Opinion
22-6846
07-21-2023
ERNEST FRANKLIN CLARK, Petitioner-Appellant, v. WARDEN D. LEU, Respondent-Appellee.
Ernest Franklin Clark, Appellant Pro Se. Rudy E. Renfer, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
UNPUBLISHED
Submitted: July 7, 2023
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:21-hc-02099-D)
Ernest Franklin Clark, Appellant Pro Se.
Rudy E. Renfer, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Before HARRIS and HEYTENS, Circuit Judges, and MOTZ, Senior Circuit Judge.
Affirmed as modified by unpublished per curiam opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM
Ernest Franklin Clark appeals the district court's order dismissing his 28 U.S.C. § 2241 petition seeking to challenge his 18 U.S.C. § 924(c) convictions by way of the savings clause in 28 U.S.C. § 2255(e). Applying the Supreme Court's recent decision in Jones v. Hendrix, __ S.Ct., __ No. 21-857, 2023 WL 4110233, at *7-9 (U.S. June 22, 2023) (abrogating In re Jones, 226 F.3d 328 (4th Cir. 2000)), we find no reversible error in the district court's dismissal of Clark's § 2241 petition. However, because the district court lacked jurisdiction over Clark's petition, see Rice v. Rivera, 617 F.3d 802, 807-08 (4th Cir. 2010), we modify the district court's order to reflect that the dismissal is without prejudice, see Ali v. Hogan, 26 F.4th 587, 600 (4th Cir. 2022) (recognizing that dismissal based on "defect in subject matter jurisdiction . . . must be one without prejudice" (internal quotation marks omitted), and affirm the order as modified, see 28 U.S.C. § 2106. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.
AFFIRMED AS MODIFIED