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Hendrickson v. United States

United States District Court, W.D. North Carolina, Asheville Division

April 5, 2018



          Max O. Cogburn Jr., United States District Judge.

         THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 1).

         I. BACKGROUND

         On October 6, 2015, Petitioner was indicted in the underlying criminal case with: Counts (1) and (4), attempted Hobbs Act robbery; Count (2), using fire and an explosive to commit a felony, i.e., Count (1); and Count (3), using, carrying, and possessing a firearm during and in relation to a crime of violence, i.e., Count (1). (1:15-cr-95, Doc. No. 3). He was arraigned on November 2, 2015.

         A superseding indictment filed on December 1, 2015, added two co-defendants and three charges. It charged Petitioner with: Count (1), maliciously damaging and attempting to damage and destroy, by means of fire and an explosive, a building, and real and persona property used in and affective interstate and foreign commerce and aiding and abetting the same; Counts (2) and (6), attempted Hobbs Act robbery; Count (3) using a fire and an explosive to commit a felony, i.e., Counts (1) and (2); and Counts (4) and (5), using, carrying, and possessing a firearm during and in relation to a crime of violence. (1:15-cr-95, Doc. No. 10). Petitioner signed a waiver of arraignment on December 2, 2015, the day after the superseding indictment was filed. (1:15-cr-95, Doc. No. 13).

         Petitioner signed a written plea agreement on January 26, 2016, in which he agreed to plead guilty to Counts (1)-(3) of the “Superseding Bill of Indictment” in exchange for the Government's dismissal of Counts (4)-(6). (1:15-cr-95, Doc. No. 48). The plea agreement sets forth the relevant statutes and sentencing exposure as follows: Count (1), violation of 18 U.S.C. § 844(i); minimum of 5 years, maximum of 20 years; Count (2), violation of 18 U.S.C. § 1951; maximum of 20 years; Count (3), violation of 18 U.S.C. § 844(h), 10 years consecutive. (1:15-cr-95, Doc. No. 48 at 2). The parties' joint recommendations include the agreement that “the defendant used fire and an explosive to commit the felonies set forth in both Counts One and Two and therefore the ten year mandatory sentence will run consecutively to any sentence imposed in Counts One and Two.” (1:15-cr-95, Doc. No. 48 at 2). The agreement states that the sentence has not yet been determined and that Plaintiff may not withdraw his plea based on the sentence imposed. (1:15-cr-95, Doc. No. 48 at 2). The agreement contains an express waiver of Plaintiff's rights to be tried by a jury, be assisted by an attorney at trial, confront and cross-examine witnesses, not to be compelled to incriminate himself. (1:15-cr-95, Doc. No. 48 at 5). There is also a knowing and voluntary waiver of Plaintiff's appellate and post-conviction rights except claims of prosecutorial misconduct and ineffective assistance of counsel. (1:15-cr-95, Doc. No. 48 at 5). The agreement states that there are no representations or understandings between the parties other than those in the plea agreement. (1:15-cr-95, Doc. No. 48 at 7).

         A written factual basis that Plaintiff, also signed on January 26, 2016, provides that Plaintiff “unlawfully attempted to obstruct commerce by robbery … on two occasions….. [and a]s part of the plan, [Plaintiff] constructed a pipe bomb and a gasoline bomb to be used as a diversion for law enforcement.” (1:15-cr-95, Doc. No. 49 at 1). Further, “[o]n January 23, 2015 … HENDRICKSON admitted to creating the pipe bomb with [co-defendant] GUNTER….” (1:15-cr-95, Doc. No. 49 at 3).

