John Westine v. Warden ( 2020 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-6991
JOHN G. WESTINE,
Petitioner - Appellant,
v.
WARDEN, FMC Butner,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Louise W. Flanagan, District Judge. (5:19-hc-02014-FL)
Submitted: April 9, 2020 Decided: June 9, 2020
Before DIAZ, FLOYD, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John G. Westine, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John G. Westine, a federal prisoner, appeals the district court’s order denying relief
on his 28 U.S.C. § 2241 petition in which he sought to challenge his convictions and
sentence by way of the savings clause in 28 U.S.C. § 2255. Pursuant to § 2255(e), a
prisoner may challenge his conviction or sentence via a traditional writ of habeas corpus
pursuant to § 2241 if a motion under § 2255 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) (emphasis added).
[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) (emphasis added).
We have reviewed the record and find that Westine’s claim meets neither the
Wheeler test nor the Jones test. Accordingly, we deny Westine’s motion to expedite, grant
leave to proceed in forma pauperis, and affirm for the reasons stated by the district court.
Westine v. Warden, No. 5:19-hc-02014-FL (E.D.N.C. June 24, 2019). We dispense with
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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
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