Mario Alphonso Herrera-Umanzor v. TOM SMITH, Warden

UNPUBLISHED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 Decided: December 2, 2016
Before DUNCAN and WYNN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mario Alphonso Herrera-Umanzor, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Mario Alphonso Herrera-Umanzor pled guilty to causing
premeditated death through use of a firearm, 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. The district court dismissed the petition without
prejudice, noting that Herrera-Umanzor must proceed under 28
U.S.C. § 2255 (2012), but it could not convert his § 2241
petition to a § 2255 motion because it would be successive.
Herrera-Umanzor appeals.
The district court properly found that, because Herrera-
Umanzor is challenging the legality of his detention, rather
than the execution of his sentence, he must proceed under 28
U.S.C. § 2255 (2012). In re Vial, 115 F.3d 1192, 1194 n.5 (4th
Cir. 1997). However, 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 without prejudice of Herrera-Umanzor’s
§ 2241 petition. Herrera-Umanzor may file a § 2255 motion in

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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

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