No. 22-6095

Owen Garth Hinkson v. United States

Lower Court: Fifth Circuit
Docketed: 2022-11-18
Status: Denied
Type: IFP
Response WaivedIFP
Tags: aggravated-felony appellate-waiver constitutional-challenge criminal-procedure due-process immigration immigration-law ineffective-assistance sentencing sentencing-enhancement vacated-conviction
Latest Conference: 2023-01-06
Question Presented (from Petition)

Whether the district court can sentence Mr. Owen Garth Hinkson, to a statute of 8 U.S.C. § 1326(b)(2), 20 years imprisonment when his 1987 Massachusetts conviction, which served as the base aggravated felony for enhancement, has been vacated;; the Massachusetts Assault And Battery is now vacated?

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. 1204 (2018)?

Whether the Fifth Amendment to the United States Constitution allowed the United States District Court and the United States Court of Appeals for the Fifth Circuit-to up held a person to be sentenced under the wrong statute?

Whether the district court.have jurisdiction to up: held Mr. Owen Garth Hinkson*s Assault and Battery enhancement after the conviction is now vacated and does 28 U.S.C. § 1651(a) allow Mr. Owen Garth Hinkson, the right to have the court vacate the illegal enhancement pursuant to 8 U.S.C. § 1101(a)(43) (F)and.l8 U.S.C. § 16(b) , because without § 16(b) 8 U.S.C. § 1101(a) (43) (F) is void, and Mr Owen Garth Hinkson, 8 U.S.C. § 1326(b)(2) enhancement is also void?

Whether Mr. Owen Garth Hinkson*s appellate waiver should enforced his illegal § 1101 (a)(43) (F) and § 1326(b)(2) enhance ment conviction?

"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 the waiver or the plea itself." " 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).""?

Whether (1) 18 U.S.C. § 16(b); (2) 8 U.S.C. § 1326(b)(2); (3) 8 U. SiC. _ §._1101 (a) ( 43) (F).; .and Mass. Gen. Law, ch. 265, § 13D, is Mr. Hinkson actually innocent of these statute? Because this Supreme Court Rule that 18 U*S.C. § 16(b), and 16(b) apply to 8 U.S.C. § 1101(a) (43) (F) and-works hand in hand and 18 U.S.C. § 16(b) is Rule unconstitutionally vague?

Question Presented (AI Summary)

Whether the district court can sentence Mr. Owen Garth Hinkson to a statute of 8 U.S.C. § 1326(b)(2), 20 years imprisonment when his 1987 Massachusetts conviction has been vacated

Docket Entries

2023-01-09
Petition DENIED.
2022-12-08
DISTRIBUTED for Conference of 1/6/2023.
2022-12-01
Waiver of right of respondent United States to respond filed.
2022-08-12
Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due December 19, 2022)

Attorneys

Owen Garth Hinkson
Owen Garth Hinkson — Petitioner
United States
Elizabeth B. PrelogarSolicitor General, Respondent