Summey v. Haynes

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 5, 2008
• Docket: 07-6953
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-6953

FREDERICK R. SUMMEY,

Petitioner - Appellant,

v.

AL HAYNES, Warden,

Respondent - Appellee.

Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. John Preston Bailey, Chief District Judge. (3:05-cv-00109-JPB)

Submitted: April 23, 2008 Decided: May 5, 2008

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

Affirmed by unpublished per curiam opinion.

Frederick R. Summey, Appellant Pro Se. Alan Gordon McGonigal, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Frederick R. Summey filed a petition under 28 U.S.C.

§ 2241 (2000), seeking to challenge his sentence in light of

Shepard v. United States, 544 U.S. 13 (2005). The district court

construed the § 2241 petition as a motion under 28 U.S.C. § 2255

(2000), and dismissed for lack of jurisdiction. Summey asserts

that § 2255 is inadequate and ineffective to test the legality of

his detention and contends that his claims should be considered

under § 2241 pursuant to the savings clause in § 2255. Because

Summey does not meet the standard set forth in In re Jones, 226

F.3d 328, 333-34 (4th Cir. 2000), for application of the savings

clause, we affirm the district court’s order. We dispense with

oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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