     Case: 14-51130      Document: 00513215553         Page: 1    Date Filed: 10/01/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                      No. 14-51130                               FILED
                                                                           October 1, 2015
                                                                            Lyle W. Cayce
CARLOS RUBEN ZUNIGA,                                                             Clerk

                                                 Petitioner-Appellant

v.

LORETTA LYNCH, U. S. ATTORNEY GENERAL; KEN PAXTON, Texas
Attorney General; THOMAS W. HUSSEY, United States Department of
Justice,

                                                 Respondents-Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:14-CV-326


Before CLEMENT, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Carlos Ruben Zuniga, federal prisoner # 34086-177, is serving a 60-
month sentence for illegal reentry. Zuniga appeals the district court’s denial
of his 28 U.S.C. § 2241 petition. The district court determined that Zuniga’s
§ 2241 petition was a successive 28 U.S.C. § 2254 petition for which Zuniga




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 14-51130

had not obtained authorization to proceed and dismissed the petition for lack
of jurisdiction.
      We are now presented with Zuniga’s request for a certificate of
appealability (COA) and motion for appointment of counsel. However, because
Zuniga sought relief under § 2241, he does not need a COA in order to appeal.
See Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001). His COA motion is
denied as unnecessary.
      On review of the denial of a § 2241 petition, we review the district court’s
factual findings for clear error and its conclusions of law de novo. Christopher
v. Miles, 342 F.3d 378, 381 (5th Cir. 2003).        Section 2241 is the proper
procedural vehicle by which a federal prisoner may challenge “the manner in
which a sentence is executed.” Padilla v. United States, 416 F.3d 424, 426 (5th
Cir. 2005) (internal quotation marks and citation omitted). A § 2254 petition
is the proper vehicle for a state prisoner challenging the validity of his state
conviction or sentence in order to obtain release from custody. See Felker v.
Turpin, 518 U.S. 651, 662 (1996). For an individual seeking to “collaterally
attack[] a federal sentence,” § 2255 provides “the appropriate remedy for errors
that occurred at or prior to the sentencing.” Padilla, 416 F.3d at 425-26
(internal quotation marks and citation omitted). Because Zuniga challenges
the validity, rather than the execution, of his sentence, his petition is properly
construed under § 2254 or 28 U.S.C. § 2255, rather than under § 2241.
      The district court construed Zuniga’s petition as arising under § 2254
and dismissed it as successive. Because Zuniga has fully discharged the state
sentence he complains of and is currently in custody for a federal conviction,
he cannot challenge his state conviction by way of a § 2254 petition. See
Maleng v. Cook, 490 U.S. 488, 492 (1989); Pleasant v. State of Tex., 134 F.3d
1256, 1257-59 (5th Cir. 1998). However, Zuniga’s petition can be construed as



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                                No. 14-51130

a challenge under § 2255 to his current federal sentence as enhanced by the
prior discharged state sentence. See Maleng, 490 U.S. at 493; Pleasant, 134
F.3d at 1258-59. As Zuniga has not filed a prior § 2255 motion challenging his
2015 illegal reentry conviction, his motion would not be successive.
      Even so, we may affirm the denial of habeas relief “on any ground
supported by the record.” Scott v. Johnson, 227 F. 3d 260, 262 (5th Cir. 2000).
The dismissal of Zuniga’s petition was proper because a defendant may not
proceed via § 2255 until his conviction has been affirmed on direct appeal. See
United States v. Bernegger, 661 F.3d 232, 241 (5th Cir. 2011). Zuniga’s direct
criminal appeal is currently pending. Thus, Zuniga has not shown that the
district court erred in its dismissal of his § 2241 petition. His motion for
appointment of counsel is denied.
      AFFIRMED; MOTION FOR A COA DENIED AS UNNECESSARY;
MOTION FOR APPOINTMENT OF COUNSEL DENIED.




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