NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 21 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DENA R. LINTON-HELMS, No. 21-35172

Petitioner-Appellant, D.C. No. 3:19-cv-00877-SI

v.

MEMORANDUM*

PAULA J. MEYERS, Superintendent, Coffee Creek Correctional Facility,

Respondent-Appellee.

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding

Argued and Submitted March 7, 2022 Portland, Oregon

Before: GRABER and VANDYKE, Circuit Judges, and REISS,** District Judge.

Petitioner Dena Linton-Helms appeals the district court’s dismissal of her

ineffective assistance of counsel claim as procedurally defaulted in its denial of her

habeas petition under 28 U.S.C. § 2254. We have jurisdiction under

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Christina Reiss, United States District Judge for the District of Vermont, sitting by designation. 28 U.S.C. §§ 1291 and 2253. We review the district court’s denial of habeas relief

de novo, Dyer v. Hornbeck, 706 F.3d 1134, 1137 (9th Cir. 2013), and review for

abuse of discretion the denial of an evidentiary hearing, Runningeagle v. Ryan, 825

F.3d 970, 990 (9th Cir. 2016).

After briefing and oral argument in this case, the Supreme Court decided

Shinn v. Ramirez, 142 S. Ct. 1718 (2022), which the parties addressed in

supplemental briefing. The parties dispute whether the government has waived any

objection to the new evidence that was submitted before the federal district court.

But it is unnecessary for us to resolve that dispute because, even assuming without

deciding that any objection to the new evidence in this case has been waived,

Petitioner still does not prevail.

The parties, and we, agree that Petitioner’s ineffective assistance of trial

counsel claim (for inadequate communication during plea negotiations) is

procedurally defaulted because she failed to raise it on state collateral review.

Accordingly, we may not consider the defaulted claim unless Petitioner can satisfy

the “narrow exception” announced in Martinez by demonstrating cause to excuse

the default and actual prejudice from the alleged error. See Coleman v. Thompson,

501 U.S. 722, 750 (1991); Martinez v. Ryan, 566 U.S. 1, 9–10 (2012).

To establish cause, Petitioner must demonstrate that her post-conviction relief

counsel “was ineffective under Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2 2052, 80 L.Ed. 674 (1984).” Ramirez v. Ryan, 937 F.3d 1230, 1241 (9th Cir. 2019).

In turn, Strickland requires a showing of both deficient performance and prejudice.

Strickland, 466 U.S. at 688.

On the existing record that we may consider on the merits under Shinn, 142

S. Ct. at 1734, which is limited to the state-court record, Petitioner failed to satisfy

either prong of Strickland because the evidence, even viewed in her favor, is unclear

and conflicting. Thus, Petitioner has not carried her burden.

Even if additional evidence in Petitioner’s favor were to come to light at an

evidentiary hearing, under Shinn the district court could not grant relief based on any

such additional evidence. Accordingly, the district court did not abuse its discretion

by denying an evidentiary hearing.

AFFIRMED.

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