NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL LAZCANO,

Petitioner

- Appellant,

v. RON HAYNES,

Respondent

- Appellee. No. 22

- 35315
D.C. No. 2:18

- cv - 00351

- RMP

MEMORANDUM *

Appeal from the United States District Court for the Eastern District of Washington Rosanna Malouf Peterson, District Judge, Presiding

Submitted September 9, 2024 * * Seattle, Washington Before: W. FLETCHER and JOHNSTONE, Circuit Judges, and RAKOFF, ** * District Judge. Daniel Lazcano appeals the district court’s denial of his petition for habeas
relief under 28 U.S.C. § 2254. We review the district court’s denial of the habeas

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. 

# FILED

SEP 12 2024
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

petition de novo. Leeds v. Russell , 75 F.4th 1009, 1016 (9th Cir. 2023). We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and w e affirm.
Lazcano claims that ineffective assistance of his trial counsel caused him to reject the State’s offer of a plea to second

- degree murder and to instead proceed to trial, after which he was convicted of first

- degree murder. Lazcano did not raise
this claim in state

- court proceedings and relies largely on evidence presented for
the first time in federal court

. With narrow exceptions inapplicable here , 28 U.S.C. § 2254(e)(2) provides
that if a habeas petitioner “ has failed to develop the factual basis of a claim in State court proceedings, the [federal] court shall not hold an evidentiary hearing on the
claim ” and can consider only evidence in the state

- court record to assess its merits. 28 U.S.C. § 2254(e)(2); Shinn v. Ramirez , 596 U.S. 366 , 371 , 384 (2022)

. Lazcano
attributes the failure to raise his claim of ineffective assistance of trial counsel in state proceedi ngs to the ineffective assistance of his postconviction counsel

. Even
if Lazcano could establish ineffective assistance of postconviction counsel to excuse his procedural default of the claim, see Martine z v. Ryan , 566 U.S. 1 , 10 (2012) , § 2254(e)(2) still limits our assessment of the claim itself to the existing

state

- court record, see Shinn , 596 U.S. at 382

. Thus, w e cannot consider Lazcano’s evidence, presented for the first time in federal court, that he was willing to plead
to second

- degree murder and would have accepted the State’s offer but for trial3

counsel’s advice. Because the state

- court record alone does not establish “a reasonable probability he and the trial court would have accepted the guilty plea,” Lafler v. Cooper , 566 U.S. 156, 174 (2012) , the claim necessarily fails , and the district court did not err in denying relief

. See 28 U.S.C. § 2254(b)(2) ( permitting a
federal court t o deny a habeas petition “ on the merits , notwithstanding the failure
of the applicant to exhaust ” state remedies) ; McLaughlin v. Oliver , 95 F.4th 1239, 1251 (9th Cir. 2024) (affirming the denial of a habeas petition where the
ineffective assistance of trial counsel claim , based on only the state

- court record under § 2254(e)(2), failed on the merits)

. Nor is remand for an evidentiary hearing warranted where any new evidence could not be considered under § 2254(e)(2).
See Shinn , 596 U.S. at 389

– 9 0

. AFFIRMED.