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

                                                FILED
                                                                February 18, 2009
                                 No. 08-40167
                              Conference Calendar             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should not be published and is not precedent except under the limited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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