Hinkson v. Gomez
Filing
5
MEMORANDUM OPINION & ORDER: (1) Petitioner David Roland Hinkson's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. # 1) is DENIED; (2) Hinkson's motion to bring new Supreme Court precedent to the attention of the Court (Doc. # 4 ) is DENIED AS MOOT; (3) This action is DISMISSED and STRICKEN from the Court's active docket; and (4) A separate Judgment shall be entered contemporaneously herewith. Signed by Judge David L. Bunning on 07/19/2018.(KJA)cc: COR, mailed paper copy to pro se filer via US Mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CIVIL ACTION NO. 18-104-DLB
DAVID ROLAND HINKSON
VS.
PETITIONER
MEMORANDUM OPINION AND ORDER
C. GOMEZ, Acting Warden
RESPONDENT
***
***
***
***
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 F. App’x 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
1
assigned to the case (his “murder-solicitation case”). United States v. Hinkson, No. 1:04cv-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]
2
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
3
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 F. App’x 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 Court accepts the petitioner’s
factual allegations as true and construes all legal claims in his favor. Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555-56 (2007).
Hinkson’s claims raised in his § 2241 petition are simply not the kind which may
be pursued under § 2241. A § 2241 petition may typically only be used as a vehicle for
challenges to actions taken by prison officials that affect the manner in which the
prisoner’s sentence is being carried out, such as computing sentence credits or
4
determining parole eligibility. Terrell v. United States, 564 F.3d 442, 447 (6th Cir. 2009).
A federal prisoner who instead wishes to challenge the legality of his conviction or
sentence must file a motion under § 2255. United States v. Peterman, 249 F.3d 458, 461
(6th Cir. 2001) (explaining the distinction between a § 2255 motion and a § 2241 petition).
A § 2241 petition may not be used for this purpose because it does not function as an
additional or alternative remedy to the one available under § 2255.
Hernandez v.
Lamanna, 16 F. App’x 317, 320 (6th Cir. 2001).
The “savings clause” of 28 U.S.C. § 2255(e) creates an extraordinarily narrow
exception to this prohibition if the remedy afforded by § 2255 is “inadequate or ineffective”
to test the legality of the prisoner’s detention. Truss v. Davis, 115 F. App’x 772, 773-74
(6th Cir. 2004). Establishing that the § 2255 remedy is inadequate or ineffective is a high
burden for a petitioner to meet, as “[t]he circumstances in which § 2255 is inadequate and
ineffective are narrow.” See Peterman, 249 F.3d at 461. A motion under § 2255 is not
“inadequate or ineffective” simply because the prisoner’s time to file a § 2255 motion has
passed; he did not file a § 2255 motion; or he did file such a motion and was denied relief.
Copeland v. Hemingway, 36 F. App’x 793, 795 (6th Cir. 2002); Taylor v. Gilkey, 314 F.3d
832, 835 (7th Cir. 2002) (holding that § 2241 is available “only when a structural problem
in § 2255 forecloses even one round of effective collateral review ...”). In other words,
prisoners cannot use a habeas petition under § 2241 as yet another “bite at the apple.”
Hernandez, 16 F. App’x at 360.
Rather, to properly invoke the savings clause, the petitioner must be asserting a
claim that he is “actually innocent” of the underlying offense by showing that, after the
petitioner’s conviction became final, the Supreme Court re-interpreted the substantive
terms of the criminal statute under which he was convicted in a manner that establishes
5
that his conduct did not violate the statute. Wooten v. Cauley, 677 F.3d 303, 307-08 (6th
Cir. 2012) (citing Peterman, 249 F.3d at 461-62); Hayes v. Holland, 473 F. App’x 501,
501-02 (6th Cir. 2012) (“To date, the savings clause has only been applied to claims of
actual innocence based upon Supreme Court decisions announcing new rules of statutory
construction unavailable for attack under section 2255.”). The Supreme Court’s newly
announced interpretation must, of course, be retroactively applicable to cases on
collateral review. Wooten, 677 F.3d at 308.
Hinkson’s first claim is that he is “actually innocent” of his conviction of three
separate counts of solicitation to commit murder because these counts should have
merged into one charge of the indictment rather than three separate charges. But,
Hinkson’s claim does not rely on any Supreme Court decision announcing a new,
retroactively applicable rule of statutory construction, but is instead a claim of ordinary
trial error which could have and must have been pursued on direct appeal or in an initial
motion under § 2255. Cf. Mallard v. United States, 82 F. App'x 151, 153 (6th Cir.2003);
Jameson v. Samuels, 555 F. App’x 743, 746 (10th Cir. 2014).
