SWANSON v. LARIVA
Filing
7
Entry Dismissing Action and Directing Entry of Final Judgment - Petitioner Roy Swanson is confined in this District serving the executed portion of a sentence imposed by the United States District Court for the Eastern District of Wisconsin. That sentence was enhanced based on the trial court's finding that Swanson qualified as an Armed Career Criminal (ACC) under 18 U.S.C. § 924(e)(1). The petition for a writ of habeas corpus is denied. Judgment consistent with this Entry shall now issue. Copy to petitioner via US Mail. Signed by Judge William T. Lawrence on 9/22/2014.(RSF)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
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ROY W. SWANSON,
Petitioner,
vs.
WARDEN LARIVA,
Respondent.
Case No. 2:14-cv-187-WTL-WGH
Entry Dismissing Action and Directing Entry of Final Judgment
I.
Petitioner Roy Swanson is confined in this District serving the executed portion of a
sentence imposed by the United States District Court for the Eastern District of Wisconsin. That
sentence was enhanced based on the trial court’s finding that Swanson qualified as an Armed
Career Criminal (ACC) under 18 U.S.C. § 924(e)(1). Contending that his sentence has been
improperly enhanced, Swanson has filed a petition for writ of habeas corpus. Swanson’s motion
pursuant to 28 U.S. C. 2241 to correct sentence [dkt 6] is granted to the extent that the motion is
treated as Swanson’s response to the Entry issued on July 8, 2014.
A 28 U.S.C. § 2255 motion is the presumptive means by which a federal prisoner can
challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343 (1974).
On March 21, 2011, Swanson filed such a motion. The motion was denied, with the
following summary:
Having considered the entire record in this matter, including the record in the
underlying criminal case, United States v. Swanson, Case No. 06–CR–0083, I
now conclude on three separate grounds that Swanson's motion for relief under §
2255 should be denied and the action dismissed. First, Swanson waived the
argument that he is not an ACC by agreeing that he was subject to the provisions
of the ACC Act in his Plea Agreement. Second, even apart from waiver, the facts
do not support equitable tolling of the limitation period, and the motion is
therefore untimely. Finally, even if the claim was not waived and the motion was
timely, Swanson would not be entitled to relief because he has more than three
prior convictions that would qualify as violent felonies. Accordingly, his sentence
of fifteen years under the ACC was lawful and did not result from the denial of
any constitutional right.
Swanson v. United States, 2011 WL 2896256 (E.D.Wis. July 20, 2011).
The present action is brought pursuant to 28 U.S.C. § 2241. “A federal prisoner may use
a § 2241 petition for a writ of habeas corpus to attack his conviction or sentence only if § 2255 is
‘inadequate or ineffective.’” Hill v. Werlinger, 695 F.3d 644, 645 (7th Cir. 2012) (quoting 28
U.S.C. § 2255(e)). Swanson’s habeas challenge was presented and rejected in his 28 U.S.C. §
2255 action. It is not available for further review here. See Taylor v. Gilkey, 314 F.3d 832, 835
(7th Cir. 2002). Although the savings clause of § 2255(e) just referenced above has drawn
Swanson to a second collateral challenge to the ACC status found by the trial court, 28 U.S.C. §
2244(a) prevents a federal inmate from utilizing § 2241 to challenge the validity of a federal
court conviction or sentence which has previously been presented to the federal courts for
determination. Valona v. United States, 138 F.3d 693, 694–95 (7th Cir. 1998) (concluding that §
2244(a) bars successive petitions under § 2241 directed to the same issue concerning execution
of a sentence); Chambers v. United States, 106 F.3d 472, 475 (2d Cir. 1997) (barring as a second
§ 2241 petition a repetitive challenge to application of time credits in the administrative
calculation of a federal sentence).
The savings clause of § 2255(e) does not give Swanson a second bite at the postconviction relief apple. “The essential point is that a prisoner is entitled to one unencumbered
opportunity to receive a decision on the merits.” Potts v. United States, 210 F.3d 770 (7th Cir.
2000). Swanson had that opportunity and he used it.
In Hill, the Seventh Circuit reiterated “‘Inadequate or ineffective’ means that ‘a legal
theory that could not have been presented under [Section] 2255 establishes the petitioner’s actual
innocence.’” 695 F.3d at 648 (citing Taylor v. Gilkey, 314 F.3d 832, 835 (7th Cir. 2002); In re
Davenport, 147 F.3d 605, 608 (7th Cir. 1998)).
Swanson has not shown that he is “innocent” of the enhanced ACC sentence. He simply
argues that one of the prior convictions was not a qualifying felony. He does not rest this
argument on a new case of statutory interpretation decided after his first § 2255 motion was
decided and which is to be applied retroactively. “Too much imprisonment is not the equivalent
of innocence of the crime.” Harvey v. Sherrod, 2009 WL 2231718, at *9 (S.D.Ill. July 27, 2009)
(citing Unthank v. Jett, 549 F.3d 534, 536 (7th Cir. 2008)) (dismissing a § 2241 petition).
The burden of demonstrating the inadequacy of the § 2255 remedy rests with the
petitioner. Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001). Swanson has not met that
burden. No argument he presents dictates otherwise. He mentions Descamps v. United States,
133 S. Ct. 2276 (2013), but this does not benefit him. "To date, the Supreme Court has not made
Descamps retroactive on collateral review." Groves v. United States, 755 F.3d 588, 593 (7th Cir.
2014), and the rule in Descamps has been the rule in the Seventh Circuit since at least 2009. See
United States v. Woods, 576 F.3d 400, 411 (7th Cir. 2009).
Federal courts are authorized to dismiss summarily any habeas petition that appears
legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856 (1994). This is an
appropriate case for such a disposition for precisely the reasons explained above. That is,
petitioner Swanson has sought relief pursuant to 28 U.S.C. § 2241 under circumstances which do
not permit or justify the use of that remedy. His petition for a writ of habeas corpus is denied.
II.
Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.
Date: 9/22/14
_______________________________
Distribution:
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
ROY SWANSON
08297089
TERRE HAUTE FEDERAL CORRECTIONAL INSTITUTION
Inmate Mail/Parcels
P.O. BOX 33
TERRE HAUTE, IN 47808
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