Summary
finding that a failure to satisfy the savings clause test of 28 U.S.C. § 2255(e) results in a lack of subject matter jurisdiction
Summary of this case from Robinson v. VereenOpinion
No. 16-7446 No. 16-7756
01-08-2019
MANUEL PEREZ-COLON, Petitioner - Appellant, v. TERRY O'BRIEN, Respondent - Appellee.
Manuel Perez-Colon, Appellant Pro Se.
UNPUBLISHED
Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:14-cv-00090-FPS-MJA) Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, Senior District Judge. (1:14-cv-00119-IMK-RWT) Before GREGORY, Chief Judge, WILKINSON, Circuit Judge, and SHEDD, Senior Circuit Judge. Affirmed as modified by unpublished per curiam opinion. Manuel Perez-Colon, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
In these consolidated appeals, Manuel Perez-Colon, a federal prisoner, appeals the district courts' orders adopting the recommendations of the magistrate judges and granting the Government's motions to dismiss his 28 U.S.C. § 2241 (2012) petitions. He also appeals the order denying reconsideration. Applying our recent decision in United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Oct. 3, 2018) (No. 18-420), we conclude that Perez-Colon cannot challenge his sentence under § 2241 because he has failed to satisfy the requirements of the savings clause of 28 U.S.C. § 2255(e) (2012). Accordingly, we grant leave to proceed in forma pauperis and affirm the district courts' judgments as modified to reflect that the petitions were dismissed without prejudice for lack of subject matter jurisdiction. See Rice v. Rivera, 617 F.3d 802, 807-08 (4th Cir. 2010). We deny Perez-Colon's motions to remand. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.
AFFIRMED AS MODIFIED