United States v. Ayodele Oluwole Popoola

Defendant-appellant Ayodele Popoola appeals pro se the district court’s order denying his motion to vacate his sentence pursuant to 28 U.S.C. § 2255 for bank fraud, 18 U.S.C. § 1344 , and unauthorized use of an automated teller machine card, 18 U.S.C. § 1029 (a)(2).

Review of the district court’s denial of a 28 U.S.C. § 2255 motion is de novo. United States v. Birtle, 792 F.2d 846, 847 (9th Cir.1986). We may affirm the district court if Popoola’s allegations, viewed against the record, either fail to state a claim for relief or are “so palpably incredible or patently frivolous as to warrant summary dismissal.” Marrow v. United States, 772 F.2d 525, 526 (9th Cir.1985) (citation omitted). Petitioner must make “specific factual allegations which, if true, would entitle him to relief.” Baumann v. United States, 692 F.2d 565, 571 (9th Cir.1982). An evidentiary hearing “is mandatory whenever the record does not affirmatively manifest the factual or legal invalidity of the petitioner’s claims.” Id.

Popoola contends, and the government concedes, the district court erred by failing to comply with Fed.R.Crim.P. 32(a)(1)(A) which requires the court to “determine that the defendant and his…