                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         OCT 22 2003
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 02-7048
                                               (Eastern District of Oklahoma)
v.
                                                (D.C. Nos. 01-CV-273-S and
                                                        95-CR-35-S)
HOLLIS EARL ROBERTS,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and MURPHY, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Following a jury trial, Hollis Roberts was convicted of two counts of

abusive sexual contact in violation of 18 U.S.C. § 2244 and one count of


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
aggravated sexual abuse in violation of 18 U.S.C. § 2241(a)(1). 1 The district

court sentenced Roberts to a thirty-six-month term of incarceration on each of the

§ 2244 convictions and a 135-month term of incarceration on the § 2241(a)(1)

conviction. It ordered that all three sentences run concurrently. This court

affirmed the convictions and sentences on direct appeal. See United States v.

Roberts, 185 F.3d 1125 (10th Cir. 1999). Roberts then filed the instant 28 U.S.C.

§ 2255 motion to vacate, correct, or set aside his conviction raising the following

three claims: (1) trial counsel rendered ineffective assistance; (2) his sentence for

aggravated sexual abuse violated Apprendi v. New Jersey, 530 U.S. 466 (2000);

and (3) the district court lacked jurisdiction over the underlying criminal trial

because the crime was not committed in Indian country. The district court denied

Roberts’ § 2255 motion and denied his request for a certificate of appealability

(“COA”). In an order filed on February 6, 2003, this court denied Roberts a COA

as to his Apprendi and jurisdictional claims, 2 granted Roberts a COA as to his

      1
        Roberts was acquitted of one additional count of aggravated sexual abuse,
two additional counts of abusive sexual contact, and one count of sexual abuse in
violation of 18 U.S.C. § 2242. Furthermore, prior to trial, the district court
dismissed an additional count of abusive sexual contact pursuant to the
prosecution’s Fed. R. Crim. P. 48(a) motion.
      2
        In so doing, this court noted that Roberts had not made the requisite
showing for obtaining a COA as to these two claims for the following reasons:
(1) Apprendi is not retroactively applicable to initial habeas petitions, United
States v. Mora, 293 F.3d 1213 (10th Cir. 2002); and (2) because Roberts’
assertions regarding the district court’s jurisdiction were raised and decided on
direct appeal, they cannot be raised in a § 2255 motion, United States v. Prichard,

                                         -2-
claims of ineffective assistance of trial counsel, 3 and ordered the respondent to

file a brief addressing Roberts’ ineffective assistance claims. Upon consideration

of the parties’ briefs and contentions on appeal, this court exercises jurisdiction

pursuant to 28 U.S.C. § 2253 and affirms.

      The facts underlying Roberts’ convictions on charges of abusive sexual

contact and aggravated sexual abuse are set out in this court’s opinion resolving

Roberts’ direct appeal, see Roberts, 185 F.3d at 1128-29, and will not be repeated

here. In the instant habeas petition, Roberts asserts that his trial counsel was

constitutionally ineffective in the following five particulars: (1) counsel failed to

adequately cross-examine Angela Gilbert; (2) counsel failed to object to

government vouching; (3) counsel failed to object to government bolstering; (4)

counsel advised him not to testify; and (5) counsel failed to call him as a witness

at the jurisdictional hearing.

      “The benchmark for judging any claim of ineffectiveness must be whether

counsel’s conduct so undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just result.” Strickland v.

Washington, 466 U.S. 668, 686 (1984). To demonstrate that his counsel’s



875 F.2d 789 (10th Cir. 1989).
      3
       See 28 U.S.C. § 2253(c)(3) (providing that a COA must delineate the
specific issues as to which the movant has made a substantial showing of the
denial of a constitutional right).

                                         -3-
performance was so defective as to require reversal of his convictions, Roberts

must make the following two showings: (1) counsel’s performance was deficient

(i.e., “counsel made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment”); and (2) counsel’s

deficient performance prejudiced his defense (i.e., “counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable”).

Id. at 687.

      To demonstrate that counsel’s performance was deficient, Roberts “must

show that counsel’s representation fell below an objective standard of

reasonableness.” Id. at 688. Our review of counsel’s performance is “highly

deferential” and this court “indulge[s] a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.” Id. at

689. Because it is “all too tempting for a defendant to second-guess counsel’s

assistance after conviction,” this court must make every effort “to eliminate the

distorting effects of hindsight, to reconstruct the circumstances of counsel’s

challenged conduct, and to evaluate the conduct from counsel’s perspective at the

time.” Id. Even if Roberts satisfies Strickland’s performance prong, he is not

entitled to relief unless he can also demonstrate that counsel’s unreasonable

performance “actually had an adverse effect on the defense.” Id. at 693. Roberts

must “show that there is a reasonable probability that, but for counsel’s


                                           -4-
unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694. Accordingly, this court looks to whether “despite the

strong presumption of reliability, the result of the particular proceeding is

unreliable because of a breakdown in the adversarial process that our system

counts on to produce just results.” Id. at 696. It is unnecessary to examine both

Strickland’s performance and prejudice prongs if a defendant makes an

insufficient showing on one of the prongs. Id. at 697.

      With this background in mind, this court can easily resolve two of Roberts’

claims by reference to this court’s opinion on direct appeal. Roberts asserts that

trial counsel unreasonably failed to object to various statements made by the

prosecution during opening and closing arguments. On direct appeal, this court

specifically rejected Robert’s assertion that he was prejudiced by the statements:

“Given the context of the statements, curative instructions, and abundance of

testimonial evidence on which the jury could have based its verdict, we do not

believe that prosecutor’s comments merit reversal of Mr. Roberts’ conviction; at

most, the comments were harmless error.” Roberts, 185 F.3d at 1144.

