Hinkson v. United States ( 2022 )

Case: 21-40174 Document: 00516229823 Page: 1 Date Filed: 03/08/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 8, 2022
No. 21-40174
Lyle W. Cayce
Summary Calendar Clerk
Owen Garth Hinkson,
Petitioner—Appellant,
versus
United States of America,
Respondent—Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:18-CV-64
Before King, Costa, and Ho, Circuit Judges.
Per Curiam:*
Owen Garth Hinkson, proceeding pro se, appeals from the denial of his
petition for the writ of coram nobis seeking to vacate his 1999 guilty plea for
illegal reentry after deportation. For the following reasons, we AFFIRM.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-40174 Document: 00516229823 Page: 2 Date Filed: 03/08/2022
No. 21-40174
I.
Owen Garth Hinkson, a Jamaican citizen, pleaded guilty on June 14,
1999, to illegal reentry after deportation in violation of 8 U.S.C. § 1326(a).
The guilty plea followed Hinkson’s arrest after he was found with more than
100 pounds of marijuana in the car he was driving. Additionally, relevant to
Hinkson’s guilty plea is his 1987 guilty plea in Massachusetts state court for
assault and battery of a police officer in violation of Mass. Gen. Laws ch.
265, § 13D. 1 Based on the 1987 conviction, the district court implicitly
sentenced Hinkson under 8 U.S.C. § 1326(b)(2), which states that when an
alien’s “removal was subsequent to a conviction for commission of an
aggravated felony, such alien shall be . . . imprisoned not more than 20
years.” Hinkson’s plea agreement stated: “the Defendant understands that
(s)he may receive a sentence of imprisonment of not more than twenty (20)
years.” Hinkson’s pre-sentence report stated that the statutory maximum
for Hinkson’s sentence was 20 years. At Hinkson’s plea hearing, the court
again informed Hinkson that he “could receive a sentence of imprisonment
of not more than twenty years” and Hinkson stated he understood.
Hinkson’s guilty plea also included an appellate waiver, which states:
“With the exception of Sentencing Guidelines determinations, Defendant
waives any appeal, including collateral appeal under 28 U.S.C. § 2255, of any
1
Hinkson argues, with some factual support, that this 1987 conviction was vacated
in 2005. In a later criminal case involving Hinkson, the Northern District of Georgia found
that the conviction had indeed been vacated. United States v. Hinkson, No. 1:17-cr-WSD-
AJB, 2017 U.S. Dist. LEXIS 145486, at *3 (N.D. Ga. Sept. 8, 2017). This vacatur is one of
the two theories presented by Hinkson for why the writ of coram nobis should be issued.
However, because we hold that the petition for the writ of coram nobis was properly denied
even if the 1987 conviction had been vacated, we need not determine whether the vacatur
actually occurred.
2
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No. 21-40174
error which may occur surrounding substance, procedure, or form of the
conviction and sentencing in this case.”
After pleading guilty, Hinkson was sentenced to 110 months’
imprisonment, followed by three years supervised release. After serving his
sentence, Hinkson was deported from the United States for the fifth time. As
part of Hinkson’s guilty plea, the government agreed to drop charges for
conspiracy to distribute and possess with intent to distribute marijuana in
violation of 21 U.S.C. § 846, and possession with intent to distribute
marijuana in violation of 21 U.S.C. § 841(a)(1). Hinkson has since received
two additional convictions for illegal reentry of a previously deported alien;
both convictions viewed his maximum sentence as being set by 8 U.S.C.
§ 1326(b)(2) in light of the 1999 conviction, which Hinkson attacks with the
instant petition. Hinkson, 2017 U.S. Dist. LEXIS 145486, at *3-4. Hinkson is
currently completing his prison term based on the latest conviction (from
2017) but has completed his sentence for the 1999 conviction that is the
subject of the instant case.
Hinkson bases his petition for the writ of coram nobis on his assertion
that his conviction and sentence contemplating a 20-year maximum sentence
under 8 U.S.C. § 1326(b)(2) is invalid. 2 This is so, he says, for two similar
reasons: (1) the 1987 Massachusetts conviction, which served as the base
aggravated felony for the enhancement, has been vacated, and (2) that the
1987 Massachusetts conviction can no longer stand as a qualifying aggravated
felony under the Supreme Court’s decision in Sessions v. Dimaya, 138 S. Ct.
2Hinkson additionally argues that his sentence is invalid because the indictment
only stated a charge for 8 U.S.C. § 1326(a), and did not include § 1326(b)(2). This
argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 226–27 (1998),
which held that § 1326(b)(2) “is a penalty provision” that “does not define a separate
crime” and that thus “neither the statute nor the Constitution require the Government to
charge the factor . . . in the indictment.”
3
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1204, 1223 (2018). “The writ of coram nobis is an extraordinary remedy
available to a petitioner no longer in custody who seeks to vacate a criminal
conviction in circumstances where the petitioner can demonstrate civil
disabilities as a consequence of the criminal conviction, and that the
challenged error is of sufficient magnitude to justify the extraordinary relief.”
