Daniel Rodriguez v. Warden Streeval

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-6533
DANIEL RODRIGUEZ,
Petitioner - Appellant,
v.
WARDEN STREEVAL,
Respondent - Appellee.
Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. Elizabeth Kay Dillon, District Judge. (7:21-cv-00029-EKD-JCH)
Submitted: October 14, 2021 Decided: October 18, 2021
Before DIAZ and QUATTLEBAUM, Circuit Judges, and KEENAN, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Daniel Rodriguez, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Daniel Rodriguez, a federal prisoner, appeals the district court’s order dismissing
without prejudice Rodriguez’s 28 U.S.C. § 2241 petition in which Rodriguez sought to
challenge his 18 U.S.C. § 924(c) conviction and sentence 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 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 order. Rodriguez v. Streeval, No. 7:21-cv-00029-EKD-JCH (W.D. Va.
Mar. 26, 2021). We dispense with oral argument because the facts and legal contentions
* Insofar as both Rodriguez and the district court addressed our test in In re Jones,
226 F.3d 328, 333-34 (4th Cir. 2000) (outlining circumstances in which § 2255 is
inadequate or ineffective to test the legality of a conviction), we conclude that Jones has
no application to Rodriguez’s claim. See Dean v. United States, 137 S. Ct. 1170, 1176-78
(2017) (holding that sentencing court may “consider a sentence imposed under § 924(c)
when calculating a just sentence for the predicate count”).

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are adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED

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