Ernest Franklin Clark v. Warden D. Leu

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-6846
ERNEST FRANKLIN CLARK,
Petitioner - Appellant,
v.
WARDEN D. LEU,
Respondent - Appellee.
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)
Submitted: July 7, 2023 Decided: July 21, 2023
Before HARRIS and HEYTENS, Circuit Judges, and MOTZ, Senior Circuit Judge.
Affirmed as modified by unpublished per curiam opinion.
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Unpublished opinions are not binding precedent in this circuit.

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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

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