Gallegos, et al v. Stewart, et al

Filing 160

ORDER - An evidentiary hearing will be held to determine whether resentencing counsel performed ineffectively under Strickland by failing to present evidence that Gallegos suffered from brain damage. The Court will issue a separate order setting this matter for a scheduling conference. Signed by Senior Judge Neil V Wake on 2/19/20. (DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael Gallegos,

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Petitioner,

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ORDER

v.

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No. CV-01-01909-PHX-NVW

David Shinn, et al.,

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Respondents.

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This case is on remand from the Ninth Circuit Court of Appeals. (Doc. 131.) The

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Court is directed to consider whether Gallegos can demonstrate, pursuant to Martinez v.

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Ryan, 566 U.S. 1 (2012), cause and prejudice to excuse the procedural default of his claim

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that counsel failed to investigate and present mitigating evidence of Gallegos’s organic

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brain damage. (Id.) The issue has been fully briefed, as has Gallegos’s request for

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evidentiary development. (Docs. 152, 154, 155.)

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I.

BACKGROUND

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In 1990, Gallegos raped and killed an eight-year-old girl. He was convicted of first-

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degree murder and sexual conduct with a minor and sentenced to death.1 On direct appeal,

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the Arizona Supreme Court affirmed the convictions but remanded for re-sentencing on

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the murder conviction. State v. Gallegos (Gallegos I), 178 Ariz. 1, 870 P.2d 1097 (1994).

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On remand, the trial judge re-sentenced Gallegos to death on the murder count. The

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The Court discussed the facts of the crime in its order denying Gallegos’s habeas petition.
(Doc. 111 at 2–5.)
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Arizona Supreme Court affirmed. State v. Gallegos (Gallegos II), 185 Ariz. 340, 916 P.2d

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1056 (1996).

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Gallegos filed a petition for post-conviction relief (“PCR”) and a supplemental

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petition in the trial court. The court denied relief on most of the claims but set an

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evidentiary hearing on the claims of ineffective assistance of counsel. Following the

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evidentiary hearing, the court denied those claims on the merits. Gallegos filed a petition

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for review in the Arizona Supreme Court, which denied relief.

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Gallegos filed a habeas petition in this Court in 2001 and an amended petition in
December 2002. (Docs. 1, 74.) The Court denied relief. (Doc. 111.)

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On appeal to the Ninth Circuit, Gallegos raised claims of ineffective assistance of

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counsel at the guilt and sentencing phases of trial. Gallegos v. Ryan, 820 F.3d 1013, 1025

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(9th Cir. 2016). The court rejected the claims that had been raised in appellate briefing,

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but granted Gallegos’s motion to remand for consideration of a Brady claim.2 Id. at 1015–

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16. The court denied Gallegos’s motion for a stay and partial remand in light of Martinez.

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Id. Gallegos moved for rehearing, alleging that he could show cause and prejudice to

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excuse the procedural default of his claim that resentencing counsel failed to present

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mitigating evidence of Gallegos’s brain damage. On November 30, 2016, the Ninth Circuit

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amended its opinion, granted Gallegos’s petition for rehearing, and ordered a limited

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remand of the case to this Court. Gallegos v. Ryan, 842 F.3d 1123 (9th Cir. 2016).

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Pursuant to the Ninth Circuit’s remand order, Gallegos filed a motion requesting a

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stay so that he could pursue his Brady claim in state court and permission to supplement

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his habeas petition with the claim. (Doc. 130.) The Court denied the motion. (Doc. 147.)

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The Court also set a briefing schedule on the remanded Martinez claim. (Id.)

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II.

APPLICABLE LAW

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Federal review is generally not available for a claim that has been procedurally

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defaulted. In such situations, review is barred unless the petitioner can demonstrate cause

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and prejudice or a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S.

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Brady v. Maryland, 373 U.S. 83 (1963).
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722, 750 (1991).

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proceedings does not establish cause for the procedural default of a claim. Id. at 752.

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Coleman also held that ineffective assistance of counsel in PCR

In Martinez, however, the Court announced a new, “narrow exception” to the rule
set out in Coleman. The Court explained that:

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Where, under state law, claims of ineffective assistance of trial counsel must
be raised in an initial-review collateral proceeding, a procedural default will
not bar a federal habeas court from hearing a substantial claim of ineffective
assistance at trial if, in the initial-review collateral proceeding, there was no
counsel or counsel in that proceeding was ineffective.

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566 U.S. at 17; see also Trevino v. Thaler, 569 U.S. 413, 422–23 (2013). In Arizona, claims

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of ineffective assistance of trial counsel must be raised in PCR proceedings.

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Accordingly, under Martinez an Arizona petitioner may establish cause and

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prejudice for the procedural default of an ineffective assistance of trial counsel claim by

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demonstrating that (1) PCR counsel was ineffective and (2) the underlying ineffective

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assistance claim has some merit. See Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012)

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(quoting Martinez, 566 U.S. at 14); Ramirez v. Ryan, 937 F.3d 1230, 1242 (9th Cir. 2019).

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In Ramirez, the Ninth Circuit provided the following summary of the appropriate

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analysis under Martinez:
[T]o establish “cause” under Martinez . . . [a petitioner] must demonstrate
that post-conviction counsel was ineffective under Strickland v. Washington,
466 U.S. 668 (1984). Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014),
overruled on other grounds by McKinney, 813 F.3d at 819. In turn,
Strickland requires demonstrating “that both (a) post-conviction counsel’s
performance was deficient, and (b) there was a reasonable probability that,
absent the deficient performance, the result of the post-conviction
proceedings would have been different.” Id. (citation omitted). Determining
whether there was a reasonable probability that the result of the postconviction proceedings would be different “is necessarily connected to the
strength of the argument that trial counsel’s assistance was ineffective.” Id.
To establish “prejudice” under Martinez’s second prong of the “cause and
prejudice” analysis, [a petitioner] must demonstrate that his underlying
ineffective assistance of trial counsel claim is “substantial.” Id. In Martinez,
the Supreme Court defined substantial to be a “claim that has some merit,”
and explained the procedural default of a claim will not be excused if the
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ineffective assistance of counsel claim “is insubstantial, i.e., it does not have
any merit or [ ] it is wholly without factual support.” Martinez, 566 U.S. at
14–16.

