Mario Herrera-Umanzor v. Tom Smith, No. 16-6729 (4th Cir. 2016)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-6729 MARIO ALPHONSO HERRERA-UMANZOR, Petitioner - Appellant, v. TOM SMITH, Warden, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:15-hc-02298-FL) Submitted: November 30, 2016 Before DUNCAN Circuit Judge. and WYNN, Circuit Decided: Judges, and December 2, 2016 DAVIS, Senior Affirmed by unpublished per curiam opinion. Mario Alphonso Herrera-Umanzor, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Mario Alphonso premeditated death Herrera-Umanzor through use pled guilty a firearm, of to causing 18 U.S.C. § 924(j)(1), (2) (2012), and was sentenced in September 2013 in federal district court in New York to 264 months’ imprisonment. His conviction and sentence were summarily affirmed on appeal. United States v. Prado, 815 F.3d 93, 105 (2nd Cir. 2016). In December 2015, Herrera-Umanzor filed the underlying 28 U.S.C. § 2241 (2012) petition, alleging ineffective assistance of counsel. prejudice, U.S.C. § The district court dismissed the petition without noting 2255 that Herrera-Umanzor (2012), but it could must not proceed convert under his § 28 2241 petition to a § 2255 motion because it would be successive. Herrera-Umanzor appeals. The district court properly found that, because HerreraUmanzor is challenging the legality of his detention, rather than the execution of his sentence, he must proceed under 28 U.S.C. § 2255 (2012). Cir. 1997). However, In re Vial, 115 F.3d 1192, 1194 n.5 (4th our review of the docket in Herrera- Umanzor’s criminal proceedings reveals no prior § 2255 motion. Accordingly, we grant leave to proceed in forma pauperis and affirm the dismissal § 2241 petition. without prejudice of Herrera-Umanzor’s Herrera-Umanzor may file a § 2255 motion in 2 the court of conviction, mindful of the one-year limitations period. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 3

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