USA v. Roderick Stutts

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USA v. Roderick Stutts

Doc. 0

Case: 09-60715

Document: 00511183861

Page: 1

Date Filed: 07/23/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60715 S u m m a r y Calendar July 23, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. R O D E R I C K STUTTS, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Southern District of Mississippi U S D C No. 3:06-CV-596 U S D C No. 3:04-CR-78-1

B e fo r e KING, DAVIS, and BENAVIDES, Circuit Judges. P E R CURIAM:* R o d e r ic k Stutts was convicted in 2005 by a jury on four counts of p o s s e s s io n 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 t o run concurrently and five years of supervised release. We affirmed his

c o n v ic t io n s on direct appeal. Stutts now appeals the district court's denial of his 2 8 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Date Filed: 07/23/2010

(C O A ) on Stutts's "ineffective assistance of counsel claim arising from counsel's a lle g e d failure to investigate." S t u t t s argues that his trial counsel's representation was deficient because c o u n s e l failed to investigate and offer trial testimony of witnesses who were p r e s e n t when the alleged drug transactions took place. He also contends that c o u n s e l failed to investigate the layout of the tire shop where three of the four a lle g e d drug transactions occurred. For purposes of analysis, the district court assumed that counsel's p e r fo r m a n c e was deficient and that counsel should have investigated and p r e s e n t e d evidence of the layout of the shop and the testimony of the employees in the shop. p reju d ice. The district court was not persuaded that Stutts had shown The district court's conclusion is based on its review of the

s u r v e illa n c e videotapes which showed that the employees were not in the bay a r e a or the office at all times but were often outside where they would not have b e e n in a position to see what was happening in the shop bay. The district court n o te s that on the day of the first buy, two employees were sitting in chairs o u ts id e the shop while Stutts and Ward were inside. On another video, the d is t r ic t court notes that Eugene "Shorty" Jones could be seen moving back and fo r t h inside and outside of the shop moving tires and rims and assisting c u s t o m e r s . The district court concluded that the "videotapes thus belie the s u g g e s t io n that a transaction did not occur because employees did not see the t r a n s a c t io n occur. Certainly, it cannot be said that there exists a reasonable p r o b a b ilit y that the outcome of the trial would have been different had trial c o u n s e l 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 n o effort to hide from Stutts's employees either his occupation as a drug dealer o r that he was at the tire shop to do drug business with Stutts." S t u t t s 's only challenge to the district court's subsidiary findings regarding t h e content of the videos is the following sentence: "The error in the district 2

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c o u r t's analysis is that these employees or other employees were in the shop at t im e s when the alleged drug transactions occurred." Stutts's assertion is

s ig n ific a n t because he does not allege that the employees were in the shop at " a ll" times. The employees were inside the shop some of the time but not all of t h e time as they went about their work. Stutts's one sentence assertion is not s u ffic ie n t 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 o f the evidence against Stutts, and given counsel's other efforts to show that W a r d had a grudge against Stutts and had the opportunity to plant the drugs a h e a d of time, a defense which the jury rejected, we reach the same independent c o n c lu s io n as the district court that Stutts has not shown prejudice. See id. at 5 1 8 -1 9 . S t u t t s also argues that trial counsel was ineffective for failing to advise h im properly of his right to testify at trial and for failing to meet with him an a d e q u a t e amount of time prior to trial. However, the district court granted a C O A 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 w h ic h the district court did not grant and thus implicitly denied a COA, he has n o t expressly requested this court to grant a COA on those issues, either in his b r ie f or in a separate motion for a COA. Therefore, we may not consider these is s u e s . 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). T h e district court's denial of Stutts's § 2255 motion is AFFIRMED.

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