* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-40310

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VERNON EARL COLEMAN,

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court

for the Southern District of Texas

USDC No. L-97-CV-140 (L-95-CR-213-1)

- - - - - - - - - -

November 13, 1998

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Vernon Earl Coleman, federal prisoner # 69727-079, appeals

the district court’s denial of his 28 U.S.C. § 2255 motion. 

Coleman argues that his trial counsel was ineffective for failing

to move to suppress his confession on the grounds that the law

enforcement officers failed to scrupulously honor his invocation

of his Fifth Amendment right to silence according to Michigan v.

Mosley, 423 U.S. 96 (1975); that trial counsel was ineffective

for failing to call his girlfriend, Rhonda Reece, as a witness at
No. 98-40310

-2-

the suppression hearing to testify about statements she heard the

law enforcement officers make about her facing prosecution unless

Coleman confessed; and that appellate counsel was ineffective for

failing to appeal the district court’s application of the

obstruction of justice sentencing guideline.

The district court granted a certificate of appealability

(COA) on the first issue but denied a COA on the two latter

issues. If an appellant does not expressly request that the

district court’s partial grant of COA be broadened to issues on

which the district court denied COA, then this court will not

consider those issues. Lackey v. Johnson, 116 F.3d 149, 151 (5th

Cir. 1997). If, on the other hand, the appellant explicitly

requests that the grant of COA be broadened to issues on which

the district court denied COA, then this court may consider

whether to grant COA on those issues. United States v. Kimler,

150 F.3d 429, 431 and n.1 (5th Cir. 1998). An implicit request

by briefing the issues is not sufficient; this court requires a

more express request. Id. at 431 n.1.

Although Coleman has briefed the two issues for which the

district court 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. According to Lackey and Kimler, we

may not consider these issues.

Assuming arguendo that Coleman did sufficiently invoke his

right to remain silent, and applying the Mosley factors, the

record does not support Coleman’s argument that the law
No. 98-40310

-3-

enforcement officers did not honor his right to remain silent. 

Because the issue is legally meritless, Coleman’s counsel was not

ineffective for failing to object to the use of his confession on

this ground. United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.

1994). Because the record of the suppression hearing

conclusively shows that Coleman is entitled to no relief, no

evidentiary hearing was required. See United States v.

Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992).

AFFIRMED.