Back to jail for Doreen Hendrickson

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jcolvin2
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Re: Back to jail for Doreen Hendrickson

Postby jcolvin2 » Wed Oct 25, 2017 2:10 am

On October 18, 2017, with the consent of the government, the court extended the date for Doreen's self-surrender to November 29, 2017:

13-cr-20371 (Docket Entry #173)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

UNITED STATES OF AMERICA,
Plaintiff,
v. Case No: 13-20371
Honorable Victoria A. Roberts
DOREEN HENDRICKSON,
Defendant.
______________________________/

ORDER GRANTING MOTION

On October 16, 2017, Defendant filed a Motion for Enlargement of Time of Self- Surrender Report Date. [Doc. 172] The Government does not object to the motion.

Plaintiff’s motion is GRANTED. Plaintiff must self-surrender on Wednesday, November 29, 2017 to the facility designated by the Bureau of Prisons.

IT IS ORDERED.
/s/ Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: October 18, 2017

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Re: Back to jail for Doreen Hendrickson

Postby jcolvin2 » Wed Oct 25, 2017 2:23 am

On October 20, the Court warned Doreen that it may construe her motion as a Motion as a 28 U.S.C. section 2255 motion. If Doreen had any other potential valid habeas claims, construing her motion as a section 2255 claim could have disadvantages.

The court's order (Docket #175):

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES
Plaintiff,
Case No. 13-20371
v.
Honorable Victoria A. Roberts
DOREEN HENDRICKSON,
Defendant.
_________________________________/
NOTICE OF ABILITY TO CONSTRUE "MOTION FOR THE STAY OF EXECUTION OF SENTENCE, THE VACATING OF HER CONVICTION, AND OTHER RELIEF" [Doc.#169] AS A MOTION UNDER 28 U.S.C. § 2255

I. Introduction

Doreen Hendrickson (“Hendrickson”) filed a pro se “Motion for the Stay of Execution of Sentence, the Vacating of Her Conviction, and Other Relief.” [Doc. # 169]. Hendrickson claims the Court lacked jurisdiction throughout her proceedings. In response, the Government filed a “Motion for Warning to Defendant Regarding Potential Characterization of Motion as Governed by Section 2255.” [Doc. # 171].

Hendrickson responded to the Government’s motion; she filed a “Response in Opposition to the Government’s October 12 Motion for Warning.” Hendrickson acknowledges the possibility of the Court construing her motion under 28 U.S.C. § 2255, but sees no reason to withdraw or amend it. She also says it is “unnecessary” for the Court to issue any warning.

Nevertheless, the Court is obligated to notify Hendrickson that it could properly construe her motion as a 28 U.S.C. § 2255 petition, and gives her the opportunity to withdraw or amend it. This notice and the applicable law must come from the Court, and
not by way of Government motion.

II. Background

A jury convicted Hendrickson of felony criminal contempt. On April 9, 2015, the Court sentenced Hendrickson to eighteen months imprisonment, followed by one year of supervised release. As a condition of her release, the Court ordered:

While on supervised release, defendant is to fully cooperate with the
IRS by filing all delinquent or amended returns within 60 days of the
release on supervision and to timely file all future returns that come due during the term of supervised release. On these returns defendant shall not alter the jurats, add disclaimers, or otherwise make it impossible for the IRS to properly process them and they cannot be based on any theory contained in Cracking the Code.

Twice, in April 2015 and in September 2016, Hendrickson filed a motion to modify the conditions of her supervised release. The Court denied both motions. As of September 8, 2017, Hendrickson had not filed her amended 2002 and 2003 federal income tax returns, in violation of the conditions of her supervised release. The Court subsequently sentenced her to four months in prison with no supervised release to follow.

Hendrickson filed the pending motion, indicating that pursuant to Federal Rules of Civil Procedure 60(b)(4) and (6), she requests the Court to vacate her conviction due to the Court’s lack of jurisdiction over her proceedings. Specifically, she claims that by compelling her to file amended tax returns for 2002 and 2003, the Court and the Government violated 26 U.S.C. § 7206, which criminalizes any effort to procure tax returns if the signer believes any material thing on the returns is false. Hendrickson argues that because it was illegal for the Government to seek and for the Court to issue the order, the Court lacks jurisdiction. She also requests that the Court stay the execution of the sentence it imposed on September 8, 2017 pursuant to Federal Rule of Civil Procedure 62(b)(4).

