Swanson v. USA

Filing 6

OPINION. Signed by Judge James P. Jones on 9/10/2015. (tvt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
MICHAEL SWANSON-EL,
Petitioner,
v.
CHRISTOPHER ZYCH,
Respondent.

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Case No. 7:15CV00398
OPINION
By: James P. Jones
United States District Judge

The petitioner, Michael Swanson, an inmate at the United States Penitentiary
in Lee County, Virginia, filed this action, pro se, as a Petition for a Writ of Habeas
Corpus under 28 U.S.C. § 2241. Swanson alleges that he should be resentenced,
because his federal criminal sentence as imposed is unlawful under Johnson v.
United States, 135 S. Ct. 2551 (2015). Upon review of the record, I conclude that
Swanson’s claim for relief under § 2241 in this court must be summarily denied
without prejudice. I will, however, construe the submission as a Motion to Vacate,
Set Aside or Correct Sentence under 28 U.S.C. § 2255, and transfer it to the
sentencing court.
Swanson was convicted in the United States District Court for the Central
District of Illinois on one count of aggravated bank robbery and sentenced to 264
months in prison. The court of appeals affirmed his conviction. United States v.
Swanson, 55 F. App’x 761 (7th Cir. 2003) (unpublished). Swanson indicates that

his prior motion to vacate, set aside or correct the sentence under 28 U.S.C.
§ 2255, filed in the sentencing court, was also unsuccessful.

Swanson now

petitions this court under § 2241 for habeas corpus relief under the Johnson
decision, which held that imposing an increased sentence under the residual clause
of the Armed Career Criminal Act, 18 U.S.C. § 924(e), violates the Constitution’s
guarantee of due process.
As stated, Swanson’s claim challenges the legality of his federal sentence as
imposed. Such claims must normally be raised on appeal or in a § 2255 motion in
the sentencing court. In re Jones, 226 F.3d 328, 332 (4th Cir. 2000). Petitioner’s
§ 2241 petition raising such claims is barred unless it meets the stringent standard
mandated under the Jones decision. 226 F.3d at 333-34 (finding that challenge to
federal conviction is barred from review under § 2241 absent a showing that under
a post-conviction change in the law, petitioner’s offense conduct is no longer
criminal); see also United States v. Surratt, No. 14-6851, 2015 WL 4591677 (4th
Cir. July 31, 2015) (applying In re Jones to bar § 2241 sentencing relief under
retroactive appellate court decision issued after petitioner’s initial § 2255 motion,
because petitioner’s offense conduct remained criminal).
The current petition fails to state facts on which Swanson could satisfy the
Jones standard. Because the Johnson decision had no effect on the criminality of
his offense conduct — aggravated bank robbery — he cannot proceed with his
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claim under § 2241. Therefore, I will deny without prejudice Swanson’s claim
under § 2241 for sentencing relief under Johnson. I will also construe Swanson’s
submission as a § 2255 motion, however, which will be transferred to the United
States District Court for the Central District of Illinois.
A separate Final Order will be entered herewith.
DATED: September 10, 2015
/s/ James P. Jones
United States District Judge

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