                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                     UNITED STATES COURT OF APPEALS May 29, 2013
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                       No. 13-3000
 HAROLD WALLACE, a/k/a Chico,                 (D.C. No. 2:12-CV-02382-JWL and
 a/k/a Pone,                                       2:07-CR-20168-JWL-13)
                                                           (D. Kan.)
          Defendant-Appellant.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BRISCOE, Chief Judge, ANDERSON and TYMKOVICH, Circuit
Judges.


      Harold Wallace, a federal prisoner proceeding through counsel, requests a

certificate of appealability (COA) to appeal the district court’s denial of his

motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.

We deny a COA and dismiss this matter.

                                          I

      In April 2009, Harold Wallace pleaded guilty to a charge of conspiracy to

manufacture, to possess with intent to distribute, and to distribute 50 grams or



      *
        This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
more of cocaine base and to possess with intent to distribute and to distribute five

kilograms or more of cocaine, and a charge of attempted possession with the

intent to distribute cocaine. The district court sentenced Wallace to 300 months’

imprisonment for the first charge and 240 months’ imprisonment for the second

charge, to be served concurrently.

      Wallace, through his retained trial counsel, filed a notice of appeal with

this court, but his trial counsel withdrew shortly thereafter. Wallace’s new court-

appointed appellate counsel argued to this court that the direct appeal should be

dismissed so that Wallace can raise ineffective assistance of counsel claims in a

collateral 28 U.S.C. § 2255 proceeding in district court. Noting that both parties

agreed that ineffective assistance of counsel claims must ordinarily be raised in a

collateral 28 U.S.C. § 2255 proceeding, and that neither Wallace nor the

government raised an exception to this general rule, we dismissed Wallace’s

direct appeal. See United States v. Wallace, 427 F. App’x 690 (10th Cir. 2011).

      Wallace then filed a pro se § 2255 motion to vacate, set aside, or correct his

sentence with the district court. Wallace alleged seven grounds for relief in his §

2255 motion, including claims of ineffective assistance of trial and appellate

counsel, and claims that the district court committed sentencing errors. App. at

60. In his fourth ground for relief, Wallace asserted that his appellate counsel’s

performance was constitutionally deficient because he failed to raise numerous

issues on direct appeal. The district court denied Wallace’s § 2255 motion.

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Wallace appeals from the district court’s dismissal of his § 2255 motion, arguing

that his previous appellate counsel was ineffective when he failed to file a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), after deciding not to

pursue the direct appeal. Aplt. Br. at 2.

                                            II

      Pursuant to 28 U.S.C. § 2253(c)(1), a petitioner seeking a COA must make

a “substantial showing of the denial of a constitutional right.” Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003). We will grant a COA only if the petitioner

demonstrates that “reasonable jurists could debate whether (or, for that matter,

agree that) the petition should have 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) (quotation omitted).

      Wallace challenges the district court’s denial of his § 2255 motion, arguing

that the district court erred in finding that his appellate counsel was effective even

though his appellate counsel decided that no appealable issues existed and failed

to file a Anders brief. Aplt. Br. at 7. “Anders authorizes a defendant’s

[appointed] lawyer to seek permission to withdraw from an appeal if, ‘after a

conscientious examination,’ the lawyer finds the appeal ‘wholly frivolous.’”

United States v. Banuelos-Barraza, 639 F.3d 1262, 1263 (10th Cir. 2011) (quoting

Anders, 386 U.S. at 744). Under Anders, the lawyer’s request to withdraw “must

. . . be accompanied by a brief referring to anything in the record that might

                                            3
arguably support the appeal.” Anders, 386 U.S. at 744. A petitioner need not

demonstrate that he was prejudiced by the loss of counsel’s assistance through an

Anders violation, which means that a petitioner may be afforded habeas relief

based on an Anders violation even if there are “no grounds for reversal” and “the

Anders violation could not have had an adverse effect on the outcome of the

proceeding.” See United States v. Snitz, 342 F.3d 1154, 1158-59 (10th Cir.

2003).

         Wallace’s appellate counsel did not file an Anders brief. Instead,

Wallace’s appellate counsel filed a brief with this court, explaining that Wallace

had expressed concerns about the trial counsel’s representation, and that the more

advisable approach would be to present evidence of ineffective assistance of

counsel in a habeas corpus proceeding before the district court. App. at 33.

Wallace argues that because his appellate counsel found no merit to the appeal

but failed to follow the Anders procedures, he was deprived of his constitutional

right to counsel and did not receive an opportunity to file a pro se supplemental

brief. Aplt. Br. at 12-13.

         Wallace did not raise this Anders argument to the district court in his §

2255 motion, which he filed pro se. 1 In his § 2255 motion, Wallace argued that


         1
        Because Wallace filed his § 2255 motion pro se, we liberally construe his
§ 2255 motion but we do not assume the role of advocate. United States v. Viera,
674 F.3d 1214, 1216 n.1 (10th Cir. 2012) (citing Yang v. Archuleta, 525 F.3d
925, 927 n.1 (10th Cir. 2008)).

                                            4
his appellate counsel was ineffective because his counsel failed to raise numerous

issues on direct appeal:

                    All of the issues raised in this Addendum are
             sufficient to have been raised in movant’s direct appeal.
             Why appellate counsel failed to raise ANY issues (with
             the exception of [ineffective assistance of counsel]) is
             beyond the understanding of movant[.] Nevertheless,
             since PREJUDICE NEED NOT BE SHOWN for this
             ground, movant simply submits that his counsel was
             clearly ineffective for failing to raise any issues in his
             direct appeal . . . .

App. at 98. As a result, the district court, in its order denying Wallace’s § 2255

motion, did not address whether Wallace’s appellate counsel violated Anders:

                    Mr. Wallace has not shown that his appellate
             counsel’s performance with respect to Mr. Wallace’s
             direct appeal was deficient. His counsel clearly
             considered the issues that Mr. Wallace might
             challenge—including the issues identified by Mr.
             Wallace here—and expressly preserved those issues by
             not raising them in the direct appeal but by permitting
             Mr. Wallace to flesh out the issues in habeas
             proceedings—proceedings which he can then challenge
             before the Circuit. Indeed, because the issues identified
             by Mr. Wallace call into question his trial counsel’s
             performance, if his appellate counsel had raised those
             issues on direct appeal, then Mr. Wallace would have
             been foreclosed from pursuing § 2255 review of those
             same issues. In any event, Mr. Wallace has not shown
             that any of the issues he believes should have been
             raised on direct appeal had merit. Without pointing to a
             winning argument passed over by his attorney, Mr.
             Wallace cannot make a case for ineffective assistance on
             appeal.

Id. at 140 (quotation and citations omitted).


                                          5
      Because Wallace did not raise the Anders issue in district court, “we adhere

to our general rule against considering issues for the first time on appeal.” United

States v. Viera, 674 F.3d 1214, 1220 (10th Cir. 2012). We adhere to this general

rule even when “an appellant is attempting to raise . . . ‘a new theory on appeal

that falls under the same general category as [a previous] argument.’” McDonald

v. Kinder–Morgan, Inc., 287 F.3d 992, 999 (10th Cir. 2002) (quoting Lyons v.

Jefferson Bank & Trust, 994 F.2d 716, 722 (10th Cir. 1993)); see also Viera, 674

F.3d at 1220 (declining to consider issues raised for the first time on appeal in a

pro se § 2255 filing).

                                         III

      For the foregoing reasons, we DENY Wallace’s request for a COA, and we

DISMISS this matter.


                                               Entered for the Court


                                               Mary Beck Briscoe
                                               Chief Judge




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