Jimenez v. Trominski, 91 F.3d 767, 768 (5th Cir. 1996). The writ is the
“criminal-law equivalent” of a “Hail Mary pass,” United States v. George,
676 F.3d 249, 251 (1st Cir. 2012), and shall only issue “to correct errors
resulting in a complete miscarriage of justice,” Jimenez, 91 F.3d at 768. When
a district court denies the writ, “we review factual findings for clear error,
questions of law de novo, and the district court’s ultimate decision to deny
the writ for abuse of discretion.” Santos-Sanchez v. United States, 548 F.3d
327, 330 (5th Cir. 2008), vacated on other grounds, 559 U.S. 1046 (2010).
We additionally must consider Hinkson’s petition in light of the
appellate waiver contained in his plea agreement. So long as “the waiver is
informed and voluntary,” a defendant can waive any and all post-conviction
relief, including relief under 28 U.S.C. § 2255 (which codifies the similar writ
of habeas corpus). United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994).
While such a waiver is “most familiarly associated with attempts to secure
habeas corpus relief,” it applies with the same force to the substantially similar
writ of coram nobis (whose primary difference is the fact that “custody no
longer attaches and liberty is no longer at stake”). George, 676 F.3d at 257; see
also United States v. Chavez-Salais, 337 F.3d 1170, 1172 (10th Cir. 2003)
(“The conventional understanding of ‘collateral attack’ comprises
challenges brought under . . . 28 U.S.C. § 2255, as well as writs of coram
nobis.”); Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996) (“Because
of the similarities between coram nobis proceedings and § 2255 proceedings,
the § 2255 procedure often is applied by analogy in coram nobis cases.”)
4
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Further, we have held that legal developments post-dating the guilty
plea are not sufficient grounds for vitiating an appellate waiver. United States
v. Barnes, 953 F.3d 383, 386–88 (5th Cir. 2020); see also Brady v. United
States, 397 U.S. 742, 757 (1970) (“[A] voluntary plea of guilty intelligently
made in the light of the then applicable law does not become vulnerable
because later judicial decisions indicate that the plea rested on a faulty
premise.”). Therefore, the appellate waiver is valid here. And there is ample
evidence that Hinkson “read and underst[ood] his plea agreement, and that
he raised no question regarding a waiver-of-appeal provision.” United States
v. Portillo, 18 F.3d 290, 293 (5th Cir. 1994). Therefore, Hinkson can only
make very limited challenges to his plea agreement and sentence. His writ of
coram nobis petition is not one of them, and so Hinkson “will be held to the
bargain to which he agreed.” Id.Hinkson does, however, make two relevant challenges to the
effectiveness of the appellate waiver and corresponding plea. The first is that
he received ineffective assistance of counsel that “directly affected the
validity of th[e] waiver or the plea itself.” United States v. White, 307 F.3d
336, 343 (5th Cir. 2002). The second is that the district court violated Rule
11 by erroneously informing him during his plea hearing that his statutory
maximum sentence would be 20 years (when it should have been 10 years
based on his assertion that his 1987 conviction did not qualify as an
aggravated felony for § 1326(b)(2) purposes). Neither argument succeeds.
A claim of ineffective assistance of counsel requires proof “that
counsel’s performance was deficient” and that “the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
Hinkson’s claim falls at the first hurdle. Hinkson’s 1987 conviction was not
allegedly vacated until 2005. The Supreme Court did not hold that his crime
of conviction (assault and battery of a police officer) could not serve as an
aggravated felony for sentencing purposes until 2018. Both events occurred
5
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well after Hinkson’s guilty plea in 1999. Hinkson’s counsel was not required
to predict these events when advising Hinkson on his plea deal.
“Clairvoyance is not a required attribute of effective representation.” United
States v. Fields, 565 F.3d 290, 295 (5th Cir. 2009) (quoting Nelson v. Estelle,
642 F.2d 903, 908 (5th Cir. Unit A 1981)).
Similarly, the district court did not err by failing to glean these future
developments when advising Hinkson of the “maximum possible penalty”
under Rule 11. Fed. R. Crim. P. 11(b)(1)(H). Just as with the ineffective
assistance of counsel standard, Rule 11 “does not require a district court to
predict and apply the holdings of the Supreme Court before they are
announced.” United States v. Lucas, 282 F.3d 414, 420 (6th Cir. 2002),
overruled on other grounds by United States v. Leachman, 309 F.3d 377, 384 n.8
(6th Cir. 2002). Rule 11 is satisfied “[a]s long as the [defendant] ‘understood
the length of time he might possibly receive.’” United States v. Jones, 905
F.2d 867, 868 (5th Cir. 1990) (second alteration in original) (quoting United
States v. Rivera, 898 F.2d 442, 447 (5th Cir. 1990)). At the time that Hinkson
made his guilty plea, he was so advised by the district court. His guilty plea,
appellate waiver and all, is valid, and the district court did not abuse its
discretion by finding that the waiver bars his petition for the writ of coram
nobis. 3
II.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
3
Because we find that the appellate waiver in Hinkson’s guilty plea bars his petition
for the writ of coram nobis, we need not consider the alternate grounds that the district court
found for its denial (namely, that it was procedurally deficient, fatally infected by delay, or
that Hinkson did not suffer from collateral consequences requiring coram nobis relief).
6