The Government requests that the Court warn Hendrickson that: 1) her motion may be recharacterized as a § 2255 motion; 2) if she wishes to proceed, such a recharacterization may mean that any subsequent or successive § 2255 motions may be subject to restrictions; and 3) if she fails to include all of her claims in an initial § 2255 motion, she may lose other claims if she tries to assert them in later § 2255 motions. The Government also asks the Court to inform Hendrickson that she may withdraw her motion, or amend it to include all claims she believes she has.

III. Analysis

A prisoner sentenced by a federal court may “move the court which imposed the sentence to vacate, set aside or correct the sentence” when “the sentence was imposed in violation of the Constitution or 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.” 28 U.S.C. § 2255(a). Many pro se defendants file post-conviction motions without specifying the legal basis for the relief sought. In re Shelton, 295 F.3d 620, 621 (6th Cir. 2002). “District courts, in an effort to assist pro se litigants unaware of the applicable statutory framework, often re-characterize such filings as § 2255 motions.” Id.

However, before the Court can recharacterize a pro se petitioner’s motion as a § 2255 petition, it must give the petitioner notice and the opportunity for withdrawal. In re Shelton, 295 F.3d at 622. The Court must also “warn the litigant that this recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on ‘second or successive’ motions, and provide the litigant an opportunity to withdraw the motion or to amend it so that it contains all the § 2255 claims [s]he believes [s]he has.” Castro v. United States, 540 U.S. 375, 383 (2003). If the Court fails to do this, the motion will not be considered a § 2255 motion, and the restrictions of subsequent motions will not apply to later motions the petitioner may file. Id.

Hendrickson does not characterize her motion as a § 2255 one. However, Hendrickson requests that her conviction be vacated, or that her sentence be stayed because the Court lacks jurisdiction over her proceedings. This is the type of relief available under § 2255. Accordingly, the Court can construe the motion as one filed under § 2255. See In re Shelton, 295 F.3d at 621 (where the district court construed the defendant’s “motion to dismiss for lack of territorial jurisdiction” as a § 2255 motion).

To fulfill its duty, the Court notifies Hendrickson that it could rightfully construe her motion to be a § 2255 motion. The Court gives Hendrickson the opportunity to withdraw, or amend her motion to include any and all § 2255 claims she believes she has. If Hendrickson does not choose to withdraw her motion, then upon such recharacterization as a § 2255 motion, it is subject to the restrictions on subsequent or successive § 2255 motions. If she chooses to proceed with her motion as filed, then she may lose other claims she may try to assert in a later § 2255 motion.

By November 3, 2017, Defendant may either withdraw the motion or file an amended motion under § 2255. If nothing is filed by November 3, 2017, the Court will issue an order formally construing the motion as a § 2255 motion. If that order issues, the Government must respond to Hendrickson’s motion in the normal course.

IT IS ORDERED.
S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: October 20, 2017

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Re: Back to jail for Doreen Hendrickson

Postby jcolvin2 » Wed Nov 15, 2017 10:15 pm

On November 8, 2017, the court officially construed Doreen's motion as a section 2255 motion, and provided a briefing schedule. The text of docket entry 176 provides the following:

Notice Construing 169 "Motion for the Stay of Execution of Sentence, The Vacating of Her Conviction, and Other Relief" as a Motion Under 28 U.S.C., §2255 and Setting Briefing Scheduling. Response due by 12/6/2017; Reply due by 1/3/2018. Signed by District Judge Victoria A. Roberts. (LVer) (Entered: 11/08/2017)

On November 14, 2017, Doreen filed a motion to extend the time for self-reporting to January 28, 2018:

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES,
Plaintiff,
v.
DOREEN HENDRICKSON,
Defendant.
Case No. 13-cr-20371
Judge Victoria A. Roberts

DOREEN HENDRICKSON'S SECOND MOTION FOR THE
ENLARGEMENT OF HER SELF -SURRENDER REPORT DATE

On October 10, 2017, Doreen Hendrickson filed a Motion to Vacate and for Stay of Execution of her pending sentence of four months of incarceration until final disposition of her motion. On October 12, 2017 the Court issued a scheduling order calling for a government Response by October 24, 2017 and Mrs. Hendrickson's Reply on October 31. At that time, Mrs. Hendrickson was due to self-surrender to the Bureau of Prisons on October 31, meaning that she would be unable to have a full and proper opportunity to formulate her Reply, would be unavailable for any subsequent hearing on her motion, and that in effect her motion would, in part at least, be automatically denied simply by virtue of the existing schedule. On the same day, October 12, the government Moved the Court for a warning to Mrs. Hendrickson that her motion might be construed as a § 2255 motion.

