Barajas-Dias v. Quintana, 021809 FED5, 08-40167

Docket Nº:08-40167
Opinion Judge:PER CURIAM:
Party Name:EMILIANO BARAJAS-DIAS Petitioner-Appellant v. FRANCISCO QUINTANA, Warden Respondent-Appellee
Judge Panel:Before HIGGINBOTHAM, DENNIS, and PRADO, Circuit Judges.
Case Date:February 18, 2009
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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EMILIANO BARAJAS-DIAS Petitioner-Appellant

v.

FRANCISCO QUINTANA, Warden Respondent-Appellee

No. 08-40167

United States Court of Appeals, Fifth Circuit

February 18, 2009

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 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 determ ining that Barajas's Richardson claim may not now...

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