UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-6235

JAMAL DONTAE BURNELL, Petitioner - Appellant, v. JUSTIN ANDREWS, Warden, FCC Petersburg, Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, Senior District Judge. (2:20-cv-00628-RGD-RJK)

Submitted: May 20, 2021 Decided: May 25, 2021

Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.

Affirmed as modified by unpublished per curiam opinion.

Jamal Dontae Burnell, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Jamal Dontae Burnell, a federal prisoner, appeals the district court’s order dismissing his 28 U.S.C. § 2241 petition, in which he sought to challenge his sentence by way of the savings clause in 28 U.S.C. § 2255(e). The district court dismissed the petition on the ground that the savings clause permits prisoners to challenge only the legality of their convictions, not their sentences. We have held, however, that the savings clause “provide[s] an avenue for prisoners to test the legality of their sentences pursuant to § 2241.” United States v. Wheeler, 886 F.3d 415, 428 (4th Cir. 2018). Nevertheless, we conclude that the district court properly dismissed the petition because Burnell did not satisfy the second prong of the Wheeler test—he did not identify a retroactive change to substantive law that called into question the legality of his sentence. See id. at 429. The dismissal, however, should have been without prejudice because “the savings clause is a jurisdictional provision.” Id. at 423; see S. Walk at Broadlands Homeowner’s Ass’n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013) (“A dismissal for . . . [a] defect in subject matter jurisdiction[] must be one without prejudice, because a court that lacks jurisdiction has no power to adjudicate and dispose of a claim on the merits.”).

Accordingly, we affirm as modified to reflect that the dismissal is without prejudice.

We deny Burnell’s motion to seal. 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