                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         NOV 24 2004
                                TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                 Clerk

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee.

 v.                                                    No. 04-8048
                                                (D.C. No. 02-CV-224-CAB)
 ARNOLD DEVONNE BUTLER,                               (D. Wyoming)

       Defendant - Appellant,



                     ORDER DENYING A CERTIFICATE
                          OF APPEALABILITY



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


      Arnold Butler, a federal prisoner appearing pro se, requests a certificate of

appealability (“COA”) so that he may appeal the district court’s denial of his

28 U.S.C. § 2255 petition. Because we agree with the conclusions set forth in the

district court’s Order of April 14, 2004 denying Butler’s petition, we DENY a

COA and DISMISS.

      Exercising their right to a jury trial, Butler and his co-defendant Todd

Johnson, charged in an indictment with possession with intent to distribute

cocaine in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(B)(ii) and aiding

and abetting in violation of 18 U.S.C. § 2, were found guilty and Butler was
sentenced to a term of 262 months incarceration. He then timely appealed his

conviction and sentence, contesting admission of drug evidence found pursuant to

a traffic stop near Laramie, Wyoming and challenging a denial of his motion for

mistrial. We affirmed the district court’s decision in United States v. Butler, 25

Fed. Appx. 784 (10th Cir. 2001). Butler then attacked his sentence and

conviction collaterally, filing a habeas petition on December 10, 2002 in district

court. That petition having been denied, Butler now appeals and asks us to grant

him a COA, alleging ineffective assistance of trial and appellate counsel, and

contesting his sentence.

      Butler’s petition was filed after April 24, 1996, the effective date of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”); therefore, AEDPA’s

provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1

(10th Cir. 1999) (citing Lindh v. Murphy, 521 U.S. 320 (1997)). Butler must first

obtain a COA in order to appeal the denial of his § 2255 petition, which may

issue only upon “a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). This standard requires a petitioner to establish “that

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). Because the district


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court did not grant a COA, we proceed to analyze whether a COA should be

granted.

      Petitioner raises four grounds for claiming ineffective assistance of trial

counsel in support of his application for a COA as well as a claim of ineffective

appellate counsel, none of which provide a substantial showing that he has been

denied a constitutional right. To prevail on an ineffectiveness of trial counsel

claim, a defendant must satisfy the now familiar two-prong test articulated by the

Supreme Court in Strickland v. Washington, 466 U.S. 668, 686 (1984). First, he

must show that counsel’s performance was deficient because it “fell below an

objective standard of reasonableness.” Id. at 687. Second, he must show that

counsel’s deficient performance prejudiced his defense by showing “that there is a

reasonable probability that, but for counsel’s unprofessional errors, . . . the [jury]

would have had a reasonable doubt respecting guilt.” Id. at 694-95.

      As to the first issue Butler raises, a claim that his counsel was ineffective

for failing to obtain suppression of evidence found pursuant to a traffic stop, we

find no merit and agree with the analysis provided by the district court. Because

his attorney filed a motion to suppress evidence obtained as a consequence of the

stop, we conclude that the there is no showing of objective deficiency in his trial

counsel’s performance. To the extent that petitioner seeks to re-argue the merits

of his suppression hearing, we have held that a traffic stop is valid under the


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Fourth Amendment if based on an “observed traffic violation or if the police

officer has reasonable articulable suspicion that a traffic or equipment violation

has occurred or is occurring” United States v. Botero-Ospina, 71 F.3d 783, 787

(10th Cir. 1995). In the present case, the window tinting and license-plate

mounting, both equipment violations, and a traffic violation for following too

closely, formed the basis for a valid traffic stop.

      Petitioner also asserts as a second ground that trial counsel was ineffective

for failing to object, or failing to object adequately, to the presentence report

which provided for a career offender enhancement under 18 U.S.C. § 4B1.1(a).

The record indicates that counsel did file an objection; therefore we will treat

petitioner’s claim before us as one of counsel’s inadequacy. In 1985 Butler pled

guilty in California state court to a charge of selling marijuana, which is

punishable by two to four years imprisonment under Cal. Health & Safety Code

§ 11360, and was sentenced to three years in the California Youth Authority.

Pursuant to Cal. Penal Code § 17(c), Butler argues that on serving his sentence,

his felony conviction was converted into a misdemeanor, which would render it

an improper basis for a career offender sentence enhancement. As the district

court notes, however, U.S.S.G. § 4B1.1’s designation of career offenders includes

those who have, inter alia, “two prior felony convictions” (Butler only contests

the use of one of his prior convictions). The Guideline commentary provides that:


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      “Prior felony conviction” means a prior adult federal or state conviction for
      an offense punishable by death or imprisonment for a term exceeding one
      year, regardless of whether such offense is specifically designated as a
      felony and regardless of the actual sentence imposed. A conviction for an
      offense committed at age eighteen or older is an adult conviction.

U.S.S.G. § 4B1.2, cmt., n.1. Because he was 18 years old at the time of the

offense, his prior conviction for sale of marijuana would clearly qualify under the

guidelines. Thus, even if petitioner’s trial counsel were deficient in his objection

to the presentence report, such deficiency would not have been prejudicial.

      Butler makes two further claims of ineffective assistance of counsel: that

counsel improperly failed to inform him of a plea offer, and that counsel failed to

allow him to plead guilty. As to the issue of a plea agreement, we concur with the

district court that affidavits supplied by the United States Attorney and

petitioner’s own counsel both verify that no such plea offer existed. Failure to

inform him of a non-existent plea offer cannot form a basis for an inadequate

assistance of counsel claim. As to the issue of not being allowed to plead guilty,

Butler’s claim, although unclear, appears to be that had he understood that he

would be found guilty and that the sentencing enhancement would apply, he

would have pled guilty and accepted responsibility in order to obtain a downward

departure. Regret and second-guessing his own refusal to cooperate with the

government does not provide Butler grounds for an ineffective assistance of

counsel claim.


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       Thus, because none of petitioner’s claims for ineffective assistance of trial

counsel has merit, we affirm the district court’s denial of Butler’s petition as to

these claims. Finally, petitioner also asserts a claim for ineffective assistance of

appellate counsel without argument; as to this bald assertion, we affirm the

district court’s finding that Butler has not carried his burden of alleging specific

facts entitling him to relief.

       Petitioner also challenges the trial court’s imposition of a sentence

enhancement for career offenders, arguing that the enhancement was improper

because he was adjudicated as a youthful offender for his marijuana charge

(although he was 18 years old at the time of the offense). As we have already

observed in connection with petitioner’s ineffective assistance claims, the

sentencing guidelines clearly provide that a prior felony conviction is any

conviction for an offense committed at age eighteen or older and punishable by

more than one year imprisonment, regardless of whether the offense is explicitly

designated as a felony. U.S.S.G. § 4B1.2, cmt., nt. 1. Accordingly, we see no

error in the district court’s use of this conviction in imposing a career criminal

sentencing enhancement.

       Petitioner’s additional claim that he was not properly notified in advance of

trial that the government would seek a penalty enhancement is likewise meritless.

By his own argument on brief, he admits that he was aware that he could face a


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maximum sentence of 262 months as a consequence of his prior convictions

unless he cooperated with the government.

      No reasonable jurist would debate whether Butler’s habeas petition should

have been granted. Accordingly, we DENY the request for a COA and

DISMISS. Butler’s motion to proceed on appeal in forma pauperis is

GRANTED. All other pending motions are dismissed as moot.



                                     ENTERED FOR THE COURT



                                     Carlos F. Lucero
                                     Circuit Judge




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