     Case: 09-60715     Document: 00511183861          Page: 1    Date Filed: 07/23/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            July 23, 2010
                                     No. 09-60715
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RODERICK STUTTS,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                      for the Southern District of Mississippi
                              USDC No. 3:06-CV-596
                              USDC No. 3:04-CR-78-1


Before KING, DAVIS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Roderick Stutts was convicted in 2005 by a jury on four counts of
possession with intent to distribute cocaine base in violation of 21 U.S.C.
§ 841(a)(1), and he was sentenced to 121 months of imprisonment on each count
to run concurrently and five years of supervised release.                 We affirmed his
convictions on direct appeal. Stutts now appeals the district court’s denial of his
28 U.S.C. § 2255 motion. The district court granted a certificate of appealability


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 09-60715    Document: 00511183861 Page: 2        Date Filed: 07/23/2010
                                 No. 09-60715

(COA) on Stutts’s “ineffective assistance of counsel claim arising from counsel’s
alleged failure to investigate.”
      Stutts argues that his trial counsel’s representation was deficient because
counsel failed to investigate and offer trial testimony of witnesses who were
present when the alleged drug transactions took place. He also contends that
counsel failed to investigate the layout of the tire shop where three of the four
alleged drug transactions occurred.
      For purposes of analysis, the district court assumed that counsel’s
performance was deficient and that counsel should have investigated and
presented evidence of the layout of the shop and the testimony of the employees
in the shop.    The district court was not persuaded that Stutts had shown
prejudice.     The district court’s conclusion is based on its review of the
surveillance videotapes which showed that the employees were not in the bay
area or the office at all times but were often outside where they would not have
been in a position to see what was happening in the shop bay. The district court
notes that on the day of the first buy, two employees were sitting in chairs
outside the shop while Stutts and Ward were inside. On another video, the
district court notes that Eugene “Shorty” Jones could be seen moving back and
forth inside and outside of the shop moving tires and rims and assisting
customers. The district court concluded that the “videotapes thus belie the
suggestion that a transaction did not occur because employees did not see the
transaction occur. Certainly, it cannot be said that there exists a reasonable
probability that the outcome of the trial would have been different had trial
counsel presented evidence of the shop layout and testimony of shop employees.”
The district court further noted from its review of the videos that Ward “made
no effort to hide from Stutts’s employees either his occupation as a drug dealer
or that he was at the tire shop to do drug business with Stutts.”
      Stutts’s only challenge to the district court’s subsidiary findings regarding
the content of the videos is the following sentence: “The error in the district

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                                 No. 09-60715

court’s analysis is that these employees or other employees were in the shop at
times when the alleged drug transactions occurred.”         Stutts’s assertion is
significant because he does not allege that the employees were in the shop at
“all” times. The employees were inside the shop some of the time but not all of
the time as they went about their work. Stutts’s one sentence assertion is not
sufficient to show that the district court’s factual finding is clearly erroneous.
See United States v. Molina-Uribe, 429 F.3d 514, 518 (5th Cir. 2005). Given all
of the evidence against Stutts, and given counsel’s other efforts to show that
Ward had a grudge against Stutts and had the opportunity to plant the drugs
ahead of time, a defense which the jury rejected, we reach the same independent
conclusion as the district court that Stutts has not shown prejudice. See id. at
518-19.
      Stutts also argues that trial counsel was ineffective for failing to advise
him properly of his right to testify at trial and for failing to meet with him an
adequate amount of time prior to trial. However, the district court granted a
COA only on the issue of counsels’ failure to investigate, thus implicitly denying
a COA as to all other issues. Although Stutts has briefed the two issues for
which the district court did not grant and thus implicitly denied a COA, he has
not expressly requested this court to grant a COA on those issues, either in his
brief or in a separate motion for a COA. Therefore, we may not consider these
issues. See Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997); United States
v. Kimler, 150 F.3d 429, 431 and n.1 (5th Cir. 1998).
      The district court’s denial of Stutts’s § 2255 motion is AFFIRMED.




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