     Case: 16-11169      Document: 00514019502         Page: 1    Date Filed: 06/05/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit
                                    No. 16-11169                              FILED
                                  Summary Calendar                         June 5, 2017
                                                                         Lyle W. Cayce
RICHARD WARNER,
                                                                              Clerk


                                                 Petitioner-Appellant

v.

RODNEY CHANDLER, Warden,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CV-1301


Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Richard Warner, federal prisoner # 43448-177, seeks leave to appeal in
forma pauperis (IFP) from the dismissal for lack of jurisdiction of a 28
U.S.C. § 2241 petition he filed challenging his guilty plea conviction and
sentence for transporting and shipping child pornography.                   See 18 U.S.C.
§ 2252(a)(1). In that petition, Warner argued that he is innocent of the offense
because the district court lacked jurisdiction to convict him. He asserted that


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 16-11169

he was entitled to raise his claim in a § 2241 petition based on the “savings
clause” in 28 U.S.C. § 2255(e).
      By moving for leave to proceed IFP, Warner is challenging the district
court’s certification that his appeal would be frivolous and not taken in good
faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into
an appellant’s good faith “is limited to whether the appeal involves legal points
arguable on their merits (and therefore not frivolous).” Howard v. King, 707
F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citation omitted).
      Warner’s § 2241 petition raised a claim challenging the validity of his
conviction and sentence and thus arose under 28 U.S.C. § 2255. See Padilla v.
United States, 416 F.3d 424, 426 (5th Cir. 2005). The “savings clause” allows
a federal prisoner to attack the legality of his conviction or sentence in a § 2241
petition only if he can show that the remedies provided under § 2255 are
“‘inadequate or ineffective to test the legality of his detention.’” Reyes-Requena
v. United States, 243 F.3d 893, 901 (5th Cir. 2001) (quoting § 2255). To make
such a showing, the petitioner must raise a claim that (1) is based on a
retroactively applicable Supreme Court decision; (2) establishes, based on the
Supreme Court decision, that he may have been convicted of a nonexistent
offense; and (3) was foreclosed by circuit law at the time when it should have
been raised in the petitioner’s trial, appeal, or first § 2255 motion. Id. at 904.
      Warner cannot show that the district court erred in determining that he
did not meet those requirements. In support of his jurisdictional challenge,
Warner relies on the Supreme Court’s opinion in National Cable
& Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967, 974
(2005). However, that decision predated Warner’s conviction and does not
establish that he was convicted of a nonexistent offense.




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                                 No. 16-11169

      Warner’s remaining arguments also do not establish that the district
court erred in determining that he could not proceed under the “savings
clause.” Warner’s assertions that he was unaware of his argument at the time
he filed his § 2255 motion, waived his right to raise his claim in a § 2255
proceeding, and could not raise his claim in a successive § 2255 motion do not
establish that his § 2255 remedy was inadequate or ineffective. See Pack v.
Yusuff, 218 F.3d 448, 452-53 (5th Cir. 2000); Tolliver v. Dobre, 211 F.3d 876,
878 (5th Cir. 2000). Warner has cited no authority to support his assertion
that the district court was required to consider his claim because it is the
objective of all three branches of government to reduce the prison population.
      Because Warner was not entitled to proceed under the savings clause of
§ 2255(e), he has no nonfrivolous argument that the district court erred in
dismissing his § 2241 petition for lack of jurisdiction or by certifying that his
appeal would not be taken in good faith. Accordingly, his motion to proceed
IFP on appeal is DENIED.         Because Warner’s appeal is frivolous, it is
DISMISSED. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.




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