Jeffrey Whitlow v. Brick Tripp , 587 F. App'x 74 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6998
JEFFREY WHITLOW,
Petitioner - Appellant,
v.
BRICK TRIPP; UNITED STATES OF AMERICA; ERIC HOLDER, United
States Attorney General; UNITED STATES CONGRESS; EASTERN
DISTRICT OF NORTH CAROLINA, Western Division; DISTRICT OF
COLUMBIA; RONALD C. MACHEN, United States Attorney,
Respondents - Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:13-hc-02251-BO)
Submitted: November 25, 2014 Decided: December 11, 2014
Before KING, KEENAN, and THACKER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Jeffrey Whitlow, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeffrey Whitlow appeals the district court's order
dismissing his 28 U.S.C. § 2241 (2012) petition for failure to
state a claim upon which relief can be granted. Because Whitlow
is in custody pursuant to a sentence imposed by the Superior
Court of the District of Columbia, the district court may not
entertain Whitlow’s § 2241 petition if he has failed to exhaust
the remedy provided by D.C. Code § 23-110 (Supp. 2014) or has
been denied § 23-110 relief by the Superior court, unless it
appears that a § 23-110 motion would be inadequate or
ineffective to test the legality of his detention. D.C. Code
§ 23-110(a), (g); Swain v. Pressley, 430 U.S. 372, 377-78
(1977). Whitlow has not alleged, and nothing in the record
indicates, that he has filed a § 23-110 motion with the Superior
Court, and Whitlow has not asserted that § 23-110 would be
inadequate or ineffective. Therefore, the district court lacked
jurisdiction to entertain Whitlow’s § 2241 petition.
Accordingly, we grant Whitlow leave to proceed in
forma pauperis, vacate the district court’s order, and remand.
On remand the district court should dismiss Whitlow’s § 2241
petition for lack of jurisdiction unless Whitlow demonstrates
that he has met the requirements of § 23-110 allowing a federal
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court to entertain his § 2241 petition. * 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.
VACATED AND REMANDED
*
By this disposition, we offer no opinion as to whether
Whitlow’s petition is otherwise properly before the district
court or as to his petition’s merits.
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