                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                    September 18, 2006
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court


 UNITED STATES OF AM ERICA

                 Respondent-Appellee.
                                                        No. 06-6060
          v.                                          (W .D. of Okla.)
                                                   (D.C. Nos. CR-98-80-R
 M O H A MM ED A BD U L M A JID,                     and CIV-05-312-R)

                 Defendant-Appellant.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges. **


      Petitioner-Appellant M ohammed M ajid, proceeding pro se, 1 seeks a

Certificate of Appealability (COA) to appeal the district court’s dismissal of his

federal habeas corpus application on waiver and procedural default grounds.

Because M ajid could and should have raised the issues underlying his petition on


      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      1
       W e construe M ajid’s appellate filings liberally. See Cum mings v. Evans,
161 F.3d 610, 613 (10th Cir. 1998).
direct appeal, we deny his request for a COA and DISM ISS his case.

                                 I. Background

      M ajid is a federal inmate serving a 57-month sentence for interstate travel

in aid of racketeering in violation of 18 U.S.C. § 1952(a)(3). M ajid pleaded

guilty pursuant to a plea agreement. In the agreement, M ajid waived his right to

appeal his conviction. W e upheld this w aiver in an April 14, 2004 order in

United States v. M ajid, No. 04-6076. Despite this waiver, M ajid filed a petition

for habeas corpus under 28 U.S.C. § 2255 in the W estern District of Oklahoma,

arguing that his appointed counsel rendered ineffective assistance in violation of

the Sixth Amendment. The petition and related motions were dismissed as

procedurally barred. Because the district court did not address M ajid’s request

for a COA it is denied pursuant to Tenth Circuit Rule 22.1(C). M ajid now asks

this court for a COA to appeal the district court’s dismissal of his petition.

                                 II. Discussion

      W e may only issue a CO A if M ajid “has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Because the district

court denied M ajid’s petition on procedural grounds, we may issue a CO A if he

demonstrates both

      that jurists of reason would find it debatable whether the petition
      states a valid claim of the denial of a constitutional right and that
      jurists of reason would find it debatable whether the district court
      was correct in its procedural ruling.



                                          2
Slack v. M cDaniel, 529 U.S. 473, 484 (2000).

      As noted by the district court, post conviction motions under § 2255 are not

available to address issues which should have been raised on direct appeal.

United States v. Frady, 456 U.S. 152, 165 (1982), United States v. Dago, 441

F.3d 1238, 1244 (10th Cir. 2006). This rule applies even where the defendant has

waived his right to appeal. Frady, 456 U.S. at 165. As a result, where a

defendant has w aived his right to appeal, and has thereby waived his opportunity

to raise issues presented in a subsequent § 2255 petition, those issues

subsequently raised are procedurally barred. Id.      Procedural default will not bar

a defendant’s claims if he can (1) establish cause excusing the default and actual

prejudice resulting from the error at issue or (2) show that a fundamental

miscarriage of justice will occur if his claim is not addressed. Id.; United States

v. Cox, 83 F.3d 336, 341 (10th Cir. 1996).

      M ajid argues here, as below, that his procedural default was caused by the

ineffective assistance rendered by his appointed federal public defender. W hile a

showing of ineffective assistance of counsel may constitute cause for procedural

default, it is only sufficient to excuse the default if the attorney’s error rises to the

level of constitutionally deficient representation. Rogers v. United States, 91 F.3d

1388, 1391 (10th Cir. 1996). The district court found M ajid’s allegations

regarding his attorney’s ineffectiveness to be unsubstantiated. W e agree.

      M ajid contends that his attorney coerced him into signing his plea

                                           3
agreement and into lying to the district court regarding the voluntary nature of

that agreement. As documented by the district court, these assertions are contrary

to his own sworn testimony at the plea hearing and the language of the agreement

itself. M oreover, this court explicitly rejected this line of argumentation in

upholding M ajid’s waiver of appellate rights in the plea agreement.

      M ajid also maintains that his attorney failed to properly investigate and

prepare his case for trial, failed to ask for an interpreter, and failed to make

several plainly frivolous legal arguments. These allegations are either wholly

unsupported by the record or legally insufficient to support a claim of ineffective

assistance. The record demonstrates that M ajid’s counsel engaged in ample

discovery in preparation for M ajid’s case. Similarly, the record and M ajid’s

proven ability to represent himself demonstrates his understanding of English.

That M ajid’s attorney did not make frivolous arguments on his behalf cannot

overcome the “strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.” Strickland v. Washington, 466 U.S.

668, 689 (1984). The claims M ajid would have had his attorney raise had no

reasonable probability of success. 2 See Neill v. Gibson, 278 F.3d 1044 (10th Cir.

2001) (ineffective assistance claim by habeas corpus petitioner must be supported




      2
        For example, because no docket number was assigned to his charging
indictment, M ajid would have had his attorney contend that the indictment was
not legally extant.

                                           4
by showing that omitted claim would have led to a different result).

      M ajid has made no showing of ineffective assistance of counsel and has

therefore failed to establish cause excusing his procedural default. M ajid has also

not shown that a fundamental miscarriage of justice will be the result of his

claims being procedurally barred. United States v. Hahn, 359 F.3d 1315, 1324–25

(10th Cir. 2004). W e therefore find that jurists of reason would not find it

debatable whether M ajid has made a valid claim of a denial of a constitutional

right, nor would they find it debatable whether the district court erred in its ruing

that M ajid’s claims are procedurally barred.

                                 II. Conclusion

      For the foregoing reasons, we GRANT M ajid’s motion to proceed in form a

pauperis, DENY his application for a COA, DENY as moot his motion for

original transcripts to be ordered, and DISM ISS his appeal.

                                                     Entered for the Court

                                                     Timothy M . Tymkovich
                                                     Circuit Judge




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