Robert Robinson v. United States , 510 F. App'x 619 ( 2013 )

FILED
NOT FOR PUBLICATION FEB 28 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-55934
Plaintiff - Appellee, D.C. Nos. 2:08-cv-05267-WDK
2:06-cr-00216-WDK-1
v.
ROBERT ROBINSON, AKA Bob Cool, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
William D. Keller, Senior District Judge, Presiding
Submitted February 8, 2013 **
Pasadena, California
Before: O’SCANNLAIN, TROTT, and CLIFTON, Circuit Judges.
Robert Robinson timely raises five challenges to the denial of his § 2255
motion by the district court. We have jurisdiction under 28 U.S.C. §§ 1291 and
2253, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Because Robinson’s original appellate counsel decided not to challenge the
use of the extrapolation method or the preponderance of the evidence standard on
direct appeal, his first two claims have been procedurally defaulted. See United
States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993). Robinson does not attempt
to demonstrate cause and prejudice to excuse this default, as he must. United
States v. Frady, 456 U.S. 152, 166-67 (1982). Therefore, we reject his first two
challenges.
Robinson was not denied his right to effective assistance of counsel at his
sentencing or on appeal. The legal arguments he desired his attorneys to make had
no reasonable likelihood of success. This court has approved of the extrapolation
method, United States v. Lopes-Montes, 165 F.3d 730, 732 (9th Cir. 1999), and
Robinson’s arguments do not cast doubt on its validity. Furthermore, the
preponderance of the evidence standard was the correct standard to apply at his
sentencing. United States v. Harrison-Philpot, 978 F.2d 1520, 1523-24 (9th Cir.
1992). Therefore, Robinson’s attorneys were not ineffective, and he was not
prejudiced by their performance. See Miller v. Keeney, 882 F.2d 1428, 1435 (9th
Cir. 1989).
Robinson’s inability to pay his trial counsel created only the potential for a
conflict of interest. Williams v. Calderon, 52 F.3d 1465, 1473 (9th Cir. 1995). As
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such, he must show that his attorney’s performance was objectively unreasonable
and that he was prejudiced as a result. Bonin v. Calderon, 59 F.3d 815, 827 (9th
Cir. 1995). Robinson cannot demonstrate prejudice in the face of the
overwhelming evidence of his guilt and the reduced sentence he received.
AFFIRMED.
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