                                                                    FILED
                                                        United States Court of Appeals
                         UNITED STATES COURT OF APPEALS         Tenth Circuit

                                FOR THE TENTH CIRCUIT                      September 23, 2013
                             _______________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

v.                                                                No. 13-3149
                                                                   (D. Kan.)
MONTERIAL WESLEY,                                      (D.C. Nos. 2:12-CV-02704-JWL &
                                                            2:07-CR-20168-JWL-2)
       Defendant - Appellant.
                         _______________________________

                                         ORDER ∗
                             _______________________________

Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges
                  _______________________________


     In federal district court, Mr. Monterial Wesley was convicted of: (1)

conspiracy to manufacture and possess cocaine and cocaine base with the intent

to distribute, and (2) use of a telephone to facilitate a drug transaction. After

unsuccessfully asking the district court to vacate the sentence under 28 U.S.C.

§ 2255, Mr. Wesley appeals. We can only entertain the appeal if Mr. Wesley is

entitled to a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B) (2006).

Holding that he is not entitled to this certificate, we dismiss the appeal.




∗
     This order does not constitute precedent. See 10th Cir. R. 32.1(A).
                      Standard for Certificate of Appealability

      To obtain a certificate of appealability, Mr. Wesley must make “a

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

§ 2253(c)(2) (2006). For this showing, Mr. Wesley 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) (citation omitted).

                        Mr. Wesley’s Appellate Arguments

      Mr. Wesley applies for a certificate of appealability on three grounds: (1)

His sentence was based on clearly erroneous facts; (2) the district court usurped

the role of the jury in making witness credibility determinations; and (3) the

prosecution’s evidence lacked indicia of reliability.

      Mr. Wesley did not raise any of these issues in the motion that he filed in

district court. R. vol. 1, at 69-80 (Mr. Wesley’s 28 U.S.C. § 2255 motion); R.

vol. 1, at 81-113 (Mr. Wesley’s brief in support of his 28 U.S.C. § 2255 motion).

Because these issues are presented for the first time on appeal, they cannot justify

a certificate of appealability. See United States v. Viera, 674 F.3d 1214, 1220

(10th Cir. 2012) (absent extraordinary circumstances, this Court will not consider

arguments for a certificate of appealability that are raised for the first time in an

appeal).



                                           2
                                    Conclusion

      Because we cannot entertain Mr. Wesley’s new appellate arguments, we

cannot issue a certificate of appealability. And without a certificate of

appealability, we must dismiss the appeal.



                                       Entered for the Court


                                       Robert E. Bacharach
                                       Circuit Judge




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