Asar v. Travis

Full title: DIFANKH ASAR, a/k/a James Walter Gist, Petitioner - Appellant, v. WARDEN…

Court: United States Court of Appeals, Fourth Circuit

Date published: Sep 20, 2021

No. 20-7299 (4th Cir. Sep. 20, 2021)

Opinion

20-7299

09-20-2021

DIFANKH ASAR, a/k/a James Walter Gist, Petitioner - Appellant, v. WARDEN TRAVIS, Respondent - Appellee.

Difankh Asar, Appellant Pro Se.

PER CURIAM

UNPUBLISHED

Submitted: September 7, 2021

Appeal from the United States District Court for the District of South Carolina, at Greenville. Bruce H. Hendricks, District Judge. (6:20-cv-00394-BHH)

Difankh Asar, Appellant Pro Se.

Before KING, THACKER, and QUATTLEBAUM, Circuit Judges.

Affirmed as modified by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM

Difankh Asar, a federal prisoner, appeals the district court's order accepting the recommendation of the magistrate judge and dismissing for lack of jurisdiction Asar's 28 U.S.C. § 2241 petition in which Asar sought to challenge his 18 U.S.C. § 922(g) conviction by way of the savings clause in 28 U.S.C. § 2255. Pursuant to § 2255(e), a prisoner may challenge his conviction or sentence in a traditional writ of habeas corpus pursuant to § 2241 if a § 2255 motion would be inadequate or ineffective to test the legality of his detention.

[Section] 2255 is inadequate and ineffective to test the legality of a conviction when: (1) at the time of conviction, settled law of this circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner's direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the gatekeeping provisions of § 2255 because the new rule is not one of constitutional law.

In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000) (emphasis added).

We have reviewed the record and find no reversible error. Accordingly, we affirm for the stated by the district court, Asar v. Travis, No. 6:20-cv-00394-BHH (D.S.C. July 8, 2020), but modify the court's order to reflect dismissal without prejudice. 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