Frederick Sellers v. Bryan Dobbs ( 2022 )


Menu:
  •                                     UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 21-7341
    FREDERICK LYNN SELLERS,
    Petitioner - Appellant,
    v.
    BRYAN K. DOBBS, Warden,
    Respondent - Appellee.
    Appeal from the United States District Court for the District of South Carolina, at
    Orangeburg. R. Bryan Harwell, Chief District Judge. (5:20-cv-01683-RBH)
    Submitted: February 17, 2022                                 Decided: February 23, 2022
    Before AGEE and RUSHING, Circuit Judges, and SHEDD, Senior Circuit Judge.
    Affirmed as modified by unpublished per curiam opinion.
    Frederick Lynn Sellers, Appellant Pro Se. Lauren L. Hummel, Assistant United States
    Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Florence, South Carolina,
    for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Frederick Lynn Sellers, 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), find no reversible error in the district
    court’s determination that Sellers 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 Sellers’ § 2241 petition, Rice v. Rivera, 
    617 F.3d 802
    ,
    807-08 (4th Cir. 2010) (per curiam), we modify the court’s order to reflect that the
    dismissal of Sellers’ petition is without prejudice and affirm the order, Sellers v. Dobbs,
    No. 5:20-cv-01683-RBH (D.S.C. Sept. 7, 2021), as modified, see 
    28 U.S.C. § 2106
    ;
    S. Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC,
    
    713 F.3d 175
    , 185 (4th Cir. 2013). We deny Sellers’ motion to appoint counsel and
    2
    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
    3
    

Document Info

Docket Number: 21-7341

Filed Date: 2/23/2022

Precedential Status: Non-Precedential

Modified Date: 2/23/2022