Paul Peter Swehla, Reg. No. 32784-179, FCI-Sandstone Unit K-3, P.O. Box 1000, Sandstone, MN 55072, pro se.
Sarah Elizabeth Hudleston, Esq., Assistant United States Attorney, counsel for Respondent.
REPORT AND RECOMMENDATION
JEFFREY J. KEYES, Magistrate Judge.
This matter is before this Court for a Report and Recommendation on Petitioner Paul Peter Swehla's Petition for a Writ of Habeas Corpus Filed Pursuant to 28 U.S.C. § 2241 (Doc. No. 1, Pet.) and Respondent Denese Wilson's Motion to Dismiss or Transfer the Petition (Doc. No. 5). Swehla is currently confined in the Federal Correctional Institute located in Sandstone, Minnesota ("FCI-Sandstone"), and is serving a sentence for his conviction on charges of distributing morphine within 1, 000 feet of a protected location. The United States District Court for the Northern District of Iowa sentenced Swehla on that crime as a career offender, and based the duration of his sentence, in part, on Swehla's 1994 Iowa state court conviction for third-degree burglary. In his Petition, Swehla raises a collateral attack on his current federal sentence on grounds that his 1994 burglary conviction was a non-violent offense that should not have been used to impose a longer sentence on him as a career offender. Respondent asks the Court to dismiss Swehla's Petition for lack of jurisdiction, or alternatively, to construe it as a motion collaterally attacking his sentence under 28 U.S.C. § 2255, and transfer the matter to the Northern District of Iowa on grounds that we lack jurisdiction to consider it.
For the reasons explained in more detail below, this Court concludes that this District does not have jurisdiction to consider Swehla's Petition under 28 U.S.C. § 2241. Swehla has failed to show that the request for relief that he raises in his Petition falls within the narrow scope of claims that make the remedy under 28 U.S.C. § 2255 inadequate or ineffective, as would be required to bring his § 2241 Petition within this Court's authority to adjudicate. Thus, this Court recommends that the Petition be denied for lack of jurisdiction. In addition, this Court recommends that Respondent's motion to dismiss should be granted in part. To the extent that the motion requests that the Petition be dismissed for lack of jurisdiction, the motion should be granted. However, this Court concludes that Swehla's Petition should not be construed as a motion under § 2255 or transferred to the Northern District of Iowa.
What this means for Swehla is the following. His Petition is not properly before this Court, and we cannot grant him the relief he requests. He may attempt to file a motion for relief in the District Court for the Northern District of Iowa under 28 U.S.C. § 2255. But Swehla's collateral attack on his sentence cannot go forward in the District of Minnesota, and if the District Court agrees with this Report and Recommendation, this habeas case will be dismissed. This Court has proposed an analysis of Swehla's claims in this Report and Recommendation for the purpose of giving the District Court an alternative ruling on this matter in the event that the District Court disagrees with the jurisdictional conclusions drawn below. That alternative analysis of the merits is not intended to foreclose Swehla from attempting to press his claims for relief in the Northern District of Iowa or to otherwise constrain that court's analysis should Swehla choose to proceed before it.
In April of 2005, Swehla pleaded guilty to a charge of distributing morphine within 1, 000 feet of a protected location in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 860, for which he is currently serving a sentence of imprisonment in the custody of the Federal Bureau of Prisons at FCI-Sandstone. United States v. Swehla , Crim. No. 02-2035-LRR, Doc. No. 64 (N.D. Iowa Apr. 29, 2005) (Judgment); (Doc. No. 5, Gov't's Resp. and Mot. to Dismiss or Transfer § 2241 Habeas Pet. ("Resp.") 2; see also Pet. 1 (listing FCI-Sandstone as Swehla's mailing address).). Under 21 U.S.C. § 841(b)(1)(C), the maximum penalty for a conviction of distributing a controlled substance is twenty years (240 months). 21 U.S.C. § 841(b)(1)(C). Under 21 U.S.C. § 860, another statutory provision Swehla pleaded guilty to violating, if a person violates 21 U.S.C. § 841(a)(1), and commits the act within 1, 000 feet of a school, he is "subject to (1) twice the maximum punishment authorized by section 841(b) of [Title 21], " which, in Swehla's case made the statutory maximum for his conviction 480 months. See 21 U.S.C. § 841(a). The United States District Court for the Northern District of Iowa sentenced Swehla to 262 months imprisonment to be followed by a six-year term of supervised release. United States v. Swehla , Crim. No. 02-2035-LRR, Doc. No. 64 (N.D. Iowa Apr. 29, 2005) (Judgment).
