Cox v. Ratledge

Full title: GAYLON RICHARD COX, Petitioner - Appellant, v. C. RATLEDGE, Respondent …

Court: UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Date published: Mar 30, 2020

No. 19-7162 (4th Cir. Mar. 30, 2020)

Opinion

No. 19-7162

03-30-2020

GAYLON RICHARD COX, Petitioner - Appellant, v. C. RATLEDGE, Respondent - Appellee.

Gaylon Richard Cox, Appellant Pro Se.

PER CURIAM

UNPUBLISHED

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, Chief District Judge. (5:14-hc-02069-BO) Before GREGORY, Chief Judge, DIAZ, Circuit Judge, and TRAXLER, Senior Circuit Judge. Affirmed as modified by unpublished per curiam opinion. Gaylon Richard Cox, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Gaylon Richard Cox, a federal prisoner, appeals the district court's order dismissing his 28 U.S.C. § 2241 (2018) petition in which his sought to challenge his sentence by way of the savings clause in 28 U.S.C. § 2255 (2018). Pursuant to § 2255(e), a prisoner may challenge his 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 sentence when: (1) at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence; (2) subsequent to the prisoner's direct appeal and first § 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review; (3) the prisoner is unable to meet the gatekeeping provisions of § 2255(h)(2) for second or successive motions; and (4) due to this retroactive change, the sentence now presents an error sufficiently grave to be deemed a fundamental defect.

United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018).

We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. However, we modify the dismissal order, Cox v. Ratledge, No. 5:14-hc-02069-BO (E.D.N.C. July 22, 2019), to reflect dismissal without prejudice for lack of jurisdiction, and affirm the dismissal as modified, 28 U.S.C. § 2106 (2018). 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