Swanson v. USA

Filing 8

ORDER denying 6 Motion for Reconsideration signed by Chief Judge William C Griesbach on 4/3/2017 (cc: all counsel and via US Mail to Roy Swanson) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

UNITED STATES OF AMERICA,
Plaintiff,
v.

Criminal Case No. 06-CR-083
Civil Case No.
17-CV-363

ROY W. SWANSON,
Defendant.

ORDER DENYING MOTION FOR RECONSIDERATION

Roy Swanson was sentenced to fifteen years under the Armed Career Criminal Act, 18
U.S.C. § 924(e)(2) for possession of a firearm by a prohibited person. A Judgment of Conviction
was entered on November 27, 2006. Swanson filed a motion on March 8, 2017 entitled “Motion
for Release Pending Resentencing, or in the alternative, Motion for Resentencing Under A Writ of
Audita Querela.” The Court construed Swanson’s motion as a second or subsequent petition to
vacate his conviction under 28 U.S.C. § 2255, dismissed the petition for lack of jurisdiction, and
referred the matter to the Federal Defender for this district to conduct a review and notify the Court
whether he intends to pursue relief on Swanson’s behalf. Presently before the Court is Swanson’s
motion for reconsideration of this Court’s March 10, 2017 order. For the following reasons,
Swanson’s motion will be denied.
A motion for reconsideration serves a very limited purpose in federal civil litigation and
should only be used “to correct manifest errors of law or fact or to present newly discovered
evidence.” Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987). Swanson

asserts the Court erred by construing his motion as a request to vacate, set aside or correct his
sentence under 28 U.S.C. § 2255. Under Section 2255, a party may move the court which imposed
the sentence to vacate, set aside, or correct the sentence where the sentence “was imposed in
violation of the Constitution or laws of the United States, or that the court was without jurisdiction
to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack.” This Court dismissed Swanson’s petition on the grounds
that he had previously raised the same or similar issue in a previous motion for postconviction relief
and that Swanson must obtain a certification from the United States Court of Appeals for the
Seventh Circuit in order to proceed with a second or subsequent petition.
“Prisoners cannot avoid the AEDPA’s rules by inventive captioning. Any motion filed in the
district court that imposed the sentence, and substantively within the scope of § 2255 ¶ 1, is a motion
under § 2255, no matter what title the prisoner plasters on the cover. . . . [T]he name makes no
difference. It is the substance that controls.” Melton v. United States, 359 F.3d 855, 857 (7th Cir.
2004) (internal citations omitted). Swanson’s motion clearly falls within the scope of § 2255—it
seeks to set aside his sentence on the basis that the sentence was imposed in excess of the maximum
authorized by law. Whether Swanson labeled his request as a motion for release pending
resentencing or motion for resentencing under a writ of audita querela, the Court was nevertheless
“obliged to dismiss it for want of jurisdiction because [Swanson] had not received [the Seventh
Circuit’s] permission to commence a second or successive collateral attack.” Id.
The Court will also briefly address Swanson’s claim for relief under 18 U.S.C. § 3143.
Section 3143(b) empowers a court to release a prisoner pending appeal only if it finds (1) clear and
convincing evidence the prisoner is not likely to flee or pose a danger to the community and (2) the
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appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result
in a favorable determination. However, “that statute is inapplicable to a convicted defendant who
is seeking postconviction relief . . . . [T]here is abundant authority that federal district judges in
habeas corpus and section 2255 proceedings have inherent power to admit applicants to bail pending
the decisions of their cases, but a power to be exercised very sparingly.” Cherek v. U.S., 767 F.2d
335, 337 (7th Cir. 1985) (internal citations omitted). Swanson “must show ‘not only a substantial
federal claim that presents not merely a clear case on the law, but a clear, and readily evidence case
on the facts’ . . . [and must] establish the existence of some circumstance which makes the request
for bail exceptional and deserving of special treatment in the interest of justice.” Bergmann v.
McCaughtry, 857 F. Supp. 640, 641 (E.D. Wis. 1994) (internal citations omitted).
As the Court noted in its March 10, 2017 order, Swanson’s claim may have merit. However,
Swanson has offered no evidence that makes his bail request exceptional and deserving of special
treatment in the interest of justice. Indeed, Swanson must follow the same procedural rules as all
other prisoners who believe their convictions under the Armed Career Criminal Act are now invalid
due to Mathis v. United States, –U.S.–, 136 S. Ct. 2243 (2016). Following the Seventh Circuit’s
direction in Dawkins v. United States, 829 F.3d 549, 550 (7th Cir. 2016), Swanson filed an
independent claim under 28 U.S.C. § 2241 in the Southern District of Indiana. This Court also
referred the matter to the Federal Defender for this district to conduct a review and determine
whether he intends to pursue relief on Swanson’s behalf. Accordingly, Swanson’s request for release
on bail is not exceptional and properly was denied.
In sum, the Court did not err by construing Swanson’s motion as a petition to vacate, set
aside or correct his sentence under § 2255. The Court properly dismissed Swanson’s petition for
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lack of jurisdiction. Swanson also was not entitled to release on bail under 18 U.S.C. § 3143.
Swanson’s motion for reconsideration therefore is DENIED.
Dated this 3rd

day of April, 2017.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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