United States District Court, W.D. Louisiana, Lake Charles Division
WENDALL B. SCHAFFER REG. # 31431-074
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE
the court is the pro se petition for writ of habeas corpus
filed pursuant to 28 U.S.C. § 2241 by Wendall B.
Schaffer. Schaffer is an inmate in the custody of the Bureau
of Prisons and is currently incarcerated at the Federal
Correctional Institute at Oakdale, Louisiana.
matter has been referred to the undersigned for review,
report, and recommendation in accordance with 28 U.S.C.
§ 636 and the standing orders of this court. For the
reasons stated below, IT IS RECOMMENDED that
the action be DISMISSED WITHOUT PREJUDICE
for lack of jurisdiction.
September 7, 2005, Schaffer was indicted in the United States
District Court for the Eastern District of Tennessee on one
count of possessing a firearm not registered to him, a
violation of 26 U.S.C. § 5861(d), and one count of being
a convicted felon in possession of a firearm and ammunition,
in violation of 18 U.S.C. § 922(g)(1) and the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. §
924(e). United States v. Schaffer, No.
3:05-cr-0107, doc. 1 (E.D. Tenn. May 24, 2007). Pursuant to a
plea agreement, the first charge was dismissed and Schaffer
was convicted of the felon in possession charge. Id.
at docs. 64 & 65; see Id. at doc. 70. A
sentencing hearing was held on May 21, 2007, at which
Schaffer was determined to be an armed career criminal under
the ACCA and § 4B1.4 of the United States Sentencing
Guidelines, based on prior convictions including aggravated
burglary under Tennessee law. Id. at doc. 69;
id. at doc. 84, p. 2. Accordingly, he was sentenced
to a 204 month term of imprisonment. Id. at docs.
filed a motion to vacate under 28 U.S.C. § 2255 on
August 25, 2014, and supplemented that motion on May 4, 2015.
Id. at docs. 74, 79. There he argued that the armed
career criminal enhancement did not apply to him, as his
aggravated burglary convictions no longer qualified as
violent felonies based on the Supreme Court's guidance in
Descamps v. United States, 133 S.Ct. 2276 (2013). On
May 30, 2017, the Eastern District of Tennessee denied his
motion as time-barred and stated that any application for a
certificate of appealability would be denied. Id. at
now seeks relief in this court under 28 U.S.C § 2241,
arguing that he is entitled to resentencing without the ACCA
enhancement because of the Supreme Court's recent
guidance in Mathis v. United States, 136 S.Ct. 2243
(2016), and the Sixth Circuit's subsequent holding in
United States v. Stitt, 860 F.3d 854 (6th Cir.
2017), that Tennessee aggravated burglary convictions no
longer qualified as violent felony predicate offenses under
corpus petitions filed pursuant to 28 U.S.C. § 2241
are generally used to challenge the manner in which a
sentence is executed. See Warren v. Miles, 230 F.3d
688, 694 (5th Cir. 2000). A motion to vacate sentence filed
pursuant to 28 U.S.C. § 2255 allows federal inmates to
collaterally attack the legality of their convictions or
sentences. Cox v. Warden, Fed. Det. Ctr., 911 F.2d
1111, 1113 (5th Cir. 1990). Here Schaffer collaterally
attacks his incarceration, arguing that he has been subjected
to an illegal sentence. Therefore, his claim should be
advanced in a motion to vacate.
savings clause of 28 U.S.C § 2255 permits a petitioner
to seek habeas relief under § 2241 when the
remedy provided under § 2255 is “inadequate or
ineffective to test the legality of his detention.” 28
U.S.C. § 2255(e). “A § 2241 petition is not,
however, a substitute for a motion under § 2255, and the
burden of coming forward with evidence to show the inadequacy
or ineffectiveness of a motion under § 2255 rests
squarely on the petitioner.” Jeffers v.
Chandler, 253 F.3d 827, 830 (5th Cir. 2001). The fact
that a prior motion was unsuccessful, or that the petitioner
is unable to meet the statute's second or successive
requirement, does not make § 2255 inadequate or
Schaffer must demonstrate the following to satisfy §
2255's savings clause: (1) that his claim is based on a
retroactively applicable Supreme Court decision establishing
that he may have been convicted of a nonexistent offense,
and (2) that his claim was foreclosed by
circuit law at the time when it should have been raised in
his trial, ...