                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             JAN 23 2004
                                 TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

 UNITED STATES OF AMERICA,
               Plaintiff - Appellee,                     No. 03-3192
 v.                                            (D.C. Nos. 02-CV-3210-JTM and
                                                     01-CR-10060-JTM)
 RAMIRO AGUILAR-ORTIZ,                                    (D. Kansas)
               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, McKAY and McCONNELL, Circuit
Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       This is a pro se 28 U.S.C. § 2255 appeal. Appellant Aguilar-Ortiz pleaded

guilty on September 25, 2001, to illegal re-entry after deportation for an



       This order and judgment is not binding precedent, except under the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.
aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). On January 10,

2002, the court sentenced him to a term of 57 months’ imprisonment, three years

supervised release, and a $100 special assessment. We dismissed Appellant’s

direct appeal by Order filed July 2, 2002. Appellant then filed a § 2255 motion

seeking an order vacating or setting aside his sentence. He argued for the first

time that his initial deportation, which followed his conviction for an aggravated

felony, violated his due process rights. Thus, he argued, the present conviction

under 8 U.S.C. § 1326 is defective. See INS v. St. Cyr, 533 U.S. 289 (2001)

(certain aliens could not be lawfully deported unless properly advised of their

right to apply for waiver of deportation). The district court denied the § 2255

motion holding that “there was not a due process violation that would sustain

[Appellant’s] collateral attack on his deportation.” Rec., Doc. 38, at 3. We

granted a certificate of appealability by Order filed November 17, 2003.

         On appeal, Appellant reasserts his argument that his due process rights

were violated when he was deported pursuant to his conviction for an aggravated

felony. He also argues that the Government failed to file a written information on

his prior conviction as required by 21 U.S.C. § 851. We review the legal

conclusions underlying the denial of a § 2255 motion de novo and the factual

findings for clear error. United States v. Mora, 293 F.3d 1213, 1216 (10th Cir.

2002).


                                           -2-
      St. Cyr was decided by the Supreme Court on June 25, 2001. See generally

533 U.S. 289. Appellant pleaded guilty as charged on September 25, 2001, was

sentenced on January 10, 2002, and his conviction was affirmed on direct appeal

on July 2, 2002. At no time did Appellant raise a due process argument related to

the deportation underlying his 8 U.S.C. § 1326 conviction. Section 2255 “is not

available to test the legality of matters which should have been raised on appeal.”

United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994). Therefore, Appellant

“is barred 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.” Id. at 378; United States v. Talk, 158 F.3d 1064, 1067 (10th Cir.

1998); United States v. Frady, 456 U.S. 152, 167-68 (1982).

      Appellant’s petition does not reveal the cause or reason he failed to raise

his St. Cyr argument prior to his conviction or on direct appeal. Thus, Appellant

has not established cause sufficient to excuse his procedural default. Similarly,

Appellant’s petition does not assert that a fundamental miscarriage of justice will

occur unless we address his claim. Consequently, because St. Cyr was decided at

the time of Appellant’s direct appeal and, in fact, at the time of his conviction,

Appellant’s argument is waived, and we need not address the merits of his claim.

Additionally, because Appellant had the opportunity to raise the issue on direct


                                          -3-
appeal, we need not decide whether St. Cyr applies retroactively.

      Appellant’s second argument, that the Government failed to file a written

information pursuant to 21 U.S.C. § 851, must fail for two reasons. First,

Appellant raised this argument for the first time in this appeal and has thus

waived the issue. Second, 21 U.S.C. § 851 applies only to drug cases.

Appellant’s conviction for re-entry after deportation in violation of 8 U.S.C. §

1326(a) and (b) is unrelated to 21 U.S.C. § 851.

      AFFIRMED.

                                               Entered for the Court



                                               Monroe G. McKay
                                               Circuit Judge




                                         -4-