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Ramirez, 937 F.3d at 1241. To determine whether a claim is “substantial” for purposes of
establishing prejudice under Martinez, the court undertakes a “general assessment” of the
merits of the underlying ineffective assistance of trial counsel claim. Id. (citing Cook, 688
F.3d at 610 n.13).
Claims of ineffective assistance of counsel are governed by the principles set forth

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in Strickland v. Washington, 466 U.S. 668 (1984). To prevail under Strickland, a petitioner
must show that counsel’s representation fell below an objective standard of reasonableness
and that the deficiency prejudiced the defense. Id. at 687–88. The inquiry under Strickland
is highly deferential, and “every effort [must] be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time.” Id. at 689; see Wong v.
Belmontes, 558 U.S. 15, 16 (2009) (per curiam); Bobby v. Van Hook, 558 U.S. 4, 7 (2009)
(per curiam).

presumption that, under the circumstances, the challenged action ‘might be considered
sound trial strategy.’” 466 U.S. at 689.
With respect to Strickland’s second prong, a defendant must affirmatively prove

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To satisfy Strickland’s first prong, a defendant must overcome “the

prejudice by “show[ing] that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
“In assessing prejudice, we reweigh the evidence in aggravation against the totality of
available mitigating evidence.” Wiggins v. Smith, 539 U.S. 510, 534 (2003). The “totality
of the available evidence” includes “both that adduced at trial, and the evidence adduced”
in subsequent proceedings. Id. at 536 (quoting Williams v. Taylor, 529 U.S. 362, 397–98
(2000)) (emphasis omitted).
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III.

DISCUSSION

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A.

Background

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1.

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Greg Clark represented Gallegos at his trial and initial sentencing. At the guilt phase

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of trial, Gallegos’s mother testified about his learning disability and alcohol consumption.

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(RT 3/13/91 at 23–32.) Gallegos himself testified that he suffered from a learning

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disability; he also detailed his alcohol consumption on the day of the crimes. (Id. at 34–

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35, 37–41, 42–58, 84–90, 112–16.)

Initial sentencing

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Following Gallegos’s conviction, counsel moved for a “diagnostic evaluation”

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pursuant to Rule 26.5 of the Arizona Rules of Criminal Procedure. (ROA 119.) The court

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granted the motion and appointed Dr. John DiBacco to evaluate Gallegos and determine

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whether, at the time of the crime, his “capacity to appreciate the wrongfulness of his

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conduct or to conform his conduct to requirements of the law was significantly impaired,

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but not so impaired as to constitute a defense to the prosecution.” (ROA 122; see Doc.

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152-7, Ex. 59.) Dr. DiBacco found Gallegos competent but detailed his learning disability,

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substance abuse problems, poor judgment and insight, and impulsivity. (Doc. 152-7, Ex.

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59 at 4–6.) Dr. DiBacco also noted that during his exam Gallegos was experiencing pain

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from an ATV accident.3 (Id. at 2.)

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Counsel prepared a sentencing memorandum and attached pre-dispositional reports

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written by Gallegos’s juvenile probation officer. (ROA 127.)

These reports noted

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Gallegos’s status as a learning-disabled student with poor attendance and poor grades. One

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of the officers wrote that “Mike Gallegos is a young man who apparently has not developed

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the ability to think before he acts” and opined that Gallegos “tends to behave impulsively

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and allows himself to become involved in a situation without considering the

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consequences.” (Id., Ex. at 5.)

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At the sentencing hearing, counsel called Gallegos’s father, mother, brother, and

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sister, all of whom testified that Gallegos was a good kid from a good family and was

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An All Terrain Vehicle, sometimes referred to as an All Terrain Cycle (“ATC”).
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remorseful for his actions. (RT 5/24/91 at 21–30.) Gallegos’s juvenile probation officer

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also testified. (Id. at 10–20.) He expressed his opinion that Gallegos was the least likely

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of his clients to commit this type of crime. (Id. at 16.) He also testified that Gallegos

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tended to act impulsively, and that Gallegos was a follower rather than a leader. (Id. 15,

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19–20.)

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Next, Detectives Michael Chambers and Armando Saldate, Jr., the lead

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investigators in the case, testified that they did not believe the death penalty was

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appropriate for Gallegos. (Id. at 30–41.) Detective Chambers testified that in his view

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Gallegos was “unsophisticated” and “less than his chronological age.” (Id. at 39–40.)

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Finally, Gallegos took the stand, reading a statement that expressed his remorse for

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the victim’s death and attributing his actions to drug and alcohol impairment. (Id. at 42–

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43.)

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Counsel also submitted Dr. DiBacco’s report (id. at 57–58, 65) and letters

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advocating a life sentence rather than the death penalty. Also before the court was the

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presentence investigation report, which included information about Gallegos’s substance

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abuse history and mental health. (ROA 131.) The report also included the comments of

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Dr. J.J. Singer, who counseled Gallegos while he was on juvenile probation. (Id. at 6.) Dr.

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Singer described Gallegos as “definitely a follower and not a leader.” (Id.)

