Leonel Ernesto Villasenor v. Mark Bolster

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-6082
LEONEL ERNESTO VILLASENOR,
Petitioner - Appellant,
v.
MARK BOLSTER,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Robert G. Doumar, Senior District Judge. (2:19-cv-00525-RGD-LRL)
Submitted: July 20, 2021 Decided: July 23, 2021
Before WILKINSON, AGEE, and DIAZ, Circuit Judges.
Affirmed as modified by unpublished per curiam opinion.
Leonel Ernesto Villasenor, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Leonel Ernesto Villasenor, a federal prisoner, appeals the district court’s order
accepting the recommendation of the magistrate judge and dismissing Villasenor’s
28 U.S.C. § 2241 petition in which Villasenor 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, Villasenor v.
Bolster, No. 2:19-cv-00525-RGD-LRL (E.D. Va. Dec. 22, 2020), to reflect 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
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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