This sentence was thus greater than the twenty-year maximum (240 month) sentence Swehla would have received under 21 U.S.C. § 841(b)(1)(C). The sentencing court gave Swehla a longer sentence as a result of the enhancement provided for in 21 U.S.C. § 860, and because he qualified as a "career offender" under the United States Sentencing Guidelines (the "Guidelines"). Under the Guidelines,
[a] defendant is a career offender if (1) the defendant is at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is... a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1(a). When a defendant meets the criteria under this provision and is therefore a "career offender, " the "offense level" used to calculate the Guidelines range for his sentence generally increases. See id. § 4B1.1(b) ("[I]f the offense level for a career offender from the table in this subsection is greater than the offense level otherwise applicable, the offense level from the table in this subsection shall apply."). In addition, career offenders are treated under the Guidelines as having a criminal history Category VI, which can lengthen the appropriate range of sentences under the Guidelines.
Swehla's federal distribution-of-morphine case was not his first conviction. He had prior state-court convictions that were used at his sentencing to classify him as a career offender under the Guidelines. One of those prior convictions was for third-degree burglary in 1994 in the Winneshiek County District Court in the State of Iowa. (Pet. 3-4.) Under the Guidelines, felony burglary convictions can qualify as the type of prior offense that is a "crime of violence" and can be used to sentence a federal defendant as a career offender. U.S.S.G. § 4B1.2(a)(2). Swehla and the government agreed in his federal distribution-ofmorphine case that he qualified as a career offender with a criminal history Category VI and that the top end of his sentencing range would be 262 months. ( See Pet. 3-4.) Thus, having determined that Swehla's 1994 burglary conviction was a "crime of violence" under the Guidelines, the District Court in the Northern District of Iowa sentenced Swehla as a career offender and imposed the 262 month sentence, discussed above, which exceeded the 240-month maximum sentence that would have been applicable to his federal drug crime had it not been committed within 1, 000 feet of a school. (Pet. 3.); see also United States v. Swehla, 442 F.3d 1143, 1146 (8th Cir. 2006) (discussing how Swehla was sentenced as a career offender based on prior criminal history occurring in the 1990s and noting that Swehla stipulated to being sentenced within the range recommended by the government).
Years after his conviction became final, Swehla attempted to invalidate his state-court convictions in the District Court for the Northern District of Iowa. In December 2010, Swehla brought a "Petition for Writ of Error Coram Nobis, " in which he argued that his state-court convictions for various crimes, including the 1994 burglary, were unlawful. See Swehla v. State of Iowa, Civ. No. 1:10-158-EJM, Doc. No. 1 (N.D. Iowa Dec. 16, 2010). The District Court in the Northern District of Iowa dismissed his coram nobis petition and entered judgment against him on June 7, 2011. Id., Doc. No. 14 (Order Granting Motion to Dismiss); id., Doc. No. 15 (Judgment). In his submissions in this case, Swehla has not shown that he previously raised any challenge to his federal sentence in the distributionof-morphine case for which he is currently imprisoned. And, the record suggests that "Swehla... has never filed a motion to vacate, set aside or correct his [federal] sentence pursuant to 28 U.S.C. § 2255." (Doc. No. 5, Resp. 2.)
In this case, Swehla now urges the Court to issue the writ of habeas corpus on grounds that it was error for the Northern District of Iowa to use his 1994 burglary conviction to sentence him as a career offender in his distributionof-morphine case. (Pet. 3-7.) He argues that the recent decision of the United States Supreme Court in Descamps v. United States, 133 S.Ct. 2276 (2013), illustrates that his 1994 burglary conviction was not a "crime of violence" under § 4B1.2(a)(2) of the Guidelines, and, as a result, he should not have been sentenced as a career offender. (Pet. 5-6.) Respondent contends that we lack jurisdiction to hear Swehla's Petition under 28 U.S.C. § 2241 because he raises a collateral challenge to the imposition of his federal sentence, which is only permitted by motion under 28 U.S.C. § 2255. (Resp. 3-5.) Further, Respondent contends that Swehla may still pursue a motion under 28 U.S.C. § 2255 in the Northern District of Iowa and asserts that we should dismiss Swehla's Petition or transfer it to that court for evaluation of the merits of his claims. ( See id. 5-6.)
I. Legal ...