United States District Court, N.D. Oklahoma
OPINION AND ORDER
H. Payne United States District Judge.
the Court are (1) Defendant Marco A. Hendrickson's
(“Defendant”) motion to vacate, set aside, or
correct sentence by a person in federal custody brought
pursuant to 28 U.S.C. § 2255 (Doc. No. 205); (2)
Defendant's brief in support of his § 2255 motion
(Doc. No. 219); (3) Defendant's pro se
supplemental § 2255 motion (Doc. No. 220); and (4) the
Government's motion to dismiss Defendant's §
2255 motion as supplemented (Doc. No. 232). Defendant seeks
relief pursuant to the United States Supreme Court's
decision in Johnson v. United States, 135 S.Ct. 2551
(2015). The Government opposes Defendant's motion and
urges the Court to dismiss the motion, as supplemented. For
the reasons cited herein, Defendant's motion pursuant to
§ 2255, as supplemented, is DENIED and the
Government's motion to dismiss is GRANTED.
2009, Defendant pleaded guilty to interfering with commerce
and aiding and abetting, in violation of 18 U.S.C. §
1951 and § 2 (Count One) and possession of firearms in
furtherance of a crime of violence, in violation of 18 U.S.C.
§ 924(c) (Count Three). (Doc. Nos. 2, 57). In advance of
sentencing, the United States Probation Office prepared a
Presentence Investigation Report (“PSR”) as to
Defendant, in which it was recommended he be classified as a
career offender under the United States Sentencing Guidelines
(“USSG” or “Guidelines”). (PSR ¶
19). Defendant was classified as a career offender because
(1) the offense of conviction in Count One was a felony crime
of violence and (2) he had prior convictions for two crimes
of violence and one controlled substance offense. (PSR ¶
19). Defendant's predicate career offender convictions
are (1) Possession of Illegal Sawed-Off Shotgun (McCurtain
County County Case No. CF-1999-217), (2) Unlawful Possession
of Marijuana with Intent to Distribute (McCurtain County Case
No. CF-1999-301), and (3) Escape from County Jail (McCurtain
County Case No. CF-2000-281). (PSR ¶ 19). On April 29,
2009, pursuant to the recommendation in the PSR, this Court
sentenced Defendant to 151 months of imprisonment on Count
One and 120 months of imprisonment on Count Three, with the
terms to run consecutively. (Doc. No. 76).
filed an untimely direct appeal, which the Tenth Circuit
dismissed. (Doc. No. 100). Thereafter, Defendant filed a
§ 2255 motion, alleging ineffective assistance of
counsel for (1) failing to file a timely notice of appeal,
(2) failing to challenge the career offender enhancement, and
(3) failing to object to imposition of a mandatory minimum
sentence in Count Three. (Doc. Nos. 104, 105, 137). Following
an evidentiary hearing, this Court denied the § 2255
motion. (Doc. No. 162). Defendant appealed this Court's
ruling on the issue of the mandatory minimum sentence in
Count Three. The Tenth Circuit affirmed. United States v.
Hendrickson, 592 F. App'x 699 (10th Cir. 2014).
then filed a second § 2255 motion, which is now pending
before the Court. (Doc. No. 205). In his pending § 2255
motion, Petitioner seeks to change his career offender
designation based on the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015).
While this motion was pending, Defendant filed a motion in
the Tenth Circuit seeking authorization to file a second
§ 2255 motion in district court based on the
Johnson claim, which the Tenth Circuit granted.
(Doc. No. 215). The Tenth Circuit further advised this Court
to consider Defendant's unauthorized § 2255 motion.
22, 2016, The Court appointed the Office of the Federal
Public Defender to represent Defendant. (Doc. No. 217). On
the same day, Defendant's attorney submitted a brief in
support of his § 2255 motion. (Doc. No. 219). On June
27, 2016, Defendant submitted a pro se supplement to
his § 2255 motion. (Doc. No. 220). The Government then
sought to stay litigation in this proceeding until the United
States Supreme Court issued a decision in Beckles v.
