Opinion
No. 13-16760
07-22-2014
EARL JOSEPH, Petitioner - Appellant, v. UNITED STATES OF AMERICA, Respondent - Appellee.
NOT FOR PUBLICATION
D.C. Nos. 5:08-cv-04607-RMW 00-cr-20217-RMW MEMORANDUM Appeal rrom the United States District Court for the Northern District of California Ronald M. Whyte, District Judge, Presiding Before: GOODWIN, CANBY, and CALLAHAN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Federal prisoner Earl Joseph appeals pro se from the district court's judgment denying his 28 U.S.C. § 2255 motion. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.
Joseph contends that he was entitled to an evidentiary hearing on his claim that his convictions are based on perjured testimony. We review the district court's denial of an evidentiary hearing for abuse of discretion, see United States v. Rodrigues, 347 F.3d 818, 823 (9th Cir. 2003), and its factual findings for clear error, see United States v. Zuno-Arce, 339 F.3d 886, 888 (9th Cir. 2003). The district court properly denied Joseph's claim without an evidentiary hearing because the record shows that the district court did not clearly err in any of its factual findings and the record was sufficiently developed for the court to conclude that the claim lacked merit. See United States v. Mejia-Mesa, 153 F.3d 925, 931 (9th Cir. 1998) (no evidentiary hearing is required if, in light of the record, the movant's allegations are "palpably incredible or patently frivolous").
We construe Joseph's additional arguments as a motion to expand the certificate of appealability. So construed, the motion is denied. See 9th Cir. R. 22-1(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam).
AFFIRMED.