UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-7650
BRIAN D. ABERNATHY,
Petitioner - Appellant,
v.
ROBERT HUDGINS,
Respondent - Appellee.
Appeal from the United States District Court for the Northern District of West Virginia, at
Wheeling. John Preston Bailey, District Judge. (5:20-cv-00194-JPB)
Submitted: April 27, 2021 Decided: April 30, 2021
Before KEENAN, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brian D. Abernathy, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brian D. Abernathy, a federal prisoner, appeals the district court’s order accepting
the recommendation of the magistrate judge and denying relief on Abernathy’s 28 U.S.C.
§ 2241 petition in which Abernathy sought to challenge his 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 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).
Because Abernathy was sentenced under the advisory Sentencing Guidelines, we
agree with the district court’s conclusion that he fails to meet the fourth prong under
Wheeler. See United States v. Foote, 784 F.3d 931 (4th Cir. 2015). We have reviewed the
record and find no reversible error. Accordingly, we affirm for the reasons stated by the
district court. Abernathy v. Hudgins, No. 5:20-cv-00194-JPB (N.D.W. Va. Oct. 23, 2020).
We deny Abernathy’s motion for appointment of counsel and 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
2