecutively. 1 For the reasons explained
below, his petition is denied.
Section 2241 Standard
A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal
prisoner can challenge his conviction or sentence. See Shepherd v. Krueger, 911 F.3d 861, 862
(7th Cir. 2018); Webster v. Daniels, 784 F.3d 1123, 1124 (7th Cir. 2015) (en banc). Under very
limited circumstances, however, a prisoner may employ § 2241 to challenge his federal conviction
or sentence. Webster, 784 F.3d at 1124. This is because "[§] 2241 authorizes federal courts to
Mr. Hinkson does not raise a claim of actual innocence based on newly discovered evidence. See
dkts. 9, 26, and 28. See also Hinkson v. United States, No. 71881 (9th Cir. November 15, 2021)
(rejecting actual innocence argument based on witness's recantation).
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issue writs of habeas corpus, but § 2255(e) makes § 2241 unavailable to a federal prisoner unless
it 'appears that the remedy by motion [under § 2255] is inadequate or ineffective to test the legality
of [the] detention.'" Roundtree v. Krueger, 910 F.3d 312, 313 (7th Cir. 2018). Section 2255(e) is
known as the "savings clause." The Seventh Circuit has held that § 2255 is "'inadequate or
ineffective' when it cannot be used to address novel developments in either statutory or
constitutional law, whether those developments concern the conviction or the sentence." Id. (citing
e.g., In re Davenport, 147 F.3d 605 (7th Cir. 1998); Brown v. Caraway, 719 F.3d 583 (7th Cir.
2013); Webster, 784 F.3d at 1123). Whether § 2255 is inadequate or ineffective "focus[es] on
procedures rather than outcomes." Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002).
The Seventh Circuit construed the savings clause in In re Davenport, holding:
A procedure for postconviction relief can be fairly termed inadequate when it is so
configured as to deny a convicted defendant any opportunity for judicial
rectification of so fundamental a defect in his conviction as having been imprisoned
for a nonexistent offense.
In re Davenport, 147 F.3d at 611. "[S]omething more than a lack of success with a section 2255
motion must exist before the savings clause is satisfied." Webster, 784 F.3d at 1136. 2
Specifically, to fit within the savings clause following Davenport, a petitioner must meet
three conditions: "(1) the petitioner must rely on a case of statutory interpretation (because
invoking such a case cannot secure authorization for a second § 2255 motion); (2) the new rule
must be previously unavailable and apply retroactively; and (3) the error asserted must be grave
enough to be deemed a miscarriage of justice, such as the conviction of an innocent defendant."
In Webster, the Seventh Circuit held that the savings clause would permit consideration of "new
evidence that would demonstrate categorical ineligibility for the death penalty." Webster, 784 F.3d
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Davis v. Cross, 863 F.3d 962, 964 (7th Cir. 2017); Brown v. Caraway, 719 F.3d 583, 586 (7th Cir.
Factual and Procedural Background
In 2004, a jury found Mr. Hinkson guilty of 24 criminal tax violations. See United States
v. Hinkson, No. 3:02-cr-00142 (D. Idaho 2002). These counts stemmed from his operation of a
profitable water bottling company, WaterOz, whose product, Mr. Hinkson claimed, could "cure,
mitigate or treat human diseases including AIDS, alcoholism, Anthrax, cancer, gangrene, and
manic depression." Id. He owed more than $3.5 million in income and employment taxes.
While awaiting trial on the tax case, Mr. Hinkson was indicted for soliciting the murders
of three federal officials involved in the case: the District Court Judge who was supposed to preside
over the tax trial, the prosecuting Assistant United States Attorney, and the Internal Revenue
Service Special Agent. United States v. Hinkson, No. 1:04-cr-00127 (D. Idaho 2004). A jury found
him guilty on three counts of soliciting. Id.
The district court sentenced Mr. Hinkson to 516 months' imprisonment consistent with the
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].
Id. at No. 1:04-cr-00127, dkt 267 (Amended Judgment).
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Mr. Hinkson appealed the district court's denial of his motion for a new trial and upon
rehearing en banc, the Ninth Circuit affirmed the district court. United States v. Hinkson, 585 F.3d
1247, 1263–64, 1267 (9th Cir. 2009) (en banc). The Supreme Court denied certiorari. Hinkson v.
United States, 131 S. Ct. 2096 (2011).
Mr. Hinkson filed a motion to vacate his sentence under 28 U.S.C. § 2255, which was
denied. United States v. Hinkson, No. 1:12-cv-196 (D. Idaho 2012).
Mr. Hinkson then filed a subsequent petition for writ of habeas corpus under 28 U.S.C.
§ 2241 in the Eastern District of California, which was also denied. Hinkson v. Copenhaver, No.
1:23-cv-1571 (E.D. Cal. 2013).
In 2018, Mr. Hinkson filed an application for permission to file a second or successive
habeas corpus petition with the Ninth Circuit, seeking relief from his sentence under 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). The Ninth Circuit denied the motion. Id.
That same year, Mr. Hinkson filed another § 2241 petition in the Eastern District of
Kentucky claiming actual innocence and an incorrect sentence under Dimaya. Hinkson v. Gomez,
No. 1:18-cv-104 (E.D. Ky. 2018). The district court denied his motion because it did not meet the
"savings clause" of 28 U.S.C. § 2255(e) that would have authorized his § 2241 petition. Hinkson,
No. 1:18-cv-104. Mr. Hinkson appealed, but the Sixth Circuit affirmed. Hinkson v. Gomez, No.
