                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 19-6991


JOHN G. WESTINE,

                     Petitioner - Appellant,

              v.

WARDEN, FMC Butner,

                     Respondent - Appellee.



Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Louise W. Flanagan, District Judge. (5:19-hc-02014-FL)


Submitted: April 9, 2020                                           Decided: June 9, 2020


Before DIAZ, FLOYD, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John G. Westine, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.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

       John G. Westine, a federal prisoner, appeals the district court’s order denying relief

on his 28 U.S.C. § 2241 petition in which he sought to challenge his convictions and

sentence by way of the savings clause in 28 U.S.C. § 2255. Pursuant to § 2255(e), a

prisoner may challenge his conviction or sentence via a traditional writ of habeas corpus

pursuant to § 2241 if a motion under § 2255 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) (emphasis added).

       [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 that Westine’s claim meets neither the

Wheeler test nor the Jones test. Accordingly, we deny Westine’s motion to expedite, grant

leave to proceed in forma pauperis, and affirm for the reasons stated by the district court.

Westine v. Warden, No. 5:19-hc-02014-FL (E.D.N.C. June 24, 2019). We dispense with

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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




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