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In its special verdict, the trial court stated that it had considered in mitigation

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Gallegos’s “documented” history of drinking and substance abuse and the fact that

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Gallegos had “a documented learning disability.” (RT 10/24/94 at 184–85.) The Arizona

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Supreme Court likewise noted that Gallegos “presented evidence that he had a history of

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alcohol and drug abuse, as well as a documented learning disability.” Gallegos I, 178 Ariz.

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at 17, 870 P.2d at 1113.

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2.

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The Arizona Supreme Court remanded the case for resentencing, directing the trial

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court to assess Gallegos’s impairment as a potential nonstatutory mitigating circumstance.

Resentencing

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Id. at 23, 870 P.2d at 1119. John Antieau represented Gallegos on appeal and during his

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resentencing proceedings.4

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Prior to the resentencing hearing, counsel sought and the court authorized the

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appointment of mitigation investigator Mary Durand and Dr. C.J. Shaw, an addiction

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specialist. (ROA 154.) Dr. Shaw prepared a report opining, based on information provided

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by Gallegos, that Gallegos’s blood alcohol level at the time of the crimes was 0.2 or higher.

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(ROA 161; see RT 10/24/94 at 142.)

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At the resentencing hearing, counsel presented testimony from Gallegos and his

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family and friends regarding his drug and alcohol use, learning disability, and passive,

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nonviolent personality.

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Gallegos testified that he suffered from a learning disability and was placed in

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special education classes starting in the fourth grade. (RT 10/24/94 at 5–6.) He testified

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that he began drinking alcohol at age twelve or thirteen and began using marijuana in sixth

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or seventh grade and methamphetamine in tenth or eleventh grade. (Id. at 6–7.) Gallegos

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also stated that his conduct deteriorated when Smallwood arrived at his home in Flagstaff.5

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(Id. at 8–9.) He explained that on the day of murder he and Smallwood drank half a bottle

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of scotch, schnapps, and beer in the morning, smoked two joints, and then drank beer

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throughout the afternoon and night. (Id. at 11–12.) He testified that the crimes would not

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have happened if he had not been impaired and Smallwood had not been present. (Id. at

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13.)

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Gallegos’s mother testified that from second grade on he had attended special

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education classes due to his learning disability. (Id. at 54.) She also stated that Gallegos

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had a tendency to take the blame for things other people did. (Id. at 55.)

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Mrs. Gallegos became aware of Gallegos’s drug use when he was in junior high.

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(Id. at 56.) According to her testimony, Smallwood was violent and a bad influence; he

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exerted control over Gallegos and Gallegos followed his lead. (Id. at 58.)

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Antieau passed away in 2000.
George Smallwood, a friend of Gallegos and the victim’s half-brother, was present with
Gallegos during the crimes but was not charged.
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Gallegos’s sister testified that she was aware of his drug and alcohol use in the years

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before the murder. (Id. at 63–64.) She stated that Gallegos was nonviolent and mellow

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when intoxicated. (Id. at 64–65.) She testified that after Smallwood arrived Gallegos’s

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behavior changed; he became more sullen, withdrawn, and hateful, and abandoned his old

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friends in favor of Smallwood. (Id. at 66.)

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Another sister testified that became aware of Gallegos’s drug and alcohol use when

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he was in seventh grade. (Id. at 71.) She too indicated that Gallegos became quiet and

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mellow when drinking. (Id. at 72.) She described Gallegos as a follower. (Id. at 72–73.)

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Smallwood was the leader and Gallegos followed him. (Id. at 74.) She indicated that

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Smallwood had a bad influence on Gallegos, who began to drink more and became

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rebellious and hateful toward his parents. (Id. at 76.)

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Gallegos’s brother-in-law testified that Gallegos began drinking at age 13 or 14.

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(Id. at 83.) He too had observed that Gallegos became mellow under the influence of drugs.

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(Id.)

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Gallegos’s niece testified that he started drinking in junior high. (Id. at 96.) He

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began to drink every day and used marijuana and crystal meth. (Id.) She indicated that

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Gallegos was mellow when drunk. (Id. at 97.) She explained that Gallegos became

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“snobby and rude” when Smallwood arrived. (Id.) She testified that Smallwood was the

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leader and Gallegos the follower. (Id. at 98.)

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Several other friends and acquaintances also testified that they drank and used drugs

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with Gallegos. They testified that Gallegos was mellow and non-combative when under

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the influence. (Id. 87, 117–18, 128, 136.) They also testified that Gallegos was a passive

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follower in his relationship with Smallwood. (Id. at 89, 119, 129–30, 138–39.)

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In addition to these witnesses, counsel again presented the testimony of Detectives

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Saldate and Chambers who opposed the death sentence for Gallegos. Detective Chambers

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testified in support of a life sentence based on his feeling that the killing was accidental;

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he believed Gallegos had been drinking at the time of the crimes. (Id. at 43–45.)

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In rebuttal, the State called Dr. Alexander Don to critique Dr. Shaw’s conclusion

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that Gallegos was intoxicated at the time of the crime. (Id. at 148–54.) The State also

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called the victim’s mother, who testified that she did not observe signs that Gallegos was

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impaired on the night of the murder. (Id. at 161.)

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At the close of the hearing, the court indicated that in making its decision it would

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also consider mitigating evidence from the first sentencing hearing, including the testimony

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of Gallegos’s juvenile probation officer. (Id. at 170.)

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In sentencing Gallegos, the court again rejected impairment as a statutory mitigating

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factor. (Id. at 185.) The court repeated its finding that Gallegos “has a documented

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learning disability. His testimony is that it affects his math and spelling but not his reading

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or understanding. There is no evidence that the defendant is mentally deficient.” (Id.) The

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court found that Gallegos’s impairment and substance abuse history constituted

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nonstatutory mitigating circumstances but that they, together with the other mitigation

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evidence, did not outweigh the aggravating factors. (Id. at 188–90.)

