Paul Peter Swehla,
Sandstone, Pro Se Petitioner.
Sarah E. Hudleston, United States Attorney's Office, for Respondent.
MEMORANDUM OPINION AND ORDER
SUSAN RICHARD NELSON, District Judge.
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 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."
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-cv-158 [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 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].)
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).
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." 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 ...