     Case: 11-10916     Document: 00511811020         Page: 1     Date Filed: 04/04/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            April 4, 2012
                                     No. 11-10916
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

FRANKLIN L. WILLIAMS,

                                                  Petitioner-Appellant

v.

REBECCA TAMEZ,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:11-CV-577


Before DENNIS, CLEMENT, and OWEN, Circuit Judges
PER CURIAM:*
        Franklin L. Williams, federal prisoner # 12952-021, moves to proceed in
forma pauperis (IFP) to appeal the dismissal, as an abuse of the writ, of his 28
U.S.C. § 2241 petition. Williams argued that he was actually innocent of the
drug charge for which he was convicted in Georgia state court because the
indictment against him did not result from proper grand jury proceedings and
therefore was void. He also argued that his trial counsel was ineffective and
that he should be allowed to proceed under the savings clause of 28 U.S.C.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-10916    Document: 00511811020      Page: 2   Date Filed: 04/04/2012

                                  No. 11-10916

§ 2255(e). The district court denied Williams leave to proceed IFP on appeal,
certifying that the appeal was not taken in good faith.
      By moving to proceed IFP, Williams challenges the district court’s
certification that his appeal is not taken in good faith. Baugh v. Taylor, 117 F.3d
197, 202 (5th Cir. 1997). We review for abuse of discretion a district court’s
decision to dismiss a habeas petition as an abuse of the writ. James v. Cain, 56
F.3d 662, 665 (5th Cir. 1995).
      Williams maintains that his appeal is not frivolous because the Georgia
state indictment against him was void, thereby rendering him actually innocent
of the state drug charges, and because his trial counsel failed to render effective
assistance. He also contends that his filing is not an abuse of the writ because
he is trying to achieve justice, challenge the legality of his detention, and prove
his actual innocence. The petition was an abuse of the writ because “the legal
issue remains the same as the issue raised in his” § 2241 petitions filed in June
2010 and February 2011, i.e., whether he should be allowed to proceed under the
savings clause of § 2255(e) to pursue his claims that the state indictment was
null and void and that his trial counsel was ineffective for failing to challenge
that indictment. United States v. Tubwell, 37 F.3d 175, 178 (5th Cir. 1994)
(observing that 28 U.S.C. § 2244(a) applies to § 2241 petitions).
      The district court did not abuse its discretion in dismissing the petition as
an abuse of the writ. Williams has not shown that his appeal involves a
nonfrivolous issue. Consequently, his request to proceed IFP is DENIED, his
motion for appointment of counsel is DENIED, and his appeal is DISMISSED
as frivolous. See Baugh, 117 F.3d at 202 n.24 (5th Cir. 1997); 5TH CIR. R. 42.2.
Williams’s motion for leave to file a corrected brief also is DENIED.
      Williams is WARNED that frivolous, repetitive, or otherwise abusive
filings will invite the imposition of sanctions, which may include dismissal,
monetary sanctions, and restrictions on his ability to file pleadings in this court
and any court subject to this court’s jurisdiction.

                                        2
