UNITED STATES of America, Plaintiff-Appellee, v. Robert John COLLINS, Defendant-Appellant, 163 F. App'x 582

MEMORANDUM 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. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9 th Cir. R. 36-3.