F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          June 7, 2005
                                TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                    No. 04-2135
                                                     (D. New Mexico)
 DARYL WAYNE WILKERSON,                        (D.Ct. No. CIV-03-679-MCA)

       Defendant - Appellant.


         ORDER DENYING CERTIFICATE OF APPEALABILITY
                   AND DISMISSING APPEAL


Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Daryl Wilkerson was convicted of aiding and abetting possession with

intent to distribute more than five grams of cocaine base, in violation of 21

U.S.C. § 841 (a)(1), (b)(1)(B) and 18 U.S.C. § 2. He seeks a Certificate of

Appealability (“COA”) from the district court’s dismissal of his pro se petition

under 28 U.S.C. § 2255 claiming his conviction was the product of his counsel’s
ineffective representation. We conclude Wilkerson has failed to make a

substantial showing of the denial of a constitutional right and therefore deny a

COA and dismiss this appeal. See Miller-El v. Cockrell, 

, 336

(2002).

      On January 8, 1999, two officers, Rodney Porter and Orin Tubbs of the

Hobbs, New Mexico, police department made a u-turn to follow a Buick

automobile being driven by Wilkerson. The automobile immediately turned right

and began traveling at a high rate of speed. As the officers followed, the

automobile moved erratically, proceeding five to eight blocks before it stopped.

When Officer Porter activated the police lights, a videotape automatically started

recording the scene. An audio recording was also made. Officer Porter

approached Wilkerson and asked him why he was going so fast. Wilkerson

responded he was nervous and was trying to get to the hospital to see his

girlfriend. Because Officer Porter smelled alcohol, he conducted field sobriety

tests and then arrested Wilkerson for reckless driving and driving while

intoxicated.

      While Officer Porter was talking to Wilkerson, Officer Tubbs spoke with

the passenger, Ronnie Meridyth. When Meridyth got out of the car, Officer

Tubbs noticed his left front pants pocket was turned inside out. Suspecting that

Meridyth may have pulled something from his pocket and tossed it out of the car,


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the officers backtracked the Buick’s route. They discovered a ball of electrical

tape in the roadway containing eight baggies of crack cocaine. Fingerprints found

on three of the baggies matched Wilkerson’s and one of the same baggies also had

a fingerprint matching Meridyth’s.

      Prior to trial, Wilkerson’s counsel filed two separate motions to suppress

evidence, one seeking to suppress the evidence from the January 8, 1999, stop on

the basis that the reasons given by the officers for the stop were pretextual. 1

However, counsel withdrew this motion when the government demanded

withdrawal as a condition to continued plea negotiations. Eventually, Wilkerson

rejected the government’s offer and proceeded to trial on November 13, 2000.

His counsel did not renew the motions to suppress.

      Wilkerson was convicted and sentenced to 360 months imprisonment

followed by eight years of supervised release, the minimum recommended

sentence given his prior convictions. Wilkerson appealed, claiming the

government presented insufficient evidence of his guilt. We rejected his claim

and affirmed his conviction in an unpublished decision, United States v.

Wilkerson, 26 Fed. Appx. 878 (10th Cir. 2002).

      He then filed a pro se petition under 28 U.S.C. § 2255 requesting an

evidentiary hearing and alleging, inter alia, counsel was ineffective in failing to


      1
       The other motion to suppress related to a dismissed charge.

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pursue the suppression motion and failing to investigate allegedly tainted

fingerprint evidence as an additional basis for suppression. The district court

appointed counsel solely to assist Wilkerson in his claim regarding counsel’s

failure to retain a fingerprint expert. Appointed counsel retained an expert, but a

conflict compelled the first appointed counsel’s withdrawal prior to receipt of the

expert’s report. Current counsel was appointed on November 3, 2003, and when

the retained expert affirmed the presence of Wilkerson’s fingerprints, counsel

moved to expand the grounds for an evidentiary hearing to address whether

Officer Porter had tampered with or planted the evidence. The motion relied in

large part on Porter’s resignation from the Midland, Texas police department to

avoid dismissal after it was discovered he tampered with and planted evidence.

See Marshall v. Columbia Lea Reg’l Hosp., 

(10th Cir. 2003).

      Wilkerson’s petition was submitted to a magistrate judge who

recommended dismissal of the petition. Wilkerson filed objections to the

magistrate’s recommendation and the government filed a response and exhibits,

including the affidavit of Wilkerson’s trial counsel. On May 26, 2004, the district

court, after considering the matter de novo, adopted the magistrate’s

recommended findings and conclusions and dismissed Wilkerson’s petition with

prejudice. Wilkerson filed his notice of appeal and requested a COA. The

district court denied his request on June 30, 2004. He now seeks a COA from this


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Court.

