United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 1, 2004
Charles R. Fulbruge III
Clerk
No. 04-60180
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAX V. LENARD, also known as Max Leonard,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:95-CR-132-1
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Before SMITH, STEWART, DENNIS, Circuit Judges.
PER CURIAM:*
Max V. Lenard, federal prisoner # 10386-042, challenges the
dismissal for lack of jurisdiction of his 28 U.S.C. § 2241
petition, which the district court construed as a successive
28 U.S.C. § 2255 motion filed without proper authorization. In his
petition, Lenard sought to challenge his sentence, arguing that his
prior convictions were improperly used to enhance his sentence and
that his counsel was ineffective in failing to object to or appeal
the use of his prior convictions to enhance his sentence.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-60180
-2-
Because Lenard is proceeding under § 2241, he is not required
to obtain a certificate of appealability (COA) to proceed on
appeal. See Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir.
2001). Additionally, because the issue of whether the district
court erred in denying Lenard’s § 2241 petition as an unauthorized
successive § 2255 motion is resolved by Lenard’s submission to this
court and the record, further briefing is unnecessary. See Clark
v. Williams, 693 F.2d 381, 381-82 (5th Cir. 1982).
The district court correctly construed the petition as an
unauthorized successive motion under 28 U.S.C. § 2255 because
Lenard was attacking the legality of his sentence rather than the
manner of execution of his sentence. See Jeffers, 253 F.3d at 830.
Additionally, Lenard has not shown that his case fits within the
“savings clause” of 28 U.S.C. § 2255. See 28 U.S.C. § 2255;
Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).
Accordingly, COA is denied as unnecessary; Lenard’s motion for IFP
is granted; and the judgment of the district court is affirmed.
DENY COA as unnecessary; GRANT IFP; JUDGMENT AFFIRMED.