Grant Balderree v. Matthew Cate , 584 F. App'x 844 ( 2014 )

FILED
NOT FOR PUBLICATION SEP 30 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GRANT HEWITT BALDERREE, No. 13-56619
Petitioner - Appellant, D.C. No. 3:11-cv-02782-LAB
v.
MEMORANDUM**
JEFFREY BEARD,*
Respondent - Appellee.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted September 23, 2014***
Before: W. FLETCHER, RAWLINSON, and CHRISTEN, Circuit Judges.
California state prisoner Grant Hewitt Balderree appeals pro se from the
district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Jeffrey
Beard is substituted for his predecessor, Matthew Cate, as Secretary of the
Department of Corrections and Rehabilitation.
**
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).
jurisdiction under 28 U.S.C. § 2253. We review a district court’s denial of a
habeas corpus petition de novo, see Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir.
2011), and we affirm.
Balderree contends that his trial counsel was ineffective for failing to
communicate with him. The state court concluded that this claim lacked merit
because Balderree did not show a reasonable probability of a different outcome
absent the alleged deficiency of trial counsel. The state court’s rejection of this
claim was not contrary to, or an unreasonable application of, Strickland v.
Washington, 466 U.S. 668 (1984), nor based on an unreasonable determination of
facts in light of the evidence presented. See 28 U.S.C. § 2254(d). Moreover,
because any new evidence could not be considered in federal habeas proceedings,
the district court properly adjudicated Balderree’s claim without conducting an
evidentiary hearing. See Gulbrandson v. Ryan, 738 F.3d 976, 993-94 & n.6 (9th
Cir. 2013), cert. denied, 134 S. Ct. 2823 (2014).
We construe Balderree’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 13-56619