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The Arizona Supreme Court affirmed the trial court’s findings regarding the

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aggravating and mitigating factors, including the mitigating value of Gallegos’s

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impairment at the time of the crimes and his history of substance abuse. Gallegos II, 185

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Ariz. at 347–48, 916 P.2d at 1063–64.

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As Gallegos notes, during the resentencing proceedings, the Arizona Capital

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Representation Project (“the Project”) offered Antieau assistance, which he accepted.

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(Doc. 152-8, Ex. 70.) Project staff discussed the need to present a mitigation case that

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differed from what had been presented at the original sentencing. (Id., Ex. 71.) On August

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2 and 3 of 1994, Melodee Nowatzki, the mitigation specialist for the Project, faxed Antieau

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memoranda from nine witness interviews Project staff had conducted. (Id., Ex. 76.) These

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documents contained information indicating that Gallegos had been injured in ATV

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accidents. (Id.) Antieau did not present this evidence at resentencing.

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3.

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Gallegos was represented by Richard Gierloff during the PCR proceedings. In his

PCR proceedings

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PCR petition, Gierloff raised several ineffective assistance of counsel claims related to the

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guilt phase of Mr. Gallegos’s trial. (Doc. 152-3, Ex. 29.) Gierloff also asserted that trial

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and resentencing counsel performed deficiently during the penalty proceedings by failing

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to conduct an adequate mitigation investigation. This claim, however, consisted solely of

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the following heading:

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VII. Insufficient Mental and Personal History Mitigation Were Conducted
Previously, therefore, Petitioner Received Ineffective Assistance of Counsel
at the Penalty Phase. (No Argument Supplied Because of Time Constraints.)
(Id. at 3.)

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Six months later, Gierloff filed a supplemental petition. (Id., Ex. 30.) He again

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failed to present any legal authority or factual support for his claim alleging ineffective

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assistance of counsel at the penalty phase, asserting instead:

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It is apparent that Petitioner’s mental health history has been insufficiently
explored. . . . The origin, extent and implications of Petitioner’s learning
disability should be fully explored to illuminate, if possible, Petitioner’s
behavior. . . . [Counsel] has been precluded from discovering what further
steps, if any, were taken to explore this area, due to trial counsel’s failure to
produce his case file.
(Id. at 22–23.)
At an evidentiary hearing on Gallegos’s claims of ineffective assistance of counsel,

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Gierloff presented two witnesses: Gallegos and trial counsel Clark.

(RT 21/1/00.)

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Gallegos testified that Antieau did not meet with him or return his calls. (Id. at 83.) Beyond

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that, Gierloff presented no testimony on the issue of ineffective assistance of penalty-phase

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counsel and thus offered no support for his claim that counsel failed to conduct an adequate

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mitigation investigation at either the original sentencing or resentencing. (Id.)

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The PCR court summarily denied all of Gallegos’s claims, stating, with respect to

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the claims of ineffective assistance of counsel at sentencing and resentencing, only that

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“Petitioner’s other claims regarding ineffective assistance of counsel have no merit.” (Doc.

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152-4, Ex. 36 at 3.)

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Gierloff filed a petition for review. (Id., Ex. 37.) He raised a claim of “Ineffective

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Assistance of Counsel at Resentencing,” which stated only that “[t]he death of appellate

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[and resentencing] counsel prior to hearing precluded meaning [sic] inquiry into this area.”

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(Id. at 5.) The Arizona Supreme Court denied the petition. (Id., Ex. 38.)

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B.

New evidence

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Habeas counsel hired Dr. Robert Heilbronner, a neuropsychologist, who conducted

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a complete neuropsychological evaluation of Gallegos and prepared a report dated

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December 12, 2011. (Doc. 152-6, Ex. 51.) Dr. Heilbronner reviewed evaluations by other

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experts, interviewed Gallegos, and administered a battery of neuropsychological tests. (Id.

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at 3–4.)

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In a subsequent report, dated October 3, 2017, Dr. Heilbronner recounted three ATV

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accidents Gallegos was involved in between the ages of about 15 and 17. (Id., Ex. 52 at

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1.) In each accident, Gallegos suffered “moderate to severe trauma to the brain.” (Ex. 52

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at 1–2.) According to Dr. Heilbronner, traumatic brain injuries affect adolescents’ brains

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more severely than adults’; “the greatest challenges many adolescents with brain damage

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face are changes in their abilities to think and learn and to develop socially appropriate

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behaviors.” (Id. at 2.)

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Neuropsychological testing detected impaired cognitive functions in several areas,

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including attention, concentration, working memory, mental flexibility, and response

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inhibition, thus revealing “objective evidence of cognitive dysfunction reflecting brain-

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based disturbances in functioning.” (Id. at 5, 7.) Dr. Heilbronner also found “that Mr.

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Gallegos’ brain damage was present at the time he committed the crimes.” (Id.)

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As a result of his brain damage, Gallegos has difficulty with planning, organization,

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and considering the consequences of his actions. (Id. at 7.) According to Dr. Heilbronner,

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“in combination with the cognitive and psychosocial effects of a learning disability,” brain

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damage compromised Gallegos’s ability to inhibit or stop behavior once begun and made

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him susceptible to the influence of others. (Id.; Ex. 52 at 3.) Dr. Heilbronner explained

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that Gallegos:

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demonstrated a rather concrete approach to solving problems and limited
cognitive flexibility, thereby limiting his capacity to come up with alternative
solutions to problems. . . . It is conceivable that these abilities would have
been even poorer back in 1990 when the crime was committed as Mr.
Gallegos’s brain was even less developed, given his age and the associated
lack of neural maturation that is evident in the brains of adolescents,
especially those with learning disabilities and in those who have sustained
brain damage as a result of multiple head injuries.
(Id., Ex. 52 at 3.)

