UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-40812
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAUL MONTES,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(C-92-CR-172-1)
_________________________________________________________________
September 25, 1996
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Raul Montes, #61361-079, appeals the dismissal of his motion
to vacate, set aside, or correct his sentence under 28 U.S.C. §
2255. Montes’ contention that it was improper to refer to the §
2255 motion to the magistrate judge for findings of fact and a
recommendation is without merit. His assertion that the district
court’s summary denial of his motion violated the notice
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
requirements of FED. R. CIV. P. 56 is also without merit, because
Rule 8(a) of the Rules Governing Section 2255 Proceedings provide
the applicable procedure for summarily dismissing his § 2255
motion.
Montes’ assertion that he received ineffective assistance of
trial counsel prior to his guilty plea and during sentencing is
without merit. See Kimmelman v. Morrison, 477 U.S. 365, 375
(1986). And, the district court did not err by failing to conduct
an evidentiary hearing, because Montes’ motion and the record show
conclusively that he is not entitled to relief. See United States
v. Drummond, 910 F.2d 284, 285 (5th Cir. 1990), cert. denied, 498
U.S. 1104 (1991).
Accordingly, Montes’ motion for appointment of counsel is
DENIED, and the judgment is
AFFIRMED.
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