FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 10, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-5050 (D.C. No. 4:08-CR-00197-JHP-2) MARCO A. HENDRICKSON, (N.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before LUCERO, McHUGH, and MORITZ, Circuit Judges. _________________________________
Marco Hendrickson, a federal prisoner proceeding pro se, appeals the district
court’s denial of his petition for a writ of audita querela under 28 U.S.C. § 1651.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
Hendrickson pled guilty to armed robbery in violation of 18 U.S.C. § 1951,
also known as “Hobbs Act robbery,” and possession of a firearm in furtherance of a
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. crime of violence in violation of 18 U.S.C. § 924(c). He received an enhanced
sentence under the career-offender guideline, which applies when a defendant has
“two prior felony convictions of either a crime of violence or a controlled substance
offense,” U.S. Sentencing Guidelines Manual § 4B1.1(a). The district court
sentenced him to 271 months’ imprisonment: 151 months for his Hobbs Act robbery
conviction and 120 months for his § 924(c) conviction, to run consecutively.
Hendrickson did not file a timely notice of appeal, so we dismissed his direct appeal.
Hendrickson has filed three motions under 28 U.S.C. § 2255. His first motion
asserted that his counsel provided ineffective assistance. After the district court
denied that § 2255 motion, we granted a certificate of appealability and ultimately
affirmed the denial. Later, we granted authorization for Hendrickson to file a second
§ 2255 motion to challenge his career-offender sentence based on Johnson v. United
States, 135 S. Ct. 2551 (2015). The district court denied that authorized motion
based on the Supreme Court’s ruling in Beckles v. United States, 137 S. Ct. 886
(2017). We also granted authorization for Hendrickson to file a successive § 2255
motion to challenge his § 924(c) conviction based on United States v. Davis, 139 S.
Ct. 2319 (2019). Hendrickson has not yet filed his authorized motion with the
district court.
In 2018, Hendrickson filed a pro se petition for a writ of audita querela. He
argues that United States v. O’Connor, 874 F.3d 1147 (10th Cir. 2017), constituted
an intervening change in the law that rendered his career-offender enhancement
improper. In O’Connor, we held that a conviction for Hobbs Act robbery does not
2 qualify as a “crime of violence” under U.S.S.G. § 4B1.2. 874 F.3d at 1158. The
district court denied Hendrickson’s petition after concluding that (1) the petition
attempted to vacate, set aside, or correct his sentence or to otherwise challenge his
convictions; and (2) § 2255 is the proper avenue for this type of post-conviction
challenge. Hendrickson filed this appeal.1
II
Hendrickson challenges the district court’s denial of his petition for a writ of
audita querela. He asks us to vacate the district court’s judgment and to remand for
resentencing without the career-offender enhancement.
“[A] writ of audita querela is used to challenge a judgment that was correct at
the time rendered but which is rendered infirm by matters which arise after its
rendition.” United States v. Torres, 282 F.3d 1241, 1245 n.6 (10th Cir. 2002)
(quotation omitted); see also Rawlins v. Kansas, 714 F.3d 1189, 1196 (10th Cir.
2013) (“[A]udita querela addresses unanticipated situations that arise after
judgment.”). We have acknowledged that a criminal defendant may be able to obtain
post-conviction relief through a writ of audita querela. See, e.g., Torres,
1 It is unclear whether Hendrickson filed his notice of appeal before the fourteen-day deadline set forth in Rule 4(b)(1)(A)(i) of the Federal Rules of Appellate Procedure. When he filed the notice, he included a statement that he was in lockdown and did not receive the district court’s order until over two months had passed. We do not assess the timeliness of this appeal because the government does not contest it. The timely filing of a notice of appeal by the defendant is an “inflexible claim-processing rule[]” that “may be forfeited if not properly raised by the government.” United States v. Garduño, 506 F.3d 1287, 1290-91 (10th Cir. 2007) (quotation omitted). 3 282 F.3d at 1245 n.6. Even so, we have made clear that it is “not available to a
petitioner when other remedies exist, such as a motion to vacate sentence under 28
U.S.C. § 2255.” Id. at 1245 (quotation omitted). We have also held that § 2255
provides “[t]he exclusive remedy for testing the validity of a judgment and sentence,
unless it is inadequate or ineffective.” Caravalho v. Pugh, 177 F.3d 1177, 1178
(10th Cir. 1999) (quotation omitted). Courts have found the remedy under § 2255 “to
be inadequate or ineffective only in extremely limited circumstances.” Id. “That [the
petitioner] may be barred from filing a second or successive motion pursuant to
§ 2255 in the sentencing court does not establish that the remedy provided in § 2255
is inadequate or ineffective.” Id.
As shown above, Hendrickson is familiar with the process for filing § 2255
motions. Yet he does not explain why § 2255 provides an inadequate or ineffective
remedy for challenging his sentence. He states only that his career-offender
enhancement is “unlawful” in light of O’Connor and that his petition for a writ of
audita querela is necessary to “fill[] gaps in the current system of post-conviction
relief.” Hendrickson cannot avoid the requirements for filing a successive § 2255
motion with these vague statements.
