D.C. Nos. 6:14-CV-01180-MLB, 6:12-CR-10057-MLB D. Kan.
Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY [*]
Carlos F. Lucero Circuit Judge
Eni Oyegoke-Eniola, proceeding pro se, seeks a certificate of appealability ("COA") to appeal the district court's denial of his 28 U.S.C. § 2255 habeas motion. We deny a COA and dismiss the appeal.
Oyegoke-Eniola, a Nigerian citizen, earned a Bachelor of Science degree in Computer Engineering in Nigeria in 2001. He then moved to Great Britain, where he pursued graduate study in Information Security and, later, a PhD in Intrusion Detection and Network Security. He did not complete his PhD because a British court convicted him in 2007 of offenses involving credit card fraud and deception. After returning to Nigeria, he came to the United States in 2009 on a non-immigrant visa to pursue an MBA at Washington University in St. Louis. When he applied for his 2009 visa, he denied having been arrested for, or convicted of, any crime.
During his MBA program, Oyegoke-Eniola began spending time in Wichita, Kansas, where he eventually sublet an apartment. Oyegoke-Eniola and others in Wichita, including his friend Hakeem Makanjuola, engaged in identity theft, credit card fraud, and other fraudulent activities. On June 28, 2011, United States Secret Service Special Agent Greg Tiano learned about the fraud, and on July 21, 2011, Tiano observed Oyegoke-Eniola picking up a package at his sublet apartment that Tiano believed contained fraudulently-purchased gold coins. Tiano arrested Oyegoke-Eniola, briefly interviewed him, and then, with Oyegoke-Eniola's consent, searched his sublet apartment as well as a different apartment where Oyegoke-Eniola lived with his fiancée. Oyegoke-Eniola was later interviewed at a Secret Service office, and confirmed that he had bought gold coins and gift cards from Makanjuola, sold gold coins on Makanjuola's behalf, and received various packages.
Oyegoke-Eniola was released without being charged. On August 11, 2011, the government sent Oyegoke-Eniola's attorney a letter promising that his statements during a later proffer interview would not be used against him in the government's case-in-chief. Later that month, after marrying his fiancée, Oyegoke-Eniola prepared, signed under penalty of perjury, and submitted an I-485 Application to Register Permanent Residence or Status. In the portion of the form asking about his prior criminal conduct, Oyegoke-Eniola stated that he was "arrested but not charge[d]" and "released after be[ing] interviewed about some set of people I came in contact with while living in Wichita, KS." He again failed to mention his overseas convictions. On August 31, 2011, Oyegoke-Eniola was interviewed again by Tiano and another agent, subject to the immunization agreement.
Oyegoke-Eniola was accepted into an LLM program, to begin in the summer of 2012, but never matriculated, because on March 1, 2012, a federal grand jury indicted him. He was arrested the same day and has been in custody ever since. On June 14, 2012, he pled guilty to one count of providing a false statement in an immigration document in violation of 18 U.S.C. § 1546, and one count of aiding and abetting mail fraud in violation of 18 U.S.C. § 1341. In his plea agreement, he waived the right to appeal or collaterally attack his sentence. Oyegoke-Eniola was sentenced to 60 months in prison. On appeal, this court vacated his sentence and remanded for resentencing, because the district court abused its discretion by improperly applying two sentencing enhancements. United States v. Oyegoke-Eniola, 734 F.3d 1262, 1264, 1266-67 (10th Cir. 2013). We also addressed Oyegoke-Eniola's claim that the district court improperly relied upon his immunized statements, and instructed the district court on remand to make a record of whether it could, or wished to, use those statements for sentencing purposes. Id. at 1268.
On remand, the district court determined that Oyegoke-Eniola's correct sentencing range was either 15-21 months or 18-24 months. It sentenced Oyegoke-Eniola to time served, which was at that point just over 25 months, and to three years supervised release. The district court adopted the Amended Presentence Investigation Report "without change" and also imposed several special conditions of supervision, including that "upon completion of the term of imprisonment, the defendant is to be surrendered to a duly authorized immigration official for deportation."
Oyegoke-Eniola did not appeal from his re-sentencing. He moved for habeas corpus relief under § 2255 on June 17, 2014. On September 10, 2014, the district court denied Oyegoke-Eniola's motion. He timely appealed.
Oyegoke-Eniola may not appeal the denial of § 2255 relief without a COA. 28 U.S.C. § 2253(c)(1)(B). We will issue a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." § 2253(c)(2). To satisfy this standard, Oyegoke-Eniola must demonstrate "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). Because Oyegoke-Eniola proceeds pro se, we construe his filings liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
As a threshold matter, Oyegoke-Eniola cannot collaterally attack his sentence unless he can avoid the waiver of collateral review contained in his plea agreement. Oyegoke-Eniola contends that enforcing the waiver would constitute a "miscarriage of justice." United States v. Hahn, 359 F.3d 1315, 1327 (10th Cir. 2004) (en banc) (per curiam); see also United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (holding that Hahn applies to waivers of collateral review). A miscarriage of justice occurs " where the district court relied on an impermissible factor such as race,  where ineffective assistance of counsel in connection with the negotiation of the waiver renders the waiver invalid,  where the sentence exceeds the statutory maximum, or  where the waiver is otherwise unlawful." Hahn, 359 F.3d at ...