                                                                         FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   January 4, 2011
                    UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                 TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,

 v.                                                      No. 10-2173
                                              (D.C. Nos. 1:08-CV-00666-JB-RHS
 DONALD H. GOODE,                                 and 2:03-CR-02106-JB-1)
                                                           (D.N.M.)
              Defendant-Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      Donald H. Goode, a federal prisoner proceeding pro se, 1 appeals from the

district court’s denial of his motion to vacate, set aside, or correct his sentence

under 28 U.S.C. § 2255. The district court refused to issue a certificate of



      *
              This Order is not binding precedent, except under the doctrines of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 Federal Rule of Appellate Procedure 32.1
and Tenth Circuit Rule 32.1.

      After examining the appellate record, this three-judge panel 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 case is therefore ordered submitted without oral argument.
      1
             Because Mr. Goode is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van
Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
appealability (“COA”), and Mr. Goode now seeks a COA from this court.

Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we DENY Mr.

Goode’s application for a COA and DISMISS his appeal.

                                  BACKGROUND

      Mr. Goode was convicted by a jury of possession of a firearm by a felon, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). On direct appeal, this court

upheld his conviction and sentence. See United States v. Goode, 483 F.3d 676

(10th Cir. 2007). Mr. Goode then filed a 28 U.S.C. § 2255 motion with the

district court, asserting six claims: (1) the district court lacked criminal

jurisdiction to entertain his case; (2) the district court erred in denying a

continuance; (3) he was denied his right to a speedy trial; (4) he was deprived of

his right to testify; (5) he was denied his right to compulsory process for

obtaining witnesses; and (6) ineffective assistance of counsel due to the

cumulative impact of the multiple deficiencies of his appointed attorneys. The

district court denied Mr. Goode’s § 2255 motion—through adoption of the

magistrate judge’s recommendation—holding that all of Mr. Goode’s claims

either were procedurally barred or were without merit. The district court also

refused to grant a COA.

      Mr. Goode now seeks a COA from this court, which would allow him to

appeal the district court’s denial of his § 2255 motion. His combined Application

for a COA and Opening Brief on appeal asserts only two claims: (1) that “the


                                           2
evidence [produced at trial] was insufficient to prove beyond a reasonable doubt

that the gun was in or affecting interstate commerce,” which was an issue this

court addressed in Mr. Goode’s direct appeal, and (2) that his attorney provided

ineffective assistance by failing to file a Rule 29 motion for judgment of acquittal

based on the sufficiency of the evidence with regard to the “commerce element”

of his offense. 2 Application/Aplt. Opening Br. at 3–4.

                                   DISCUSSION

      A COA is a jurisdictional prerequisite to this court’s review of a § 2255

motion. 28 U.S.C. § 2253(c)(1)(B); accord Allen v. Zavaras, 568 F.3d 1197,

1199 (10th Cir. 2009) (citing Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)).

“We will issue a COA ‘only if the applicant has made a substantial showing of the

denial of a constitutional right.’” Allen, 568 F.3d at 1199 (quoting 28 U.S.C.

§ 2253(c)(2)). An applicant “satisfies this standard by demonstrating that jurists

of reason could disagree with the district court’s resolution of his constitutional

claims or that jurists could conclude that the issues presented are adequate to

deserve encouragement to proceed further.” Dulworth v. Jones, 496 F.3d 1133,

1136–37 (10th Cir. 2007) (quoting Miller-El, 537 U.S. at 327) (internal quotation

marks omitted).



      2
              The ineffective-assistance-of-counsel claim asserted in Mr. Goode’s
combined Application for a COA and Opening Brief filed with this court was not
included in his ineffective-assistance-of-counsel claims asserted before the
district court.

                                          3
      In this instance, Mr. Goode has failed to make a substantial showing of the

denial of a constitutional right. Mr. Goode failed to raise the two claims

presented in his combined Application for a COA and Opening Brief in the

district court habeas proceeding, and we generally do not consider claims raised

for the first time on appeal. See United States v. Windrix, 405 F.3d 1146, 1156

(10th Cir. 2005) (declining to address an issue that the party “did not argue in

district court,” because “in general we will not consider an argument not raised

below,” and “he d[id] not argue on appeal that any special circumstance requires

us to address this contention despite lack of preservation below”); Rhine v.

Boone, 182 F.3d 1153, 1154 (10th Cir. 1999) (refusing to consider an issue not

raised in the district court habeas proceeding “[b]ecause we will generally not

consider issues raised on appeal that were not first presented to the district court”

(citing Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992))).

Because Mr. Goode presents these two claims for the first time in his application

to this court, and because he has failed to offer any reason why we should

exercise our discretion to reach them, we consider those claims to be waived.

      Furthermore, Mr. Goode has also waived (i.e., abandoned) the six claims he

asserted in his § 2255 motion filed with the district court, as he has failed to raise

them in any way on appeal. See United States v. Springfield, 337 F.3d 1175, 1178

(10th Cir. 2003) (concluding that the applicant waived his claim on appeal

“because he failed to address that claim in either his application for a COA or his

                                          4
brief on appeal”); Rhine, 182 F.3d at 1154 (finding that the petitioner had waived

an issue argued before the district court “by not raising it before this court” on

appeal). Because all of the claims asserted by Mr. Goode—both before the

district court and before this court on appeal—have been waived, he has failed to

make a substantial showing of the denial of a constitutional right.

                                  CONCLUSION

      For the reasons set forth above, we DENY Mr. Goode’s request for a COA

and DISMISS his appeal.



                                        ENTERED FOR THE COURT


                                        Jerome A. Holmes
                                        Circuit Judge




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