Kirk A. Simmons v. Thomas Scarantino

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-6732
KIRK A. SIMMONS,
Petitioner - Appellant,
v.
THOMAS SCARANTINO,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Richard E. Myers, II, Chief District Judge. (5:21-hc-02136-M)
Submitted: February 21, 2023 Decided: February 23, 2023
Before NIEMEYER and DIAZ, Circuit Judges, and MOTZ, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Kirk A. Simmons, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Kirk A. Simmons appeals the district court’s order denying relief on 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
for the reasons stated by the district court. Simmons v. Scarantino, No. 5:21-hc-02136-M
(E.D.N.C. May 26, 2022). 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

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