Difankh Asar v. Warden Travis ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-7299
DIFANKH ASAR, a/k/a James Walter Gist,
Petitioner - Appellant,
v.
WARDEN TRAVIS,
Respondent - Appellee.
Appeal from the United States District Court for the District of South Carolina, at
Greenville. Bruce H. Hendricks, District Judge. (6:20-cv-00394-BHH)
Submitted: September 7, 2021 Decided: September 20, 2021
Before KING, THACKER, and QUATTLEBAUM, Circuit Judges.
Affirmed as modified by unpublished per curiam opinion.
Difankh Asar, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Difankh Asar, a federal prisoner, appeals the district court’s order accepting the
recommendation of the magistrate judge and dismissing for lack of jurisdiction Asar’s 28
U.S.C. § 2241 petition in which Asar sought to challenge his 18 U.S.C. § 922(g) conviction
by way of the savings clause in 28 U.S.C. § 2255. Pursuant to § 2255(e), a prisoner may
challenge his conviction or 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
conviction when: (1) at the time of conviction, settled law of this circuit or
the Supreme Court established the legality of the conviction; (2) subsequent
to the prisoner’s direct appeal and first § 2255 motion, the substantive law
changed such that the conduct of which the prisoner was convicted is deemed
not to be criminal; and (3) the prisoner cannot satisfy the gatekeeping
provisions of § 2255 because the new rule is not one of constitutional law.
In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000) (emphasis added).
We have reviewed the record and find no reversible error. Accordingly, we affirm
for the stated by the district court, Asar v. Travis, No. 6:20-cv-00394-BHH (D.S.C. July 8,
2020), but modify the court’s order to reflect dismissal without prejudice. 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 AS MODIFIED
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