                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                         June 3, 2005
                                   TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

                  Plaintiff-Appellee,                   No. 04-8098
          v.                                            (D. of Wyo.)
 ERNEST C’BEARING,                              (D.C. Nos. 04-CV-180-D &
                                                      02-CR-162-D)
                  Defendant-Appellant.


               ORDER DENYING CERTIFICATE OF APPEALABILITY                *




Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges.          **




      Ernest C’Bearing was convicted in the District of Wyoming for involuntary

manslaughter. His sentence was supposed to include enrollment in a 500-hour

drug treatment program. Upon his incarceration in Colorado, though, the Bureau

of Prisons (BOP) failed to enroll C’Bearing in the program on the ground that

C’Bearing could not conclude the program during his 18-month term of


      *
         This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
confinement. C’Bearing moved the District of Wyoming to correct this failure in

a 28 U.S.C. § 2255 petition. After the district court denied his request, C’Bearing

sought a certificate of appealability (COA), which the district court never granted.

C’Bearing now seeks a COA from this court to appeal the district court’s denial

of his § 2255 petition.

      We deny a COA and find C’Bearing has not made a “substantial showing of

the denial of a constitutional right” on three grounds. 28 U.S.C. § 2253(c)(2).

First, the district court in Wyoming lacked jurisdiction to hear C’Bearing’s

petition seeking enrollment in the drug treatment program in Colorado. His

petition only challenged the means by which his sentence was being executed,

rather than the legality of his sentence. As such, the petition had to be brought in

the district in which C’Bearing was confined, which in this case is the District of

Colorado. See 28 U.S.C. § 2241; Bradshaw v. Story , 86 F.3d 164, 166 (10th Cir.

1996) (“A petition under 28 U.S.C. § 2241 attacks the execution of a sentence

rather than its validity and must be filed in the district where the prisoner is

confined. . . . A 28 U.S.C. § 2255 petition attacks the legality of detention, and

must be filed in the district that imposed the sentence.”) (citations omitted).

Because C’Bearing brought the petition in the District of Wyoming instead of the

District of Colorado, the Wyoming district court lacked jurisdiction to hear the

petition.


                                          -2-
       Second, the issues raised by C’Bearing in his opening brief are currently

pending before the District of Wyoming in a successive § 2255 petition. While

this appeal was pending, C’Bearing claimed he found new evidence that

demonstrates his innocence. In light of this new evidence, C’Bearing moved this

court to allow him to file a second § 2255 petition.   See C’Bearing v. United

States , No. 05-8002 (10th Cir. 2005). Because we granted the motion for a

successive § 2255 petition,   see id. , C’Bearing’s allegations are currently, and

more appropriately, in front of the District of Wyoming. What is more, because

the issues regarding the new evidence were presented for the first time on appeal,

we refuse to consider them here.     See United States v. Mora , 293 F.3d 1213, 1218

(10th Cir. 2002) (“We generally do not consider issues raised for the first time on

appeal.”).

       Finally, C’Bearing abandoned all of the claims he raised in this case before

the district court by failing to argue them in his opening brief. Indeed,

C’Bearing’s opening brief only discusses claims surrounding the newly

discovered evidence and completely fails to present any argument regarding the

failure of the BOP to enroll him in the drug treatment program. As a result,

C’Bearing has waived all issues regarding the drug treatment program.       See

United States v. Abdenbi , 361 F.3d 1282, 1289 (10th Cir. 2004).




                                             -3-
      In conclusion, C’Bearing’s opening brief presents no justiciable claims

because all of the claims were either waived or presented for the first time on

appeal. Moreover, the district court lacked jurisdiction to hear C’Bearing’s

claims regarding the drug treatment program in the first place. Therefore,

C’Bearing has not made a “substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2).

      We DENY C’Bearing’s application for a COA, his motion for IFP status,

and DISMISS the appeal.

                                       Entered for the Court


                                       Timothy M. Tymkovich
                                       Circuit Judge




                                         -4-
