Abdul-Aziz Muhammad v. Eric Wilson ( 2017 )


Menu:
  •                                     UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 14-7735
    ABDUL-AZIZ RASHID MUHAMMAD,
    Petitioner - Appellant,
    v.
    ERIC D. WILSON, Warden of FCC Petersburg,
    Respondent - Appellee.
    Appeal from the United States District Court for the Eastern District of Virginia, at
    Richmond. Henry E. Hudson, District Judge. (3:14-cv-00387-HEH-MHL)
    Submitted: October 31, 2017                                 Decided: November 21, 2017
    Before TRAXLER, DUNCAN, and HARRIS, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Abdul-Aziz Rashid Muhammad, Appellant Pro Se.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Abdul-Aziz Rashid Muhammad, a federal prisoner, appeals the district court’s
    orders dismissing his 
    28 U.S.C. § 2241
     (2012) petition, and denying his motion to alter or
    amend the judgment, Fed. R. Civ. P. 59(e). A federal prisoner may file a § 2241 petition
    challenging his conviction only if 
    28 U.S.C. § 2255
     (2012) is inadequate or ineffective to
    test the legality of his detention. In re Jones, 
    226 F.3d 328
    , 333 (4th Cir. 2000); see 
    28 U.S.C. § 2255
    (e) (2012).
    Section 2255 is inadequate or ineffective 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.
    Jones, 
    226 F.3d at 333-34
    .       Muhammad contends that the Supreme Court’s
    decisions in Descamps v. United States, 
    133 S. Ct. 2276
     (2013), and Mathis v. United
    States, 
    136 S. Ct. 2243
     (2016), amount to a change in substantive law, rendering conspiracy
    under 
    18 U.S.C. § 371
     (2012) no longer a crime of violence, and therefore his conduct of
    using a firearm during a § 371 conspiracy no longer constitutes a violation of 
    18 U.S.C. § 924
    (c) (2012).
    However, Descamps and Mathis did not announce a substantive change to the law.
    Rather, these cases reiterated and clarified when to apply the categorical approach or the
    modified categorical approach, which was set forth in Taylor v. United States, 
    495 U.S. 575
    , 602 (1990) and Shepard v. United States, 
    544 U.S. 13
    , 26 (2005). See Mathis, 136 S.
    2
    Ct. at 2257 (“Our precedents make this a straightforward case.”); Descamps, 
    133 S. Ct. at 2282-83
     (noting that Court’s prior caselaw explaining categorical approach “all but
    resolves this case”); United States v. Royal, 
    731 F.3d 333
    , 340 (4th Cir. 2013) (“In
    Descamps, the Supreme Court recently clarified whe[n] courts may apply the modified
    categorical approach”) (emphasis added).
    Because Muhammad’s motion does not rely on a change in substantive law
    subsequent to his direct appeal and first § 2255 motion, he cannot satisfy the requirements
    of In re Jones. Accordingly, although we grant leave to proceed in forma pauperis, we
    deny Muhammad’s motion for appointment of counsel and affirm the district court’s orders
    dismissing Muhammad’s § 2241 petition and denying his Fed. R. Civ. P. 59(e) motion.
    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
    3