     Case: 11-30847     Document: 00512049952         Page: 1     Date Filed: 11/09/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         November 9, 2012

                                       No. 11-30847                        Lyle W. Cayce
                                                                                Clerk

BILLY RAY ROBINSON,

                                                  Petitioner - Appellant
v.

STEVE RADER; STATE OF LOUISIANA,

                                                  Respondents - Appellees



                  Appeals from the United States District Court
                      for the Western District of Louisiana
                            USDC No. 1:11-CV-00096


Before WIENER, CLEMENT and PRADO, Circuit Judges.
PER CURIAM:*
        Billy Ray Robinson appeals the district court’s denial of his 28 U.S.C.
§ 2254 petition for a writ of habeas corpus. We AFFIRM.
                           FACTS AND PROCEEDINGS
        Robinson is currently incarcerated after having been convicted of a bank
robbery that was committed by a man in Jena, Louisiana, at approximately
12:15 p.m. on July 23, 2003. Bank tellers described the robber as wearing a
stocking over most of his face and as having distinctive white beads at the end

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
  Case: 11-30847    Document: 00512049952     Page: 2   Date Filed: 11/09/2012



                                 No. 11-30847

of braids in his hair. Some of the money stolen by the robber was “bait money”
consisting of $20 bills whose serial numbers had been recorded to allow the
authorities to track them in the event of a robbery. The day after the robbery,
Robinson’s brother Eddie was caught at a local Wal-Mart making a purchase
with some of these bait $20 bills. Wal-Mart employees then discovered that
additional bait $20 bills had been used to make a purchase on the day of the
robbery, July 23.
      Eddie was detained and questioned by the police, and a search of his
residence uncovered a Wal-Mart receipt from 1:41 p.m. on July 23 along with
photographs of Eddie and Robinson. Because Robinson’s hairstyle in the picture
resembled that of the robber’s as described by the bank tellers, police began to
consider him as a suspect, and he was eventually arrested and charged with
having committed an armed robbery and having conspired to commit an armed
robbery.
      Eddie testified that he had been at home on July 23 while the robbery was
occurring and that he had received the bait money from Robinson on the day of
the robbery. Eddie’s mother’s boyfriend, with whom Eddie lived, testified in
support of Eddie’s alibi and also testified that he had gone to Wal-Mart with
Robinson on July 23 and that, while there, Robinson had enlarged a photograph.
A Wal-Mart employee testified that she had assisted Robinson with enlarging
a photograph in the early afternoon of July 23, shortly after the robbery
occurred, that Robinson had purchased among other items two photograph
reprints, that Robinson had paid for his purchases with $20 bills, and that she
recalled him specifically because she had a conversation with him at the time
about recognizing him from his job at Popeye’s. She also identified him as
having “white on the ends of” his braided hair.
      After hearing the evidence, a jury found Robinson guilty, and he was
sentenced to 40 years’ hard labor without benefit of probation, parole, or

                                       2
   Case: 11-30847    Document: 00512049952      Page: 3   Date Filed: 11/09/2012



                                  No. 11-30847

suspension of sentence. Robinson appealed his conviction and sentence, arguing
that the evidence was insufficient to support his conviction and that the sentence
imposed was excessive, but the Court of Appeal of Louisiana affirmed the trial
court’s judgment. State v. Robinson, 918 So.2d 1151, 1157 (La. Ct. App. 2005).
Robinson then filed a motion for post-conviction relief with his trial court,
alleging ineffective assistance of counsel on the ground that his counsel had not
properly cross-examined Eddie. The trial court denied the motion, finding that
any additional testimony that Robinson’s attorney could have elicited would
have been unhelpful to his case and holding that Robinson’s attorney was
“effective in his representation and well within the ambit of reasonable trial
strategy.”
       On January 4, 2011, Robinson, proceeding pro se, filed the instant 28
U.S.C. § 2254 petition for a writ of habeas corpus, raising three grounds for
relief: (1) that his constitutional rights were violated when the State allowed
Eddie to testify falsely that he had not made an agreement with the State to
testify in return for the State’s promise to drop charges against him; (2) that his
counsel had provided ineffective assistance in that he failed to cross-examine
Eddie properly and that he failed to subpoena a Wal-Mart employee to testify as
to Eddie’s hairstyle, which he alleged matched that of the robber; and (3) that
the evidence presented at trial was insufficient to support his conviction.
      The district court denied and dismissed Robinson’s petition, adopting the
magistrate judge’s report and recommendation, which held: (1) that Robinson
had failed to show that Eddie’s false testimony was material; (2) that Robinson
had failed to show actual prejudice in his counsel’s failure to cross-examine
Eddie further and that he had failed to show that the Wal-Mart employee’s
testimony would have been favorable or material; and (3) that, viewing the
evidence in the light most favorable to the verdict, Robinson’s conviction was
supported by sufficient evidence. Additionally, in its order adopting the report

                                        3
   Case: 11-30847    Document: 00512049952       Page: 4   Date Filed: 11/09/2012



                                   No. 11-30847

and recommendation, the district court noted approvingly the findings in the
state trial court’s ruling on Robinson’s motion for post-conviction relief.
Robinson then filed a motion for a certificate of appealability, which the district
court denied. Robinson timely appealed, moving this court for a certificate of
appealability, which we granted in part with respect to his evidentiary
insufficiency claim only.
                            STANDARD OF REVIEW
      In considering an appeal from a district court’s denial of a petition for a
writ of habeas corpus, “we review that court’s findings of fact for clear error and
its conclusions of law de novo.” Rabe v. Thaler, 649 F.3d 305, 308 (5th Cir.
2011). “Under section 2254, habeas relief ‘on a claim of insufficient evidence is
appropriate only if it is found that upon the record evidence adduced at trial no
rational trier of fact could have found proof of guilt beyond a reasonable doubt.’”
Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir. 2005) (quoting West v. Johnson,
92 F.3d 1385, 1393 (5th Cir. 1996)). “[A] federal habeas corpus court faced with
a record . . . that supports conflicting inferences must presume . . . that the trier
of fact resolved any such conflicts in favor of the prosecution, and must defer to
that resolution.” Jackson v. Virginia, 443 U.S. 307, 326 (1979)
                                  DISCUSSION
      Robinson argues that no reasonable jury could have found him guilty
based on the evidence presented at trial. We disagree. Considering the evidence
in the light most favorable to the verdict, a reasonable jury could have concluded
that Robinson’s hair style as witnessed at Wal-Mart on the day of the robbery
was similar to or the same as the hair style of the bank robber; that Robinson
gave bait money stolen in the robbery to Eddie on the day of the robbery; that
Robinson made a purchase at Wal-Mart on the same day that both the robbery
occurred and bait money first appeared at Wal-Mart; and that Robinson’s
purchase at Wal-Mart had been made using the same denomination currency as

                                         4
   Case: 11-30847   Document: 00512049952    Page: 5   Date Filed: 11/09/2012



                                No. 11-30847

the bait money. While “[t]he evidence against [Robinson] is not overwhelming
. . . we believe it sufficient when assessed under the relevant standard of
review.” United States v. Whitmire, 595 F.2d 1303, 1316 (5th Cir. 1979).
Therefore, Robinson’s evidentiary insufficiency claim does not entitle him to
habeas relief.
                              CONCLUSION
      For the foregoing reasons, we AFFIRM the judgment of the district court.




                                      5