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 10, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-5050 (D.C. No. 4:08-CR-00197-JHP-2) MARCO A. HENDRICKSON, (N.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before LUCERO, McHUGH, and MORITZ, Circuit Judges. _________________________________
Marco Hendrickson, a federal prisoner proceeding pro se, appeals the district
court’s denial of his petition for a writ of audita querela under 28 U.S.C. § 1651.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
Hendrickson pled guilty to armed robbery in violation of 18 U.S.C. § 1951,
also known as “Hobbs Act robbery,” and possession of a firearm in furtherance of a
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. crime of violence in violation of 18 U.S.C. § 924(c). He received an enhanced
sentence under the career-offender guideline, which applies when a defendant has
“two prior felony convictions of either a crime of violence or a controlled substance
offense,” U.S. Sentencing Guidelines Manual § 4B1.1(a). The district court
sentenced him to 271 months’ imprisonment: 151 months for his Hobbs Act robbery
conviction and 120 months for his § 924(c) conviction, to run consecutively.
Hendrickson did not file a timely notice of appeal, so we dismissed his direct appeal.
Hendrickson has filed three motions under 28 U.S.C. § 2255. His first motion
asserted that his counsel provided ineffective assistance. After the district court
denied that § 2255 motion, we granted a certificate of appealability and ultimately
affirmed the denial. Later, we granted authorization for Hendrickson to file a second
§ 2255 motion to challenge his career-offender sentence based on Johnson v. United
States, 135 S. Ct. 2551 (2015). The district court denied that authorized motion
based on the Supreme Court’s ruling in Beckles v. United States, 137 S. Ct. 886
(2017). We also granted authorization for Hendrickson to file a successive § 2255
motion to challenge his § 924(c) conviction based on United States v. Davis, 139 S.
Ct. 2319 (2019). Hendrickson has not yet filed his authorized motion with the
district court.
In 2018, Hendrickson filed a pro se petition for a writ of audita querela. He
argues that United States v. O’Connor, 874 F.3d 1147 (10th Cir. 2017), constituted
an intervening change in the law that rendered his career-offender enhancement
improper. In O’Connor, we held that a conviction for Hobbs Act robbery does not
2 qualify as a “crime of violence” under U.S.S.G. § 4B1.2. 874 F.3d at 1158. The
district court denied Hendrickson’s petition after concluding that (1) the petition
attempted to vacate, set aside, or correct his sentence or to otherwise challenge his
convictions; and (2) § 2255 is the proper avenue for this type of post-conviction
challenge. Hendrickson filed this appeal.1
II
Hendrickson challenges the district court’s denial of his petition for a writ of
audita querela. He asks us to vacate the district court’s judgment and to remand for
resentencing without the career-offender enhancement.
“[A] writ of audita querela is used to challenge a judgment that was correct at
the time rendered but which is rendered infirm by matters which arise after its
rendition.” United States v. Torres, 282 F.3d 1241, 1245 n.6 (10th Cir. 2002)
(quotation omitted); see also Rawlins v. Kansas, 714 F.3d 1189, 1196 (10th Cir.
2013) (“[A]udita querela addresses unanticipated situations that arise after
judgment.”). We have acknowledged that a criminal defendant may be able to obtain
post-conviction relief through a writ of audita querela. See, e.g., Torres,
1 It is unclear whether Hendrickson filed his notice of appeal before the fourteen-day deadline set forth in Rule 4(b)(1)(A)(i) of the Federal Rules of Appellate Procedure. When he filed the notice, he included a statement that he was in lockdown and did not receive the district court’s order until over two months had passed. We do not assess the timeliness of this appeal because the government does not contest it. The timely filing of a notice of appeal by the defendant is an “inflexible claim-processing rule[]” that “may be forfeited if not properly raised by the government.” United States v. Garduño, 506 F.3d 1287, 1290-91 (10th Cir. 2007) (quotation omitted). 3 282 F.3d at 1245 n.6. Even so, we have made clear that it is “not available to a
petitioner when other remedies exist, such as a motion to vacate sentence under 28
U.S.C. § 2255.” Id. at 1245 (quotation omitted). We have also held that § 2255
provides “[t]he exclusive remedy for testing the validity of a judgment and sentence,
unless it is inadequate or ineffective.” Caravalho v. Pugh, 177 F.3d 1177, 1178
(10th Cir. 1999) (quotation omitted). Courts have found the remedy under § 2255 “to
be inadequate or ineffective only in extremely limited circumstances.” Id. “That [the
petitioner] may be barred from filing a second or successive motion pursuant to
§ 2255 in the sentencing court does not establish that the remedy provided in § 2255
is inadequate or ineffective.” Id.
As shown above, Hendrickson is familiar with the process for filing § 2255
motions. Yet he does not explain why § 2255 provides an inadequate or ineffective
remedy for challenging his sentence. He states only that his career-offender
enhancement is “unlawful” in light of O’Connor and that his petition for a writ of
audita querela is necessary to “fill[] gaps in the current system of post-conviction
relief.” Hendrickson cannot avoid the requirements for filing a successive § 2255
motion with these vague statements.
We look beyond the title of a pleading filed under § 1651(a) to its substance
because allowing a petitioner “to avoid the bar against successive § 2255 petitions by
simply styling a petition under a different name would severely erode the procedural
restraints imposed under 28 U.S.C. §§ 2244(b)(3) and 2255.” Torres, 282 F.3d at
1246. We agree with the district court that the proper avenue for Hendrickson’s
4 challenge to the lawfulness of his sentence is § 2255. We make no comment on his
ability to obtain authorization under § 2255(h) to file a successive § 2255 motion
because he has not sought such authorization from this court.2
III
AFFIRMED. We GRANT Hendrickson’s motion for leave to proceed in
forma pauperis.
Entered for the Court
Carlos F. Lucero Circuit Judge
2 We note that the standard for authorization of a successive motion is distinct from both the audita querela standard and the standard for filing an initial § 2255 motion. See § 2255(h) (“A second or successive motion must be certified as provided in [§ 2244] . . . to contain—(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”). 5