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Dr. Heilbronner further diagnosed Gallegos with Cognitive Disorder, Not

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Otherwise Specified, and opined that Gallegos could have been similarly diagnosed at the

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time of his resentencing. (Id., Ex. 51 at 4, 7.) He further opined that with proper testing

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Gallegos’s “widespread brain dysfunction” could have been detected at the time of

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resentencing. (Id. at 4.)

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Dr. Nancy Cowardin, Ph.D., was also retained by habeas counsel to conduct psycho-

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educational testing. In her report, dated October 11, 2002, Dr. Cowardin noted that in

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fourth grade, Gallegos lagged behind his peers by one-and-a-half to two-and-a-half years.

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(Doc. 152-6, Ex. 7 at 1–2.) By tenth grade, his text comprehension was four years behind

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that of his peers. (Id. at 2.) Gallegos continued to demonstrate significant deficits when

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tested by Dr. Cowardin at age 30: “Today, Michael’s academic age equivalent falls at

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approximately the 10½ year level, his language fundamentals at age 8, and overall

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information processing is estimated just below age 10 years, with lapses to the 6 year level

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in specific auditory tasks.” (Id. at 18.) Dr. Cowardin further opined that “it is reasonable

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to conclude that at the time this crime was committed, Michael operated cognitively in

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much the same manner as a far younger child. . . . At 18, the youth did not function in the

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least like a competent adult defendant.” (Id. at 5, 19.)

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Gallegos has also presented an affidavit from Dr. Davis Fassler, a child and
adolescent psychiatrist. (Id., Ex. 54.)

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In his declaration, dated October 6, 2017, Dr. Fassler explained that the region of

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the brain “responsible for instinctual behavior, such as aggression, anger, pleasure and

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fear,” develops first, while the frontal cortex, the region “responsible for planning,

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strategizing, and judgment,” develops last and continues to mature into the mid-20s. (Id.,

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¶¶ 12, 13.) Before the frontal cortex is fully developed, “young adults [are] more likely to

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act on instinct or impulse,” and it is “harder for them to modulate emotional responses,

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regulate behavior, control impulses, assess risks or fully consider the consequences of their

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actions.” (Id. ¶ 15.)

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Brain development can be impaired by substance abuse.

(Id. ¶¶ 17–21.)

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Adolescents are more susceptible to long-lasting impacts of alcohol than adults, and

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alcohol use in adolescents “may result in alterations in normal brain development leading

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to permanent brain damage.” (Id. ¶¶ 19, 21.) Traumatic brain injuries in adolescents can

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result in both cognitive and behavioral deficits. (Id. ¶¶ 24–25.)

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Dr. Fassler also noted that “Gallegos has a genetic disposition to substance abuse,
as evidenced by his multiple-generational family history.” (Id., ¶ 55.)

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According to Dr. Fassler, at the time of the crime, Gallegos’s brain “would still have

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been in the process of achieving a full level of adult development, with the frontal lobes,

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which control judgment and reasoning, developing last.” (Id. ¶ 60.) In addition, Gallegos

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has a history of drug and alcohol use and head injuries, which can “interfere with the

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process of normal brain development.” (Id. ¶¶ 61, 64.)

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Dr. Fassler concluded that: “A more detailed explanation of Mr. Gallegos’ family

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history and genetic predisposition to abuse alcohol might have influenced the re-sentencing

21

proceedings on October 24, 1994.” (Id., ¶ 58.)

22

The new evidence also includes lay declarations from Gallegos’s family members

23

and friends. Among other things, they attest that they were aware Gallegos had been

24

involved in ATV accidents that may have resulted in head injuries; several declarants state

25

that they reported this information to members of Gallegos’s defense team. (Doc. 153,

26

Ex’s 98, 99, 101, 102, 103, 105, 108, 109, 119.) Gallegos also provided his own

27

declaration describing three ATV accidents and another incident involving a head injury.

28

(Id., Ex. 110.)

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1

C.

Analysis

2

1.

3

Applying Martinez, the Court must determine whether cause and prejudice exist to

4

excuse the procedural default of the claim that resentencing counsel failed to investigate

5

and present mitigating evidence of Gallegos’s organic brain damage. This requires the

6

Court to determine whether the underlying claim is “substantial,” establishing prejudice,

7

and whether PCR counsel performed ineffectively, establishing cause. Martinez, 566 U.S.

8

at 14; Ramirez, 937 F.3d at 1242.

9

a.

Martinez

Prejudice

10

The Court in Martinez “provided no further definition of substantial, but cited the

11

standard for issuing a certificate of appealability as analogous support for whether a claim

12

is substantial.” Ramirez, 937 F.3d at 1242 (citing Martinez, 566 U.S. at 14). Under the

13

standard for issuing a certificate of appealability, a claim is substantial when a petitioner

14

has shown “that reasonable jurists could debate whether the issue should have been

15

resolved in a different manner or that the claim was ‘adequate to deserve encouragement.’”

16

Apelt v. Ryan, 878 F.3d 800, 828 (9th Cir. 2017) (quoting Miller-El v. Cockerell, 537 U.S.

17

322, 336 (2003)). In determining whether a claim meets this standard, a court should

18

conduct a “general assessment” of the claim’s merits, but should not decline to issue a

19

certificate “merely because it believes the applicant will not demonstrate an entitlement to

20

relief.” Miller El, 537 U.S. at 336–37; see Ramirez, 937 F.3d at 1242 (citing Cook, 688

21

F.3d at 610 n.13).

