                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  August 4, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                        No. 08-6258
 v.                                            (D.C. Nos. 08-CV-00969-C and
                                                    5:05-CR-00113-C-1)
 ARKBAR COCKRELL,                                       (W.D. Okla.)

       Defendant - Appellant.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, ANDERSON, and BRISCOE, Circuit Judges.


      Defendant-Appellant Arkbar Cockrell seeks to appeal from the district

court’s denial of his motion to vacate, set aside or correct his sentence pursuant to

28 U.S.C. § 2255. Mr. Cockrell claims ineffective assistance of counsel based

upon his counsel failing to challenge a two-level firearm enhancement on appeal.

Aplt. Br. 10-12. The district court disagreed, holding that Mr. Cockrell’s counsel

was not objectively unreasonable in failing to raise the enhancement issue and

because Mr. Cockrell would not have prevailed if the issue had been raised. Aplt.

App. 60. Because Mr. Cockrell has failed to demonstrate that “reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or

wrong,” we deny a certificate of appealability (“COA”), 28 U.S.C. § 2253(c), and
dismiss the appeal. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      After the denial of his motion to suppress, Mr. Cockrell proceeded to trial,

and then pled guilty to two counts of possession with intent to distribute

methamphetamine. Aplt. App. 64. The Presentence Investigation Report (PSR)

identified a total offense level of 37, including a two-level firearm enhancement.

Aplt. App. 70-71. After entertaining objections to the PSR, the district court

determined that the total offense level was 33, and a criminal history category of

VI, and sentenced Mr. Cockrell to 235 months’ imprisonment followed by five

years of supervised release. Aplt. App. 79, 130-31 (Sent’g Tr.); United States v.

Cockrell, No. 05-cr-0113-C-1, Doc. 115 at 2-3 (W. D. Okla. July 12, 2006). On

direct appeal, this court affirmed the sentence, rejecting the contention that the

district court failed to consider his cooperation with the government. United

States v. Doe, 218 Fed. App’x. 801, 805 (10th Cir. 2007) (unpublished), cert

denied, 128 S. Ct. 127 (2007).

      In order to succeed on an ineffective assistance of appellate counsel claim,

Mr. Cockrell must demonstrate deficient performance by his counsel and resulting

prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Smith v.

Robbins, 528 U.S. 259, 285 (2000). Although a claim of ineffectiveness can be

based upon failure to raise an issue on appeal, “it is difficult to show deficient

performance under those circumstances because counsel ‘need not (and should

not) raise every nonfrivolous claim, but rather may select from among them in

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order to maximize the likelihood of success on appeal.’” Cargle v. Mullin, 317

F.3d 1196, 1202 (10th Cir. 2003) (quoting Smith, 528 U.S. at 288).

      Mr. Cockrell argues there was insufficient evidence linking the firearm to

the crime or to Mr. Cockrell, and therefore counsel should have appealed this

issue. Aplt. Br. 12-22. At the sentencing hearing, counsel objected to the two-

level enhancement. Aplt. App. 100, 127-28 (Sent’g. Tr.). The district court

overruled the objection, concluding that Mr. Cockrell had possession of the gun

prior to the relevant drug transaction, items found near the gun linked it to Mr.

Cockrell, and that it was not “clearly improbable” that the gun was connected to

the offense. Aplt. App. 127-28 (Sent’g. Tr.).

      Under U.S.S.G. § 2D1.1(b)(1), a two level enhancement is imposed when

“a dangerous weapon (including a firearm) was possessed” in connection with a

drug offense. “The government bears the burden of proving possession by a

preponderance of the evidence.” United States v. Roberts, 980 F.2d 645, 647

(10th Cir. 1992). All that is required is “mere proximity to the offense,” by a

temporal and spatial relationship between the weapon, the drug trafficking, and

the defendant. United States v. Pompey, 264 F.3d 1176, 1180-81 (10th Cir.

2001). Thereafter, the burden then shifts to the defendant to prove that “it is

clearly improbable that the weapon was connected to the offense.” United States

v. Heckard, 238 F.3d 1222, 1233 (10th Cir. 2001) (internal quotation marks

omitted); see also U.S.S.G. § 2D1.1 cmt. n.3.

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      Given this standard, counsel did not render deficient performance by not

raising this issue on appeal. Though differing interpretations are possible, the

district court’s finding of a nexus between the contraband and the firearm (even

though in a locked bedroom in the apartment of another) is not clearly erroneous.

The district court could reasonably find that Mr. Cockrell possessed the weapon

given a suit bag atop the weapon which contained a prescription bottle with his

name on it. Aplt. App. 101-02, 108. When the controlled delivery of the drugs

was made to the apartment complex, the district court also could reasonably find

that Mr. Cockrell directed the drugs to be brought to the apartment he was in.

Aplt. App. 59. The district court also could conclude that Mr. Cockrell did not

carry his burden that it was “clearly improbable” that the gun was connected to

the drug trafficking offense. Given the unlikelihood of overturning the district

court’s factual findings given the applicable standard of review, it was not

unreasonable for Mr. Cockrell’s counsel to omit this issue on appeal. Moreover,

given the lack of merit, Mr. Cockrell cannot prove prejudice. Therefore, the

district court’s resolution is not reasonably debatable.

      We DENY a COA and DISMISS the appeal.


                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge


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