                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   April 10, 2013
                        UNITED STATES COURT OF APPEALS
                                                     Elisabeth A. Shumaker
                                                                    Clerk of Court
                                    TENTH CIRCUIT


 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
                                                          No. 13-2004
 v.                                          (D.C. Nos. 1:12-CIV-00468-JAP-RHS
                                                  and 1:09-CR-02782-JAP-1)
 DANIEL F. MILLS,                                          (D. N.M.)

             Defendant-Appellant.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.


         After Daniel Mills was convicted of being a felon in possession of a

firearm and ammunition, he first filed and then withdrew a direct appeal.

Apparently regretting that decision, some time later Mr. Mills filed a federal

habeas petition, see 28 U.S.C. § 2255, seeking relief from his conviction and

sentence. The district court dismissed the motion and denied Mr. Mills’s request

for a certificate of appealability (“COA”). Mr. Mills now seeks a COA from this

court.




         *
         This order is not binding precedent except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      We may grant a COA only if Mr. Mills makes a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To do this, he 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) (internal quotation marks omitted).

Because Mr. Mills proceeds in this court pro se, we review his pleadings with

special solicitude.

      Under procedural default principles, section 2255 motions “are not

available to test the legality of matters which should have been raised on direct

appeal.” United States v. Cook, 997 F.2d 1312, 1320 (10th Cir. 1993) (citing

United States v. Frady, 456 U.S. 152, 165 (1982)). Rather, “[a] defendant’s

failure to present an issue on direct appeal bars him from raising the issue in his

§ 2255 motion, unless he can show cause excusing his procedural default and

actual prejudice resulting from the errors of which he complains, or can show that

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

      Mr. Mills had the opportunity to pursue his various claims on direct appeal,

but chose not to pursue them by withdrawing his appeal. Neither does Mr. Mills

attempt to meet the demanding cause-and-prejudice standard in his briefing before

us. Before the district court, Mr. Mills did contend his counsel was ineffective

for withdrawing the appeal, a possibility that could have provided cause. But the

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magistrate judge concluded the decision to withdraw was the result of reasonable

professional judgment, a conclusion the district court adopted and Mr. Mills

doesn’t contest. Neither, for the reasons elaborated by the magistrate judge and

the district court, does Mr. Mills successfully show that a fundamental

miscarriage of justice results from the failure to grant his request.

      In his appeal Mr. Mills also pursues a new claim in his motion to dismiss

the indictment — that he isn’t a felon because his rights have been restored under

New Mexico law. This argument fails, however, because he did not raise it

before the district court in his original § 2255 motion as he must to preserve it for

our review. See Chase v. Crisp, 523 F.2d 595, 597 (10th Cir. 1975) (claims not

presented before the district court in habeas proceedings are waived); Matthews v.

Workman, 577 F.3d 1175, 1188 n.5 (10th Cir. 2009) (same). And, anyway, the

claim does not appear meritorious: Mr. Mills was sentenced in 2011 and New

Mexico requires the passage of ten years before removal of the “felon”

designation. N.M. Stat. Ann. § 30-7-16(C)(2)(a).

      Mr. Mills’s motion to proceed in forma pauperis is granted, his application

for a COA is denied, and this appeal is dismissed.


                                        ENTERED FOR THE COURT



                                        Neil M. Gorsuch
                                        Circuit Judge

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