22

The Court finds that the underlying claim of ineffective assistance of trial counsel

23

is substantial under this standard. Having performed a general assessment of the claim, the

24

Court “cannot conclude that [Gallegos’s] ineffective assistance of trial counsel claim

25

overall ‘is insubstantial, i.e., it does not have any merit or [ ] it is wholly without factual

26

support.’” Ramirez, 937 F.3d at 1247 (quoting Martinez, 566 U.S. at 16).

27

First, there is substantial evidence that Antieau’s performance at resentencing was

28

deficient in that he did not pursue or present evidence of brain damage. Gallegos contends

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1

that Antieau “was on notice that Mr. Gallegos ‘may be mentally impaired’ because he

2

received information that Mr. Gallegos suffered from head injuries, which can result in

3

brain damage.” (Doc. 152 at 48–49.) Gallegos cites “[t]he interview memoranda provided

4

by [mitigation specialist] Nowatzki from the Project in August of 1994,” which included

5

“information from six witnesses that Mr. Gallegos was in two ATC accidents after which

6

he was ‘in shock,’ ‘pale,’ or ‘dazed,’ indications of potential concussions or more serious

7

brain damage.” (Id.) (citing Doc. 152-8, Ex. 76 at 2, 7, 12–13, 17, 21–22, 38.)

8

Because this information was available to him, there is a colorable claim that

9

Antieau performed deficiently by not pursuing evidence that Gallegos suffered head

10

injuries and possible brain trauma as a result of the accidents. Where “counsel is on notice

11

that his client may be mentally impaired, counsel’s failure to investigate his client’s mental

12

condition as a mitigating factor in a penalty phase hearing, without a supporting strategic

13

reason, constitutes deficient performance.” Hendricks v. Calderon, 70 F.3d 1032, 1043

14

(9th Cir. 1995). The record reveals no supporting reason for Antieau’s failure to investigate

15

the issue of Gallegos’s possible head injuries. See Stankewitz v. Woodford, 365 F.3d 706,

16

719–20 (9th Cir. 2004) (explaining that when “tantalizing indications in the record” suggest

17

that certain mitigating evidence may be available, those leads must be pursued).

18

There is likewise a substantial claim that Gallegos was prejudiced by counsel’s

19

failure to present such evidence in mitigation. Courts have noted that evidence of “organic

20

brain damage is the very sort of mitigating evidence that ‘might well have influenced the

21

jury’s appraisal of [a petitioner’s] moral culpability.’” Earp v. Ornoski, 431 F.3d 1158,

22

1179 (9th Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, 398 (2000)); see Caro v.

23

Woodford, 280 F.3d 1247, 1257 (9th Cir. 2002) (explaining that omission of evidence of

24

brain damage from exposure to neuro-toxins “renders Caro’s death sentence unreliable”).

25

The underlying claim of ineffective assistance of counsel at resentencing is therefore

26

“substantial” for purposes of Martinez, and prejudice has been established.

27
28

/ / /

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1

b.

2

The Court next considers whether PCR counsel’s performance was ineffective

3

Cause

under Strickland.

4

The Court finds that PCR counsel performed deficiently. Gierloff presented no

5

evidence in support of his claim that counsel performed ineffectively at resentencing. As

6

the Ninth Circuit noted, PCR counsel “adduced no additional mitigating evidence, nor did

7

he offer evidence to undermine the aggravating circumstances found by the state court.

8

The sentencing profile presented to the state post-conviction court—in fact, to the very

9

judge who had previously sentenced Gallegos to death—was identical to the profile at the

10

time of resentencing.” Gallegos, 820 F.3d at 1037.

11

The Court also finds there was a reasonable probability of a different outcome if

12

PCR counsel had presented the underlying claim. As discussed above, there was a

13

substantial claim that resentencing counsel performed ineffectively by failing to present

14

evidence of Gallegos’s brain damage. See Ramirez, 937 F.3d at 1247 (“The underlying

15

ineffective assistance of counsel claim is strong enough to support a conclusion that, had

16

post-conviction counsel performed effectively and raised the claim, ‘there [is] a reasonable

17

probability that, absent the deficient performance, the result of the post-conviction

18

proceedings would have been different.’”) (quoting Clabourne, 745 F.3d at 377).

19

Gallegos argues that “evidence of organic brain damage is particularly compelling

20

in mitigation because it offers an explanation for a defendant’s behavior that is

21

physiological and reduces moral culpability.” (Doc. 155 at 5.) The Court agrees. As the

22

Ninth Circuit has explained:
Evidence of organic brain injury, of a kind that may physically compel
behavior or prevent emotional regulation of certain conduct, is the kind of
evidence that suggests a defendant’s “moral culpability would have been
reduced. . . .” Under our case law, such evidence, if it is credible, is
considered weightier than evidence of non-organic, purely psychiatric or
personality disorders, such as intermittent explosive disorder, that involve “a
lack of emotional control.”

23
24
25
26
27
28

Leavitt v. Arave, 646 F.3d 605, 623 (9th Cir. 2011) (quoting Caro, 280 F.3d at 1257–58);
see also Abdul-Kabir v. Quarterman, 550 U.S. 233, 241 (2007) (explaining that the
- 16 -

1

“strength [of petitioner’s mitigating evidence] was its tendency to prove that his violent

2

propensities were caused by factors beyond his control—namely, neurological damage and

3

childhood neglect and abandonment”); Littlejohn v. Trammell, 704 F.3d 817, 864 (10th

4

Cir. 2013) (“Evidence of organic mental deficits ranks among the most powerful types of

5

mitigation evidence available.”).