Accordingly, notwithstanding the arguments in Roberts’ reply brief before this

court relating to trial counsel’s performance, it is clear that Roberts cannot




                                          -5-
demonstrate he was prejudiced by counsel’s failure to object to the prosecutor’s

remarks.

      Similarly, Roberts’ assertion that his trial counsel was ineffective for

failing to call him as an expert witness at the jurisdictional hearing fails in light

of this court’s conclusion on direct appeal that the Choctaw Nation Tribal

Complex “is Indian Country for purposes of the Major Crimes Act, and no

procedural or administrative defect nullifies this status.” Id. at 1137. Other than

the conclusory and empty assertion that he “had reason to know that there were

fatal errors in the method by which the Choctaw Nation’s headquarters in Durant

had been acquired and placed in trust,” an assertion that is clearly belied by the

extensive analysis of the issue in this court’s opinion on direct appeal, Roberts

does not offer anything demonstrating that his counsel’s “failure” to call him at

the jurisdictional hearing was constitutionally deficient representation.

      Roberts’ three remaining claims of ineffective assistance of counsel all

revolve around counsel’s actions with regard to Angela Gilbert. Roberts was

convicted of one count of aggravated sexual abuse of Gilbert and one count of

abusive sexual contact of Gilbert. Roberts asserts that counsel rendered

ineffective assistance by failing to cross-examine Gilbert about the events giving

rise to the charges. Upon review of the record and Roberts’ contentions on

appeal, this court concludes that Roberts has failed to demonstrate either that his


                                           -6-
counsel’s performance was constitutionally ineffective or that he suffered

prejudice as a result of counsel’s decision not to cross-examine Gilbert regarding

the incidents giving rise to the charges. The defense’s theory of the case was that

the prosecution had been deceived by a number of disaffected employees of the

Choctaw Nation of Oklahoma, including Gilbert, who were being used as pawns

by Roberts’ political rivals within the Nation. Counsel’s extensive cross-

examination of Gilbert was entirely consistent with this theory of the defense.

There is an obvious strategic purpose in focusing the cross-examination on these

particular matters: an exclusive focus on Gilbert’s connections with Roberts’

political rivals serves to blunt Gilbert’s rather graphic allegations of sexual abuse.

Roberts’ bare assertion that his counsel was ineffective for failing to cross-

examine Gilbert about the incidents giving rise to the charges is insufficient to

overcome the “strong presumption” that counsel provided constitutionally

effective assistance. Strickland, 466 U.S. at 689; see also United States v.

Snyder, 787 F.2d 1429, 1432 (10th Cir. 1986) (“Counsel’s selection of questions

is a matter of ‘strategic choice,’ as to which he has broad latitude.”).

      Nor has Roberts come forward with sufficient allegations regarding

prejudice to overcome the “strong presumption of reliability” that attaches to his

criminal proceedings. Strickland, 466 U.S. at 696. There is no indication in

either Roberts’ § 2255 motion or his briefs on appeal that cross-examining Gilbert


                                          -7-
about the incidents giving rise to the charges would have adduced any testimony

favorable to Roberts. Absent some indication that Gilbert would have done

anything other than simply repeat her allegations on cross-examination, thereby

further highlighting for the jury the graphic details of the alleged sexual abuse,

we fail to see how Roberts was prejudiced by his counsel’s decision to cross-

examine Gilbert in a manner consistent with the defense’s theory of the case.

        These same considerations lead this court to conclude Roberts has failed to

demonstrate that his trial counsel was ineffective for advising him not to testify

about the incidents giving rise to Gilbert’s allegations and for not objecting to

Gilbert writing out, instead of verbalizing, three graphic phrases Roberts

allegedly said to Gilbert. Both of those decisions are fully consistent with

counsel’s strategy to focus on a theory of the case emphasizing that the

prosecution had been deceived by Gilbert, who was being used as a pawn by

Roberts’ political rivals within the Choctaw Nation. Each of these challenged

decisions is clearly tied to counsel’s strategy to try to keep the jury from focusing

on the graphic allegations of sexual abuse advanced by Gilbert and focus instead

on her asserted ulterior motives. For this reason, Roberts’ ipse dixit assertion that

the only reasonable strategy was to challenge both the political motivations and

the factual accuracy of the Gilbert’s allegations is at odds with the record in this

case.


                                          -8-
      At their base, Roberts’ arguments on appeal seem to assert that because he

was convicted of these crimes, his counsel must have been ineffective. Strickland

mandates, however, that this court be “highly deferential” in its review of

counsel’s performance and “indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance.” 466 U.S. at

689. Because it is “all too tempting for a defendant to second-guess counsel’s

assistance after conviction,” this court must make every effort “to eliminate the

distorting effects of hindsight, to reconstruct the circumstances of counsel’s

challenged conduct, and to evaluate the conduct from counsel’s perspective at the

time.” Id. Although, in hindsight, counsel’s strategy was not completely

successful, the strategy was certainly reasonable when viewed from counsel’s

perspective at the time of trial. Because the record before this court and Roberts’

§ 2255 motion conclusively demonstrate that he is not entitled to relief, Roberts is

not entitled to an evidentiary hearing before the district court. United States v.

Lopez, 100 F.3d 113, 119 (10th Cir. 1996).




                                          -9-
     Upon review of the parties’ briefs and submissions, the order of the district

court denying Roberts’ § 2255 motion is AFFIRMED for those reasons set out

above.

                                     ENTERED FOR THE COURT



                                     Michael R. Murphy
                                     Circuit Judge




                                       -10-
