FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT July 13, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 17-1389 (D.C. Nos. 1:17-CV-00497-JLK and KEFELEGNE ALEMU WORKU, a/k/a 1:12-CR-00346-JLK-1) Habteab Berhe Temanu, a/k/a Habteab B. (D. Colo.) Temanu, a/k/a TUFA, a/k/a Kefelgn Alemu, Defendant - Appellant. _________________________________ ORDER DENYING CERTIFICATE OF APPEALABILITY _________________________________ Before PHILLIPS, McKAY, and BALDOCK, Circuit Judges. _________________________________ Defendant Kefelegne Alemu Worku was convicted of (1) unlawful procurement of citizenship in violation of 18 U.S.C. § 1425(a) and (b); (2) aggravated 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 evidence presented at trial and at sentencing, the district court found that he had committed these crimes to conceal his identity and escape punishment for his participation in the crimes of torture and murder in Ethiopia in the 1970s. The district court sentenced him to the statutory maximum sentence on each count, for a total sentence of twenty-two years of imprisonment. In his direct appeal, Defendant argued that (1) his conviction on the first and third counts violated the Double Jeopardy Clause; (2) he could not be convicted of aggravated identity theft because he had permission to use the identity he assumed; (3) the sentence was procedurally unreasonable because (a) there was no evidence that his motivation for committing these immigration offenses was to conceal his involvement in torture and murder, and (b) the photo line-up that was shown to various torture victims was unduly suggestive, making the resulting eyewitness identifications unreliable; and (4) the twenty-two-year sentence was not substantively reasonable. We held that none of these arguments established reversible error, and we accordingly affirmed Defendant’s conviction and sentence. United States v. Worku, 800 F.3d 1195 (10th Cir. 2015). Defendant then filed the instant motion under 28 U.S.C. § 2255, in which he argued: (1) our rejection of his double 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 jeopardy; (2) our rejection of his argument 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 opinion and that Defendant had not shown counsel was ineffective and/or the alleged instances of ineffectiveness resulted in prejudice. The court thus denied his § 2255 motion. Defendant now seeks a certificate of appealability to appeal the denial of his § 2255 motion. Specifically, he argues that we erred in rejecting his double jeopardy 2 argument in the previous appeal, that the ...
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