Swehla v. Wilson

Filing 14

ORDER ADOPTING 7 REPORT AND RECOMMENDATION: 1. The Petition for Writ of Habeas Corpus [Doc. No. 1] is DENIED; 2. Respondent's Motion to Dismiss [Doc. No. 5] is GRANTED IN PART; 3. Petitioner's "Combined Motion to Strike and Reply to Respondent's Response" [Doc. No. 13] is DENIED, and 4. This action is DISMISSED WITH PREJUDICE (Written Opinion). Signed by Judge Susan Richard Nelson on 11/27/13. (LPH)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Paul Peter Swehla,

Case No. 13-cv-1919 (SRN/JJK)

Petitioner,
MEMORANDUM OPINION
AND ORDER

v.
Denese Wilson,
Respondent.

Paul Peter Swehla, Sandstone, Minnesota 55072, Pro Se Petitioner.
Sarah E. Hudleston, United States Attorney’s Office, 300 South Fourth Street, Suite 600,
Minneapolis, MN 55415, for Respondent.
SUSAN RICHARD NELSON, United States District Judge
I.

INTRODUCTION
This matter is before the undersigned United States District Judge for consideration

of Petitioner’s Objections [Doc. No. 10] to United States Magistrate Judge Jeffrey J.
Keyes’s September 26, 2013, Report and Recommendation [Doc. No. 7]. The Magistrate
Judge recommended that: (1) the Petition for Writ of Habeas Corpus [Doc. No. 1] be
denied; (2) Respondent’s Motion to Dismiss [Doc. No. 5] be granted in part; and (3) this
action be dismissed. (Sept. 26, 2013, Report and Recommendation at 26 [Doc. No. 7].)
The Government responded to Petitioner’s Objections to the Report and Recommendation.
[Doc. No. 12]. On November 4, 2013, Petitioner filed a “Combined Motion to Strike and
Reply to Respondent’s Response,” [Doc. No. 13], which is also before the Court. For the
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reasons set forth below, the Court overrules Petitioner’s Objections, adopts the Report and
Recommendation, and denies Petitioner’s “Combined Motion to Strike and Reply to
Respondent’s Response.”
II.

BACKGROUND
The Report and Recommendation documents the factual and procedural background

of this case, which the Court incorporates by reference. Briefly stated, Petitioner is confined
at the Federal Correctional Institute in Sandstone, Minnesota. This confinement is pursuant
to a conviction and sentencing in the United States District Court, Northern District of Iowa
for distributing morphine within 1,000 feet of a protected location, in violation of 18 U.S.C.
§§ 841(a)(1), 841(b)(1)(C), and 860. (J. in a Criminal Case at 1 in United States v. Swehla,
case number 6:02-cr-2035 [Doc. No. 64].) Based on Petitioner’s prior state-court
convictions—including one for third-degree burglary in 1994—the district court for the
Northern District of Iowa sentenced Petitioner as a career offender to a 262-month term of
imprisonment, followed by a 6-year term of supervised release. (Id. at 2-3.) Petitioner
directly appealed his sentence, which the Eighth Circuit affirmed. United States v. Swehla,
442 F.3d 1143, 1147 (8th Cir. 2006).
In December 2010, Petitioner filed a “Petition for Writ of Error Coram Nobis” in the
district court for the Northern District of Iowa, arguing that his state-court convictions were
unlawful. (Pro Se Petition for Writ of Habeas Corpus in Swehla v. State of Iowa, 1:10-cv158 [Doc. No. 1].) On June 7, 2011, the district court dismissed this petition. (J. in Favor of
State of Iowa, case number 1:10-cv-158 [Doc. No. 15].) Petitioner does not appear to have
filed a motion to vacate, set aside, or correct his federal sentence under 28 U.S.C. § 2255 in
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the Northern District of Iowa.
On July 17, 2013, Petitioner filed a Writ of Habeas Corpus under 28 U.S.C. § 2241
in the United States District Court, District of Minnesota. (Pet. for Writ of Habeas Corpus
[Doc. No. 1].) On August 22, 2013, the Government responded to the Petition and moved
to dismiss or transfer the § 2241 habeas petition. (Government’s Resp. and Mot. to Dismiss
or Transfer § 2241 Habeas Pet. [Doc. No. 5].) On September 26, 2013, the Magistrate
Judge recommended that: (1) the Petition be denied; (2) Respondent’s Motion to Dismiss be
granted in part; and (3) the action be dismissed. (Sept. 26, 2013, Report and
Recommendation at 26 [Doc. No. 7].) Petitioner objected to the Report and
Recommendation [Doc. No. 10], and the Government responded to Petitioner’s Objections
[Doc. No. 12]. On November 4, 2013, Petitioner sought to strike the Government’s most
recent response, alleging that it is “redundant, unauthorized, and misleading.” (Pet’r’s
Combined Mot. to Strike and Reply to Resp’t’s Resp. at 1 [Doc. No. 13].)
III.

