UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

MARCO A. HENDRICKSON, 

 Defendant - Appellant. 

No. 19-5050 

(D.C. No. 4:08-CR-00197-JHP-2) 

(N.D. Okla.) 

_________________________________ 

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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 10, 2020

Christopher M. Wolpert 

Clerk of Court
2 

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 
3 

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). 
4 

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 
5 

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.”).