Mikhael Dorise v. Warden Bragg ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-7560
MIKHAEL DORISE,
Petitioner - Appellant,
v.
WARDEN BRAGG,
Respondent - Appellee.
Appeal from the United States District Court for the District of South Carolina, at Aiken.
Joseph F. Anderson, Jr., Senior District Judge. (1:17-cv-01881-JFA)
Submitted: December 27, 2018 Decided: January 7, 2019
Before WILKINSON, KEENAN, and WYNN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Mikhael Dorise, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mikhael Dorise, a federal prisoner, appeals the district court’s order accepting the
recommendation of the magistrate judge and dismissing without prejudice his 28 U.S.C.
§ 2241 (2012) petition. The district court rejected Dorise’s attempt to challenge his
career offender designation through the savings clause of 28 U.S.C. § 2255(e) (2012),
because the conduct for which he was convicted had not been decriminalized. See In re
Jones, 226 F.3d 328, 333-34 (4th Cir. 2000). 1 However, during the pendency of the
instant appeal, we announced a new savings clause test pertaining to sentencing claims
raised in § 2241 petitions. United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018),
petition for cert. filed, __ U.S.L.W. __ (U.S. Oct. 3, 2018) (No. 18-420). Because the
district court did not have the benefit of our decision in Wheeler, we grant leave to
proceed in forma pauperis, vacate the district court’s order, and remand for further
proceedings. 2 We deny the motion to appoint counsel and deny as moot the motion to
remove this case from abeyance. 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
1
Because the district court dismissed Dorise’s petition “for . . . reasons unrelated
to the contents of the pleadings,” we have jurisdiction over this appeal. Goode v. Cent.
Va. Legal Aid Soc’y, Inc., 807 F.3d 619, 624 (4th Cir. 2015).
2
By this disposition, we express no view on the appropriate application of
Wheeler to Dorise’s petition.
2