Tadd Errol Vassell v. TERRY O’BRIEN, Warden, U.S. Penitentiary Hazelton

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-6563
TADD ERROL VASSELL,
Petitioner - Appellant,
v.
TERRY O’BRIEN, Warden, U.S. Penitentiary Hazelton,
Respondent - Appellee.
Appeal from the United States District Court for the Northern District of West Virginia,
at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:17-cv-00009-FPS)
Submitted: November 29, 2018 Decided: December 18, 2018
Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas J. Hurney, Jr., Grace E. Hurney, JACKSON KELLY PLLC, Charleston, West
Virginia; Bryan S. Gowdy, CREED & GOWDY, P.A., Jacksonville, Florida, for
Appellant. Jefferson B. Sessions, III, Attorney General, OFFICE OF THE ATTORNEY
GENERAL, Washington, D.C.; G. Zachary Terwilliger, United States Attorney,
Alexandria, Virginia, Richard D. Cooke, Special Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Tadd Errol Vassell appeals the district court’s order adopting the magistrate
judge’s recommendation to dismiss Vassell’s 28 U.S.C. § 2241 (2012) petition against
Terry O’Brien, the warden of the United States Penitentiary at Hazelton, West Virginia.
In his petition, Vassell asserted that, under Montgomery v. Louisiana, 136 S. Ct. 718
(2016), and Graham v. Florida, 560 U.S. 48 (2010), his mandatory life-without-parole
sentence is unconstitutional and void ab initio because it was imposed for a conspiracy he
entered when he was a juvenile. After conducting a de novo review, we agree with the
district court that 28 U.S.C. § 2255 (2012) is not rendered inadequate or ineffective to test
the legality of Vassell’s sentence and, thus, Vassell may not subvert the limitations on
successive habeas petitions by raising his Graham claim in a § 2241 petition. See United
States v. Wheeler, 886 F.3d 415, 428-29 (4th Cir. 2018) (setting forth test to apply to
prisoners’ § 2241 challenges to sentences), pet. for cert. filed, __ U.S.L.W. __ (U.S. Oct.
4, 2018) (No. 18-420).* We have considered Vassell’s remaining arguments and find
them without merit. Accordingly, we affirm the district court’s order. See Vassell v.
* Prior to Wheeler, this court had not extended the reach of the savings clause to
petitioners challenging only their sentence. See United States v. Poole, 531 F.3d 263,
267 n.7 (4th Cir. 2008). Although both the magistrate judge and the district court
mentioned this pre-Wheeler limitation, neither relied solely on pre-Wheeler caselaw
forbidding § 2241 sentencing challenges to dispose of Vassell’s petition. We thus find no
reversible error. See United States v. Landersman, 886 F.3d 393, 413 (4th Cir. 2018)
(recognizing that an error is harmless if the court can “find that the judgment was not
substantially swayed by the error”); cf. United States v. Riley, 856 F.3d 326, 328 (4th
Cir.) (recognizing that this court may affirm a district court’s judgment “on any grounds
apparent from the record” (internal quotation marks omitted)), cert. denied, 138 S. Ct.
273 (2017).

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O’Brien, No. 5:17-cv-00009-FPS (N.D.W. Va. Mar. 19, 2018). 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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