* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 6 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
FRED FITZGERALD,

Petitioner-Appellant, No. 00-2187
v. D.N.M. JOE WILLIAMS, Warden, Lea County Correctional Facility; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO,

Respondents-Appellees. (D.C. No. CIV-99-412-BB)

ORDER AND JUDGMENT *

Before BALDOCK , HENRY , and LUCERO , Circuit Judges.
In 1997, Mr. Fitzgerald pleaded guilty to one countof trafficking cocaine by possession with intent to distribute of violatio n of probation in New Mexico state court. Two years earlier he pleaded guilty t o one count each of false imprisonment, contributing to the delinquency of a minor and aggravated battery. Mr Fitzgerald was treated as a habitual offender an d sentenced to seventeen-2-

years’ imprisonment with seven years’ suspended and three years’ supervised probation. Mr. Fitzgerald filed a petition pursuant to 28 U.S. C. § 2254 challenging his conviction and sentence on two grounds: (1) that th e habitual offender enhancement of his sentences constituted cruel and unusual punishment and (2) that his sentencing violated double jeopardy. The magistrate judge filed proposed findings suggesting the cruel and unusual punishmen t claim be dismissed under procedural default and that the double jeopardy cla im be denied on the merits. The district court adopted the magistrate judge’s f indings. The district court subsequently denied Mr. Fitzgerald’s application fo r a certificate of appealability. A renewed application is before us now. Mr. Fitzgerald did not directly appeal his convicti ons, but he did pursue state post-conviction relief. During his state pos t-conviction proceedings, he raised only the double jeopardy claims. Mr. Fitzge rald must demonstrate a showing of cause and actual prejudice or a fundamen tal miscarriage of justice to avoid procedural bar as to his cruel and unusual punishment claim. See Jackson v. Shanks , 143 F.3d 1313, 1317 (10th Cir. 1998) (citing Coleman v. Thompson , 501 U.S. 722, 730 (1991)). We agree with the magistrate judge’s conclusion that Mr. Fitzgerald cannot show cause and prejudice for the procedural defaultof his cruel and unusual-3-

punishment claim. There is no evidence that the fa ctual and legal basis of the claim was not viable when he filed his state court post-conviction petition, nor is there evidence of interference by official that mad e compliance with the procedural rule impracticable. See Maes v. Thomas , 46 F.3d 979, 984 (10th Cir. 1995). We also agree with the magistrate’s determination t hat Mr. Fitzgerald cannot demonstrate a fundamental miscarriage of justice under McCleskey v. Zant , 499 U.S. 467, 502 (1991). There is no evidence o f a constitutional violation that caused the conviction of one innocent of the c rime, and Mr. Fitzgerald makes no allegation of actual innocence. Mr. Fitzgerald’s double jeopardy claim also fails. Mr. Fitzgerald contends that the additional habitual offender enhancements of his first sentence resulted in an eight year enhancement of his sentence for his s econd set of crimes and for his violation of his probation in the first case. In h is 1995 plea agreement, Mr. Fitzgerald agreed that if he violated any condition s of probation or if he violated any law, the state could bring additional habitual offender proceedings against him. Mr. Fitzgerald also agreed to the enhancementin the event his probation was revoked, which it was. We agree with the magis trate judge’s recommendation that Mr. Fitzgerald’s double jeopardy claim must be dismissed because he bargained away this defense.-4-

We agree with the district court that Mr. Fitzgeral d has “failed to make a substantial showing of the denial of a constitution al right,” 28 U.S.C. § 2253(c)(2), required to obtain a certificate of app ealability. Accordingly, we DENY Mr. Fitzgerald’s request for acertificate of appealability and DISMISS the appeal.

Entered for the Court,

Robert H. Henry Circuit Judge

.