         The issuance of a COA is jurisdictional. 

. A

COA will issue "only if the applicant has made a substantial showing of the denial

of a constitutional right." 28 U.S.C. § 2253(c)(2). "The COA determination

under § 2253(c) requires an overview of the claims in the habeas petition and a

general assessment of their merits." 

. "This threshold

inquiry does not require full consideration of the factual or legal bases adduced in

support of the claims. In fact, the statute forbids it." 

not

required to prove the merits of his case to obtain a COA. However, he must

demonstrate "something more than the absence of frivolity or the existence of

mere good faith on his . . . part." 

(quotation and citation omitted).

         In order to prevail on an ineffective assistance claim, a petitioner must

demonstrate both that his attorney's performance was deficient and that the

deficiencies prejudiced his defense. Strickland v. Washington, 

, 687

(1984). The defendant “must overcome the presumption that, under the

circumstances, the challenged action might be considered sound trial strategy.”

(quotations omitted). Wilkerson has failed to make a threshold

showing.

         Wilkerson’s COA petition distills to one issue: whether trial counsel was

ineffective in failing to renew the motion to suppress after Wilkerson declined the


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government’s proffered plea bargain. 2 Wilkerson argues his counsel’s failure to

renew the motion could not rationally be viewed as trial strategy because the

officers’ testimony that Wilkerson’s 23-year-old Buick reached a speed of 80

miles an hour within five blocks is physically impossible. In addition, he claims

the Officer Porter’s history, coupled with discrepancies in the evidence, entitles

him to investigate issues involving the chain of custody and possible tampering

with evidence. We are not persuaded.

       After reviewing the record carefully, we conclude Wilkerson has failed to

demonstrate a substantial showing of the denial of a constitutional right. Miller-

. The question is not whether Officer Porter exaggerated

Wilkerson’s speed, but whether Wilkerson committed a traffic violation justifying

the stop of the vehicle. Disheartening as Officer Porter’s history with the

Midland, Texas, police department may be, his testimony that Wilkerson was

speeding is corroborated by the testimony of Officer Tubbs. (Trial Tr. at 148) (“I

mean, they were way over the speed limit. The speed limit is 30 miles an

hour.”).) Further, it is uncontested that, when questioned at the scene as to why

he was driving at a high rate of speed, Wilkerson did not deny the fact but instead



       2
        Wilkerson does not disagree with his trial counsel’s strategy to initially withdraw
the motion to suppress in order to engage in plea negotiations. He claims her ineffective
assistance occurred when she failed to renew the motion prior to trial. (Appellant’s Br. at
15.)

                                            -6-
gave explanations for his behavior. (Trial Tr. at 68 (“I asked him [] why he was

going so fast. He gave me a series of reasons, including that his girlfriend was in

the hospital, he was tired, and he was scared.”).) Moreover, the discrepancies in

the evidence, Officer Porter’s history and the chain of custody issues were all

thoroughly addressed at trial.

      Thus, we find nothing in the record that casts doubt on trial counsel’s

affidavit explaining her strategy in deciding not to refile the suppression motion.

She avers that her decision was based upon (1) Wilkerson’s low likelihood of

success on the motion; (2) his exposure to thirty years imprisonment to life in the

event he went to trial; and (3) by leaving the motion to suppress unfiled, she

might continue her efforts to convince Wilkerson to accept the government’s

offer, in light of the strength of the evidence against him and the imminence of

trial. Wilkerson’s rebuttal to counsel’s reasoning consists solely of speculation

and conclusory allegations.

      At Wilkerson’s request, counsel raised a final issue in his application for a

COA pursuant to Anders v. California, 

(1967). Wilkerson alleges

the evidence was fabricated and that the prosecutor engaged in misconduct by

presenting perjured testimony. He claims the argument is viable because, three

years prior to his arrest in this case, a counselor and a caseworker at a halfway

house in Texas told him that if he returned to Hobbs, New Mexico, he would end


                                         -7-
up either in prison for life or dead. After a complete examination of all the

proceedings, we agree with counsel that the factual predicate for this claim does

not exist in the record. Therefore, we decline to consider this issue.

      We DENY a COA and DISMISS the appeal.

                                       Entered by the Court:

                                       Terrence L. O’Brien
                                       United States Circuit Judge




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