Maudo L. Fofana v. Neil Clark

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAUDO L. FOFANA,
Petitioner - Appellant,
v.
NEIL CLARK,
Respondent - Appellee.
No. 08-35361
D.C. No. 2:07-cv-01749-JLR
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, United States District Judge, Presiding
Submitted July 19, 2010**
Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.
Former federal prisoner Maudo L. Fofana 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.
FILED
AUG 02 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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08-35361 2
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
(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.

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