                                                                          FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                   UNITED STATES COURT OF APPEALS October 19, 2010
                                                                 Elisabeth A. Shumaker
                                TENTH CIRCUIT                        Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,                         No. 10-6040
 v.                                                     (W.D. of Okla.)
 DARRELL W. COLLINS,                          (D.C. Nos. 5:08-CV-00524-M and
                                                    5:99-CR-00216-M-2)
              Defendant-Appellant.


           ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges. **


      Darrell Wayne Collins, a federal prisoner proceeding pro se, 1 seeks a

certificate of appealability (COA) to appeal the district court’s denial of his

motion to vacate his sentence under 28 U.S.C. § 2255. Having jurisdiction

pursuant to 28 U.S.C. § 1291, we DENY a COA 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         This order is not binding precedent except under the doctrines of law of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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.
R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      1
       Because Collins is proceeding pro se, we construe his filings liberally.
See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).
                                     I. Background

         Collins was convicted in 2000 on eight counts relating to possession with

intent to distribute cocaine powder or crack cocaine. When all the currently-

running sentences are taken together, the district court sentenced Collins to a total

of 30 years’ imprisonment, 10 years’ supervised release, forfeiture of $115,200

and his interest in a 1993 GMC pickup, and a special assessment of $900. On

appeal, we affirmed his conviction but vacated his sentence, finding the

government had not carried its burden of proving he qualified as a career offender

for the purpose of sentencing. United States v. Tyler, 42 F. App’x 186 (10th Cir.

2002).

         At resentencing, the district court again confirmed Collins was a career

offender and sentenced him to the same term it originally imposed. Collins did

not appeal. Instead, he filed a petition pursuant to 28 U.S.C. § 2255 to vacate his

sentence based upon nine alleged instances of ineffective assistance of counsel.

In 2006, the district court granted in part and denied in part the motion, finding

his counsel’s failure to file an appeal following the resentencing constituted

ineffective assistance. The court then vacated the 2002 sentence and imposed a

new sentence, again determining Collins was a career offender. Because the

second resentencing occurred post-Booker, 2 the court considered the factors



         2
             United States v. Booker, 543 U.S. 220 (2005).

                                           -2-
enumerated in 18 U.S.C. § 3553 and granted him a variance, reducing the length

of his imprisonment to 25 years for his concurrently-running sentences.

      Collins appealed his sentence, but we affirmed. United States v. Collins,

273 F. App’x 761 (10th Cir. 2008). Collins then filed a second petition under 28

U.S.C. § 2255 to vacate his sentence, which the district court denied.

                                   II. Discussion

      In order to obtain a COA, Collins must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He may make this

showing “by demonstrating that jurists of reason could disagree with the district

court’s resolution of his constitutional claims or that jurists could conclude the

issues presented are adequate to deserve encouragement to proceed further.”

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). “[A] claim can be debatable

even though every jurist of reason might agree, after the COA has been granted

and the case has received full consideration, that [the] petitioner will not prevail.”

Id. at 338.

      Collins contends he received ineffective assistance because his counsel

failed to argue a prior state burglary conviction did not qualify as an “adult

conviction” for purposes of the career offender enhancement. He claims the

failure violates the requirements of Strickland v. Washington, 466 U.S. 668

(1984) (requiring a showing of deficient performance by counsel and resulting

prejudice for claims of ineffective assistance of counsel).

                                         -3-
      Under the United States Sentencing Guidelines (USSG) § 4B1.1, a

defendant may qualify as a career offender if:

      (1) the defendant was at least eighteen years old at the time the
      defendant committed the instant offense of conviction, (2) the instant
      offense of conviction is a felony that is either a crime of violence or a
      controlled substance offense, and (3) the defendant has at least two
      prior felony convictions of either a crime of violence or a controlled
      substance offense.

Additionally, Application Note 1 to USSG § 4B1.2 provides in pertinent part: “A

conviction for an offense committed prior to age eighteen is an adult conviction if

it is classified as an adult conviction under the laws of the jurisdiction in which

the defendant was convicted.”

      Collins argues his 1987 conviction for burglary in the second degree is not

an adult conviction because he was seventeen years old at the time of the burglary

and because he was not certified as an adult. In support of his § 2255 petition,

Collins attaches a letter from the Oklahoma County Court Clerk dated October 12,

2006, which states there is no adult certification order filed in his court file (CF-

97-7042). He also attaches a private investigator’s affidavit stating a search of

the court file for an adult certification order yielded no results.

      In response, the government (1) argues CF-87-7042 is an adult criminal

case number, rather than a juvenile criminal case number; (2) provides the docket

file of CF-87-7042, which indicates that an “Order Certifying Juvenile to Stand




                                           -4-
Trial” (as an adult) was filed on December 11, 1987; 3 and (3) provides an order

by the Oklahoma County District Court, dated December 1, 1987, which certifies

Collins to stand trial as an adult for burglary in the second degree. 4

      Because Collins was certified to stand trial as an adult, his 1987 burglary

conviction qualifies as an adult conviction under Oklahoma state law, and,

therefore, is an adult conviction for purposes of the career offender enhancement.

We thus agree with the district court that Collins’s counsel did not provide

ineffective assistance by failing to present a factually incorrect argument.

                                  III. Conclusion

      We DENY Collins’s application to proceed in forma pauperis, DENY

Collins’s request for a COA, and DISMISS this matter.

                                                     Entered for the Court

                                                     Timothy M. Tymkovich
                                                     Circuit Judge




      3
       The burglary conviction was filed under the name “Darryl Byone,” which
the docket file indicates is an alias for Darryl Collins.
      4
        The fact that the order was filed under the juvenile criminal case number
JF-87-1437 may explain the Oklahoma County Court Clerk’s initial difficulty in
locating it.

                                          -5-
