Barajas-Dias v. Quintana

310 F. App'x 692

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 18, 2009
• Docket: 08-40167
• Status: Unpublished

Opinion

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, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999), and that the district court erred in refusing to permit him to 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 Bara-jas filed his § 2255 motion, and the district court did not err in determining that Bara-jas’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.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.