United States of America v. Roger Dale White

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROGER DALE WHITE,
Defendant-Appellant.
No. 18-16037
D.C. Nos. 2:16-cv-02121-SRB
2:91-cr-00264-SRB-3
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Submitted March 14, 2019**
Before: WALLACE, FARRIS, and TROTT, Circuit Judges.
Federal prisoner Roger Dale White appeals from the district court’s
judgment denying his 28 U.S.C. § 2255 habeas motion. We have jurisdiction under
28 U.S.C. § 22531, and we affirm.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1 The district court issued a general certificate of appeal (“COA”) without
identifying the specific issues certified for appeal. Consistent with Slack v.
FILED
MAR 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 18-16037
At White’s original trial arising from the fatal beating of a 92-year old
victim, a Federal Bureau of Investigation Laboratory hair examiner provided
testimony, portions of which have since been discredited as exceeding the limits of
science. In particular, the hair examiner improperly testified that she could
determine that certain hairs found on a board at the crime scene originated from the
victim’s head. On appeal, White alleges that he is entitled to resentencing because
this erroneous testimony swayed the sentencing judge into believing that White
had used the board to beat the victim, and thus deserved a life sentence instead of
the 540-month sentence that another participant in the crime received.
Reviewing de novo, United States v. Reves, 774 F.3d 562, 564 (9th Cir.
2014), we agree with the district court that the admission of this improper
testimony was harmless error, see Brecht v. Abrahamson, 507 U.S. 619, 637-38
(1993). Even apart from the discredited portions of the hair examiner’s testimony,
a great deal of evidence at trial indicated the hairs on the board likely originated
from the victim. Given the limited nature of the examiner’s testimony and the
other evidence in the record, the erroneous testimony would have had no impact on
the sentencing judge’s conclusions regarding White’s participation in beating the
McDaniel, 529 U.S. 473, 482-484 (2000), we treat White’s notice of appeal as an
application for a COA as to the issues raised therein. We conclude that White has
made the requisite “substantial showing of the denial of a constitutional right,” 28
U.S.C. § 2253(c)(2), so we grant a COA and exercise jurisdiction over the issues
on appeal. See Schell v. Witek, 218 F.3d 1017, 1021 n.4 (9th Cir. 2000).

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3 18-16037
victim or any finding that White’s role in the overall crime was more aggravated
than that of the co-participant who received a 540-month sentence. Therefore, the
FBI hair examiner’s erroneous testimony did not have a “substantial and injurious
effect or influence” on the judge’s decision to impose a life sentence. Id. at 637.
White also contends that the district court abused its discretion by denying
his § 2255 motion without an evidentiary hearing. Because “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, the district court did not abuse its discretion by declining
to hold an evidentiary hearing in this matter. See also Shah v. United States, 878
F.2d 1156, 1159 (9th Cir. 1989) (“Section 2255 requires only that the district court
give a claim careful consideration and plenary processing, including full
opportunity for presentation of the relevant facts. We entrust the choice of method
to the court’s discretion.” (internal citations and quotations omitted)).
AFFIRMED.

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