Larry Simmons v. A. Wingfield

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 20, 2023
• Docket: 22-7101
• Status: Unpublished

Opinion

USCA4 Appeal: 22-7101 Doc: 7 Filed: 01/20/2023 Pg: 1 of 2

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-7101

LARRY ANTONIO SIMMONS,

Petitioner - Appellant,

v.

A. W. WINGFIELD, Acting Warden,

Respondent - Appellee.

Appeal from the United States District Court for the District of South Carolina, at Rock Hill. Bruce H. Hendricks, District Judge. (0:21-cv-02599-BHH)

Submitted: January 17, 2023 Decided: January 20, 2023

Before KING and THACKER, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Larry Antonio Simmons, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-7101 Doc: 7 Filed: 01/20/2023 Pg: 2 of 2

PER CURIAM:

Larry Antonio Simmons, a federal prisoner, appeals the district court’s order

adopting the magistrate judge’s recommendation and dismissing without prejudice for lack

of jurisdiction Simmons’ 28 U.S.C. § 2241 petition in which he sought to challenge his

career offender 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

for the reasons stated by the district court. Simmons v. Wingfield, No. 0:21-cv-02599-BHH

(D.S.C. Sept. 8, 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