IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-11025
Summary Calendar
OMOTAYO TONY FABULUJE,
Petitioner-Appellant,
versus
IMMIGRATION AND NATURALIZATION, AGENCY;
JOHN ASHCROFT, U.S. Attorney General;
MARY ANN WYRSCH, ACTING COMMISSIONER,
IMMIGRATION AND NATURALIZATION SERVICE;
ANNE M. ESTRADA, Dallas District
Director, Immigration and Naturalization
Service; CLAYTON BOOTH, Immigration and
Naturalization Service, Dallas,
Respondents-Appellees.
---------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:00-CV-1347-P
---------------------
March 13, 2002
Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Omotayo Tony Fabuluje, prisoner # 29301282, appeals from the
dismissal of his petition for a writ of habeas corpus, which
attacked his convictions for conspiracy to transport stolen
merchandise in interstate commerce and for unlawfully procuring
naturalization based on ineffective assistance of counsel, 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that this opinion should not be published and is not precedent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.
No. 01-11025
- 2 -
also presented an excessive-bail claim. The district court
determined that Fabuluje’s ineffective-assistance claim was
cognizable under 28 U.S.C. § 2255 and dismissed the claim because
Fabuluje offered only conclusional allegations. By separate
order, the district court rendered final judgment on Fabuluje’s
petition, dismissing his excessive-bail claim, cognizable under
28 U.S.C. § 2241, for failure to exhaust administrative remedies.
Fabuluje’s motion to submit a brief in excess of the page
limitations is GRANTED, and his 45-page brief, plus attachments,
is considered filed. His motion to augment the record on appeal
is DENIED. Fabuluje’s motions for appointment of counsel and to
expedite his appeal are DENIED as MOOT.
Fabuluje, for the first time on appeal, makes specific
allegations that his counsel was ineffective, enumerating 14
grounds for his ineffective-assistance claim. In a separate
section of his brief, Fabuluje contends that counsel was
ineffective for failing to argue, prior to trial, that because he
was a naturalized citizen the district court was without
jurisdiction to hear the indictment against him. Fabuluje also
presents new claims on appeal, arguing that (1) the district
court lacked authority to hear his indictment, (2) absent proof
of use of fraudulent evidence of citizenship to procure his
naturalization he could not be convicted of unlawfully procuring
naturalization under 18 U.S.C. § 1425, (3) his indictment should
have been dismissed, (4) his indictment and conviction violated
the Fifth Amendment, and (5) the trial court applied an improper
standard of proof.
No. 01-11025
- 3 -
To the extent that Fabuluje’s habeas petition attacked his
convictions, the district court properly construed Fabuluje’s
claims as cognizable under 28 U.S.C. § 2255. See Tolliver v.
Dobre, 211 F.3d 876, 877-78 (5th Cir. 2000). With respect to
such claims, Fabuluje must obtain a COA to proceed on appeal.
See United States v. Gobert, 139 F.3d 436, 438 (5th Cir. 1998).
Although Fabuluje has not requested a COA from this court, under
FED. R. APP. P. 22(b)(2) “[i]f no express request for a
certificate is filed, the notice of appeal constitutes a request
addressed to the judges of the court of appeals.” In order to
obtain a COA, Fabuluje must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Based on the allegations made in Fabuluje’s habeas petition
and related pleadings, the district court did not err in holding
that Fabuluje’s ineffective-assistance claims were conclusional
and in denying his 28 U.S.C. § 2255 motion on that basis. See
Rule 4(b) of the Rules Governing § 2255 Proceedings, 28 U.S.C.
foll. § 2255 (1994); Koch v. Puckett, 907 F.2d 524, 530 (5th Cir.
1990)(although pro se habeas petitions are construed liberally,
mere conclusional allegations on a critical issue do not raise a
constitutional claim). To the extent that Fabuluje seeks to
raise new arguments and grounds in support of his ineffective
assistance claim on appeal, they cannot be considered as this
court lacks jurisdiction to consider arguments raised for the
first time in a COA motion. See Whitehead v. Johnson, 157 F.2d
384, 387-88 (5th Cir. 1998). Likewise, the court is without
No. 01-11025
- 4 -
jurisdiction to consider the claims for relief raised by Fabuluje
for the first time on appeal. See id.
Fabuluje has presented no argument relative to the district
court’s dismissal of his excessive-bail claim. Consequently,
this issue is waived. See Yohey v. Collins, 985 F.2d 222, 225
(5th Cir. 1993). Accordingly, to the extent Fabuluje sought
relief under 28 U.S.C. § 2241, his appeal is DISMISSED.
COA DENIED ON CLAIMS COGNIZABLE UNDER 28 U.S.C. § 2255;
APPEAL DISMISSED AS TO EXCESSIVE BAIL CLAIM COGNIZABLE UNDER 28
U.S.C. § 2241; MOTION TO FILE EXCESS BRIEF GRANTED; MOTION TO
AUGMENT THE RECORD DENIED; MOTION FOR APPOINTMENT OF COUNSEL
DENIED AS MOOT; MOTION TO EXPEDITE APPEAL DENIED AS MOOT.