Dumbrique

MEMORANDUM **

Federal prisoner Jesse Manuel Dumbrique appeals the district court’s denial of his 28 U.S.C. § 2255 motion challenging his convictions for use of a firearm during a crime of violence in violation of 18 U.S.C. § 924 (c). We have jurisdiction pursuant to 28 U.S.C. § 2253 and review de novo the district court’s denial of the § 2255 motion. United States v. Fry, 322 F.3d 1198, 1200 (9th Cir.2003). We affirm.

The defendant has moved to expand the certificate of appealability to include two claims that the indictment was duplicitous and there was a fatal variance in the pleadings. To obtain a COA, the defendant must establish “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253 (c)(2); Miller-El v. Cockrell, 537 U.S. 322, 335-37 , 123 S.Ct. 1029 , 154 L.Ed.2d 931 (2003). We deny the motion to expand the COA because the defendant waived both claims by not raising them to the district court in the § 2255 motion. *979 See United States v. Keller, 902 F.2d 1391, 1395 (9th Cir.1990).

The defendant argues that the trial court erred in instructing the jury that bank robbery continues through the escape phase of the robbery. We will not consider…