United States v. Patrice Wilson

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 19, 2019
• Docket: 13-7991
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 13-7991

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

PATRICE BEHANZIN WILSON, a/k/a K-Mel,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Clinton. W. Earl Britt, Senior District Judge. (7:96-cr-00034-BR-1; 7:13-cv-00165-BR)

Submitted: December 31, 2018 Decided: February 19, 2019

Before GREGORY, Chief Judge, MOTZ and KING, Circuit Judges.

Dismissed in part, affirmed in part by unpublished per curiam opinion.

Patrice Behanzin Wilson, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.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

Patrice Behanzin Wilson seeks to appeal the district court’s orders dismissing his

“Motion to vacate, set aside or correct sentence pursuant to 28 [U.S.C.] § 2255(f)(3);

alternative petition for relief pursuant to 28 [U.S.C.] § 2241 and, or; alternative petition

for a writ of audita querela pursuant to 28 [U.S.C.] § 1651” and his subsequent Fed. R.

Civ. P. 60(b) motion as successive and unauthorized 28 U.S.C. § 2255 (2012) motions,

and dismissing the motions on that basis. * To the extent Wilson seeks to appeal the

denial of § 2255 relief, the orders are not appealable unless a circuit justice or judge

issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). A certificate of

appealability will not issue absent “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the

merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would

find that the district court’s assessment of the constitutional claims is debatable or wrong.

Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322,

336-38 (2003). When the district court denies relief on procedural grounds, the prisoner

must demonstrate both that the dispositive procedural ruling is debatable, and that the

motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at

484-85. We have independently reviewed the record and conclude that Wilson has not

* This appeal was placed in abeyance for Lester v. Flournoy, 909 F.3d 708 (4th Cir. 2018).

2 made the requisite showing. Accordingly, we deny a certificate of appealability and

dismiss the appeal.

To the extent Wilson appeals the denial of relief under 28 U.S.C. § 2241 (2012)

and 28 U.S.C. § 1651 (2012), we affirm. Because 28 U.S.C. § 2255 is not inadequate or

ineffective to test the legality of Wilson’s sentence, Wilson may not subvert the

limitations on successive habeas petitions by raising his sentencing arguments 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, 87

U.S.L.W. 3152 (U.S. Oct. 3, 2018) (No. 18-420). Similarly, Wilson cannot proceed

under 28 U.S.C. § 1651 simply because his claim is procedurally barred by restrictions

on successive collateral attacks. “[T]he statutory limits on . . . successive habeas

petitions do not create a ‘gap’ in the post-conviction landscape that can be filled with the

common law writs.” United States v. Gamboa, 608 F.3d 492, 495 (9th Cir. 2010).

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.

DISMISSED IN PART, AFFIRMED IN PART