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Gieswein v. True

United States District Court, S.D. Illinois

May 1, 2018

SHAWN J. GIESWEIN, No. 16635-064, Petitioner,
v.
WILLIAM TRUE, Respondent.

          MEMORANDUM AND ORDER

          HERNDON, DISTRICT JUDGE

         Petitioner 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.

         This 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.

         Procedural History

         Gieswein 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 criminal case).

         Following 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 de novo.

         On 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).

         On 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.

         The Petition

         Gieswein 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, pp. 6-7).

         He asks 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).

         Discussion

         As a 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.

         Under 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. ...


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