6

The totality of the weight in mitigation therefore would have been substantially

7

greater with evidence that Gallegos suffered from brain damage, see Wiggins, 539 U.S. at

8

534, and the resentencing court would have been presented with a “stronger and more

9

sympathetic mitigation profile.” Leavitt, 646 F.3d at 625.
Because evidence of organic brain damage is particularly compelling, counsel’s

10
11

failure to produce such evidence in mitigation results in a greater likelihood of prejudice.

12

Gallegos has satisfied both the deficient performance and prejudice prongs of his

13

claim that PCR counsel performed ineffectively under Strickland. Accordingly, pursuant

14

to Martinez, he has established cause for his default of the underlying claim that

15

resentencing counsel performed ineffectively.

16

c.

17

Gallegos has established both cause and prejudice under Martinez to excuse the

18

default of his claim that resentencing counsel performed ineffectively by failing to present

19

evidence that Gallegos suffers from organic brain damage.

Conclusion

20

2.

Evidentiary development

21

Gallegos seeks expansion of the record, discovery, and an evidentiary hearing.

22

(Doc. 152 at 68–69.) Respondents oppose evidentiary development. (Doc. 154 at 29.)

23

They contend that the existing record is sufficient to resolve Gallegos’s claim. (Id.) They

24

also assert that even if the procedural default is excused under Martinez, Gallegos must

25

still satisfy 28 U.S.C. § 2254(e)(2) before the court may consider new evidence in its review

26

of the underlying ineffective assistance of counsel claim.6 (Id. at 30.) According to

27
6

28

Pursuant to § 2254(e)(2), a federal court may not hold a hearing unless it first determines
that the petitioner exercised diligence in trying to develop the factual basis of the claim in
state court.
- 17 -

1

Respondents: “It is illogical to even allow consideration of new evidence to establish cause

2

under Martinez, when that same evidence will be subsequently barred . . . from

3

consideration in determining the merits of the substantive claim.” (Id.) These arguments

4

are unpersuasive.

5

First, contrary to Respondents’ position, the evidentiary limitations described in

6

Cullen v. Pinholster, 563 U.S. 170 (2011), do not apply to Gallegos’s procedurally

7

defaulted ineffective assistance of counsel claim because it was not previously adjudicated

8

on the merits in state court.7 See Dickens v. Ryan, 740 F.3d 1302, 1320–21 (9th Cir. 2014).

9

Furthermore, the Court is not restricted by 28 U.S.C. § 2254(e)(2) from allowing

10

evidentiary development for Gallegos to show cause and prejudice under Martinez because

11

Gallegos is not asserting a constitutional “claim” for relief. Id.; see also Detrich v. Ryan,

12

740 F.3d 1237, 1246–47 (9th Cir. 2013) (plurality opinion) (“[W]ith respect to the

13

underlying trial-counsel IAC ‘claim,’ given that the reason for the hearing is the alleged

14

ineffectiveness of both trial and PCR counsel, it makes little sense to apply § 2254(e)(2).”).

15

Finally, as the Ninth Circuit recently explained, “Martinez’s procedural-default

16

exception applies to merits review, allowing federal habeas courts to consider evidence not

17

previously presented to the state court.” Jones v. Shinn, 943 F.3d 1211, 1221 (9th Cir.

18

2019). In Jones, the court “conclude[d] that 28 U.S.C. § 2254(e)(2) does not prevent a

19

district court from considering new evidence, developed to overcome a procedural default

20

under Martinez v. Ryan, when adjudicating the underlying claim on de novo review.” Id.

21

at 1222. Therefore, this Court is not prohibited from considering new evidence offered by

22

Gallegos.

23

With respect to Gallegos’s specific requests for evidentiary development, he first

24

asks the Court to expand the record under Rule 7 of the Rules Governing Section 2254

25

Cases, to include all of the exhibits attached to his supplemental Martinez brief. (Doc. 152

26

at 71.) The Court will grant this request, with one exception. Gallegos has attached three

27
In Pinholster, the Court held that a federal court’s consideration of evidence in support
of a habeas claim is confined to the evidence that was before the state court that adjudicated
the claim on the merits. 563 U.S. at 180–81.
7

28

- 18 -

1

juror declarations. (See Doc. 153, Ex’s 111, 113, 116.) In these declarations, the jurors

2

from the guilt phase of Gallegos’s trial state that they would have “voted for a life

3

sentence.”8 (Id.) Respondents ask the Court to strike the declarations. The Court grants

4

the request.

5

Juror testimony cannot be used to impeach a verdict unless “extrinsic influence or

6

relationships have tainted the deliberations.” Tanner v. United States, 483 U.S. 107, 120

7

(1987). Rule 606(b)(1) prohibits juror testimony “about any statement made or incident

8

that occurred during the jury’s deliberations; the effect of anything on that juror’s or

9

another juror’s vote; or any juror’s mental processes concerning the verdict or indictment.”

10

Fed. R. Evid. 606(b)(1). “The court may not receive a juror’s affidavit or evidence of a

11

juror’s statement on these matters.” Id. There are limited exceptions to this Rule, Fed. R.

12

Evid. 606(b)(2), but they do not apply here.

13

Gallegos contends that the Court may consider the declarations because they do not

14

challenge the verdict within the meaning of Rule 606(b) but are offered in support of their

15

ineffective assistance of counsel claim. (Doc. 155 at 18–19.)

