Walker v. Smith

Full title: TIMOTHY WALKER, Petitioner-Appellant, v. DONNA F. SMITH…

Court: United States Court of Appeals, Fourth Circuit

Date published: Mar 15, 2023

No. 22-6654 (4th Cir. Mar. 15, 2023)

Opinion

22-6654

03-15-2023

TIMOTHY WALKER, Petitioner-Appellant, v. DONNA F. SMITH, Respondent-Appellee.

Timothy Walker, Appellant Pro Se. Rudy E. Renfer, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

PER CURIAM.

UNPUBLISHED

Submitted: December 30, 2022

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:19-hc-02071-FL)

Timothy Walker, Appellant Pro Se.

Rudy E. Renfer, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Before NIEMEYER and HARRIS, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM.

Timothy Walker, a federal prisoner, appeals the district court's order dismissing his 28 U.S.C. § 2241 petition for lack of jurisdiction, in which he sought to challenge his sentence by way of the savings clause in 28 U.S.C. § 2255. 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 the district court's order. Walker v. Smith, No. 5:19-hc-02071-FL (W.D. N.C. Mar. 30, 2022). We grant Walker's motion to exceed the page limitations for his informal brief and deny his motion to appoint counsel. 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.