                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JUN 23 1998
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 97-4199
 v.
                                                   (D.C. No. 95-CR-42 G)
                                                         (D. Utah)
 JAMES GUY ARNOLD,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BALDOCK, EBEL and MURPHY, Circuit Judges.



      Defendant-Appellant James Guy Arnold (“Arnold”) pled guilty to one count

of fraudulent use of an access device, in violation of 18 U.S.C.

§ 1029(A)(2). On January 5, 1996, the district court sentenced Arnold to 18

months’ incarceration, followed by 36 months of supervised release, and ordered

him to pay restitution to the victims of his crime totaling $11,376.54. (See Tr.


      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Rec. Vol. I Doc. 36.) Judgment was entered on January 11, 1996. Arnold did not

appeal his conviction or sentence.

      Subsequently, Arnold’s case took some unusual procedural turns. 1 On

August 6, 1997, Arnold filed a motion Nunc Pro Tunc to vacate the order of

restitution under Fed. R. Crim. Pro. 35. (See Tr. Rec. Doc. 40.) This motion was

referred to Magistrate Judge Ronald N. Boyce, who filed a Report and

Recommendation on September 3, 1997. (See id. Doc. 43.) In that Report and

Recommendation, Magistrate Judge Boyce concluded that Arnold’s motion was

not authorized by Rule 35, for the following reasons: (1) the sentence had not

been reviewed by a court of appeals and found improper under 18 U.S.C.

§ 3742(a); (2) Arnold had not alleged that his sentence should be reduced because

of substantial assistance to the government; and (3) the motion did not come

within seven days after sentencing nor did it allege that the district court had

imposed a sentence that was the result of arithmetical, technical, or clear error.

(See id. at 2-3.)

      Magistrate Judge Boyce went on to analyze Arnold’s motion under 28

U.S.C. § 2255, and concluded that even if the motion were construed to have been

brought under that statute, Arnold’s claim for relief was precluded both because



      1
       All of Appellant’s filings subsequent to his conviction and sentencing
were done pro se.

                                         -2-
the motion was untimely under the one-year limitation period provided by § 2255

and because Arnold had failed to appeal his conviction, and had shown no cause

or prejudice for his failure to do so. (See id. at 3.)

      On September 22, Arnold filed, in a single document, (1) objections to the

Magistrate Judge’s report and recommendation, (2) renewal of his motion Nunc

Pro Tunc to vacate the order of restitution, (3) a petition for Habeas Corpus, (4) a

motion for the production of documents, transcripts, and record, and (5) an

alternative motion to withdraw his plea under 28 U.S.C. § 2250. (See id. Doc.

44.) Arnold invoked jurisdiction, inter alia, under 28 U.S.C. § 1651 (the “All

Writs Act”). (See id. at 1.) After arguing the merits of his claim that the district

court wrongfully ordered him to pay restitution, Arnold demanded “that the Order

of Restitution be vacated, that a Writ of Habeas Corpus issue to allow Petitioner

to be produced before this court to prosecute this claim, that the Writ of Mandate

issue, and such further and other relief as Justice provides or in the alternative he

be allowed to withdraw his plea.” (See id. at 4.)

      On the same day, Arnold filed his “Premature Notice of Appeal” to this

court. 2 On October 14, Arnold filed a motion with this court to withdraw his

appeal on the grounds that it was unwarranted and premature. Arnold requested




      2
          That appeal was assigned docket number 97-4159.

                                          -3-
that this court dismiss the appeal without prejudice. On October 20 this court

granted Arnold’s motion to dismiss his appeal.

      On October 30, the district court issued an order, based upon the magistrate

judge’s report and recommendation, denying (1) Arnold’s motion, and renewed

motion, to vacate the restitution order, (2) his petition for Writ of Habeas Corpus,

(3) his motion for production of documents and transcripts and records, and (4)

his alternative motion to withdraw his plea. (See Tr. Rec. Doc. 52.)

      On March 12, 1998, Arnold filed with this court an Application for

Certificate of Appealability, which constitutes the basis for the matter before us

now. In his application, Arnold states that this appeal is based upon the district

court’s denial of his motion to vacate its order of restitution.

(See Application for COA at 2.) From our reading of this application and the

record, we construe this appeal to be a request for a certificate of appealability

under § 2255. See 28 U.S.C.A. § 2253(c) (West Supp. 1998).

       Under § 2253(c), we examine the appeal of a denial of a § 2255 motion to

determine whether the petitioner has made a “substantial showing of the denial of

a constitutional right.” Id.; see Lennox v. Evans, 87 F.3d 431,433-34 (10th Cir.

1996) (overruled on other grounds by United States v. Kunzman, 125 F.3d 1363,

1364 n.2 (10th Cir. 1997). Moreover, as this court has held, “[a] motion pursuant

to 28 U.S.C.A. § 2255 is not a substitute for direct appeal . . . .” Payton v.


                                          -4-
United States, 436 F.2d 575, 576 (10th Cir. 1970); see United States v. Warner,

23 F.3d 287, 291 (10th Cir. 1994) (“Section 2255 motions are not available to test

the legality of matters which should have been raised on direct appeal.”). For this

reason, a petitioner's failure to raise an issue on direct appeal will bar him from

raising the issue in a § 2255 motion “unless he can show cause for his procedural

default and actual prejudice resulting from the alleged errors, or can show that a

fundamental miscarriage of justice will occur if his claim is not addressed.”

United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994); see Warner, 23 F.3d at

291; Hines v. United States, 971 F.2d 506, 507 (10th Cir. 1992) (citing United

States v. Frady, 456 U.S. 152, 167-68 (1982)).

      Arnold has not attempted to show cause for his default, or actual prejudice

from his failure to raise the issue of restitution on direct appeal. More

importantly, Arnold fails to show that in ordering him to pay restitution to his

victims the district court violated his constitutional rights or that this court’s

refusal to vacate that order would work a fundamental miscarriage of justice.

Thus, Arnold does not allege a sufficient basis upon which this court may issue a

certificate of appealability.



      For the reasons given above, Arnold’s application for a certificate of

appealability is DENIED.


                                          -5-
The mandate shall issue forthwith.

                               ENTERED FOR THE COURT



                               David M. Ebel
                               Circuit Judge




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