FILED

United States Court of Appeals

Tenth Circuit

March 23, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DERRICK A. BURKLEY,

Defendant - Appellant.

No. 09-6245

(D.C. Nos. 09-CV-00681-R and 5:06-

CR-00116-R-1)

(W.D. Okla.)

ORDER 

DENYING CERTIFICATE OF APPEALABILITY

Before KELLY, McKAY, and LUCERO, Circuit Judges.

Defendant-Appellant Derrick A. Burkley, a federal inmate appearing pro se,

seeks a certificate of appealability (“COA”) allowing him to appeal the denial of

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

Because Mr. Burkley has not made a “substantial showing of the denial of a

constitutional right” required to obtain a COA, 28 U.S.C. § 2253(c)(2); see Slack

v. McDaniel, 529 U.S. 473, 483-84 (2000), we deny a COA and dismiss the

appeal.

On August 16, 2006, a jury convicted Mr. Burkley of three counts: (1)

possession of a controlled substance with intent to distribute, in violation of 21

U.S.C. § 841(a)(1); (2) possession of a firearm in furtherance of a drug trafficking

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crime, in violation of 18 U.S.C. § 924(c)(1)(A); and (3) possession of firearms

and ammunition by a controlled substance user, in violation of 18 U.S.C. §

922(g)(3). 1 R. 107-08, 133. The district court sentenced Mr. Burkley to a total

of 120 months in prison: terms of 60 months each on the first and third counts, to

run concurrently, and 60 months on the second count, to run consecutively to the

concurrent 60 month terms imposed on the first and third counts. 1 R. 134. He

was also sentenced to three years’ supervised release, all counts to run

concurrently. 1 R. 135. On direct appeal, this court affirmed. United States v.

Burkley, 513 F.3d 1183, 1191 (10th Cir. 2008), cert. denied, 128 S. Ct. 2979

(2008). 

Mr. Burkley filed a timely § 2255 petition raising eight grounds for relief,

all claiming ineffective assistance of counsel. 1 R. 168, 180-92. The district

court denied Mr. Burkley’s petition in a thorough memorandum. 1 R. 217-27. On

appeal, Mr. Burkley pursues two issues. He argues that his trial counsel was

ineffective because: (1) he did not effectively use the facts of his case in pursuing

a motion to suppress evidence seized from his vehicle; and (2) he failed to certify

questions of state law to the Oklahoma courts before the trial rather than on

appeal. Application for Certificate of Appealability at 2; Aplt. Br. at 4-13. To

obtain a COA, Mr. Burkley must show that reasonable jurists would find it

debatable whether his motion stated a valid claim of the denial of a constitutional

right. See Slack, 529 U.S. at 484. 

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Reasonable jurists would not debate whether his counsel’s performance was

deficient or prejudicial. See Strickland v. Washington, 466 U.S. 668, 687 (1984). 

Both claims of ineffective assistance of counsel essentially reargue the legality of

the search of his car that turned up guns and drugs. That Mr. Burkley could

imagine a handful of arguments his counsel might have made does not render his

counsel’s performance deficient. Nor was Mr. Burkley’s counsel required to

anticipate the Supreme Court’s decision in Arizona v. Gant, 129 S. Ct. 1710

(2009), a year and a half before the Court granted a writ of certiorari, 128 S. Ct.

1443 (2008). The district court’s rejection of the certification argument is not

reasonably debatable. As the district court noted, “whether municipal law or state

law applied was irrelevant to assessing the validity of the traffic stop.” 1 R. 221. 

Moreover, this court already held that reasonable suspicion supported the stop

based upon a suspected violation of state law. Burkley, 513 F.3d at 1187. 

Therefore, there can be no debate whether counsel’s failure to seek certification

was deficient or prejudicial. In the absence of any error, a cumulative error

analysis is not warranted. United States v. Rivera, 900 F.2d 1462, 1471 (1990)

(en banc). 

We DENY a COA, GRANT IFP, and DISMISS the appeal.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge

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