United States District Court, S.D. Indiana, Indianapolis Division
ROY W. SWANSON, Petitioner,
CHARLES DANIELS, Warden, Respondent.
ENTRY DISMISSING ACTION AND DIRECTING ENTRY OF FINAL
William T. Lawrence, Judge
Swanson is confined in this District serving the executed
sentenced imposed by the United States District Court for the
Eastern District of Wisconsin following his conviction for
being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g). He seeks a writ of habeas corpus.
considered the pleadings, the expanded record and the
parties' arguments, and being duly advised, the Court
finds that Swanson's petition for writ of habeas corpus
must be denied. This conclusion rests on the following facts
Swanson entered a plea of guilty to the offense noted above
and conceded that he qualified for an enhanced sentence under
the Armed Career Criminal Act, 18 U.S.C. § 924(e). He
was sentenced to the statutory minimum of 180 months. No
direct appeal was filed, but Swanson challenged the ACCA
enhancement in an action for relief pursuant to 28 U.S.C.
§ 2255. That motion was denied.
motion pursuant to 28 U.S.C. § 2255 is the presumptive
means by which a federal prisoner can challenge his
conviction or sentence. See Davis v. United States,
417 U.S. 333, 343 (1974); United States v. Bezy, 499
F.3d 668, 670 (7th Cir. 2007). Swanson, however, challenges
his sentence and seeks habeas corpus relief pursuant to 28
U.S.C. § 2241(c)(3). “A federal prisoner may use a
§ 2241 petition for a writ of habeas corpus to attack
his conviction or sentence only if § 2255 is
‘inadequate or ineffective.'” Hill v.
Werlinger, 695 F.3d 644, 645 (7th Cir. 2012) (quoting 28
U.S.C. § 2255(e)).
present action is brought pursuant to § 2241(c)(3).
Swanson brought an earlier habeas action, docketed as No.
2:14-cv-187-WTL-WGH. The denial of habeas relief was affirmed
on appeal, with the Court of Appeals noting, in part, that
Swanson's admission in his plea agreement
“continues to bind him.” The Court of Appeals
also concluded that “Swanson's convictions are for
generic burglary.” Swanson v. LaRiva, No.
14-3280 (7th Cir. June 24, 2015).
Swanson's motion for leave to file a second or successive
28 U.S.C. § 2255 motion was docketed in the Court of
Appeals as No. 16-2100. The motion was denied on June 9,
2016, with the following explanation: “Swanson, who was
sentenced as an armed career criminal, wants to challenge his
sentence under Johnson v. United States, 135 S.Ct.
2551 (2015), which held that the residual clause of the Armed
Career Criminal Act is unconstitutionally vague. But Swanson
was not sentenced under the residual clause. He qualified as
an armed career criminal based on Wisconsin burglary
convictions. Burglary is an enumerated offense under 18
U.S.C. § 924(e)(2)(B)(ii), and thus unaffected by
Johnson. And this court has already determined that
Swanson's convictions were for generic burglary.
Swanson v. LaRiva, No. 14-3280 (7th Cir. June 24,
Swanson has raised a new challenge to his designation as an
armed career criminal, now asserting that a Wisconsin
burglary conviction can no longer serve as a predicate
offense under the ACCA. In United States v. Edwards,
836 F.3d 831, 838 (7th Cir. 2016), the Seventh Circuit found
that because the Wisconsin burglary statute covers a
“greater swath of conduct” than the elements of
the Guidelines offense, it cannot serve as a predicate
offense under § 2K2.1(a). “The analysis in
Edwards also means that a conviction under
Wisconsin's burglary statute cannot be a predicate
offense under the ACCA.” Slizewski v. United
States, No. 14-CR-87-JDP, 2017 WL 3669008, at *2
(W.D.Wis. Aug. 24, 2017).
Swanson's case, however, the Seventh Circuit has twice
noted that the ACCA enhancement was based on “generic
burglary, ” and twice noted that his ACCA enhancement
is binding. The first of these holdings is the law of the
case, see United States v. Mazak, 789 F.2d 580, 581
(7th Cir. 1986) (“We hold that once this court has
decided the merits of a ground of appeal, that decision
establishes the law of the case and is binding on a district
judge asked to decide the same issue in a later phase of the
same case, unless there is some good reason for reexamining
it.”), and Swanson continues to be bound by the terms
of his plea agreement. Muse v. Daniels, 815 F.3d 265
(7th Cir. 2016) (holding that a collateral attack waiver
“would apply equally in a proceeding under § 2241,
had not § 2255(e) taken precedence, for § 2241 is a
form of collateral attack”); Muller v. Sauers,
523 Fed.Appx. 110, 112 (3d Cir. 2013) (“Muller's
plea agreement included a waiver of collateral-attack rights
‘in any post-conviction proceeding, including-but not
limited to-any proceeding under 28 U.S.C. § 2255.'
Therefore, his plea agreement forecloses relief pursuant to
§ 2241 . . .”).
shown by the foregoing, therefore, Swanson's present
habeas petition offers to little too late. All he has done,
in fact, is to seek relief pursuant to 28 U.S.C. § 2241
under circumstances which do not permit or justify the use of
that remedy. His petition for a writ of habeas corpus is
consistent with this ...