United States, No. 15-8544. Following the Supreme
Court's decision in Beckles, 137 S.Ct. 886
(2017), the Court found the Government's motion to stay
litigation to be moot and ordered the Government to respond
to the § 2255 motion. The Government filed a motion to
dismiss the § 2255 motion as supplemented on April 27,
2017. (Doc. No. 232). Neither Defendant nor his counsel filed
a response to the Government's motion.
Johnson, the United States Supreme Court established
that the “residual clause” of the Armed Career
Criminal Act, 18 U.S.C. § 924(e) (“ACCA”)
was unconstitutionally vague. 135 S.Ct. at 2557. The ACCA
provides a fifteen-year mandatory minimum sentence for a
person who is convicted as a felon in possession of a
firearm, 18 U.S.C. § 922(g)(1), and has three prior
convictions for violent felonies or serious drug offenses. 18
U.S.C. § 924(e)(1). The now-defunct “residual
clause” of the ACCA defines a “violent
felony” to include an offense that “otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. §
924(e)(2)(B)(ii). The Supreme Court has since clarified that
its decision under Johnson applies retroactively to
cases on collateral review. Welch v. United States,
136 S.Ct. 1257 (2016).
was not sentenced under the ACCA but rather was sentenced as
a career offender under the 2008 version of USSG §
4B1.1, based on his having prior convictions for two
“crimes of violence” and one “controlled
substance offense.” (See PSR ¶ 19).
However, the definition of “crime of violence” in
the 2008 version of USSG § 4B1.2(a)(2) uses the same
language as the ACCA's “residual clause.”
Because the ACCA's residual clause is unconstitutionally
vague, Defendant now argues his sentence based on the
residual clause of the “crimes of violence”
definition should be vacated or set aside.
Government points out, however, Defendant's argument has
since been foreclosed by the Supreme Court's decision in
Beckles, 137 S.Ct. 886 (2017). In Beckles,
the Supreme Court held the Guidelines' § 4B1.2(a)
residual clause remains valid after Johnson, because
the Guidelines are not subject to a vagueness challenge under
the Due Process Clause. 137 S.Ct. at 895. Accordingly,
Defendant cannot challenge his career offender sentence based
on the unconstitutional vagueness of § 4B1.2's
residual clause. His predicate career offender offenses
remain valid “crimes of violence.”
support of his motion, Defendant relies on authority from the
Tenth Circuit, in which the Court found the residual clause
of USSG § 4B1.2(a)(2) to be unconstitutionally vague in
light of Johnson. See United States v.
Madrid, 805 F.3d 1204, 1210 (10th Cir. 2015). However,
Madrid's holding was expressly abrogated by the
Supreme Court in Beckles. 137 S.Ct. at 902 and n.3
(Sotomayor, J. concurring) (noting that the majority opinion
“upends the law of nearly every Court of Appeals to
have considered this question, ” citing Madrid
as an example). Accordingly, Defendant is not eligible for
retroactive relief under Johnson.
in his pro se supplement to his § 2255 motion,
Defendant argues for the first time that his underlying
conviction for possessing a firearm in furtherance of a crime
of violence, in violation of 18 U.S.C. § 924(c), is
itself invalid in light of Johnson, because his
conviction for interference with commerce under 18 U.S.C.
§ 1951 is not a qualifying predicate crime of violence.
(Doc. No. 220, at 2). The Court declines to consider this new
issue raised in Defendant's pro se supplement.
Defendant is represented by counsel, Barry Derryberry, but he
filed this supplement pro se. Defendant does not
have the right to “hybrid” representation, and he
cannot choose to represent himself on select issues.
United States v. McKinley, 58 F.3d 1475, 1480 (10th
Cir. 1995); United States v. Bennett, 539 F.2d 45,
49 (10th Cir. 1976). The Court has discretion to consider
pro se filings by a criminal defendant who is
represented by counsel, but is not obligated to accept such
filings. Bennett, 539 F.2d at 49. Here, the Court
declines to consider any new issues that may be raised in
Defendant's pro se supplement (Doc. No. 220).
the Government's motion to dismiss is granted, and
Defendant's § ...