Norman Lee, Appellant Pro Se.
Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:18-cv-00181-FPS) Before KING, NIEMEYER, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Norman Lee, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Norman Lee, Jr., a federal prisoner, appeals the district court's order accepting the recommendation of the magistrate judge and dismissing without prejudice Lee's 28 U.S.C. § 2241 (2018) petition in which he sought to challenge his sentence by way of the savings clause in 28 U.S.C. § 2255 (2018). 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 conclude that Lee has not met the Wheeler test, thus, there is no reversible error. Accordingly, although we grant leave to proceed in forma pauperis, we deny Lee's motion for summary judgment and affirm for the reasons stated by the district court. Lee v. Saad, No. 5:18-cv-00181-FPS (N.D.W. Va., Aug. 2, 2019). 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.