Barajas-Dias v. Quintana

Filing 920090218

Opinion

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 08-40167 Conference Calendar February 18, 2009 Charles R. Fulbruge III Clerk

EMILIANO BARAJAS-DIAS Petitioner-Appellant v. FRANCISCO QUINTANA, Warden Respondent-Appellee

Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:07-CV-585

Before HIGGINBOTHAM, DENNIS, and PRADO, Circuit Judges. PER CURIAM:* Emiliano Barajas-Dias (Barajas), federal prisoner # 08627-085, has appealed the district court's order dismissing his application for a writ of habeas corpus challenging his 1997 conviction of engaging in a continuing criminal enterprise. Barajas contends that he has suffered a miscarriage of justice

because he is actually innocent in light of Richardson v. United States, 526 U.S. 813, 815 (1999), and that the district court erred in refusing to permit him to

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR.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

*

No. 08-40167 assert his Richardson claim in a 28 U.S.C. § 2241 proceeding under the Savings Clause of 28 U.S.C. § 2255(e). Barajas asserted his Richardson claim previously in a motion under § 2255. United States v. Barajas-Diaz, 313 F.3d 1242, 1245-49 (10th Cir. 2002). Thus, the claim was not foreclosed at the time Barajas filed his § 2255 motion, and the district court did not err in determining that Barajas's Richardson claim may not now be brought under § 2241. See Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001). AFFIRMED.

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