                                                                            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                             NOT FOR PUBLICATION                            SEP 30 2014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.




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