* 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that this opinion should not be published and is not precedent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.

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
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.