F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          OCT 6 2000
                                  TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 FRED FITZGERALD,

               Petitioner-Appellant,                    No. 00-2187
          v.                                                D.N.M.
 JOE WILLIAMS, Warden, Lea County               (D.C. No. CIV-99-412-BB)
 Correctional Facility; ATTORNEY
 GENERAL FOR THE STATE OF
 NEW MEXICO,

               Respondents-Appellees.


                            ORDER AND JUDGMENT          *




Before BALDOCK , HENRY , and LUCERO , Circuit Judges.


      In 1997, Mr. Fitzgerald pleaded guilty to one count of trafficking cocaine

by possession with intent to distribute of violation of probation in New Mexico

state court. Two years earlier he pleaded guilty to one count each of false

imprisonment, contributing to the delinquency of a minor and aggravated battery.

Mr Fitzgerald was treated as a habitual offender and sentenced to seventeen



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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 the 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 punishment claim be dismissed under

procedural default and that the double jeopardy claim be denied on the merits.

The district court adopted the magistrate judge’s findings. The district court

subsequently denied Mr. Fitzgerald’s application for a certificate of appealability.

A renewed application is before us now.

      Mr. Fitzgerald did not directly appeal his convictions, but he did pursue

state post-conviction relief. During his state post-conviction proceedings, he

raised only the double jeopardy claims. Mr. Fitzgerald must demonstrate a

showing of cause and actual prejudice or a fundamental miscarriage of justice to

avoid procedural bar as to his cruel and unusual punishment claim.    See Jackson

v. Shanks , 

, 1317 (10th Cir. 1998) (citing    Coleman v. Thompson ,

, 730 (1991)).

      We agree with the magistrate judge’s conclusion that Mr. Fitzgerald cannot

show cause and prejudice for the procedural default of his cruel and unusual


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punishment claim. There is no evidence that the factual 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 made compliance with the

procedural rule impracticable.   See Maes v. Thomas , 

, 984 (10th Cir.

1995).

         We also agree with the magistrate’s determination that Mr. Fitzgerald

cannot demonstrate a fundamental miscarriage of justice under    McCleskey v.

Zant , 

, 502 (1991). There is no evidence of a constitutional violation

that caused the conviction of one innocent of the crime, 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 second set of crimes and for his

violation of his probation in the first case. In his 1995 plea agreement, Mr.

Fitzgerald agreed that if he violated any conditions of probation or if he violated

any law, the state could bring additional habitual offender proceedings against

him. Mr. Fitzgerald also agreed to the enhancement in the event his probation

was revoked, which it was. We agree with the magistrate judge’s

recommendation that Mr. Fitzgerald’s double jeopardy claim must be dismissed

because he bargained away this defense.


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      We agree with the district court that Mr. Fitzgerald has “failed to make a

substantial showing of the denial of a constitutional right,” 28 U.S.C. §

2253(c)(2), required to obtain a certificate of appealability.

      Accordingly, we DENY Mr. Fitzgerald’s request for a certificate of

appealability and DISMISS the appeal.



                                                Entered for the Court,



                                                Robert H. Henry
                                                Circuit Judge




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