Allah Burman v. R. A. Perdue


UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to proceed in forma pauperis (FRAP 24) [999585268-2]; denying Motion to hold an immediate hearing [999619403-4], denying Motion to dismiss the indictment, etc. and order the return of seized property [999619403-3], denying Motion for bail/release pending appeal (Local Rule 9(a) and (b)) [999619403-2]; denying Motion for immediate hearing regarding case status [999698763-2], denying Motion for bail/release pending appeal (Local Rule 9(a) and (b)) [999698763-3]; denying Motion to expedite decision [999823806-2]. Originating case number: 5:14-cv-00153-FPS-RWT. Copies to all parties and the district court/agency [1000085350]. Mailed to: Allah Burman. [15-6594]

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Appeal: 15-6594 Doc: 16 Filed: 05/22/2017 Pg: 1 of 2 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-6594 ALLAH BURMAN, Petitioner - Appellant, v. WARDEN R. A. PERDUE; M. SMITH, Lt.; T. VANERNICK, Lt., Respondents - Appellees. Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:14-cv-00153-FPS-RWT) Submitted: May 9, 2017 Decided: May 22, 2017 Before GREGORY, Chief Judge, and SHEDD and KEENAN, Circuit Judges. Affirmed as modified by unpublished per curiam opinion. Allah Burman, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. Appeal: 15-6594 Doc: 16 Filed: 05/22/2017 Pg: 2 of 2 PER CURIAM: Allah Burman, 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 with prejudice. We have reviewed the record and find no reversible error in the district court’s conclusion that Burman failed to show that 28 U.S.C. § 2255 (2012) was inadequate or ineffective to test the legality of his detention. However, because the district court lacked jurisdiction, the dismissal should be without prejudice. See Fed. R. Civ. P. 41(b); Rice v. Rivera, 617 F.3d 802, 807-08 (4th Cir. 2010). Accordingly, we affirm the dismissal for the reasons stated by the district court, see Burman v. Perdue, No. 5:14-cv00153-FPS-RWT (N.D.W. Va. Apr. 9, 2015), but we modify the dismissal to be without prejudice, see 28 U.S.C. § 2106 (2012). We grant Burman leave to proceed in forma pauperis on appeal but deny his other pending motions. 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 AS MODIFIED 2

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