                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               February 24, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                     No. 09-7109
                                            (D.C. Nos. 6:09-CV-00187-RAW and
 ELVIN CLIFFORD WATKINS,                          6:07-CR-00054-RAW-1)
                                                        (E.D. Okla.)
          Defendant-Appellant.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.



      Elvin Watkins pled guilty to a charge of possession of marijuana with

intent to distribute and was sentenced to 57 months’s imprisonment. This court

affirmed his sentence on direct appeal. Mr. Watkins now seeks a certificate of

appealability (COA) in order to challenge the district court’s denial of his motion

under 28 U.S.C. § 2255 seeking collateral review of his conviction and sentence.




      *
         This order is not binding precedent except under the doctrines of law of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.
      Because Mr. Watkins proceeds pro se, we liberally construe his filings.

See Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007). This court

has repeatedly stated, however, that “[s]ection 2255 motions are not available to

test the legality of matters which should have been raised on direct appeal . . .

unless [the petitioner] 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.”

United States v. Cook, 997 F.2d 1312, 1320 (10th Cir. 1993). This court also

generally will not address claims that have been waived for failure to raise them

with the district court in the first instance. Tele-Communications, Inc. v.

Commissioner, 12 F.3d 1005, 1007 (10th Cir. 1993) (“The general rule is that an

appellate court will not consider an issue raised for the first time on appeal.”).

Here, all but two of the claims Mr. Watkins seeks to pursue in his § 2255 motion

are either procedurally defaulted or have been waived, 1 and he has presented no

grounds for excuse.


      1
         For example, Mr. Watkins argues to us that he received ineffective
assistance of counsel, but he raised no such argument to the district court.
Although ineffective assistance claims generally need not be raised on direct
appeal, they still generally must be raised on collateral review before the district
court in the first instance before they may be pursued in this court. See, e.g.,
United States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005) (noting that
ineffective assistance of counsel claims must be raised in a § 2255 proceeding
filed in district court). Similarly but distinctly, Mr. Watkins seeks to challenge
the validity of the search and seizure that led to his arrest, but procedurally
defaulted this claim by failing to raise it in his direct appeal.

                                         -2-
      We turn then to his two remaining claims. First, Mr. Watkins argues that

the district court erred at sentencing by crediting an Oklahoma State Bureau of

Investigation (OSBI) report that concluded the total weight of the marijuana he

possessed was 183.85 pounds, 2 instead of 170 pounds as he claims (a difference

that would yield a base offense level of 24 versus 22 under the advisory

sentencing guidelines). Mr. Watkins, however, presents no evidence to support

his assertion that the drugs weighed only 170 pounds. He only directs our

attention to the arresting trooper’s testimony stating the weight as “approximately

170 pounds.” R. Vol II at 20 (emphasis added). But, as is clear from the

trooper’s statement, this was only an “approximate” weight. The OSBI report, on

the other hand, indicted a precise weight of 183.85 pounds, and the district court

was free to credit the OSBI’s finding. See United States v. Alapizco-Valenzuela,

546 F.3d 1208, 1218 (10th Cir. 2008) (“The district court was free to determine

the relative reliability of [the] evidence.”). In this light, we discern no




      2
          There were fourteen total packages of marijuana at issue in this case.
Initially OSBI only gathered the net weight for packages one through three.
Packages four through fourteen were weighed for their gross weight, which
included the cellophane packaging material. The total weight of the marijuana in
the initial report was 188.7 pounds. At sentencing, Mr. Watkins objected on the
ground that this weight included packaging and OSBI conducted a second
assessment, weighing packages four through fourteen for their net, rather than
gross weight. This total is 183.85. Ultimately, the discrepancy between 188.7
pounds and 183.85 pounds made no difference for the purpose of sentencing
because both weights fell within a base offense level of 24 under the guidelines.

                                         -3-
“substantial showing of the denial of a constitutional right” that might warrant the

issuance of a COA. 28 U.S.C. § 2253(c)(2).

      Second Mr. Watkins argues that the “chain of custody” of the drugs was

broken because they were stored overnight in the trooper’s vehicle at his house.

Mr. Watkins fails, however, to offer any evidence indicating that, even if true,

this fact had any effect on the outcome of his criminal proceedings, let alone

impinged his constitutional rights.

      Because Mr. Watkins has failed to make “a substantial showing of the

denial of a constitutional right,” id., his application for a COA is denied, as is his

motion seeking leave to engage in discovery, and we dismiss his appeal.



                                        ENTERED FOR THE COURT



                                        Neil M. Gorsuch
                                        Circuit Judge




                                          -4-
