Maudo Fofana v. Neil Clark

390 F. App'x 717

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 2, 2010
• Docket: 08-35361
• Status: Unpublished

Opinion

MEMORANDUM **

Former federal prisoner Maudo L. Fofa-na appeals pro se from the district court’s order denying his motion for relief under 28 U.S.C. § 2255. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

The issue certified by the district court for appeal — whether an asylum application is an immigration document which falls under the purview of 18 U.S.C. § 1546(a) — was procedurally defaulted when Fofana did not raise the issue on direct appeal. Fofana has not demonstrated that he is entitled to excuse his procedural default of this issue. See Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). In particular, he failed to demonstrate either “actual, factual innocence” or cause and prejudice as a result of any deficient performance by appellate counsel. See United States v. Ratigan, 351 F.3d 957, 964-65 (9th Cir.2003).

We construe Fofana’s additional arguments as a motion to expand the certificate of appealability. So construed, the motion is denied. See 9th Cir. R. 22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir.1999) (per curiam).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.