Antonio Lenard Buey v. WARDEN, FCI McDowell

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-7483
ANTONIO LENARD BUEY,
Petitioner - Appellant,
v.
WARDEN, FCI McDowell,
Respondent - Appellee.
Appeal from the United States District Court for the Southern District of West Virginia, at
Bluefield. David A. Faber, Senior District Judge. (1:19-cv-00721)
Submitted: February 23, 2021 Decided: February 26, 2021
Before MOTZ, KEENAN, and HARRIS, Circuit Judges.
Affirmed as modified by unpublished per curiam opinion.
Antonio Lenard Buey, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Antonio Lenard Buey, a federal prisoner,∗ appeals the district court’s order
accepting the recommendation of the magistrate judge and dismissing Buey’s 28 U.S.C.
§ 2241 petition, in which Buey sought to challenge his sentence by way of the savings
clause in 28 U.S.C. § 2255. Pursuant to § 2255(e), a prisoner may challenge his sentence
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 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).
We have reviewed the record and find no reversible error. Accordingly, we affirm
the district court’s judgment. However, we modify the dismissal order, Buey v. Warden,
FCI McDowell, No. 1:19-cv-00721 (S.D.W. Va. Sept. 25, 2020), to reflect a dismissal
without prejudice for lack of jurisdiction, see Wheeler, 886 F.3d at 426, and affirm the
order as modified, 28 U.S.C. § 2106. We dispense with oral argument because the facts
∗ As a federal prisoner, Buey need not obtain a certificate of appealability to
challenge the district court’s ruling on his petition. See 28 U.S.C. § 2253(c)(1).

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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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