DORISE v. BRAGG (2019)

Mikhael Dorise, a federal prisoner, appeals the district court's order accepting the recommendation of the magistrate judge and dismissing without prejudice his 28 U.S.C. § 2241 (2012) petition. The district court rejected Dorise's attempt to challenge his career offender designation through the savings clause of 28 U.S.C. § 2255(e) (2012), because the conduct for which he was convicted had not been decriminalized. See In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000).¹ However, during the pendency of the instant appeal, we announced a new savings clause test pertaining to sentencing claims raised in § 2241 petitions. United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018), petition for cert. filed, –––U.S.L.W. –––– (U.S. Oct. 3, 2018) (No. 18-420). Because the district court did not have the benefit of our decision in Wheeler, we grant leave to proceed in forma pauperis, vacate the district court's order, and remand for further proceedings.² We deny the motion to appoint counsel and deny as moot the motion to remove this case from abeyance. 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.

VACATED AND REMANDED

FOOTNOTES

1.   Because the district court dismissed Dorise's petition “for ․ reasons unrelated to the contents of the pleadings,” we have jurisdiction over this appeal. Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 624 (4th Cir. 2015).

2.   By this disposition, we express no view on the appropriate application of Wheeler to Dorise's petition.

PER CURIAM:

Vacated and remanded by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.