United States of America, Plaintiff-appellee, v. Derna Wong Wylde, A/k/a Derna Wong, Defendant-appellant, 141 F.3d 1182 (9th Cir. 1998)

MEMORANDUM^* 

Derna Wong Wylde, a federal prisoner, appeals pro se from the district court's denial of her 28 U.S.C. § 2255 motion. We review de novo. See Sanchez v. United States, 50 F.3d 1448, 1451-52 (9th Cir. 1995). We have jurisdiction pursuant to 28 U.S.C. § 2255, and we affirm.

Wylde first contends that her counsel was ineffective for failing to present mitigating evidence at sentencing, including medical and psychological evidence. This contention lacks merit because Wylde was not prejudiced by her counsel's failure to submit additional evidence as the district court assumed that all of Wylde's allegations about her psychological history were true. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (stating that ineffective assistance of counsel claims may be disposed of based on lack of sufficient prejudice without examining performance prong).

Wylde next contends that the government engaged in prosecutorial misconduct by submitting to the court a false victim impact statement. There is no evidence that the statement was false.¹ 

Wylde finally contends that the district judge engaged in judicial misconduct based on the judge's comments at sentencing and the denial of Wylde's post-sentencing motion for production of documents. We disagree because there is no evidence that the judge's conduct was clearly prejudicial to Wylde's rights. See United States v. Bennett, 702 F.2d 833, 836 (9th Cir. 1983).

Wylde's motion to expand the record on appeal is denied. Wylde's motion for expedited appeal or, alternatively, for release pending appeal is denied.

AFFIRMED.