John Fitzgerald Swanson v. United States

52 F.3d 330 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action. John Fitzgerald SWANSON, Appellant, v. UNITED STATES of America, Appellee. No. 94-3448. United States Court of Appeals, Eighth Circuit. Submitted: Apr. 4, 1995. Filed: Apr. 20, 1995. Before McMILLIAN, LOKEN, and HANSEN, Circuit Judges. PER CURIAM. [1] John Swanson appeals the district court's1 denial of his 28 U.S.C. Sec. 2255 motion to vacate the fifteen-year prison sentence he received as an armed career criminal after pleading guilty to being a felon in possession of a firearm. See 18 U.S.C. Secs. 922(g)(1), 924(e)(1). We affirm. [2] Swanson did not appeal his conviction but promptly filed this Sec. 2255 motion. Swanson alleges that his trial counsel was ineffective in not challenging the use of Swanson' five prior state burglary convictions to enhance his sentence as an armed career criminal. These convictions, each the result of a counseled guilty plea, were constitutionally invalid, Swanson argues, because his guilty pleas were not knowing and intelligent. [3] As the district court held, this claim is foreclosed by Custis v. United States, 114 S. Ct. 1732, 1738-39 (1994), which precludes Swanson from collaterally attacking the validity of his prior counseled convictions. Swanson attempts to avoid Custis by also arguing that counsel should have challenged three of his burglary convictions as not being violent felonies for purposes of the Sec. 924(e) enhancement, but this contention is without merit. See Taylor v. United States, 495 U.S. 575, 598-99 (1990); United States v. Gibson, 928 F.2d 250, 254 (8th Cir. 1991). Finally, we reject Swanson's contention that the district court abused its discretion in denying his Sec. 2255 motion without an evidentiary hearing because the motion, files, and records conclusively show that he is not entitled to relief. See United States v. Deaton, 13 F.3d 270, 271 (8th Cir. 1993); Rogers v. United States, 1 F.3d 697, 699 (8th Cir. 1993) (per curiam). [4] The judgment of the district court is affirmed. Footnotes [1] The HONORABLE PATRICK A. CONMY, United States District Judge for the District of North Dakota, adopting the report and recommendation of the HONORABLE DWIGHT C.H. KAUTZMANN, United States Magistrate Judge for the District of North Dakota