Opinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the Northern District of California, Thelton E. Henderson, District Judge, Presiding. D.C. Nos. CV-02-01913-TEH, CR-93-00596-TEH.
Laurel Beeler, USSF--Office of the U.S. Attorney, San Francisco, CA, for Plaintiff-Appellee.
Albert J. Kutchins, Esq., Berkeley, CA, for Defendant-Appellant.
Before: CANBY, KOZINSKI and PAEZ, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Anthony Shomorin appeals the district court's order denying his 28 U.S.C. § 2255 motion. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Shomorin is entitled to an evidentiary hearing on his § 2255 claims if he makes
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"specific factual allegations that, if true, state a claim on which relief could be granted." United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir.2003). We review the district court's denial of an evidentiary hearing for abuse of discretion. Id.
Here, Shomorin contends that the district court failed to respond to a jury note seeking clarification of the "and means or" jury instruction. Even if a note was sent to the court and the court failed to respond, we conclude that any error was harmless because those events did not have a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (citation omitted). Accordingly, Shomorin does not state a claim on which relief could be granted, and he is therefore not entitled to an evidentiary hearing. See Leonti, 326 F.3d at 1116.
AFFIRMED.