                                                                             FILED
                             NOT FOR PUBLICATION                              AUG 02 2010

                                                                          MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



MAUDO L. FOFANA,                                 No. 08-35361

               Petitioner - Appellant,           D.C. No. 2:07-cv-01749-JLR

  v.
                                                 MEMORANDUM *
NEIL CLARK,

               Respondent - Appellee.



                    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.




          *
             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).
      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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