Opinion
22-6336
07-26-2022
ETHAN JEROME MOORE, Petitioner - Appellant, v. DAVID L. YOUNG, Respondent - Appellee
Ethan Jerome Moore, Appellant Pro Se.
UNPUBLISHED
Submitted: July 21, 2022
Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Frank W. Volk, District Judge. (5:20-cv-00857)
Ethan Jerome Moore, Appellant Pro Se.
Before MOTZ, HARRIS, and RUSHING, Circuit Judges.
Affirmed as modified by unpublished per curiam opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ethan Jerome Moore, a federal prisoner, appeals the district court's order adopting the recommendation of the magistrate judge and dismissing for lack of jurisdiction his 28 U.S.C. § 2241 petition in which he sought to challenge his conviction by way of the savings clause in 28 U.S.C. § 2255. Pursuant to § 2255(e), a prisoner may challenge his conviction 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).
We have reviewed the record and, following the Supreme Court's decision in Greer v. United States, 141 S.Ct. 2090 (2021), discern no reversible error in the district court's determination that Moore failed to demonstrate that 28 U.S.C. § 2255 is an inadequate or ineffective means of challenging his conviction. However, because the district court lacked jurisdiction over Moore's § 2241 petition, we modify the court's order to reflect that the dismissal of Moore's petition is without prejudice and affirm the order, Moore v. Young, No. 5:20-cv-00857 (S.D. W.Va. Mar. 7, 2022), as modified, see 28 U.S.C. § 2106; Ali v. Hogan, 26 F.4th 587, 600 (4th Cir. 2022).
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