Unpublished Disposition, 863 F.2d 887 (9th Cir. 1984)

UNITED STATES of America, Plaintiff-Appellee,v.Sultan MUHAMMAD, Defendant-Appellant.

No. 86-4396.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 4, 1988.Decided Nov. 17, 1988.

Before ALARCON and BEEZER, Circuit Judges, and LELAND C. NIELSEN^*  District Judge.

MEMORANDUM^** 

Defendant-Appellant Sultan Muhammad (Muhammad) appeals the denial, without an evidentiary hearing, of his pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Because the record does not conclusively show that Muhammad is entitled to no relief, the district court erred in denying Muhammad's motion without ordering an evidentiary hearing. We remand with instructions that the court hold an evidentiary hearing.

* By indictment filed November 2, 1983, Muhammad was charged with three counts of bank robbery in violation of 18 U.S.C. § 2113(a). On December 13, 1983, pursuant to a plea agreement, Muhammad pleaded guilty to one count of bank robbery. On February 10, 1984, he was sentenced to twelve years in prison and was ordered to pay restitution to the three banks named as victims in the indictment.

The presentence report prepared by the Parole Commission and submitted to the district court prior to sentencing stated that the FBI believed Muhammad committed a total of seven robberies. In his Sec. 2255 motion, Muhammad asserted that the presentence report was inaccurate and that he had had no opportunity to alert the court to the inaccuracy because the report was not disclosed to Muhammad before he was sentenced. Muhammad's motion was reviewed by a magistrate, who recommended summary denial. The district court adopted the magistrate's recommendation.

II

Section 2255 requires that the district court hold an evidentiary hearing " [u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255 (1982); see Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982) (" [A] hearing is mandatory whenever the record does not affirmatively manifest the factual or legal invalidity of the petitioner's claims."). We have construed this section to require a hearing unless the prisoner's allegations, "when viewed against the record, do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984), cert. denied, 470 U.S. 1058 (1985).

Muhammad's motion alleges that he was not provided with a copy of the presentence report prior to sentencing, that the report was based on erroneous information, and that he was denied effective assistance of counsel when his counsel failed to review and discuss the report with him.

With certain exceptions not relevant here, a criminal defendant is entitled to read and comment on the report of the presentence investigation. Fed. R. Crim. P. 32(c) (3) (A). Disclosure of the report to defense counsel alone is insufficient; the defendant himself must be given an opportunity to read and comment on the report. Id.; see id. advisory committee's note, 1983 amendment (" [D]isclosure is now provided to both defendant and his counsel....").

Although the record shows that Muhammad's counsel read the presentence report prior to sentencing, the record does not conclusively show that the report was disclosed to Muhammad himself prior to sentencing. The district court's apparent assumption that counsel disclosed the report to his client is not supported by "the files and records of the case" and is, therefore, an insufficient basis for summarily rejecting Muhammad's specific allegation to the contrary. Nor does the fact that Muhammad obtained a copy of the report some time after sentencing justify summary rejection of his claim. He was entitled to read and comment on the report before sentencing.

Because Muhammad alleges facts amounting to a denial of a right guaranteed to him by the Federal Rules of Criminal Procedure, and because the files and records do not conclusively belie his allegations, Muhammad was entitled to an evidentiary hearing for the purpose of determining the veracity of his claim. Accordingly, we remand this matter with instructions that the district court hold an evidentiary hearing to determine the veracity of Muhammad's claim that the presentence report was not disclosed to him prior to sentencing.

Reversed and Remanded.