Brandon Earl Barker v. United States of America

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-6292
BRANDON EARL BARKER,
Petitioner - Appellant,
v.
UNITED STATES OF AMERICA,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Michael Stefan Nachmanoff, District Judge. (1:22-cv-00058-MSN-JFA)
Submitted: June 23, 2022 Decided: June 28, 2022
Before WYNN and QUATTLEBAUM, Circuit Judges, and FLOYD, Senior Circuit Judge.
Affirmed as modified by unpublished per curiam opinion.
Brandon Earl Barker, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Brandon Earl Barker, a federal prisoner, appeals the district court’s order dismissing
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 find no reversible error. Accordingly, we affirm
the judgment of the district court. However, we modify the dismissal order, Barker v.
United States, No. 1:22-cv-00058-MSN-JFA (E.D. Va. filed Feb. 11, 2022 & entered Feb.
14, 2022), to reflect a dismissal without prejudice for lack of jurisdiction, see United States
v. Wheeler, 886 F.3d 415, 426 (4th Cir. 2018), and affirm the order as modified, 28 U.S.C.
§ 2106. 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 AS MODIFIED

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