                               UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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



                                             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