DISCUSSION
A. Standard of Review
A party “may file and serve specific written objections to a magistrate judge’s

proposed findings and recommendations.” D.Minn. LR 72.2(b)(1). The district court will
review de novo those portions of the R&R to which an objection is made, and it “may
accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b)(3); D.Minn. LR
72.2(b)(3). Ordinarily, the district judge relies on the record of proceedings before the
magistrate judge. D.Minn. LR 72.2(b)(3).
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As to an underlying challenge to a federal sentence, a petitioner generally must do so
in the sentencing court through 28 U.S.C. § 2255 and not 28 U.S.C. § 2241. Abdullah v.
Hedrick, 392 F.3d 957, 959 (8th Cir. 2004). Whereas a § 2255 motion involves a challenge
to the imposition of a sentence, a § 2241 motion involves a challenge to the execution of a
sentence. See Mickelson v. United States, No. 01-1750, 2002 WL 31045849, at *2 (D.
Minn. Sept. 10, 2002). A motion under § 2255 is the exclusive remedy available to a
federal prisoner asserting a collateral challenge to his conviction or sentence, except under
limited circumstances where the remedy under § 2255 would be “inadequate or
ineffective.”1 See Abdullah, 392 F.3d at 959. To establish that a remedy is inadequate or
ineffective,
there must be more than a procedural barrier to bringing a § 2255 petition . . .
§ 2255 is not inadequate or ineffective merely because the claim was
previously raised in a § 2255 motion and denied, or because a remedy under
that section is time-barred.
Id. Moreover, a prisoner cannot raise an issue in a § 2241 motion that could have been or
was actually addressed in the § 2255 motion filed in the sentencing district. Hill v.
Morrison, 349 F.3d 1089, 1092 (8th Cir. 2003). A federal prisoner should be allowed to

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The requirement that a petitioner must first show that § 2255 is “inadequate or
ineffective” comes from the savings clause in § 2255(e):
An application for a writ of habeas corpus in behalf of a prisoner who is
authorized to apply for relief by motion pursuant to this section, shall not be
entertained if it appears that the applicant has failed to apply for relief, by
motion, to the court which sentenced him, or that such court has denied him
relief, unless it also appears that the remedy by motion is inadequate or
ineffective to test the legality of his detention.

28 U.S.C. § 2255(e).
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seek habeas corpus under § 2241 “only if he had no reasonable opportunity to obtain earlier
judicial correction of a fundamental defect in his conviction or sentence because the law
changed after his first 2255 motion.” Lapsley v. United States, No. 11-20, 2012 WL
2904766, at *7 (D. Minn. June 6, 2012).
III.

