Joe Russell, Jr. v. Justin Andrews

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 3, 2023
• Docket: 22-7026
• Status: Unpublished

Opinion

USCA4 Appeal: 22-7026 Doc: 16 Filed: 03/03/2023 Pg: 1 of 2

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-7026

JOE B. RUSSELL, JR.,

Petitioner - Appellant,

v.

WARDEN JUSTIN ANDREWS,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:19-hc-02276-BO)

Submitted: February 9, 2023 Decided: March 3, 2023

Before KING and DIAZ, Circuit Judges, and MOTZ, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Joe B. Russell, Jr., Appellant Pro Se. Rudy E. Renfer, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-7026 Doc: 16 Filed: 03/03/2023 Pg: 2 of 2

PER CURIAM:

Joe B. Russell, Jr., a federal prisoner, appeals the district court’s order denying relief

on 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.

Russell v. Andrews, No. 5:19-hc-02276-BO (E.D.N.C. July 8, 2022). We also deny

Russell’s motion to appoint counsel and to invite amicus briefing. We deny Russell’s

motion for 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