FARMER v. RAMIREZ (2018)

Josand Farmer, a federal prisoner, appeals the district court's order adopting the recommendation of the magistrate judge and dismissing his 28 U.S.C. § 2241 (2012) petition. We previously affirmed the district court's order on the basis that Farmer could not show that a 28 U.S.C. § 2255 (2012) motion would be inadequate or ineffective to test the legality of his detention because the savings clause, 28 U.S.C. § 2255(e), did not extend to applicants challenging only their sentences. Farmer has now filed a petition for rehearing en banc and a supplement to the petition. Upon review of the petition and supplement, we grant panel rehearing of the petition as supplemented and affirm.

Farmer has failed to satisfy his burden of demonstrating that 28 U.S.C. § 2255 is an inadequate or ineffective means of challenging the validity of his detention because his claim of sentencing error is not premised on a change in settled substantive law and could have been raised on direct appeal. See United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018) (listing elements of showing needed to establish that § 2255 is inadequate and ineffective to test the legality of a sentence). Accordingly, although we grant leave to proceed in forma pauperis, we affirm the district court's order. Farmer v. Ramirez, No. 0:17-cv-02614-TMC, 2017 WL 6345401 (D.S.C. Dec. 12, 2017). We deny Farmer's motion to expedite decision and 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

PER CURIAM:

Affirmed by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.