                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           MAR 14 2002
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

    v.                                                   No. 01-3149
                                                  (D.C. No. 99-CV-3290-SAC,
    GERALD G. BURCH,                                95-CR-40045-01-SAC)
                                                         (D. Kansas.)
                Defendant - Appellant.


                             ORDER AND JUDGMENT           *




Before LUCERO , PORFILIO , and ANDERSON , Circuit Judges.



         Gerald G. Burch was convicted after a jury trial of possession with intent to

distribute 538 pounds of marijuana and conspiracy to possess with intent to

distribute the marijuana. After his conviction was affirmed by this Court, Burch

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

sentence, which the district court denied. Appellant now seeks a certificate of



*
      The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The Court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
appealability (“COA”) from this Court, so that he may appeal the district court’s

denial of his § 2255 motion. We will only grant a COA if an appellant “has made

a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). Because Burch has made no such showing, we decline to issue

a COA and must dismiss the appeal.        1



       Appellant was convicted of possession of marijuana that was found when

the Kansas Highway Patrol searched the semi-tractor/trailer Burch was driving.

On appeal, Burch argues that the district court violated his rights under the Fifth

and Fourteenth Amendments by allowing the search and seizure to stand. He also

claims that he received ineffective assistance of counsel because his trial counsel

did not sufficiently argue the illegality of the search and seizure.

       As the district court aptly stated in its thorough decision, the

reasonableness of the search and seizure was addressed and affirmed by this Court

in our decision on direct appeal.       See United States v. Burch , 153 F.3d 1140,

1141–43 (10th Cir. 1998). To the extent that Burch argues the reasonableness of

the search and seizure in this post-conviction appeal, his argument is foreclosed

by our decision in his direct appeal.         See United States v. Cox , 83 F.3d 336, 342

(10th Cir. 1996). Similarly, to the extent appellant argues that he received


1
       In a jurisdictional brief ordered by this court, the government conceded that
this appeal was timely filed in light of the date that appears on the certificate of
service attached to the notice of appeal.

                                                -2-
ineffective assistance of counsel because his counsel did not argue the

unreasonableness of the search with sufficient vigor, our decision on direct appeal

forecloses that argument. To succeed on an ineffective assistance claim,

appellant must show prejudice—“a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland v. Washington , 466 U.S. 668, 694 (1984). Because this Court

thoroughly analyzed the reasonableness of the search in this case and held that

there was no constitutional violation,   Burch , 153 F.3d at 1143, appellant cannot

show prejudice. The application for a COA is     DENIED , and the appeal is

DISMISSED . 2



                                                      ENTERED FOR THE COURT



                                                      Carlos F. Lucero
                                                      Circuit Judge




2
        We construe Burch’s “Petition for Rehearing w/ Suggestion for Rehearing
En Banc” as a petition for initial hearing en banc. The request has been
transmitted to all of the judges of the court who are in regular service as required
by Fed. R. App. P. 35. No judge in regular active service on the court requested
that the court be polled on initial hearing en banc. Accordingly, the petition for
initial hearing en banc is denied.

                                           -3-
