                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                   UNITED STATES COURT OF APPEALS June 13, 2013
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 13-3022
                                             (D.C. Nos. 5:12-CV-04053-JAR and
       v.                                          5:09-CR-40084-JAR-1)
                                                          (D. Kan.)
 DAMON L. HUNTER,

              Defendant - Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.


      Claiming ineffective assistance of counsel in handling a motion to suppress,

Defendant Damon Hunter filed a pro se motion for relief under 28 U.S.C. § 2255

in the United States District Court for the District of Kansas. The district court

denied the motion. Defendant now seeks a certificate of appealability (COA)

from this court so that he may appeal the district court’s decision. See 28 U.S.C.

§ 2253(c)(1)(B) (requiring COA to appeal denial of § 2255 relief). We deny a

COA and dismiss the appeal.

I.    BACKGROUND

      On August 28, 2009, Defendant was riding as a passenger in a rental car

driven by Alice Isaacson. Defendant had rented the car with his credit card and
was the only driver named on the rental contract. Kansas Highway Patrol Trooper

Chris Nicholas stopped the car for following another vehicle too closely. He

requested identification documents from Isaacson and Defendant and the rental

paperwork, which indicated that the rental contract had expired. Nicholas

returned to his patrol car and initiated a criminal background check on the two.

Next, he separately questioned Isaacson and Defendant in his patrol car. They

told Nicholas that they were driving back to Minnesota from a wedding near

Colorado Springs. Defendant admitted that the rental contract had expired but

explained that he lacked sufficient funds at the time of the rental to pay for the

full time he needed the car and that he was on his way to return it. Nicholas

allowed each to return to the rental car after questioning.

      Nicholas decided to return the identification and rental papers to Defendant

and Isaacson and terminate the traffic stop. He walked back to the rental car,

gave Defendant and Isaacson the items, and reminded them of the dangers of

following other vehicles too closely. He then said “thank you” and began to walk

away, but immediately returned and sought to question them further. United

States v. Hunter, 663 F.3d 1136, 1140 (10th Cir. 2011). After inquiring about

prior offenses uncovered by the background check, he asked if he could search

the car. Nicholas instructed Isaacson, who had returned to the driver’s seat, to

hand him the keys if she consented. Isaacson gave the keys to Nicholas through

the passenger window, which required her to reach across Defendant. Defendant

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said nothing. Inside the car Nicholas discovered 35 pounds of marijuana, one

kilogram of cocaine, and a firearm.

      A federal grand jury indicted Defendant on four counts: (1) possessing

with intent to distribute 500 grams or more of cocaine, see 21 U.S.C. §§ 841(a)(1)

and (b)(1)(B), 812; (2) possessing with intent to distribute a detectable amount of

marijuana, see id. §§ 841(a)(1) and (b)(1)(D), 812; (3) being a felon in possession

of a firearm, see 18 U.S.C. §§ 922(g)(1), 924(a)(2); and (4) carrying a firearm

during and in relation to a drug-trafficking crime, see id. § 924(c)(1)(A)(i).

Defendant unsuccessfully moved to suppress the evidence obtained in the search.

He then pleaded guilty to the charge of possessing a firearm during and in relation

to a drug-trafficking crime, reserving the right to appeal denial of the suppression

motion.

      On Defendant’s appeal of the denial, he argued that Isaacson lacked

authority to consent to the search because she was not listed on the rental

contract. We rejected the argument, explaining that the absence of her name from

the contract did not deprive her of actual authority to consent and, in any event,

she had apparent authority to consent. See Hunter, 663 F.3d at 1144. We

likewise rejected Defendant’s other challenges and affirmed. See id. at 1145.

      In May 2012 Defendant filed his § 2255 motion, raising two grounds for

relief. His first ground was that his trial counsel had rendered constitutionally

ineffective assistance by failing to investigate Kansas law regarding the

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unauthorized use of a vehicle. Such investigation, he contended, would have

revealed that Isaacson was not authorized to drive the rental car because she was

not listed on the contract, and that Nicholas had acted illegally by allowing her to

return to the driver’s seat. He insisted that because Nicholas illegally placed

Isaacson in control of the car, Nicholas could not have validly relied on her

apparent authority to consent to the search. And he asserted prejudice from his

counsel’s failure to make such an argument in the district court. His second

ground was that his appellate counsel (the same lawyer) had rendered ineffective

assistance by failing to make the same argument on direct appeal.

