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, 

, 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should not be published and is not precedent except under the limited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, 

, 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, 

, 904 (5th Cir. 2001).
      AFFIRMED.




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