Even if this were not so, his argument that he is entitled to relief based on the
United States Court of Appeals for the First Circuit’s decision in United States v. Gordon,
875 F.3d 26 (1st Cir. 2017) fails on the merits. In Gordon, the First Circuit analyzed 18
U.S.C. § 1958(a), the federal statute prohibiting the use of interstate commerce facilities
in the commission of murder-for-hire, which is not the same statute that Hinkson was
convicted of violating. Regardless, in Gordon, the court held that “the appropriate unit of
prosecution under 18 U.S.C. § 1958(a) is a single plot to murder a single individual, not
the number of times that the facilities of interstate commerce were used.” Gordon, 875
F.3d at 28. Hinkson relies on Gordon and argues that, because there was only one “plot”
6
with respect to his charges of solicitation to commit murder of three federal officials, these
charges should have been brought as one charge in the indictment, rather than three
separate charges. Hinkson, however, overlooks that he was charged with soliciting the
murder of three separate individuals. Thus, even if Gordon applied, Hinkson would not
be entitled to relief.
Hinkson’s next two related claims seek relief from his sentence based on his
argument that solicitation to commit murder is not a “crime of violence.” According to
Hinkson, “[b]ecause the three counts of solicitation to commit murder were considered
and labeled ‘crimes of violence,’ the sentencing court ran Hinkson’s sentences
consecutive to each other and consecutive to [the sentence in his tax case]. Because the
solicitation to commit murder offenses are not crimes of violence, Hinkson is entitled to
resentencing.” (Doc. # 1-1 at 15). Hinkson invokes the United States Supreme Court’s
recent decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), as well as Mathis v. United
States, 136 S. Ct. 2243 (2016), Johnson v. United States, 135 S. Ct. 2251 (2015), as well
as the Fourth Circuit’s decision in United States v. McCollum, 885 F.3d 300 (4th Cir.
2018).
A petition for a writ of habeas corpus pursuant to § 2241, however, is not the
appropriate vehicle for such claims. The decidedly narrow scope of relief under § 2241
applies with particular force to challenges not to convictions, but to the sentence imposed.
Peterman, 249 F.3d at 462; Hayes, 473 F. App’x at 502 (“The savings clause of section
2255(e) does not apply to sentencing claims.”). In Hill v. Masters, 836 F.3d 591 (6th Cir.
2016), the Sixth Circuit articulated a very narrow exception to this general rule, permitting
a challenge to a sentence to be asserted in a § 2241 petition, but only where (1) the
petitioner’s sentence was imposed when the Sentencing Guidelines were mandatory
7
before the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005); (2)
the petitioner was foreclosed from asserting the claim in a successive petition under §
2255; and (3) after the petitioner’s sentence became final, the Supreme Court issued a
retroactively
applicable
decision
establishing
that—as
a
matter
of
statutory
interpretation—a prior conviction used to enhance his or her federal sentence no longer
qualifies as a valid predicate offense. Hill, 836 F.3d at 599-600.
Hinkson’s petition does not satisfy any of these criteria. Hinkson was sentenced
in 2006, post-Booker. Moreover, as he currently has an application seeking permission
to file a second or successive § 2255 habeas petition raising similar claims pending in the
United States Court of Appeals for the Ninth Circuit, he cannot establish that he has been
foreclosed from asserting his claims in a successive petition under § 2255.
Finally, Hinkson does not present a challenge to a prior conviction used to enhance
his sentence. Rather, Hinkson argues that the sentencing court improperly ran his
murder-solicitation sentences consecutively because the court classified these crimes as
“crimes of violence.” First, Hinkson cites to no evidence in the record to support his
conclusory claim that the sentencing court ran his sentences consecutively because it
classified his murder-solicitation convictions as “crimes of violence.” Regardless, the
cases relied upon by Hinkson—Dimaya, Mathis, Johnson, and McCollum—all address
the classification of a prior conviction used to enhance a sentence. Because Hinkson
does not argue that his sentence was improperly enhanced based on a prior conviction
for a “crime of violence,” these cases are inapplicable. Instead, Hinkson challenges the
trial court’s decision to run his multiple sentences consecutively rather than concurrently,
a decision that is well within the trial court’s discretion. See 18 U.S.C. § 3584(a). To the
extent that Hinkson argues that the trial court abused its discretion, this is a claim of
8
ordinary trial error which, as previously explained, must have been pursued on direct
appeal or in an initial motion under § 2255.
For all of these reasons, the limited exception in Hill that permits a challenge to a
sentence in a § 2241 petition does not apply to Hinkson. Because Hinkson may not rely
on the “savings clause” of § 2255(e) to authorize his § 2241 petition, his petition must be
denied.
III.
CONCLUSION
Accordingly, for the reasons stated herein,
IT IS ORDERED as follows:
(1) Petitioner David Roland Hinkson’s petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241 (Doc. # 1) is DENIED;
(2) Hinkson’s motion to bring new Supreme Court precedent to the attention of the
Court (Doc. # 4) is DENIED AS MOOT;
(3) This action is DISMISSED and STRICKEN from the Court’s active docket; and
(4) A separate Judgment shall be entered contemporaneously herewith.
This 19th day of July, 2018.
K:\DATA\ORDERS\ProSe\Hinkson 18-104-DLB Memorandum.docx
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?