* This order and judgment is not binding precedent, except under the

doctrines of res judicata, collateral estoppel, andlaw of the case. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 25 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 02-5171
v. (N.D. Oklahoma) DANNY RAY EVANS, a/k/a Danny Taylor Defendant-Appellant. (D.C. No. 99–CV-679-K)

ORDER AND JUDGMENT *

Before EBEL , HENRY , and HARTZ , Circuit Judges.
Danny Ray Evans seeks a certificate of appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2255 pet ition. After examining the record and the appellant’s brief, this panel has de termined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2)(C). The case is therefore submitted without oral argument.-2-

Moreover, after a review of the record, we conclude for substantially the same reasons as the district court that his claims lack merit. Accordingly, we deny Mr. Evans’s motion for a COA and dismiss this appeal.

I. BACKGROUND Mr. Evans was convicted after a jury trial of (1) c onspiring to possess and distribute cocaine base and (2) carrying a firearm in relation to a drug trafficking crime. The district court sentenced Mr. Evans to 2 35 months’ imprisonment on the conspiracy count and to a consecutive sixty-month t erm on the firearm charge. This court affirmed those convictions on appeal. See United States v. Durham , 139 F.3d 1325 (10th Cir. 1998). Mr. Evans then filed a pro se 28 U.S.C. § 2255 peti tion asserting six claims: (1) that he received ineffective assistance from ap pellate counsel because his counsel failed to raise a violation of the sequestr ation rule; (2) that he received ineffective assistance of trial counsel because tri al counsel left the courtroom during the cross-examination of a government witnes s; (3) that he received ineffective assistance of trial counsel because cou nsel was absent during a portion of jury deliberations; (4) that he received ineffec tive assistance of appellate counsel because appellate counsel failed to appeal the district court’s denial of his motion to suppress; (5) that trial counsel’s absenc e during the cross-examination-3-

of a government witness by another lawyer, without Mr. Evans’s knowing waiver, deprived him of his Sixth Amendment right to counse l; and (6) that counsel’s absence during deliberations, without Mr. Evans’s w aiver, violated his Sixth Amendment right to counsel. The district court found all six claims lacking in merit and denied Mr. Evans’s petition.

II. DISCUSSION In order to prosecute this appeal, Mr. Evans must o btain a COA. He may do so by making “a substantial showing of the denial o f a constitutional right.” 28 U.S.C. § 2253(c)(2). Mr. Evans may make this showi ng by demonstrating that “‘reasonable jurists would find the district court’ s assessment of the constitutional claims debatable or wrong.’” See Miller-El v. Cockrell , no. 01-7662, 2003 WL 431659, at *11 (Feb 25, 2003) (quoting Slack v. McDaniel , 529 U.S. 473, 484 (2000)). “A claim can be debatable even though every juri st of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id.-4- A. Ineffective Assistance of Counsel Claims Like the district court, we see no merit in Mr. Evans’s four ineffective assistance of counsel claims. As to each of these claims, we note that Mr. Evans must establish (1) that his counsel made “errors so serious” that his performance could not be considered “reasonable[ ] under prevai ling professional norms” and (2) a “reasonable probability that, absent the erro rs, the factfinder would have had a reasonable doubt respecting guilt.” Strickland v. Washington , 466 U.S. 668, 687-88, 695 (1984). As to the first three of this claims (listed above) we agree for substantially the same reasons as set forth by the district courtthat Mr. Evans has failed to demonstrate a reasonable probability that the alleg ed errors of counsel affected the jury. With regard to appellate counsel’s failure to appea l the district court’s denial of Mr. Evans’s motion to suppress, Mr. Evans focuses upon his statements to an Oklahoma Highway Patrolman during a June 21, 1994 traffic stop. As the district court explained, upon questioning from an Oklahoma Highway Patrolman, Mr. Evans admitted that he had a “possibly loaded” gun in his car. See Rec. vol. II, doc. 87, at 4 (District Ct. Order, filed Sept. 10, 1995). Mr. Evans now contends that the admission of this statement at trial violated his Fifth Amendment rights because the patrolman did not provide him with Miranda warnings before-5-

questioning. Mr. Evans asserted that appellate cou nsel was ineffective for failing to raise this issue. We disagree. In United States v. Holt , 264 F.3d 1215, 1217 (10th Cir. 2001) (en banc), this court held that “an officer conduct ing a traffic stop may ask the driver about the presence of loaded weapons in the absence of particularized suspicion of the existence of such firearms.” Here , the record establishes that the Highway Patrolman’s questioning of Mr. Evans occurr ed during the initial phase of a traffic stop, before the patrolman placed Mr. Evans under arrest. See Rec. vol. II, doc. 87, at 4. Accordingly, the questioni ng of Mr. Evans about firearms did not violate his Fifth Amendment rights, and Mr. Evans’s appellate counsel was not ineffective for failing to raise that issue.

B. Denial of Counsel Claims Mr. Evans also contends that the absence of counsel during another lawyer’s cross-examination and during jury deliberations con stituted per se violations of his Sixth Amendment right to an attorney during the tri al proceedings. We are not persuaded by this argument. “The Sixth Amendment guarantees a criminal defendant the right to counsel during the critical stages of an adversarial proceeding.” United States v. Gordon , 4 F.3d 1567, 1571 (10th Cir. 1993) (citing Kirby v. Illinois , 406 U.S. 682, 690-6-

(1972)). However, when counsel’s absence is temporary andthe defendant has expressed his consent to the absence, courts have d eclined to find a per se Sixth Amendment violation, instead inquiring whether the absence was prejudicial. See Vines v. United States , 28 F.3d 1123, 1127-29 (11th Cir. 1994) (holding that trial counsel’s temporary absence during taking of eviden ce against codefendants did not constitute per se error, and did not prejudice defendant). Here, as noted above, one of the absences of Mr. Ev ans’s lead counsel did occur during the cross-examination of a government witness by the attorney for another defendant. We agree for substantially the same reasons as set forth by the district court that this absence did not constitute a Sixth Amendment violation: the presence of an associate of Mr. Evans’s lead counse l during the subject crossexamination was sufficient to protect his interests

. As to the other alleged absence—during jury deliberations— the record indicates that there was no Sixth Amendment violati on. In particular, Mr. Evans acknowledges in his appellate brief that his counse l “provided a cell phone number to the court’s clerk to contact him if an issue aro se in which he was needed to make a decision.” Aplt’s Br. at 20-21. After disc ussing the admissibility of the tape and the issue regarding the verdict form, the trial court instructed the clerk to contact Mr. Evans’s lawyer and “advise hi[m] as to the content of the note and the response that I have prepared and if he has no obje ction then we will send it back-7-

to the jury.” Rec. Supl. vol. II, at 2114 (Trial T r., Oct. 31, 1995). Under these facts, Mr. Evans’s counsel was not absent from a cr itical stage of the trial in a manner that would constitute a per se Sixth Amendme nt violation.

III. CONCLUSION For the reasons set forth above, we DENY Mr. Evans’ s application for a COA, and we DISMISS this appeal.
Entered for the Court,

Robert H. Henry Circuit Judge