Gabino Barajas v. USA, et al, No. 12-50943 (5th Cir. 2013)

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Case: 12-50943 Document: 00512217833 Page: 1 Date Filed: 04/23/2013 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 12-50943 Summary Calendar April 23, 2013 Lyle W. Cayce Clerk GABINO TORRES BARAJAS, Petitioner-Appellant v. UNITED STATES OF AMERICA; WARDEN; FEDERAL BUREAU OF PRISONS; GEO; UNITED STATES ATTORNEY GENERAL, Respondents-Appellees Appeal from the United States District Court for the Western District of Texas USDC No. 4:12-CV-10 Before JONES, DENNIS, and HAYNES, Circuit Judges. PER CURIAM:* Gabino Torres Barajas, federal prisoner # 14114-081, an alien against whom the Bureau of Immigration and Customs Enforcement ( ICE ) has issued a detainer subjecting him to immediate removal from the United States upon release from Bureau of Prisons (BOP) custody, moves this court to proceed in forma pauperis (IFP) to appeal the denial of his 28 U.S.C. § 2241 petition challenging the BOP s exclusion of him from rehabilitation programs and * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 12-50943 Document: 00512217833 Page: 2 Date Filed: 04/23/2013 No. 12-50943 halfway houses. His arguments are foreclosed by this court s decision in Gallegos-Hernandez v. United States, 688 F.3d 190, 192-93 (5th Cir.), cert. denied, 133 S. Ct. 561 (2012). We are barred from considering his argument that Gallegos-Hernandez was wrongly decided by our rule of orderliness. Jacobs v. Nat l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008)( It is a well-settled Fifth Circuit rule of orderliness that one panel of our court may not overturn another panel s decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court. ). His argument that his status is materially different from that of the defendant in Gallegos-Hernandez is incorrect. Like Barajas, Gallegos-Hernandez was a federal prisoner against whom an ICE detainer had been lodged. Accordingly, Torres Barajas s motion to proceed IFP is DENIED, and his appeal is DISMISSED as frivolous. See 5TH CIR. R. 42.2. 2

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