                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                        December 19, 2016
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 16-4179
                                                 (D.C. Nos. 2:16-CV-00487-TS and
HICKORY WESLEY McCOY,                                  2:12-CR-00218-TS-1)
                                                             (D. Utah)
      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

      Hickory McCoy, a federal prisoner appearing pro se, seeks a certificate of

appealability (“COA”) to challenge the denial of his 28 U.S.C. § 2255 motion. We

deny a COA and dismiss the appeal.

                                           I

      McCoy was convicted by a jury of possession of marijuana with intent to

distribute, possession of a firearm in furtherance of a drug trafficking crime, and

being a felon in possession of a firearm. The charges arose from a traffic stop of

McCoy’s vehicle by Utah Highway Patrol Trooper Randy Riches. Riches stopped

McCoy for violating Utah’s left-lane statute, see Utah Code § 41-6a-704, which

      *
         This order is not binding precedent, except under the doctrines of law of the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.
prohibits vehicles in the left lane from impeding traffic. A search of McCoy’s

vehicle revealed marijuana, drug paraphernalia, a handgun, and ammunition.

       Prior to trial, defense counsel filed a motion to suppress, arguing Riches

lacked justification for conducting the traffic stop. The motion was denied. We

affirmed on direct appeal. United States v. McCoy, 614 F. App’x 964 (10th Cir.

2015) (unpublished). McCoy subsequently filed a § 2255 motion. The district court

denied habeas relief and declined to issue a COA. McCoy now seeks a COA from

this court.

                                            II

       To appeal the district court’s denial of § 2255 relief, McCoy must obtain a

COA. § 2253(c)(1)(B). We will grant a COA only if “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).

       McCoy asserts two related ineffective assistance of counsel claims. To prevail

he must demonstrate “that counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and

that “the deficient performance prejudiced the defense.” Strickland v. Washington,

466 U.S. 668, 687 (1984). To establish prejudice, a “defendant must show that there

is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Id. at 694.

                                            2
         McCoy claims that defense counsel’s performance with respect to the motion

to suppress was deficient because he failed to convince the court that Riches lacked

reasonable suspicion to conduct a traffic stop. First, McCoy contends defense

counsel inadequately argued the motion to suppress because he failed to argue that

McCoy was not actually impeding traffic. Second, McCoy argues defense counsel

was ineffective by failing to retain an expert to present testimony regarding when an

officer has reasonable suspicion to conduct a traffic stop based on a violation of

Utah’s left-lane statute.

         We agree with the district court that, even if McCoy could show his counsel’s

conduct was deficient, he has not established prejudice. McCoy challenged the

denial of the motion to suppress on direct appeal. His appellate counsel argued

Riches lacked reasonable suspicion to stop McCoy because McCoy was not impeding

traffic, and thus there was no traffic violation. We affirmed, concluding that the

dash-cam video and Riches’ testimony supported the district court’s factual finding

as to Riche’s reasonable-suspicion determination. McCoy, 614 F. App’x at 966-67.

We do not discern a reasonable probability that McCoy’s motion to suppress would

have been granted regardless of any alternative arguments presented by counsel.

Further, because the existence of reasonable suspicion is a question of law, see

United States v. Gordon, 168 F.3d 1222, 1225 (10th Cir. 1999), any expert testimony

would have been of limited value, see Specht v. Jensen, 853 F.2d 805, 808 (10th Cir.

1988).



                                            3
                               III

For the foregoing reasons we DENY a COA and DISMISS the appeal.


                                Entered for the Court


                                Carlos F. Lucero
                                Circuit Judge




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