United States District Court, S.D. Illinois
SHAWN J. GIESWEIN, No. 16635-064, Petitioner,
WILLIAM TRUE, Respondent.
MEMORANDUM AND ORDER
HERNDON, DISTRICT JUDGE
Shawn J. Gieswein, currently incarcerated in the USP-Marion,
brings this habeas corpus action pursuant to 28 U.S.C. §
2241 to challenge the constitutionality of his confinement.
case is now before the Court for a preliminary review of the
Petition pursuant to Rule 4 of the Rules Governing Section
2254 Cases in United States District Courts. Rule 4 provides
that upon preliminary consideration by the district court
judge, “[i]f it plainly appears from the petition and
any attached exhibits that the petitioner is not entitled to
relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the
petitioner.” Rule 1(b) of those Rules gives this Court
the authority to apply the rules to other habeas corpus
cases, such as this action under 28 U.S.C. § 2241. After
carefully reviewing the Petition, the Court concludes that
this action is subject to dismissal.
was convicted by a jury in 2007, and was sentenced on May 7,
2008, to 240 months for being a felon in possession of a
firearm, and a concurrent term of 120 months for witness
tampering. United States v. Gieswein, Case No.
07-cr-120 (W.D. Okla.) (Docs. 85-86, 126, 129 in criminal
case). The conviction and sentence were affirmed on direct
appeal in 2009. (Doc. 142 in criminal case). Gieswein's
first motion under 28 U.S.C. § 2255 was denied, and the
denial was affirmed on appeal. (Docs. 171, 183 in criminal
case). The Supreme Court denied his petition for
certiorari on January 14, 2013. (Doc. 186 in
the Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015), Gieswein was granted
leave in April 2016 by the 10th Circuit to bring a successive
§ 2255 motion in the district court. (Doc. 1, p. 4; Doc.
202 in criminal case). On July 25, 2016, the district court
granted the § 2255 motion, ruling that one of
Gieswein's prior Oklahoma state convictions (for lewd
molestation) no longer constituted a “violent
felony” within the meaning of the Armed Career Criminal
Act (“ACCA”) after Johnson invalidated
the residual clause of the ACCA. (Doc. 211 in criminal case).
The court determined that Gieswein should be resentenced
December 14, 2016, Gieswein was resentenced to a total term
of 240 months, composed of a 120-month sentence for the
firearm possession and 120 months for witness tampering, to
be served consecutively. (Doc. 1, p. 4; Doc. 236 in criminal
case). He appealed, and at the time Gieswein filed the
instant § 2241 Petition, the appeal was still pending
before the 10th Circuit. (Doc. 1, p. 2).
April 16, 2018, the appellate court issued its opinion
affirming Gieswein's sentence. (Doc. 268 in criminal
case); United States v. Gieswein, Nos. 16-6366 &
17-6044, 2018 WL 1789933, __ F.3d __ (10th Cir. April 16,
2018). This opinion addresses two of the arguments Gieswein
raises in the instant Petition. The appellate court agreed
with Gieswein's argument that the district court applied
the wrong analysis to conclude that his lewd molestation
conviction qualified as a “forcible sex offense”
and therefore a “crime of violence” under the
United States Sentencing Guidelines (“USSG”).
However, in light of the detailed rationale set forth by the
sentencing court for imposing an above-guideline sentence
(which equaled the statutory maximum), the appellate court
determined that the error in calculating the appropriate
guideline range was harmless.
raises 3 grounds for relief: (1) the 240-month total sentence
is 2 times longer than the statutory maximum of 120 months
for an offense under 18 U.S.C. § 922(g) and USSG §
5G1.2, and the consecutive sentence was improper; (2) the
trial court miscalculated the applicable guideline range
because it incorrectly counted his prior offenses as crimes
of violence; and (3) he is innocent of tampering with a
witness, because at the time he spoke with Amber Lovett, she
had not been identified as a witness nor was she asked to
testify until Gieswein was charged with tampering. (Doc. 1,
this Court to resentence him under the correct guideline
range and to dismiss the witness tampering conviction for
“lack of a nexus to an official proceeding.”
(Doc. 1, p. 8).
general matter, “28 U.S.C. § 2241 and 28 U.S.C.
§ 2255 provide federal prisoners with distinct forms of
collateral relief. Section 2255 applies to challenges to the
validity of convictions and sentences, whereas § 2241
applies to challenges to the fact or duration of
confinement.” Hill v. Werlinger, 695 F.3d 644,
645 (7th Cir. 2012) (citing Walker v. O'Brien,
216 F.3d 626, 629 (7th Cir. 2000). See also Brown v.
Rios, 696 F.3d 638, 640 (7th Cir. 2012); Valona v.
United States, 138 F.3d 693, 694 (7th Cir. 1998). Here,
Gieswein is attacking his conviction and sentence, which
points to § 2255 as the proper avenue for relief.
very limited circumstances, a prisoner may employ § 2241
to challenge his federal conviction or sentence. 28 U.S.C.
§ 2255(e) contains a “savings clause” which
authorizes a federal prisoner to file a § 2241 petition
where the remedy under § 2255 is “inadequate or
ineffective to test the legality of his detention.” 28
U.S.C. § 2255(e). See Hill, 695 F.3d at 648
(“‘Inadequate or ineffective' means that
‘a legal theory that could not have been presented
under § 2255 establishes the petitioner's actual
innocence.'”) (citing Taylor v. Gilkey,314 F.3d 832, 835 (7th Cir. 2002). See also United States
v. Prevatte, 300 F.3d 792, 798-99 (7th Cir. 2002). The
fact that a petitioner may be barred from bringing a
second/successive § 2255 petition is not, in itself,
sufficient to render it an inadequate remedy. In re
Davenport, 147 F.3d 605, 609-10 (7th Cir. 1998) (§
2255 limitation on filing successive motions does not render
it an inadequate remedy for a prisoner who had filed a prior
§ 2255 motion). Instead, a petitioner under § 2241
must demonstrate the inability of a § 2255 motion to
cure the defect in the conviction. ...