      Case: 15-30354          Document: 00513793432              Page: 1      Date Filed: 12/12/2016




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

                                          No. 15-30354                                       FILED
                                        Summary Calendar                             December 12, 2016
                                                                                        Lyle W. Cayce
                                                                                             Clerk
LUCAS J. RODDY,

                                                          Petitioner-Appellant

v.

DARRELL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                          Respondent-Appellee

---------------------------------------------------------------------------------------------------------

LUCAS RODDY,

                                                          Petitioner-Appellant

v.

DARRELL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                          Respondent-Appellee



                      Appeal from the United States District Court
                          for the Middle District of Louisiana
                                USDC No. 3:10-CV-800
                                USDC No. 3:11-CV-730



Before KING, DENNIS, and COSTA, Circuit Judges.
     Case: 15-30354      Document: 00513793432         Page: 2    Date Filed: 12/12/2016


                                      No. 15-30354

PER CURIAM: *
       Lucas J. Roddy, Louisiana prisoner # 458846, was convicted by a jury of
second degree murder and was sentenced to life imprisonment. His 28 U.S.C.
§ 2254 petition attacking the second degree murder conviction was denied;
however, the district court granted a certificate of appealability (COA) on
Roddy’s claim that he was denied the right to testify at trial.
       As to this claim, Roddy argues that his decision not to take the witness
stand was not knowingly made because his counsel advised him not to testify
based on the mistaken belief that Roddy’s juvenile record could be used against
him. Roddy does not indicate what specific testimony he could have given that
might have changed the outcome of the trial, but he asserts that he was
prejudiced by counsel’s advice because only he could have testified as to his
mental state and rebutted the testimony of the prosecution’s witnesses
regarding the relevant events.
       In reviewing the denial of § 2254 relief, we review issues of law de novo
and findings of fact for clear error, applying the same deference to the state
court’s decision as the district court under the Antiterrorism and Effective
Death Penalty Act (AEDPA). Ortiz v. Quarterman, 504 F.3d 492, 496 (5th Cir.
2007); see 28 U.S.C. § 2254(d). A claim of ineffective assistance of counsel is
measured against the standard set forth in Strickland v. Washington, 466 U.S.
668, 687 (1984), which requires that Roddy show both deficient performance
by counsel and resulting prejudice. See Williams v. Thaler, 684 F.3d 597, 604
(5th Cir. 2012).       A failure to establish either prong defeats the claim.
Strickland, 466 U.S. at 697.



       * 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.



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                                  No. 15-30354

      A defendant has a fundamental constitutional right to testify. See Rock
v. Arkansas, 483 U.S. 44, 49-52 (1987). A waiver of this right must be knowing
and voluntary, and it must be made by the defendant rather than his counsel.
Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1998). We have held that when
a defendant contends that trial counsel interfered with his right to testify, “the
appropriate vehicle for such claims is a claim of ineffective assistance of
counsel.” United States v. Mullins, 315 F.3d 449, 452 (5th Cir. 2002) (internal
quotation marks and citation omitted).
      The record supports a determination that Roddy acquiesced in counsel’s
advice that he not testify; however, to the extent that counsel’s advice was
based on the premise that Roddy would be subject to attack due to his juvenile
record, counsel’s advice was suspect in view of Louisiana Code of Evidence
Article 609.1F.   Assuming that counsel’s advice not to testify constitutes
deficient performance, after a thorough review of the trial record, we agree
with the magistrate judge and the district court that the evidence adduced
against Roddy at trial was overwhelming, and therefore Roddy’s claim does not
satisfy the prejudice prong. See Strickland, 466 U.S. at 694; Sayre v. Anderson,
238 F.3d 631, 635 (5th Cir. 2001). We do so under a de novo application of
Strickland’s prejudice requirement, not the deference AEDPA affords, because
the state court resolved this claim only under the first inquiry of deficient
performance. Wiggins v. Smith, 539 U.S. 510, 534 (2003) (noting that AEDPA
deference is not afforded when the state court addressed only the other
Strickland prong). Given the numerous witnesses who testified at trial, Roddy
has not shown that the unspecific testimony he contends he would have given
makes it reasonably probable that the result of his trial would have been
different. Id. (setting forth non-AEDPA prejudice standard for Strickland
claim).



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                                  No. 15-30354

      Roddy requests that the COA be expanded to include two additional
claims. When a district court grants a COA and certifies some, but not all,
issues raised by a petitioner in the district court, the petitioner may move this
court to extend the order granting a COA to issues that the district court did
not certify. United States v. Kimler, 150 F.3d 429, 431 (5th Cir. 1998). We
review the request to expand the COA under the same criteria for granting a
COA. Id.
      A COA may be issued only if the applicant “has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see
Slack v. McDaniel, 529 U.S. 473, 484 (2000). “The COA determination under
§ 2253(c) requires an overview of the claims in the habeas petition and a
general assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003).   “This threshold inquiry does not require full consideration of the
factual or legal bases adduced in support of the claims.” Id. When a district
court has rejected a constitutional claim on the merits, a COA will be granted
only if the movant “demonstrate[s] that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.”
Slack, 529 U.S. at 484.
      Roddy seeks to expand the COA grant to include claims that his trial
counsel was ineffective for (1) failing to seek DNA testing of clothing possibly
worn by the shooter, which was found in a barbecue pit, and (2) failing to
interview and call to testify at trial a potential alibi witness, Michael Blair. As
Roddy points out, the state court did not address the merits of the claim that
counsel was ineffective for failing to seek DNA testing, and accordingly the
claim is reviewed de novo and “not through the prism of AEDPA deference.”
Mays v. Stephens, 757 F.3d 211, 217 n.11 (5th Cir. 2014). Nevertheless, Roddy
fails to make the showing required to obtain a COA as to either claim. See



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                                 No. 15-30354

Slack, 529 U.S. at 484. As to the claim based on the failure to conduct DNA
testing, Roddy has put forth no evidence concerning the results of any such
testing from which to establish prejudice under Strickland.             On the
ineffectiveness issue related to the alleged alibi, Roddy has not shown that the
district court’s rejection of that claim on prejudice grounds is subject to
reasonable debate in light of the AEDPA deference that governs this claim.
      In view of the foregoing, the judgment of the district court is AFFIRMED.
Roddy’s request to expand the COA is DENIED.




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