Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Walter L. Ayers, USLV--Office of the U.S. Attorney, Las Vegas, NV, for Plaintiff-Appellee.
Lawrence D. Wishart, Esq., Reno, NV, for Defendant-Appellant.
Appeal from the United States District Court for the District of Nevada, David Warner Hagen, District Judge, Presiding. D.C. Nos. CV-98-00114-DWH, CR-95-00035-DWH.
Before: TASHIMA and W. FLETCHER, Circuit Judges, and SHEA, District Judge.
The Honorable Edward F. Shea, United States District Judge for the Eastern District of Washington, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Appellant Robert Collins appeals the district court's dismissal of his 28 U.S.C. § 2255 motion. The district court summarily dismissed Collins's motion without ordering a response from the government or holding an evidentiary hearing.
The district court's decision to grant or deny a federal prisoner's § 2255 motion is reviewed de novo. United States v. Rodrigues, 347 F.3d 818, 823 (9th Cir.2003). Summary dismissal was improper unless Collins's allegations, when viewed against the record, do not state a claim for relief or are palpably incredible or patently frivolous. United States v. Schaflander, 743 F.2d 714, 717 (9th Cir.1984).
We have thoroughly reviewed the record in this case and hold that Collins's claims are either palpably incredible or patently frivolous. There is insufficient evidence in the record to support Collins's allegations of ineffective assistance of counsel, and prosecutorial misconduct. Therefore, the district court did not err in summarily dismissing Collins's § 2255 motion.
AFFIRMED.