Opinion
The 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NOT FOR PUBLICATION.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)
Defendant moved to vacate his sentence, alleging that his counsel was ineffective in failing to challenge imposition of restitution order at sentencing. The United States District Court for the Central District of California, Laughlin E. Waters, J., denied motion. Defendant appealed. The Court of Appeals held that defendant's contention did not involve any claim to a right to be released from custody, and thus was not cognizable on motion to vacate.
Affirmed.
Appeal from the United States District Court for the Central District of California Laughlin E. Waters, District Judge, Presiding.
Before KLEINFELD, McKEOWN and FISHER, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Page 810.
Benjamin Klinger appeals from the district court's denial of his 28 U.S.C. § 2255 petition requesting an amendment of his restitution order. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(d). We review de novo, United States v. Seesing, 234 F.3d 456, 459 (9th Cir.2000), and we affirm. See Marino v. Vasquez, 812 F.2d 499, 508 (9th Cir.1987) (stating that we may affirm on any basis supported by the record).
Klinger contends that his counsel was ineffective for failing to challenge the district court's imposition of his restitution order at sentencing. This contention is not cognizable in a 28 U.S.C. § 2255 petition because it does not involve any claim to a right to be released from custody. United States v. Kramer, 195 F.3d 1129, 1130 (9th Cir.1999) (holding that by its clear terms,§ 2555 is applicable only to prisoners in custody claiming the right to be released).
AFFIRMED.