16

Courts have rejected this argument. See Brown v. United States, 720 F.3d 1316,

17

1337 (11th Cir. 2013) (finding that juror’s affidavit, swearing that additional mitigation

18

evidence gathered during the postconviction process might have had an impact on the

19

jury’s penalty phase deliberations, was not competent evidence); Hoffner v. Bradshaw, 622

20

F.3d 487, 501 (6th Cir. 2010); Garza v. Ryan, No. CV-14-01901-PHX-SRB, 2017 WL

21

1152814, at *15 (D. Ariz. Mar. 28, 2017) (“Juror affidavits may not be considered under

22

Rule 606(b) in support of ineffective assistance of counsel claims.”).

23

The proffered declarations concern the jurors’ deliberative process and the effect of

24

the evidence on their votes. Therefore, they may not be considered under Rule 606(b).

25

See Jones v. Ryan, No. CV-01-00384-PHX-SRB, 2016 WL 3269714, at *2 (D. Ariz. June

26

15, 2016); Smith v. Schriro, No. CV-03-1810-PHX-SRB, 2006 WL 726913, at *22–23 (D.

27

Ariz. Mar. 21, 2006). The juror declarations are stricken.

28

8

Gallegos was sentenced by the trial judge in this pre-Ring v. Arizona, 536 U.S. 584 (2002),
case.
- 19 -

1

Gallegos also seeks discovery. (Doc. 152 at 73–77.) That request will be denied.

2

A habeas petitioner is not entitled to discovery “as a matter of ordinary course.”

3

Bracy v. Gramley, 520 U.S. 899, 904 (1997). Discovery is authorized upon a showing of

4

good cause, but the “party requesting discovery must provide reasons for the request. The

5

request must also include any proposed interrogatories and requests for admission, and

6

must specify any requested documents.” Rule 6(a) and (b), Rules Governing § 2254 Cases.

7

“[A] district court abuse[s] its discretion in not ordering Rule 6(a) discovery when

8

discovery [i]s ‘essential’ for the habeas petitioner to ‘develop fully’ his underlying claim.”

9

Pham v. Terhune, 400 F.3d 740, 743 (9th Cir. 2005) (quoting Jones v. Wood, 114 F.3d

10

1002, 1009 (9th Cir. 1997)). However, courts should not allow a petitioner to “use federal

11

discovery for fishing expeditions to investigate mere speculation.” Calderon v. United

12

States Dist. Ct. for the N. Dist. of Cal. (Nicolaus), 98 F.3d 1102, 1106 (9th Cir. 1996); see

13

also Rich v. Calderon, 187 F.3d 1064, 1067 (9th Cir. 1999) (explaining that habeas corpus

14

is not a fishing expedition for petitioners to “explore their case in search of its existence”)

15

(quoting Aubut v. State of Maine, 431 F.2d 688, 689 (1st Cir. 1970)).

16

Whether a petitioner has established “good cause” for discovery under Rule 6(a)

17

requires a habeas court to determine the essential elements of the substantive claim and

18

evaluate whether “specific allegations before the court show reason to believe that the

19

petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled

20

to relief.” Bracy, 520 U.S. at 908–09 (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)).

21

Gallegos asserts that good cause exists because “discovery is crucial to ensure the

22

additional level of due process required in capital cases.” (Doc. 152 at 75.) He specifically

23

asks to depose a number of witnesses, in the event the Court does not order an evidentiary

24

hearing, including trial and PCR counsel and the various experts discussed above. (Id. at

25

76.) He “relies on the briefing of his ineffective-assistance claim to illustrate the relevance

26

of these witnesses.” (Id. at 77.)

27

Gallegos fails to show good cause for the requested discovery. He does not allege

28

specific, relevant facts that might be found in the requested depositions. Thus, his

- 20 -

1

discovery request constitutes the type of “fishing expedition” Rule 6 does not sanction. See

2

Kemp v. Ryan, 638 F.3d 1245, 1260 (9th Cir. 2011) (“[T]he desire to engage in [an

3

improper fishing] expedition cannot supply ‘good cause’ sufficient to justify discovery.”);

4

see also Teti v. Bender, 507 F.3d 50, 60 (1st Cir. 2007) (denying a discovery request

5

because the petitioner “did not comply with the specific requirements of Rule (6)(b); his

6

request for discovery is generalized and does not indicate exactly what information he

7

seeks to obtain”). Gallegos’s generalized statements regarding the potential existence of

8

discoverable material does not constitute “good cause.”

9

Finally, Gallegos requests an evidentiary hearing. (Doc. 152 at 77–80.) Having

10

determined that cause and prejudice exist to excuse the default of the underlying ineffective

11

assistance of counsel claim, the Court finds that an evidentiary hearing is necessary to

12

determine the claim’s merits. See Detrich, 740 F.3d at 1246 (explaining that the district

13

court should hold an evidentiary hearing “to determine, if the default is excused, whether

14

there has been trial-counsel IAC”); see also Ramirez, 937 F.3d at 1251 (remanding for an

15

evidentiary hearing after finding default excused under Martinez).

16

IV.

CONCLUSION

17

Pursuant to the Ninth Circuit’s directive on remand, the Court has reconsidered, in

18

the light of Martinez, Gallegos’s claim that counsel at resentencing performed ineffectively

19

by failing to present evidence of brain damage. The Court finds that an evidentiary hearing

20

is necessary to determine whether Gallegos is entitled to relief on that claim.

21

Accordingly,

22
23
24
25
26

/ / /

27

/ / /

28

/ / /

- 21 -

1

IT IS ORDERED that an evidentiary hearing will be held to determine whether

2

resentencing counsel performed ineffectively under Strickland by failing to present

3

evidence that Gallegos suffered from brain damage. The Court will issue a separate order

4

setting this matter for a scheduling conference.

5
6

Dated this 19th day of February, 2020.

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