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  • United States v. Burkley, 10th Cir. (2010)

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    The United States Court of Appeals for the Tenth Circuit denied Derrick Burkley's request for a certificate of appealability to appeal the denial of his motion to vacate, set aside, or correct his sentence. Burkley claimed ineffective assistance of counsel on the grounds that his attorney did not effectively pursue a motion to suppress evidence from his vehicle or certify questions of state law to Oklahoma courts before trial. The court found that Burkley's counsel was not deficient in their arguments for the suppression motion or in failing to anticipate a future Supreme Court decision, and that certifying questions of state law would not have affected the validity of the traffic stop. Therefore, reasonable jurists would not debate whether Burkley's constitutional rights were denied,

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    Filed: 2010-03-23 Precedential Status: Precedential Docket: 09-6245

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    The United States Court of Appeals for the Tenth Circuit denied Derrick Burkley's request for a certificate of appealability to appeal the denial of his motion to vacate, set aside, or correct his sentence. Burkley claimed ineffective assistance of counsel on the grounds that his attorney did not effectively pursue a motion to suppress evidence from his vehicle or certify questions of state law to Oklahoma courts before trial. The court found that Burkley's counsel was not deficient in their arguments for the suppression motion or in failing to anticipate a future Supreme Court decision, and that certifying questions of state law would not have affected the validity of the traffic stop. Therefore, reasonable jurists would not debate whether Burkley's constitutional rights were denied,

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    26 views3 pages

    United States v. Burkley, 10th Cir. (2010)

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    The United States Court of Appeals for the Tenth Circuit denied Derrick Burkley's request for a certificate of appealability to appeal the denial of his motion to vacate, set aside, or correct his sentence. Burkley claimed ineffective assistance of counsel on the grounds that his attorney did not effectively pursue a motion to suppress evidence from his vehicle or certify questions of state law to Oklahoma courts before trial. The court found that Burkley's counsel was not deficient in their arguments for the suppression motion or in failing to anticipate a future Supreme Court decision, and that certifying questions of state law would not have affected the validity of the traffic stop. Therefore, reasonable jurists would not debate whether Burkley's constitutional rights were denied,

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    of 3

    FILED

    United States Court of Appeals


    Tenth Circuit

    March 23, 2010


    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    TENTH CIRCUIT

    Clerk of Court

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.
    DERRICK A. BURKLEY,

    No. 09-6245
    (D.C. Nos. 09-CV-00681-R and 5:06CR-00116-R-1)
    (W.D. Okla.)

    Defendant - Appellant.

    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

    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. Burkleys 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.
    -2-

    Reasonable jurists would not debate whether his counsels 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
    counsels performance deficient. Nor was Mr. Burkleys counsel required to
    anticipate the Supreme Courts 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 courts 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 counsels 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

    -3-

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