                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                   May 30, 2013
                               TENTH CIRCUIT
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court

 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
                                                        No.13-6026
 v.                                         (D.C. Nos. 5:12-CV-00441-HE and
                                                  5:06-CR-00245-HE-1)
 ANDREW POLLY,                                       (W.D. of Okla.)

             Defendant-Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BRISCOE, Chief Judge, ANDERSON, and TYMKOVICH, Circuit
Judges.


      Andrew Polly, a federal prisoner, requests a certificate of appealability

(COA) under 28 U.S.C. § 2253(c)(1)(B) to appeal the district court’s denial of

relief under 28 U.S.C. § 2255. He also requests to proceed in forma pauperis

(IFP) on appeal. We construe Polly’s filings liberally because he is proceeding

pro se. See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).

Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny his request

for a COA, deny his request to proceed IFP, and dismiss the appeal.



      *
         This order is not binding precedent except under the doctrines of law of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.
      Polly pleaded guilty to three counts of possessing crack cocaine and

cocaine powder with the intent to distribute in violation of 21 U.S.C. § 841(a)(1).

The district court sentenced him to 327 months’ imprisonment. Polly appealed,

raising four issues, including whether the district court erred in denying his

motion to suppress and whether his attorneys rendered ineffective assistance at

his suppression hearing. We affirmed the conviction and sentence, including the

denial of the suppression motion, and we dismissed without prejudice Polly’s

ineffective-assistance-of-counsel (IAC) claim so he could re-raise it on collateral

review. United States v. Polly, 630 F.3d 991 (10th Cir. 2011). Polly then

petitioned the district court for habeas relief under 28 U.S.C. § 2255. The district

court denied the petition and denied a COA. United States v. Polly, No. CIV-12-

0441-HE, 2012 WL 6155965 (W.D. Okla. Dec. 11, 2012). Polly now requests a

COA from this court, claiming the district court erred in denying relief on his

IAC claim.

      We grant a COA only if an applicant makes a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). An applicant must

show “that reasonable jurists could debate whether . . . the petition should have

been resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” United States v. Taylor, 454 F.3d

1075, 1078 (10th Cir. 2006) (internal quotation marks omitted).




                                         -2-
       To make out an IAC claim, Polly must show both (1) that his counsel

provided deficient assistance and (2) that there was prejudice as a result. See,

e.g., Harrington v. Richter, 131 S. Ct. 770, 787 (2011). To establish prejudice,

Polly “must demonstrate a reasonable probability that, but for counsel’s

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

Id. (internal quotation marks omitted).

       The district court denied relief on Polly’s IAC claim because, according to

the court, Polly failed to establish the second prong, i.e., that he was prejudiced

by the alleged deficient representation. 1 After our own review, we agree that the

district court’s decision is not open to reasonable debate.

       Polly first claims that, had counsel adequately investigated his alleged

traffic violations (crossing the centerline and speeding), counsel would have

learned that Polly in fact did not violate the traffic laws and therefore could have

shown that the initial traffic stop was not justified. But, as we noted on Polly’s

direct appeal, “[a] traffic stop is justified at its inception if an officer has . . .

probable cause to believe a traffic violation has occurred . . . .” Polly, 630 F.3d

at 997 (internal quotation marks omitted; emphasis added). Thus, the officer need

only show probable cause for at least one traffic violation, and here, Polly has

       1
         Because the district court found that Polly’s claim failed on the second
prong, it did not address the first prong. Polly suggests the court erred by not
reviewing the first prong, but Polly is incorrect. See Boltz v. Mullin, 415 F.3d
1215, 1222 (10th Cir. 2005) (“[We] need not address both [prongs] if [petitioner]
fails to make a sufficient showing of one.” (internal quotation marks omitted)).

                                            -3-
already conceded the crossing-the-centerline violation. On direct appeal, he

admitted “making a left turn [before] chang[ing] his mind and proceed[ing]”

down the road. Id. And as we explained then, Oklahoma traffic laws permit

“cross[ing] the centerline when making a left turn,” not “cross[ing] the centerline

in the process of an aborted left turn and com[ing] back over the centerline.” Id.

(citing Okla. Stat. tit. 11, § 301(C)). Therefore, even if Polly’s counsel had

proved that Polly was not speeding, the initial stop was still justified, so Polly

cannot show that the result would have been different.

      Polly next claims that, had counsel reviewed the police officer’s “radio

log,” counsel would have learned that Polly’s consent to search his person was

coerced. Aplt. Br. at 3(q). But even if Polly had not given consent to search, the

district court hearing the motion to suppress still found that “‘a limited pat down

for weapons was reasonable incident to the Terry stop.’” Polly, 2012 WL

6155965, at *2 (quoting Order (Dec. 27, 2006) at 7). Indeed, on direct appeal, we

noted that at least one of the officers at the traffic stop knew Polly had “some

history of violence”—a fact Polly does not dispute. Polly, 630 F.3d at 996 n.2.

Therefore, Polly cannot show that, but for counsel’s error, the pat down would

have been declared unconstitutional; even if not consensual (or even if consent

was coerced), the pat down was justified under Terry v. Ohio, 392 U.S. 1 (1968).

See id. at 27 (“The officer need not be absolutely certain that the individual is




                                          -4-
armed; the issue is whether a reasonably prudent man in the circumstances would

be warranted in the belief that his safety or that of others was in danger.”). 2

      Lastly, Polly claims that, had counsel interviewed witnesses to the stop and

presented their testimony at the suppression hearing, counsel could have shown

that the pat down exceeded the scope of Terry. But Polly does not offer evidence

of what the witnesses would say. Instead, he argues that, because an officer said

the search was consensual rather than part of a Terry stop, Terry cannot justify

the search. But regardless of what the officer called it, as we showed above, the

search was justified by Terry, so even if Polly’s counsel presented the witnesses

Polly wanted, Polly has not shown that the result would have been different.

      Accordingly, we DENY Polly’s application for a COA, we DENY his

request to proceed in forma pauperis, and we DISMISS the appeal.

                                                      Entered for the Court,

                                                      Timothy M. Tymkovich
                                                      Circuit Judge




      2
        Thus, Polly’s motion for discovery to show coercion was properly
denied, and the district court’s omission to address whether the prosecution’s
witness lied about how many officers were present (going to coercion) or whether
Polly was speeding (going to initial stop) was harmless.

                                          -5-
