United States of America v. Rayford Roberson

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAYFORD ROBERSON,
Defendant - Appellant.
No. 09-15474
D.C. Nos. 2:07-cv-02608-WBS
2:02-cr-00364-WBS-1
MEMORANDUM *
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Argued and Submitted March 9, 2010
San Francisco, California
Before: B. FLETCHER, CLIFTON, and BEA, Circuit Judges.
A jury conviction of bankruptcy fraud, loan fraud, securities fraud, and
money laundering, unsuccessfully appealed to this court, United States v.
Roberson, 231 F. App’x 700 (9th Cir. 2007), is the subject of a timely motion
under 28 U.S.C. § 2255. The district court denied Rayford Roberson’s request for
FILED
MAR 26 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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an evidentiary hearing on the § 2255 motion, but granted a certificate of
appealability on whether Roberson was entitled to a hearing. We affirm.
We review for abuse of discretion a district court’s denial of an evidentiary
hearing on a § 2255 motion. United States v. Rodrigues, 347 F.3d 818, 823 (9th
Cir. 2003). The discretion is guided by the statutory command that a prisoner is
entitled to an evidentiary hearing “[u]nless the motion and the files and records of
the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. §
2255(b); see also United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984)
(per curiam).
On appeal, Roberson argues that he was entitled to an evidentiary hearing on
three claims of ineffective assistance of counsel. Those claims are governed by
Strickland v. Washington, under which Roberson must show that his trial counsel’s
performance fell below an objective standard of reasonableness and that Roberson
was prejudiced thereby. 466 U.S. 668, 688, 694 (1984).
1. First, Roberson argues that his trial counsel was ineffective in failing to
call Roger Sato, an attorney at the California DMV. According to his § 2255
motion, Sato would have testified that California law in 1994 required Roberson’s
driver’s license to be issued under the name “Robinson.”

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Though couched as a factual allegation, Roberson’s legal conclusion is
simply incorrect. See Paulsen v. CNF Inc., 559 F.3d 1061, 1071 (9th Cir. 2009).
As it stood in March 1994, the unambiguous plain language of California Vehicle
Code section 12801.5 (West 1994) required an applicant for a driver’s license to
submit proof that he was in the United States lawfully, but established no
requirements as to the name in which the license was to be issued. See S. 976,
1993-94 Sess. § 2, 1993 Cal. Stat. 4450, 4450-51. No case law or administrative
regulation gives the meaning to section 12801.5 that Roberson ascribes to it.
Because Roberson’s interpretation is wrong as a matter of law, Roger Sato could
not have testified that it was right. See United States v. Scholl, 166 F.3d 964, 973
(9th Cir. 1999). Accordingly, Roberson was not prejudiced by his attorney’s
failure to call Sato to testify, see Strickland, 466 U.S. at 694, and there was no need
for the district court to hold an evidentiary hearing on this issue.
2. Next, Roberson alleges that his trial counsel was ineffective in failing to
present testimony that would have shown that Roberson had a good-faith belief in

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1 As we hold that trial counsel’s decision not to present testimony on
Roberson’s good-faith belief did not prejudice his client, we do not reach the
question whether trial counsel’s behavior fell below prevailing professional norms.
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the value of the Yada software. That good-faith belief would have been a defense
to the securities fraud and money laundering charges.1
That testimony would have been relevant to what representations Roberson
had made about the value of the Yada software, but would have been undercut by
evidence of the other material misrepresentations he had made. Overwhelming
evidence showed that Roberson had falsely claimed that Yada would go public
imminently, that he had retained a law firm and an underwriter to help Yada go
public, and that he had deals with computer manufacturers and retailers. There was
also considerable evidence that Roberson had concealed his history of foreclosures
and bankruptcies and had lied about the amount of Yada’s revenue. The evidence
of these misrepresentations would have remained unaffected by the testimony that
Roberson claims his lawyer should have presented. The record “conclusively
show[s]” that no prejudice resulted from that claimed error. 28 U.S.C. § 2255(b).
The district court, therefore, did not abuse its discretion by denying an evidentiary
hearing on this issue.
3. Finally, Roberson alleges that he alerted his trial counsel to an expert
who would have confirmed a link between Roberson’s Post-Traumatic Stress

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2 Again, we conclude that trial counsel’s decision did not prejudice Roberson,
and hence do not reach the question whether trial counsel’s behavior fell below
prevailing professional norms.
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Disorder (PTSD) and the crimes with which he was charged. Roberson argues that
his trial counsel failed to present the testimony of the expert. In failing to do so,
Roberson contends, he lost the chance to mount an effective diminished-capacity
defense to the charges. 2 After a careful examination of the record, however, we
conclude that the considerable evidence of mens rea to execute his comprehensive
fraudulent schemes would have greatly diminished, if not nullified, any probative
value of expert testimony. Much of this evidence came from Roberson’s own
testimony. The record conclusively shows that in light of very strong evidence of
elaborate schemes of deceit and of Roberson’s consciousness that he was lying to
his victims, there was no “reasonable probability” that trial counsel’s failure to call
an expert witness affected the verdict. Strickland, 466 U.S. at 694; see also
Bucklew v. Luebbers, 436 F.3d 1010, 1018 (8th Cir. 2006); Franklin v. Johnson,
290 F.3d 1223, 1237 (9th Cir. 2002); Zettlemoyer v. Fulcomer, 923 F.2d 284, 297
(3d Cir. 1991). The district court did not abuse its discretion by concluding that no
further evidence about Roberson’s claimed expert was necessary in order to
resolve this claim.

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In sum, it is plain from the face of the record that the jury would have
convicted Roberson on all counts even if Roberson’s trial counsel had not made the
claimed errors. For that reason, the district court did not abuse its discretion in
refusing to hold an evidentiary hearing.
AFFIRMED.

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