Due to the problems inherent in the then-existing schedule of events, on October 16 Mrs. Hendrickson Moved the Court for an enlargement of her self-surrender date to November 29, 2017, to which the government had no objection. On October 18, the Court granted that motion. On October 19, Mrs. Hendrickson responded in opposition to the government's motion for a warning, indicating her understanding that her Motion might be construed by the Court as a § 2255 motion, and that nonetheless she saw no need to withdraw or amend the motion.

On October 20, the Court issued the govermnent-requested Notice that it might construe Mrs. Hendrickson's Motion as a § 2255 motion, providing that she had until November 3, 2017 to withdraw or amend the motion, which Mrs. Hendrickson has declined to do. On November 8 the Court issued a Notice that it is construing Mrs. Hendrickson's Motion as a § 2255 motion and setting a new briefing schedule providing for a government Response to Mrs. Hendrickson's Motion on December 6,2017 and Mrs. Hendrickson's Reply due January 3,2018.

As before, Mrs. Hendrickson's current self-surrender date would deny her a proper opportunity to most effectively reply to the government's response to her motion, and make it impossible for her to participate in the subsequent proceedings. In addition, Mrs. Hendrickson's current self-surrender date would effectively deny her motion at least in part without any hearing and without an actual adjudication of the motion on its merits.

Accordingly. in order to allow Mrs. Hendrickson proper time to competently Reply as well as to facilitate her participation in subsequent proceedings related to her pending Motion, Mrs. Hendrickson respectfully Moves the Court for a second enlargement of her self-surrender date to January 28,2018.

Concurrence was sought from government counsel, who indicated that the government has no objection to the requested enlargement.

Respectfully submitted this 14th day of November, 2017,

Doreen M. Hendrickson, in propria persona
232 Oriole St.
Commerce Twp., MI 48382
(248) 366-6858
doreen@losthorizons.com

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Re: Back to jail for Doreen Hendrickson

Postby LaVidaRoja » Wed Nov 15, 2017 10:40 pm

So, how long do you think she will be able to postpone her reporting date using these tactics?
Little boys who tell lies grow up to be weathermen.

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Re: Back to jail for Doreen Hendrickson

Postby jcolvin2 » Wed Nov 15, 2017 11:10 pm

I'm guessing that Doreen may get one more extension, perhaps extending reporting to late March. The government does not seem gung-ho about having her locked up immediately, so the easiest thing to do is just kick the can down the road. It is rank speculation on my part, but I think that the judge will likely rule on the merits of Doreen's motion after January 28, 2018, but before the middle of March.

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Re: Back to jail for Doreen Hendrickson

Postby Burnaby49 » Wed Nov 15, 2017 11:29 pm

What's a § 2255 motion?
"Yes Burnaby49, I do in fact believe all process servers are peace officers. I've good reason to believe so." Robert Menard in his May 28, 2015 video "Process Servers".

https://www.youtube.com/watch?v=XeI-J2PhdGs

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Re: Back to jail for Doreen Hendrickson

Postby jcolvin2 » Thu Nov 16, 2017 12:32 am

Burnaby49 wrote:What's a § 2255 motion?


A section 2255 petition is a proceedings instituted by a defendant for relief from a federal conviction. Section 2255 essentially a statutory codification of the Writ of Habeas Corpus (aka The Great Writ). For example, defendants who believe that their attorney was incompetent and made a terrible error at trial which led to them being found guilty usually proceed in this manner to seek a new trial. (The incompetence of one's attorney cannot ordinarily be raised on direct appeal.)

When seeking relief from federal convictions, there is typically a one year statute of limitations which starts running when the conviction is final. If the section 2255 motion related to her original trial conviction, it is likely too late because the conviction was final years ago, but perhaps it relates instead to the judge's revocation of supervised release.

Because of legal limitations on second or successive section 2255 petitions imposed by statute, convicted defendants who wish to seek relief are best advised to make sure that any and all possible grounds for relief are included in their section 2255 petition. This is why the Judge cautioned Doreen that she would treat Doreen's motion as a section 2255 petition and gave Doreen an opportunity to withdraw her motion. The idea would be that Doreen might want to refile later, including additional grounds for relief if such grounds existed.

In this case, I'm not sure it makes much difference as I am unaware of any other grounds Doreen might have to seek post-conviction relief. The grounds set out by Doreen in her motion rehash the same arguments that the Hendricksons have made since they were first ordered to file amended returns.

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Re: Back to jail for Doreen Hendrickson

Postby Burnaby49 » Thu Nov 16, 2017 1:19 am

Thanks, a very comprehensive answer.
"Yes Burnaby49, I do in fact believe all process servers are peace officers. I've good reason to believe so." Robert Menard in his May 28, 2015 video "Process Servers".

https://www.youtube.com/watch?v=XeI-J2PhdGs


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