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UNITED STATES of America, Plaintiff-Appellee, v. Glenn METZ, Also Known as Shorty, Also Known as Jeeper, Defendant-Appellant

United States Court of Appeals for the Fifth Circuit2012-07-26No. No. 11-31176
481 F. App'x 960

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Opinion

majority opinion

PER CURIAM:

Glenn Metz, federal prisoner #28118-048, is serving a life sentence and has convictions of conducting a continuing criminal enterprise (“CCE”) and possessing cocaine with intent to distribute. Invoking 28 U.S.C. § 2241, he sued to challenge his convictions and sentence, and the district court dismissed the suit after determining that it should be construed as an unauthorized, successive 28 U.S.C. § 2255 motion.

This court is now presented with Metz’s request for a certificate of appeala-bility (“COA”), but one is not needed, because he sought relief under § 2241. See Padilla v. United States, 416 F.3d 424, 425 (5th Cir.2005). The motion for a COA is DENIED as unnecessary.

Because Metz’s claims do not relate to the execution of his sentence, the district court did not err by recharacteriz-ing his putative § 2241 petition as a § 2255 motion. See id.; Tolliver v. Dobre, 211 F.3d 876, 877-78 (5th Cir.2000). Insofar as Metz argues that he should be permitted to proceed under the savings clause of § 2255 because of his reliance on DePierre v. United States, — U.S. -, 131 S.Ct. 2225, 180 L.Ed.2d 114 (2011), and Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999), that argument is unavailing, because those decisions do not show that he was convicted of a nonexistent offense. See Wilson v. Roy, 643 F.3d 433, 434-35 (5th Cir.2011), cert. denied, — U.S. -, 132 S.Ct. 1062, 181 L.Ed.2d 779 (2012); Christopher v. Miles, 342 F.3d 378, 382 (5th Cir.2003); Jeffers v. Chandler, 253 F.3d 827, 830-31 (5th Cir.2001); § 2255(e)

The judgment is AFFIRMED.

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.