Swehla v. United States of America

Filing 3

ORDER denying 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) ( Criminal Action 02-2035-LRR) filed by Paul Peter Swehla. A certificate of appealability will not issue. Signed by Chief Judge Linda R Reade on 4/2/14. (ksy)(Copy w/NEF to Plf)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION

PAUL PETER SWEHLA,
Movant,

No. C14-2009-LRR
No. CR02-2035-LRR

vs.
UNITED STATES OF AMERICA.

ORDER

____________________________
This matter appears before the court on Paul Peter Swehla’s motion to vacate, set
aside or correct sentence pursuant to 28 U.S.C. § 2255 (civil docket no. 1). Paul Peter
Swehla (“the movant”) filed such motion on February 13, 2014. Because judgment
entered against the movant on May 2, 2005, and the Eighth Circuit Court of Appeals
resolved the movant’s direct appeal on March 31, 2006, any action attacking his conviction
or sentence is barred by the one-year statute of limitation. The movant’s conviction
became final in June of 2006 and he only sought relief in February of 2014, which is well
beyond the applicable time frame. See 28 U.S.C. § 2255(f)(1). Further, no other
subsection under 28 U.S.C. § 2255(f) applies to the movant’s situation. The movant is not
able to rely on Descamps v. United States, ___ U.S. ___, 133 S. Ct. 2276 (2013), because
the Supreme Court has not made it retroactive to cases on collateral review. See Tyler v.
Cain, 533 U.S. 656, 663 (2001) (“[A] new rule is not made retroactive to cases on
collateral review unless the Supreme Court holds it to be retroactive.”). The movant cites
to no case in which the Supreme Court has declared its decision in Descamps to be
retroactively applicable on collateral review and the court’s own search has not revealed
any cases that have applied Descamps retroactively to a case on collateral review. Cf.

United States v. Hairston, 2014 U.S. Dist. LEXIS 38683 (W.D. Va. 2014); United States
v. Davis, 2014 U.S. Dist. LEXIS 34879 (N.D. Ill 2014); Hunter v. United States, 2014
U.S. Dist. LEXIS 28755 (E.D. Okla. 2014); Wilson v. Holland, 2014 U.S. Dist. LEXIS
16277 (E.D. Ky. 2014); Hoskins v. Coakley, 2014 U.S. Dist. LEXIS 7671 (N.D. Ohio
2014); United States v. Copeland, 2014 U.S. Dist. LEXIS 1921 (N.D. Okla. 2014);
Monroe v. United States, 2013 U.S. Dist. LEXIS 168904 (N.D. Tex. 2013); Baldwin v.
United States, 2013 U.S. Dist. LEXIS 167124 (D. Md. 2013); Strickland v. English, 2013
U.S. Dist. LEXIS 119371 (N.D. Fla 2013). Based on the foregoing, the movant’s motion
to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 is denied. A
certificate of appealability under 28 U.S.C. § 2253 will not issue.
IT IS SO ORDERED.
DATED this 2nd day of April, 2014.

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