DISCUSSION
At the outset, the Court agrees with the Magistrate Judge’s observation that because

Petitioner is challenging the validity of his sentence and not its execution, the Court has
jurisdiction over his § 2241 petition only if the remedy under § 2255 is “inadequate or
ineffective.” (Sept. 26, 2013, Report and Recommendation at 11 [Doc. No. 7].) Petitioner
argues that a § 2255 motion is inadequate or ineffective because he previously filed such a
motion and cannot bring a second or successive motion under § 2255(h), and the one-year
statute of limitations for bringing a § 2255 motion passed before the United States Supreme
Court issued Descamps v. United States, 133 S. Ct. 2276 (2013). (See Pet. for Writ of
Habeas Corpus at 3 [Doc. No. 1]; Pet’r’s Objections to Magistrate’s Report and
Recommendation at 3 [Doc. No. 10].) Petitioner also argues that “controlling Eighth Circuit
case law [sic] specifically states that Petitioner’s Guidelines claim is not cognizable in a
§ 2255.” (Pet’r’s Combined Mot. to Strike and Reply to Resp’t’s Resp. at 2 [Doc. No. 13].)
The Court addresses these arguments in turn.
A. Motion to Dismiss
1. Second or Successive Motion
Under 28 U.S.C. § 2255(h), a second or successive motion is barred unless it is
certified by a panel of the appropriate court of appeals to contain newly discovered
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evidence, or involves a new rule of constitutional law made retroactive to cases on collateral
review by the Supreme Court. 28 U.S.C. § 2255(h)(1)-(2). The Court agrees with the
Magistrate Judge’s observation that this subsection is irrelevant because the record does not
show that Petitioner filed a first motion under § 2255. (Sept. 26, 2013, Report and
Recommendation at 12 [Doc. No. 7].) Moreover, even if Petitioner had filed a first motion
under § 2255, the rule barring him from filing a second or successive motion does not
render the savings clause applicable because it is merely a procedural barrier. See
Abdullah, 392 F.3d at 959. Thus, Petitioner’s arguments on this issue do not support a
finding that the § 2255 remedy is inadequate or ineffective.
2. United States v. Descamps
Petitioner also argues that a § 2255 motion is inadequate or ineffective because the
one-year statute of limitations for bringing such a motion expired by the time the Supreme
Court decided Descamps in June 2013. In relevant part to this case, § 2255(f) provides that
the one-year limitations period begins to run on either “the date on which the judgment of
conviction becomes final,” or “the date on which the right asserted was initially recognized
by the Supreme Court, if that right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral review.” 28 U.S.C. §§ 2255(f)(1), (3).
Under § 2255(f)(1), the limitations period expired several years ago when the judgment of
conviction became final. But it is possible under § 2255(f)(3) that Descamps extends the
limitations period, allowing Petitioner to file a § 2255 motion in the Northern District of
Iowa. Whether Descamps extends the limitations period depends on whether it recognizes a
new right and is “retroactively available to cases on collateral review.” See id. § 2255(f)(3).
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The Magistrate Judge properly concluded that he need not determine whether
Descamps applies retroactively to cases on collateral review, because either way, relief
under § 2241 is unavailable in this Court. (Sept. 26, 2013, Report and Recommendation at
16 [Doc. No. 7].) If Descamps is retroactively applicable, and the other conditions of §
2255(f)(3) are met, Petitioner can file a § 2255 motion in the Northern District of Iowa.
Thus, the remedy under § 2255 is not inadequate or ineffective. And if Descamps does not
apply retroactively, Petitioner cannot meet the requirements under § 2255(f)(3) and is barred
from § 2255 relief.2 As discussed earlier, procedural barriers to filing a § 2255 motion,
alone, are not enough to show that such a remedy is inadequate or ineffective.
3. Challenge to Guidelines Enhancement
Petitioner further objects that the remedy under § 2255 is inadequate or ineffective
because he is “prohibited from challenging a Guideline enhancement in a § 2255 Motion.”
(Pet’r’s Objections to Magistrate’s Report and Recommendation at 3 [Doc. No. 10].)
Petitioner cites the Magistrate Judge’s observation that “a claim that the Guidelines were
misapplied is not cognizable in a first § 2255 motion when the sentence imposed is within
the statutory maximum authorized for the offense of conviction.” (Id.; Sept. 26, 2013,
Report and Recommendation at 19 [Doc. No. 7].) Here, Petitioner’s 262-month term of
imprisonment was less than the 480-month statutory maximum that he could have received.
The Court respectfully disagrees that Petitioner has shown the remedy under § 2255
to be inadequate or ineffective. First, Petitioner has not pursued any § 2255 relief in the

