Michael Gallegos v. Charles L. Ryan
2016 U.S. App. LEXIS 6488
9th Cir.2016Background
- In 1990 Michael Gallegos (age 18) confessed to and later testified about the anal rape and death of eight-year-old Kendall Wishon; DNA and a fingerprint linked him to the crime. He and an accomplice (Smallwood) participated in concealment; charges against Smallwood were later dismissed.
- Gallegos was convicted by an Arizona jury of first-degree murder and sexual conduct with a minor and sentenced to death after two sentencing hearings; state courts affirmed the conviction and sentence.
- Defense trial counsel, Greg Clark, conceded involvement but pursued a strategy aimed at avoiding premeditation and, separately, argued (via pre-verdict Rule 20 motions) a technical defense that the sexual assault occurred after death so as to negate the predicate felony for felony murder. No defense medical expert contradicted the State’s medical examiner (Dr. Bolduc).
- Gallegos pursued state post-conviction relief alleging ineffective assistance of counsel (guilt and penalty phases); the state court denied relief after an evidentiary hearing. He then filed a federal habeas petition; the district court denied relief and granted a COA only on sentencing-strategy claims.
- The Ninth Circuit reviewed under AEDPA deference and Strickland’s ineffective-assistance standard, affirmed most claims (finding state courts’ rulings not objectively unreasonable), but granted partial remand to allow the district court to consider supplementing the habeas petition with a newly raised Brady claim based on newly discovered evidence about the confession. The panel retained jurisdiction.
Issues
| Issue | Plaintiff's Argument (Gallegos) | Defendant's Argument (State) | Held |
|---|---|---|---|
| 1. Ineffective assistance — guilt-phase strategy (conceding guilt, failing to press coherent lesser-offense theory) | Clark conceded guilt and failed to pursue a viable lesser-offense theory to avoid first-degree/felony murder. | Given overwhelming evidence, conceding culpability was reasonable to preserve credibility and pursue the best available strategy. | State court reasonably applied Strickland; counsel’s strategy was within wide range of reasonable choices; no prejudice shown under AEDPA. |
| 2. Ineffective assistance — investigation/preparation (medical expert, cross-exam of Dr. Bolduc) | Counsel failed to obtain/rely on an expert to rebut the medical examiner and inadequately prepared for cross-examining Bolduc. | Counsel consulted experts but could not obtain a contradicting opinion; Bolduc’s testimony remained unrefuted and dispositive. | No prejudice shown; additional investigation would likely not have changed the outcome; state adjudication not unreasonable. |
| 3. Ineffective assistance — penalty phase mitigation investigation | Sentencing counsel failed to develop substantial mitigating evidence (mental health, substance use, background). | Much of the mitigation theory was presented at sentencing; additional material would be cumulative and not likely to change result. | State court reasonably found no reasonable probability of a different sentence; AEDPA deference bars relief. |
| 4. Newly discovered Brady evidence re: confession; timeliness/authority to remand | Gallegos seeks remand to allow district court to consider a Brady claim based on newly discovered evidence undermining confession admissibility. | State argues timeliness and that evidence (or knowledge of detective misconduct) was publicly available earlier. | Panel granted limited remand: district court to consider supplementing petition with Brady claim and may hold evidentiary hearing on timeliness under 28 U.S.C. § 2244(d)(1)(D); panel retained jurisdiction. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective assistance standard: deficiency and prejudice)
- Harrington v. Richter, 562 U.S. 86 (2011) (AEDPA deference: state-court rulings must be objectively unreasonable to grant habeas relief)
- Cullen v. Pinholster, 563 U.S. 170 (2011) (limits on federal review under AEDPA and deference to trial counsel’s strategic choices)
- Lockhart v. Fretwell, 506 U.S. 364 (1993) (no Strickland prejudice if counsel failed to make argument later repudiated as non-meritorious)
- United States v. Cronic, 466 U.S. 648 (1984) (narrow exception presuming prejudice only in limited circumstances)
- Ring v. Arizona, 536 U.S. 584 (2002) (Sixth Amendment jury factfinding for death-eligibility; held not retroactive to cases final on direct review)
- Schriro v. Summerlin, 542 U.S. 348 (2004) (Ring is not retroactive to cases already final on direct review)
- Wiggins v. Smith, 539 U.S. 510 (2003) (prejudice inquiry requires reweighing aggravation against totality of available mitigation)
- Yarborough v. Gentry, 540 U.S. 1 (2003) (strategic choices in closing argument subject to deference)
- Bible v. Ryan, 571 F.3d 860 (9th Cir. 2009) (procedural posture: may affirm on prejudice ground without resolving deficiency)