Gallegos v. Ryan, No. 08-99029 (9th Cir. 2016)
Annotate this CasePetitioner, convicted of first-degree murder and sexual conduct with a minor, appealed the district court's denial of his federal habeas petition based on ineffective assistance of counsel at the guilt and penalty phases of trial. Applying a highly deferential standard under the Antiterrorism and Death Penalty Act, 28 U.S.C. 2254, the court concluded that, given the inherently disturbing nature of the technical theory counsel adopted, for lack of an available alternative, to defend against the felony murder charge, as well as its counter-intuitive nature, it was reasonable to tailor the defense as an argument to the court in the form of a motion for acquittal, and, when the motion was denied and closing arguments remained, not press the theory to the jury. Assuming, without deciding, that counsel’s conduct was at times constitutionally deficient, he did not fail entirely to advocate for petitioner. Therefore, the state court reasonably determined that counsel's conduct did not constitute abandonment, and that Strickland v. Washington applies to the question of prejudice. The court also rejected petitioner's claims that counsel at sentencing was ineffective for failing fully to prepare and present mitigating evidence concerning his mental health and personal history. The court concurrently filed an order with this opinion.
Court Description: Habeas Corpus. The panel, in an opinion, affirmed the district court’s denial of habeas corpus relief on ineffective assistance of counsel claims, and, in an order, remanded the case for consideration of a Brady claim based on newly discovered evidence, in a case in which Arizona state prisoner Michael Gallegos challenges his conviction and death sentence for first-degree murder and sexual conduct with a minor. Given the Antiterrorism and Effective Death Penalty Act’s highly deferential standards, and the extreme difficulty the trial attorney would have had in presenting either a viable guilt phase defense or a stronger penalty presentation, the panel had no choice but to conclude it was not objectively unreasonable for the state court to deny Gallegos’s ineffective assistance of counsel claims. As to Gallegos’s challenge to his lawyer’s basic strategy during the guilt phase—specifically, his decisions to concede guilt and not pursue before the jury a coherent legal theory that could have resulted in a conviction of some offense less than first-degree murder—the panel held that the state court reasonably concluded that counsel’s representation was not constitutionally ineffective and, to the extent it may have been, was not prejudicial under Supreme Court precedent. As to other aspects of the guilt phase representation— specifically, contentions that the lawyer vilified Gallegos and GALLEGOS V. RYAN 3 failed adequately to investigate the technical defense or prepare his cross-examination of a medical examiner—the panel concluded that the state court reasonably determined that Gallegos suffered no prejudice as a result of his lawyer’s purportedly deficient conduct, and affirmed on that ground alone. The panel rejected Gallegos’s claims that counsel at sentencing were ineffective for failing fully to prepare and present mitigating evidence concerning his health and personal history, where any of the evidence that could have been introduced at sentencing would have been cumulative of evidence already presented in detail at the sentencing hearings, and the district court’s application of Strickland was therefore not objectively unreasonable. In the simultaneously-filed order, the panel (1) denied Gallegos’s Motion for Stay and Partial Remand and Reconsideration in Light of Martinez v. Ryan; and (2) granted in part Gallegos’s Motion to Remand to the District Court and Request for Authorization of Federal Habeas Counsel to Appear in State Court Litigation. The panel instructed the district court on remand to consider in the first instance whether to permit Gallegos to supplement his existing petition with his Brady claim based on newly discovered evidence, and wrote that the district court may permit an evidentiary hearing on the issue whether that claim is timely under 28 U.S.C. § 2244(d)(1)(D). Dissenting in part, Judge Berzon would grant the Motion for Stay and Partial Remand for the district court to evaluate whether Gallegos can show cause and prejudice in light of Martinez. Dissenting in part, Judge Callahan would deny the motion to remand based on an alleged Brady claim and would find that the proposed Brady claim is untimely. 4 GALLEGOS V. RYAN
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