         A Rule 11 hearing came before Magistrate Judge Howell the next day, January 27, 2016. (1:15-cr-95, Doc. Nos. 50, 85). Petitioner was sworn, stated that he understood the case, and agreed that he wanted to plead guilty to “counts one, two, and three as contained in the superseding Bill of Indictment.” (1:15-cr-95, Doc. No. 85 at 4). He admitted that he received a copy of the indictment and discussed the contents with his attorney. (1:15-cr-95, Doc. No. 85 at 5). The charges, maximum penalties, and minimum sentences were explained on the record. (1:15-cr-95, Doc. No. 85 at 5). He stated that he fully understood the charges against him - which were read aloud in open court - as well as his sentencing exposure. (1:15-cr-95, Doc. No. 85 at 5-14). He stated that he had discussed with counsel how the advisory guidelines might apply to his case, understood his sentencing exposure, and acknowledged that he may receive a sentence that is different than that called for by the guidelines. (1:15-cr-95, Doc. No. 85 at 14-16). He understood he has the right to plead not guilty, have a speedy trial before a judge and jury, to summons witnesses to testify, and to confront witnesses against him, that he would receive the assistance of a lawyer, would not be required to testify, would be presumed innocent, and the burden would be on the government. (1:15-cr-95, Doc. No. 85 at 15-17). He agreed to waive these rights, understood that there would be no trial and that there would be more hearing where he would be sentenced. He admitted that he is guilty of the counts to which he was pleading guilty. (1:15-cr-95, Doc. No. 85 at 18). He understood the terms of the plea agreement and agrees to them including the appellate and post-conviction waiver. (1:15-cr-95, Doc. No. 85 at 19-20). He read the factual basis for the plea, understood it, and agreed with it. (1:15-cr-95, Doc. No. 85 at 20-21). Nobody threatened him, intimidated him, or forced him to plead guilty, nor had he received any promises of leniency or a light sentence to induce his plea. (1:15-cr-95, Doc. No. 85 at 21). He had enough time to discuss any possible defenses with counsel, was satisfied with the services of counsel, and had nothing to say about counsel's services. (1:15-cr-95, Doc. No. 85 at 21).

         In a Judgment filed on May 9, 2016, the Court adjudicated Petitioner guilty of Counts (1)-(3) of the superseding indictment and sentenced him to 60 months' imprisonment as to Counts (1) and (2), concurrent, and ten years as to Count (3), consecutive, for a total of 180 months' imprisonment, followed by three years of supervised release. (1:15-cr-95, Doc. No. 71).

         Petitioner timely filed the instant § 2255 Motion to Vacate on May 2, 2017. (Doc. No. 1). He argues that (1) ineffective assistance of counsel rendered the guilty plea involuntary; and (2) failure to arraign him on the superseding indictment violated due process. The Government filed a Response arguing that the claim of ineffective assistance of counsel is refuted by the record and that the due process claim is waived, procedurally defaulted, and meritless. (Doc. No. 5). Petitioner filed a letter that was docketed as a Motion to Amend, (Doc. No. 6), which is construed as a Reply. He argues that, had counsel performed effectively, he would have been arraigned on the superseding indictment which would have led him to accept a more favorable plea deal or go to trial.


         A federal prisoner claiming that his “sentence was imposed in violation of the Constitution or the laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a).

         The Sixth Amendment to the U.S. Constitution guarantees that in all criminal prosecutions, the accused has the right to the assistance of counsel for his defense. See U.S. Const. Amend. VI. To show ineffective assistance of counsel, Petitioner must first establish deficient performance by counsel and, second, that the deficient performance prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The deficiency prong turns on whether “counsel's representation fell below an objective standard of reasonableness ... under prevailing professional norms.” Id. at 688. A reviewing court “must apply a ‘strong presumption' that counsel's representation was within the ‘wide range' of reasonable professional assistance.” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 689).

         The right to the assistance of counsel during criminal proceedings extends to the plea-bargaining process. See Missouri v. Frye,566 U.S. 134 (2012). Thus, criminal defendants are “entitled to the effective assistance of competent counsel” during that process. Lafler v. Cooper,566 U.S. 156, 162 (2012) (internal quotation marks omitted); Merzbacher v. Shearin, 706 F.3d 356, 363 (4th Cir. 2013). Where a defendant enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was “within the range of competence demanded by attorneys in criminal cases.” Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). To satisfy Strickland's prejudice prong, the defendant must show ‚Äúthere is a ...

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