                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAR 26 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 09-15474

             Plaintiff - Appellee,               D.C. Nos. 2:07-cv-02608-WBS
                                                           2:02-cr-00364-WBS-1
  v.

RAYFORD ROBERSON,                                MEMORANDUM *

             Defendant - Appellant.


                    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



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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.”




                                          2
      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




                                           3
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

      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.

                                          4
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.




      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.

                                           5
      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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