                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  April 21, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                              No. 03-11312
                          Conference Calendar



FREDERICK LYNN MITCHELL,

                                      Petitioner-Appellant,

versus

K.J. WENDT, Warden, Federal Correctional
Institution - Seagoville,

                                      Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 4:03-CV-1306-A
                       --------------------

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

     Frederick Lynn Mitchell, federal prisoner #26943-177,

appeals 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, he sought to challenge his

guilty-plea conviction for possession with the intent to

distribute more than 50 grams of cocaine base.    Mitchell argued


     *
        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that this opinion should not be published and is not precedent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. 03-11312
                                -2-

that (1) his conviction was void because the statutes under which

he was convicted were uncodified; (2) the indictment was

defective because it failed to allege the essential elements of

the offense; (3) the district court lacked subject-matter

jurisdiction because the indictment failed to allege the

essential elements of the offense; (4) he was actually innocent

of the offense of conviction; and (5) the “fair warning doctrine”

was violated because the indictment failed to allege the

essential elements of the offense.

     The district court correctly construed the petition as a

successive motion under 28 U.S.C. § 2255 because Mitchell was

attacking the legality of his conviction rather than the manner

of execution of his sentence.   Tolliver v. Dobre, 211 F.3d 876,

877 (5th Cir. 2000).   Nor has Mitchell 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).   The judgment of the district court is affirmed.

     AFFIRMED.
