                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 15 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JOHN FRANKLIN KNIGHT,                            No. 08-35905

              Petitioner - Appellant,            D.C. No. 6:06-cv-00345-TC

  v.
                                                 MEMORANDUM *
BRIAN BELLEQUE,

              Respondent - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael R. Hogan, District Judge, Presiding

                              Submitted June 8, 2010 **
                                 Portland, Oregon

Before: FERNANDEZ, McKEOWN, and PAEZ, Circuit Judges.

       John Franklin Knight appeals from the district court’s denial of his 28

U.S.C. § 2254 habeas corpus petition challenging the 630-month sentence imposed

following his guilty plea to nine counts of first-degree robbery. Knight alleges that


        *
             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).
his trial counsel was constitutionally ineffective for failing to inform him of a plea

offer under which he would have received a 270-month sentence. The Anti-

Terrorism and Effective Death Penalty Act (“AEDPA”) applies to Knight’s claim,

and we have jurisdiction under 28 U.S.C. § 2253. We review de novo the district

court’s denial of the petition, Gonzalez v. Brown, 585 F.3d 1202, 1206 (9th Cir.

2009), and we affirm.

      Although failing to communicate a plea offer would likely constitute

ineffective assistance of counsel, see Nunes v. Mueller, 350 F.3d 1045, 1056 (9th

Cir. 2003), here the state court reasonably determined that Knight’s trial counsel

had in fact informed Knight of the plea offer. Trial counsel attested that it was his

“invariable practice” to communicate plea offers to clients, and it is undisputed that

Knight was present at a pre-trial hearing at which the prosecution confirmed that

an offer was “on the table.” Indeed, the only evidence that Knight’s counsel had

not informed him of the offer was Knight’s own testimony. Because the state court

thus did not base its denial of Knight’s ineffective assistance of counsel claim on

an “unreasonable determination of the facts in light of the evidence presented in

the State court proceeding,” we affirm the denial of habeas relief on this claim. See

28 U.S.C. § 2254(d)(2).




                                           2
      Further, the district court did not err in refusing to allow Knight to expand

the record to include new evidence in support of his claim. Contrary to Knight’s

contention, § 2254(e)(2) limits a district court’s discretion to consider new

evidence unless the petitioner was diligent in developing the facts before the state

court or other exceptions apply. See Cooper-Smith v. Palmateer, 397 F.3d 1236,

1241 (9th Cir. 2005). Knight did not exercise diligence in the state court post-

conviction proceeding by relying on his trial counsel’s testimony undercutting his

claim, and he does not contend that any other exception to § 2254(e)(2)’s bar on

consideration of new evidence applies.

      AFFIRMED.




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