UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. KEFELEGNE ALEMU WORKU, a/k/a Habteab Berhe Temanu , a/k/a Habteab B. Temanu, a/k/a TUFA, a/k/a Kefelgn Alemu, Defendant - Appellant. No. 17-1389 (D.C. Nos. 1:17-CV-00497-JLK and 1:12-CR-00346-JLK-1) (D. Colo.)

________________ _________________ ORDER DENYING CERTIFICATE OF APPEALABILITY

________________ _________________ Before PHILLIPS , McKAY , and BALDOCK , Circuit Judges.

________________ _________________ Defendant Kefelegne Alemu Worku was convicted of (1) unlawful p rocurement of citizenship in violation of 18 U. S.C. § 1425(a) and (b); (2) ag gravated identity theft in violation of 18 U.S.C. § 1028A (a)(1); and (3) fraud and misuse of immigration documents in violation of 18 U. S.C. § 1546(a). Based on eviden ce presented at trial and at sentencing, the district cour t found that he had committed t hese crimes to conceal his identity and escape punishment fo r his participation in the cri mes of torture and murder in Ethiopia in the 1970s. The distr ict court sentenced him to the statutory maximum sentence on each count, for a total sentence of twenty-two year s of imprisonment. In his direct appeal, Defendant argued that (1) his conviction on the first and third counts FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court2 violated the Double Jeopardy Clau se; (2) he could not be convic ted of aggravated identity theft because he had permission to use the identity he assumed; (3) the sentence was procedurally unreasonable becau se (a) there was no evidence tha t his motivation for committing these immigration offe nses was to conceal his involv ement in torture and murder, and (b) the pho to line-up that was s hown to various tor ture victims was unduly suggestive, making the resulting eyewitness identifications un reliable; and (4) the twenty-two-year sentence was not substantively reasonable. We held that none of these arguments established reversible error, and we accordingly affi rmed Defendant’s conviction and sentence. United States v. Worku , 800 F.3d 1195 (1 0th Cir. 2015). Defendant then filed the instan t motion under 28 U.S.C. § 2255, in which he argued: (1) our rejection of his d ouble jeopardy argument was itself a violation of due process, so the district court ought to correct our mistake by holding that his convictions did indeed violate double jeopa rdy; (2) our rejection of his ar gument about the allegedly suggestive photo line-up caused another due process violation; and (3) defense counsel was ineffective in several ways , including his failure to raise a double jeopardy objection to the jury instructions and his failure to move to recuse the trial judge. The district court held that Defendant had not shown an intervening change of law that would permit a § 2255 challenge to our prior opini on and that Defendant had not shown counsel was ineffective and/or the alleged in stances of ineffectiveness res ulted in prejudice. The court thus denied his § 2255 motion. Defendant now seeks a certificat e of appealability to appeal th e denial of his § 2255 motion. Specifi cally, he argues that we erred in rejectin g his double jeopardy3 argument in the previous appeal , that the trial judge was unfai rly prejudiced against him based mainly on his “extrajudicial ” knowledge that Defendant ha d been convicted in
absentia by an Ethiopian court of murderi ng more than one hundred people during the Red Terror in Ethiopia, and that counsel was ineffective for fa iling to object to the jury instructions on double jeopard y grounds or to move for recusal of the trial judge. We have thoroughly reviewed Def endant’s brief, the record on ap peal, and the relevant cases. We are persuade d that reasonable jurists would not debate the correctness of the district court’s denial of Defendant’s § 2255 motion. See Slack v. McDaniel , 529 U.S. 473, 484 (2000). As the dist rict court correctly held, De fendant has not shown any applicable exception to our long- established rule that “issues disposed of on direct appeal generally will not be considered on a collateral attack by a mo tion pursuant to § 2255.
United States v. Prichard , 875 F.2d 789, 791 (10th Cir. 1989). Our holding that Defendant’s double jeopardy righ ts were not violated remains bi nding law of the case. Nor has Defendant shown valid g rounds for defense counsel to re quest recusal of the trial judge. The trial judge’s knowle dge of Defendant’s Ethiopian mu rder conviction was not extrajudicial, but was based on the prosecution’s introduction of this evidence at sentencing to support its argum ent that a lengthy sentence was warranted because Defendant committed immigration fraud in an attempt to escape p unishment for his past war crimes. See United States v. Grinnell Corp. , 384 U.S. 563, 583 (1 966) (“The alleged bias and prejudice to be disqualif ying must stem from an extraj udicial source and result in an opinion on the merits on so me basis other than what the j udge learned from his participation in the case.”). T he record does not show any imp ermissible bias or4 prejudice on the part of the tri al judge. For these reasons an d substantially the same reasons given by the district c ourt, Defendant has not demonstr ated ineffective assistance of counsel or other gro unds for § 2255 relief. We therefore DENY Defendant’s request for a cer tificate of appealability and
DISMISS the appeal. Defendant’s motion to proceed in forma pauperis on appeal is granted.
ENTERED FOR THE COURT

Monroe G. McKay Circuit Judge