United States v. McCoy , 671 F. App'x 715 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 19, 2016
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-4179
(D.C. Nos. 2:16-CV-00487-TS and
HICKORY WESLEY McCOY, 2:12-CR-00218-TS-1)
(D. Utah)
Defendant - Appellant.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
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Hickory McCoy, a federal prisoner appearing pro se, seeks a certificate of
appealability (“COA”) to challenge the denial of his 28 U.S.C. § 2255 motion. We
deny a COA and dismiss the appeal.
I
McCoy was convicted by a jury of possession of marijuana with intent to
distribute, possession of a firearm in furtherance of a drug trafficking crime, and
being a felon in possession of a firearm. The charges arose from a traffic stop of
McCoy’s vehicle by Utah Highway Patrol Trooper Randy Riches. Riches stopped
McCoy for violating Utah’s left-lane statute, see Utah Code § 41-6a-704, which
*
This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
prohibits vehicles in the left lane from impeding traffic. A search of McCoy’s
vehicle revealed marijuana, drug paraphernalia, a handgun, and ammunition.
Prior to trial, defense counsel filed a motion to suppress, arguing Riches
lacked justification for conducting the traffic stop. The motion was denied. We
affirmed on direct appeal. United States v. McCoy, 614 F. App’x 964 (10th Cir.
2015) (unpublished). McCoy subsequently filed a § 2255 motion. The district court
denied habeas relief and declined to issue a COA. McCoy now seeks a COA from
this court.
II
To appeal the district court’s denial of § 2255 relief, McCoy must obtain a
COA. § 2253(c)(1)(B). We will grant a COA only if “reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been resolved
in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(quotation omitted).
McCoy asserts two related ineffective assistance of counsel claims. To prevail
he must demonstrate “that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and
that “the deficient performance prejudiced the defense.” Strickland v. Washington,
466 U.S. 668, 687 (1984). To establish prejudice, a “defendant must show that there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 694.
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McCoy claims that defense counsel’s performance with respect to the motion
to suppress was deficient because he failed to convince the court that Riches lacked
reasonable suspicion to conduct a traffic stop. First, McCoy contends defense
counsel inadequately argued the motion to suppress because he failed to argue that
McCoy was not actually impeding traffic. Second, McCoy argues defense counsel
was ineffective by failing to retain an expert to present testimony regarding when an
officer has reasonable suspicion to conduct a traffic stop based on a violation of
Utah’s left-lane statute.
We agree with the district court that, even if McCoy could show his counsel’s
conduct was deficient, he has not established prejudice. McCoy challenged the
denial of the motion to suppress on direct appeal. His appellate counsel argued
Riches lacked reasonable suspicion to stop McCoy because McCoy was not impeding
traffic, and thus there was no traffic violation. We affirmed, concluding that the
dash-cam video and Riches’ testimony supported the district court’s factual finding
as to Riche’s reasonable-suspicion determination. McCoy, 614 F. App’x at 966-67.
We do not discern a reasonable probability that McCoy’s motion to suppress would
have been granted regardless of any alternative arguments presented by counsel.
Further, because the existence of reasonable suspicion is a question of law, see
United States v. Gordon, 168 F.3d 1222, 1225 (10th Cir. 1999), any expert testimony
would have been of limited value, see Specht v. Jensen, 853 F.2d 805, 808 (10th Cir.
1988).
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III
For the foregoing reasons we DENY a COA and DISMISS the appeal.
Entered for the Court
Carlos F. Lucero
Circuit Judge
4