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Schaffer v. Johnson

United States District Court, W.D. Louisiana, Lake Charles Division

January 2, 2018

WENDALL B. SCHAFFER REG. # 31431-074
v.
CALVIN JOHNSON

         SECTION P

          REPORT AND RECOMMENDATION

          KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE

         Before 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.

         This 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.

         I.

         Background

         On 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).[1] 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.[2] Id. at doc. 69; id. at doc. 84, p. 2. Accordingly, he was sentenced to a 204 month term of imprisonment. Id. at docs. 69, 70.

         Schaffer 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 doc. 92.

         Schaffer 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 the ACCA.

         II.

         Law & Analysis

         Habeas 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.

         The 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 ineffective. Id.

         Instead, 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, ...


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