2

Moreover, if Descamps is not retroactively applicable, any new rule of law it may
announce does not apply to Petitioner.
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Northern District of Iowa. Therefore, the argument that he is prohibited from challenging a
guideline enhancement is purely speculative. Second, even if the sentencing court denies
any § 2255 motion that Petitioner may file, failure to obtain such relief does not establish
that the remedy is either inadequate or ineffective. Davenport v. Nickrenz, No. 13-2273,
2013 WL 5919069, at *7 (D. Minn. Nov. 4, 2013). As other courts have explained:
Petitioner’s section 2255 motion in the sentencing court was an adequate and
effective remedy to test the legality of his detention inasmuch as that court
considered and ruled on the identical issue presented in the instant petition
for a writ of habeas corpus. The fact that the motion was denied does not
mean that it was an ineffective or inadequate procedural device. True, it
did not effect petitioner's release. The purpose of the statute, however, is
not necessarily to end a prisoner's detention, but rather ‘to test’ its legality.
The adoption of petitioner's argument would mean that, because of a
possible application of different legal principles by the court confronted
with a habeas petition and the court which has already ruled on a section
2255 motion, a prisoner would have the right in every instance to retest the
legality of his detention.
Cain v. Markley, 347 F.2d 408, 410 (7th Cir. 1965) (emphasis added). Here, Petitioner
may file a § 2255 motion in the Northern District of Iowa, and this sentencing court can
test the legality of Petitioner’s detention. Therefore, Petitioner has not established that
the remedy under § 2255 is inadequate or ineffective.
For all of these reasons, the savings clause does not apply, and this Court lacks
jurisdiction over Petitioner’s Writ of Habeas Corpus under 28 U.S.C. § 2241.
Consequently, it does not reach the merits of Petitioner’s arguments concerning Descamps,
and it dismisses the § 2241 petition.
B.

Motion to Transfer

Finally, the Court considers Respondent’s request to transfer this action to the
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Northern District of Iowa. Petitioner may raise his claims under Descamps via a § 2255
motion in the sentencing court if that remedy is still available to him. Persuaded by the dual
need to preserve Petitioner’s rights and the sentencing court’s independent authority, see
Modena v. United States, No. 05-2358, 2005 WL 3116605, at *2 n.3 (D. Minn. Nov. 21,
2005), the Court agrees with the Magistrate Judge’s determination that transferring this case
to the Northern District of Iowa would be inappropriate. Thus, the Court denies
Respondent’s motion to dismiss to the extent it requests a transfer of this case.
IV.

ORDER
The Court therefore OVERRULES Petitioner’s Objections [Doc. No. 10],

ADOPTS the Magistrate Judge’s September 26, 2013, Report and Recommendation [Doc.
No. 7], and DENIES Petitioner’s “Combined Motion to Strike and Reply to Respondent’s
Response” [Doc. No. 13]. Accordingly, IT IS HEREBY ORDERED that:
1. The Petition for Writ of Habeas Corpus [Doc. No. 1] is DENIED;
2. Respondent’s Motion to Dismiss [Doc. No. 5] is GRANTED IN PART;
3. Petitioner’s “Combined Motion to Strike and Reply to Respondent’s Response”
[Doc. No. 13] is DENIED, and
4. This action is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated:

November 27, 2013

s/ Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Court Judge

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