Omar Diaz-Rios v. R. Wolfe

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-6173
OMAR DIAZ-RIOS,
Petitioner - Appellant,
v.
R. WOLFE,
Respondent - Appellee.
Appeal from the United States District Court for the Northern District of West Virginia, at
Martinsburg. Gina M. Groh, District Judge. (3:22-cv-00008-GMG-RWT)
Submitted: May 19, 2022 Decided: May 24, 2022
Before MOTZ and HARRIS, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Omar Diaz-Rios, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

-- 1 of 2 --

2
PER CURIAM:
Omar Diaz-Rios, a federal prisoner, appeals the district court’s order dismissing
without prejudice his 28 U.S.C. § 2241 petition in which he 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 order. Diaz-Rios v. Wolfe, No. 3:22-cv-00008-GMG-RWT (N.D.W.
Va. Feb. 1, 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

-- 2 of 2 --