* This order and judgment is not binding precedent, except under the doctrines of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 ci ted under the terms and conditions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS Filed 3/12/96 TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 95-1208
v. (D. C. No. 95-N-851) TYROUS CLINTON MILLS, (D. Colo.) Defendant - Appellant.

ORDER AND JUDGMENT * Before SEYMOUR, Chief Judge, McKAY and LUCERO, Circuit J udges.

After examining the briefs and appellate record, thi s panel has determined unanimously that oral argument would not materially as sist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. 34.1.9. The case is therefore ordered submitted without oral argument.
Defendant Tyrous Clinton Mills pled guilty to sever al drug distribution counts,2

and he received a prison sentence of 120 months. He did not directly appeal his sentence. Proceeding pro se and in forma pauperis i n this action, he is seeking to set aside his sentence pursuant to 28 U.S.C. § 2255 unde r two theories. First, he argues his sentence is unfair because co-defendants with greate r culpability were given lesser sentences. Second, he argues the district court imp roperly calculated the amount of relevant drugs at five kilograms rather than two kilo grams.
The district court rejected Defendant's arguments forseveral reasons. First, the court found that his co-defendants received substantial downward departures because of their substantial assistance to the Government in the investigation and prosecution of other offenders. Second, the district court found that the Presentencing Report’s calculation of the amount of cocaine was sound. Also, the court attributed only five kilograms to Mr. Mills, rather than the fifteen to f ifty kilograms the Government attributed to him.
While addressing Defendant’s arguments substantively , the district court noted that Defendant is attempting to litigate issues whichhe failed to raise on direct appeal. Generally, we do not permit issues to be raised thro ugh habeas proceedings which were not raised on direct appeal. United States v. Warn er , 23 F.3d 287, 291 (10th Cir. 1994).1 That is, a defendant must “show cause excusing his procedural default and actual

prejudice resulting from the errors of which he complains . . . .” Uni ted States v. Cook , 997 F.2d 1312, 1320 (10th Cir. 1993).

2 Defendant belatedly made an ineffective assistance of counsel argument ( for the first time in this appeal) in his “Final Brief.” We will not c onsider issues on appeal unless they are raised with the trial court in the first instance or presented in the appellant’s opening brief. See United States v. Edwards , 69 F.3d 419, 427 n.5 (10th Cir. 1995). No exceptional circumstances are present in this case to merit de parture from our general rule.

3 We, of course, liberally construe the pleadings of pro se litigants. Hai nes v. Kerner , 404 U.S. 519, 520 (1972).
3 One exception to this rule, however, is when a defen dant can show cause and prejudice 1

- -something which Defendant has failed to demonstrate here. Another exception exists where a defendant can show that a fundamental miscarr iage of justice will occur if his claim is not addressed. United States v. Cook , 997 F.2d 1312, 1320 (10th Cir. 1993). Defendant neither alleged or showed a fundamental mis carriage of justice here. A third exception is when a defendant asserts ineffective a ssistance of counsel. United States v. Galloway , 56 F.3d 1239, 1241-42 (10th Cir. 1995). In his p etition, Defendant failed to make a claim of ineffective assistance of counsel. 2Thus, we affirm the district court because Defendant is attempting to litigate claims whi ch he waived. Additionally, he raised these claims in his petition 3 without showing cause and prejudice, without alleging a fundamental miscarriage of justice, and without alleging ineffective assistance of counsel.4

Even if Defendant properly asserted his claims, howev er, we would affirm on the merits for the reasons given by the district court.

AFFIRMED. The mandate shall issue forthwith.
Entered for the Court Monroe G. McKay Circuit Judge