Earl Joseph v. United States

FILED
NOT FOR PUBLICATION JUL 28 2014

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

EARL JOSEPH, No. 13-16760

Petitioner - Appellant, D.C. Nos. 5:08-cv-04607-RMW
00-cr-20217-RMW
v.

UNITED STATES OF AMERICA, MEMORANDUM*

Respondent - Appellee.

Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, District Judge, Presiding

Submitted July 22, 2014**

Before: GOODWIN, CANBY, and CALLAHAN, Circuit Judges.

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

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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.

2 13-16760