UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JEFFREY CHARLE S ZANDER, Defendant - Appellant. No. 16-4138 (D.C. Nos. 2:15-CV-00625-DN & 2:10-CR-01088-DN-1) (D. Utah)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , Chief Judge, LUCERO and HARTZ , Circuit Judges.

________________ _________________ Jeffrey Charles Zander, proceeding pro se, appeals the district court’s denial of his motion for release pending the district court’s decision on the merits of his 28 U.S.C. § 2255 motion to vacate, set aside or correct his sentence. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. I. Background Mr. Zander was convicted of two counts of mail fra ud, two counts of wire fraud, one count of money laundering, and three counts of willful failure to file

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### October 28, 2016 Elisabeth A. Shumaker Clerk of Court2 federal tax returns. He was sentenced to sixty-eight mont hs in prison and ordered to pay $202,543.92 in restitution to th e Paiute Indian Tribe of Utah. On appeal, we affirmed Mr. Zander’s convictions. We concluded, however, that there were errors in the loss calculation and th e amount of restitution that required a remand to the district court for resentencing. The district court resentenced Mr. Zander to th e same term of imprisonmen t, but decreased the amount of restitution to $176,698.00. Subsequent ly, the government filed a motion pursuant to Rule 35 of the Federal Rules of Crimin al Procedure to corre ct an error in the district court’s sentence. The district court gran ted the motion and reduced Mr. Zander’s term of impris onment to sixty-three months . Mr. Zander has appealed from his new sentence and restituti on amount (Appeal No. 16-4162). While Mr. Zander was awaiting resentenci ng, he filed a pro se § 2255 motion, raising a number of grounds related to trial testimony by two of the government’s witnesses and statements the government made in its closing argument. The district court ordered the government to respond to the motion. Shortly thereafter, Mr. Zander filed a motion for release pendi ng a decision on the merits of his § 2255 motion. The government file d a response to the § 2255 motion, but did not file a response to the motion for release. The dist rict court denied the motion for release. Mr. Zander now appeals fro m that decision. II. Discussion In order to obtain release pending a determination on a § 2255 motion, an inmate must make “a showing of exceptional circumstances” or “a demonstration of a3 clear case on the merits of the habeas petition.” Pfaff v. Wells , 648 F.2d 689, 693 (10th Cir. 1981); see also United States v. Mett , 41 F.3d 1281, 1282 (9th Cir. 1994) (“In the habeas context, this court has re served bail for extraord inary cases involving special circumstances or a high probability of success.” (internal quotation marks omitted)). Mr. Zander asserts that he has shown exceptional circumstances justifying his release because the case file s and legal materials he n eeds to pursue his rights under § 2255 have allegedly been seized and lost by the Bureau of Prisons. Even if these allegations are true, Mr. Zander has not shown this situation constitutes an exceptional circumstance justif ying his release. He has not explained what specific documents he needs or why he needs to be released in order to obtain them. Moreover, he has cited to a number of documen ts in his appellate brief in support of his arguments, which suggests he still has access to material s relevant to his case. See , e.g. , Aplt. Br. at 7-10, 14 (citing sentencing an d trial transcripts). We agree with the district court that Mr . Zander has failed to show exceptional circumstances justifying his release during the pe ndency of his § 2255 proceedings. Likewise, we agree with the district court that Mr. Zander has failed to demonstrate a clear case on th e merits of his § 2255 motion. Mr. Zander admits that none of the claims he seek s to raise in his § 2255 mo tion were raised on direct appeal. See Aplee. Br., Attach. A at 4, 6, 8-12. It therefore appears that Mr. Zander4 faces a procedural hurdle before the district court can even reach the merits of his claims. As we have explained: Section 2255 motions are not available to test the legality of matters which should have been raised on direct appeal. A defendant’s failure to present an issue on direct appeal bars hi m from raising the issue in his § 2255 motion, unless he can show cause ex cusing his procedural default and actual prejudice resulting from the erro rs of which he complains, or can show that a fundamental miscarriage of justice will occur if his claim is not addressed. United States v. Warner , 23 F.3d 287, 291 (10th Cir. 1994) (citations omitted). III. Conclusion For the foregoing reasons, we affirm the di strict court’s denial of Mr. Zander’s motion for release.

Entered for the Court Per Curiam