18-5833 (6th Cir. 2019).
On July 19, 2019, Mr. Hinkson filed another application for leave to file a second or
successive petition in the Ninth Circuit. Hinkson v. United States, No. 19-71881 (9th Cir. 2019).
Again, he argued that Dimaya applies to his case, that newly discovered evidence supported his
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claim of actual innocence, and his sentence is incorrect. Id. This petition was denied on November
15, 2021. Id.
Mr. Hinkson contends that, under Mathis v. United States, 136 S. Ct. 2443 (2016), and
Sessions v. Dimaya, 138 S. Ct. 1204 (2018), his sentences for solicitation to commit murder under
18 U.S.C. § 373 should not run consecutively.
As an initial matter, while Mathis claims are cognizable in a § 2241 petition, Dimaya claims
are not. Chazen v. Marske, 938 F.3d 851, 862–63 (7th Cir. 2019). Dimaya is a constitutional case,
not a statutory interpretation case. See 138 S. Ct. at 1210 (the statute at issue violates due process
because it is unconstitutionally vague). Accordingly, any claim under Dimaya must be brought in
a § 2255 motion. In addition, Mr. Hinkson has already presented his Dimaya claim in a petition to
file a successive § 2255 motion, and the Ninth Circuit denied the application. 3 Mr. Hinkson cannot
relitigate this issue under § 2241 when the issue was resolved by the Ninth Circuit and the law has
not changed since that initial collateral review. Roundtree, 910 F.3d at 313.
The Ninth Circuit explained:
The application for authorization to file a second or successive 28 U.S.C. § 2255
motion contends that the district court imposed consecutive sentences on the
applicant’s convictions for solicitation to commit murder under 18 U.S.C. § 373
because it believed those convictions qualified as crimes of violence. The applicant
contends that he is entitled to resentencing because solicitation to commit murder
no longer qualifies as a crime of violence in light of Sessions v. Dimaya, 138 S. Ct.
1204 (2018). We need not determine whether solicitation to commit murder
remains a crime of violence after Dimaya or whether Dimaya is retroactively
applicable under the reasoning set forth in Welch v. United States, 136 S. Ct. 1257
(2016). The decision to run sentences concurrent or consecutive is within the
district court’s discretion and governed by 18 U.S.C. § 3584(a), which does not
contain language implicated by Dimaya.
No. 18-71748 (9th Cir. August 27, 2018).
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Mr. Hinkson next contends that his claim is cognizable in a § 2241 petition because it is a
Mathis claim. But Mr. Hinkson is not raising a Mathis claim. In Mathis, the Supreme Court held
that, to determine whether a prior conviction counts as a violent felony under the Armed Career
Criminal Act, courts apply a "categorical" approach that focuses entirely on the elements of the
crime of conviction and not on the facts underlying the conviction. 136 S.Ct. 2248. "If the elements
of the crime of conviction are broader than the elements of the generic version of the offense—
that is, if the crime of conviction criminalizes more behavior—then ACCA does not apply." United
States v. Anderson, 766 F. App'x 377, 380 (7th Cir. 2019) (citing Mathis, 136 S.Ct. at 2248).
In this case, Mr. Hinkson argues that his sentences should not have run consecutively
because they were not crimes of violence. But, the United States points out that such a distinction
does not exist. "[S]entencing court[s] enjoy broad discretion in deciding whether to run
concurrent or consecutive terms." United States v. Jenkins, 850 F.3d 912, 923 (7th Cir. 2017)
(citing United States v. Bour, 804 F.3d 880, 885 (7th Cir. 2015)). That discretion is set by statute:
If multiple terms of imprisonment are imposed on a defendant at the same time, or
if a term of imprisonment is imposed on a defendant who is already subject to an
undischarged term of imprisonment, the terms may run concurrently or
consecutively, except that the terms may not run consecutively for an attempt
and for another offense that was the sole objective of the attempt. Multiple terms
of imprisonment imposed at the same time run concurrently unless the court
orders or the statute mandates that the terms are to run consecutively. Multiple
terms of imprisonment imposed at different times run consecutively unless the
court orders that the terms are to run concurrently.
18 U.S.C. § 3584(a). Mathis is irrelevant to the district court's determination of whether to run
Mr. Hinkson's sentences consecutively or concurrently.
Instead, Mr. Hinkson's arguments are an attack on his sentence, and such attacks are not
cognizable in a § 2241 petition. Mr. Hinkson has not argued that his sentence is outside the
statutory maximum, nor that his guideline range was mandatory and incorrectly calculated.
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Thus, his claim is not cognizable here. Hawkins v. United States, 706 F.3d 820 (7th Cir. 2013).
The decision to impose his murder-solicitation sentences consecutively was within the discretion
of the district court. See 18 U.S.C. § 3584(a).
No relief is warranted under these circumstances.
Mr. Hinkson has failed to satisfy the savings clause of § 2255(e). The petition for a writ of
habeas corpus is denied. The dismissal of this action is with prejudice. Prevatte v. Merlak, 865
F.3d 894, 900 (7th Cir. 2017) ("[P]etition should be dismissed with prejudice under 28 U.S.C.
Judgment consistent with this Order shall now issue.
IT IS SO ORDERED.
DAVID R. HINKSON
BUTNER - FMC
BUTNER FEDERAL MEDICAL CENTER
P.O. BOX 1600
BUTNER, NC 27509
Brian L. Reitz
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
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