      The district court denied relief. It explained that further investigation by

counsel would have revealed nothing unlawful about Nicholas’s allowing

Isaacson to operate the rental car. Moreover, the court pointed out, Defendant’s

ineffective-assistance claims involved only Isaacson’s apparent authority to

consent to a search, yet this court had held on direct appeal that she had both

actual and apparent authority. It therefore ruled that Defendant could not show

prejudice from his counsel’s performance either in the district court or on appeal.

      Defendant seeks a COA to pursue his ineffective-assistance claims in this

court. He repeats the argument that Nicholas illegally placed an unauthorized

driver in control of the rental car. Moreover, he asserts that under Kansas law a

driver who is not authorized under a rental contract to operate a rental car lacks

the legally required liability insurance. Therefore, he contends, Nicholas

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committed a further illegality by restoring an uninsured driver to control of the

car. Had counsel exposed these illegalities to the district court, he argues, he

would have prevailed on his Fourth Amendment claim. (Defendant limits his

arguments in this court to his trial counsel’s performance; he makes no reference

to his counsel’s performance on direct appeal.)

II.   DISCUSSION

      “A certificate of appealability may issue . . . only if the applicant has made

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

§ 2253(c)(2). “Where a district court has rejected the constitutional claims on the

merits,” the applicant “must demonstrate that reasonable jurists would find the

district court’s assessment of the constitutional claims debatable or wrong.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      To establish a claim of ineffective assistance of counsel, Defendant first

has the burden of overcoming “a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance,” Strickland v.

Washington, 466 U.S. 668, 689 (1984), by demonstrating that his counsel’s

performance fell below “an objective standard of reasonableness,” id. at 688.

Second, Defendant must demonstrate that the “deficiencies in counsel’s

performance [were] prejudicial to the defense.” Id. at 692. Because Defendant’s

ineffective-assistance claim is premised on his counsel’s failure to raise a Fourth




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Amendment claim, he “must . . . prove that his Fourth Amendment claim is

meritorious.” Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).

      The district court was unquestionably correct that Defendant has not shown

prejudice because he has not shown that his present arguments would have (or

should have) prevailed at trial. Although the Fourth Amendment ordinarily

prohibits warrantless searches, “[v]oluntary consent by a third party with actual or

apparent authority is a well-established exception to the warrant requirement.”

United States v. Benoit, 713 F.3d 1, 8 (10th Cir. 2013). As we explained in our

opinion on Defendant’s direct appeal, Isaacson had actual authority if she had

“either (1) mutual use of the property by virtue of joint access, or (2) control for

most purposes.” Hunter, 663 F.3d at 1144 (internal quotation marks omitted).

And even if she lacked actual authority, she had apparent authority “if the facts

available to [Nicholas] at the time [he] commenced the search would lead a

reasonable officer to believe the third party had authority to consent to the

search.” Id. (internal quotation marks omitted). Defendant points to no authority

to support his claim that in Kansas it is unlawful (as opposed to merely a breach

of a rental contract) for someone not named on a car rental contract to drive the

car (because of lack of liability-insurance coverage or otherwise). And the

Kansas Court of Appeals has referred to a driver not listed as an authorized driver

on a rental contract as “a licensed driver legally driving the vehicle.” State v.

Webber, No. 90,899, 2005 WL 283585, at *4 (Kan. Ct. App. Feb. 4, 2005).

                                          -6-
Further, there was clearly apparent authority. A reasonable officer could believe

that Defendant (who was named on the rental contract) had given Isaacson

authority to consent to the search because he voiced no objection and made no

effort to interfere with her reaching across him to pass the keys to the officer.

III.   CONCLUSION

       We DENY the application for a COA and DISMISS the appeal. We

GRANT the motion to proceed in forma pauperis.

                                 ENTERED FOR THE COURT


                                 Harris L Hartz
                                 Circuit Judge




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