                                                                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.

                        --------------------
            Appeal from the United States District Court
              for the Northern District of Mississippi
                       USDC No. 4:95-CR-132-1
                        --------------------

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this opinion should not be published and is not precedent except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.
