Cite as: 570 U. S. ____ (2013) 1 

Statement of BREYER, J. 

SUPREME COURT OF THE UNITED STATES 

ELRICK J. GALLOW, PETITIONER v. LYNN COOPER, 

WARDEN 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
 

No. 12–7516. Decided June 27, 2013
 

The petition for a writ of certiorari is denied. 

 Statement of JUSTICE BREYER, with whom JUSTICE 

SOTOMAYOR joins, respecting the denial of the petition for 

writ of certiorari. 

Petitioner Elrick Gallow, like the petitioner in the recently decided case of Trevino v. Thaler, 569 U. S. ___ 

(2013), alleges that he received ineffective assistance of 

counsel both at his criminal trial and during his first state 

postconviction proceeding. Specifically, petitioner’s trial 

counsel has admitted in an affidavit and testimony before the State’s Disciplinary Board that “he was unable to

effectively cross-examine the victim because he was suffering from panic attacks and, more importantly, is related to

the victim. Because of this, [he] advised Gallow to plead

guilty despite Gallow’s reluctance to do so, and failed to inform both Gallow and the State that he had evidence to 

impeach the victim’s testimony.” 1 App. to Pet. for Cert. 3. 

In reliance on this conflicted advice, Gallow pleaded guilty 

midway through trial. His trial counsel was subsequently 

disbarred. When Gallow, represented by a different attorney, filed for state postconviction relief, his new attorney

failed to bring forward “any admissible evidence” to support his claim of ineffective assistance of trial counsel. Id., 

at 15. Namely, in state court Gallow’s habeas counsel 

repeatedly neglected to subpoena the trial counsel, which

led the state court to reject the counsel’s affidavit on state

evidentiary grounds. This meant that Gallow was left 

with a claim that had virtually no evidentiary support. 
 

 

 

2 GALLOW v. COOPER 

Statement of BREYER, J. 

In my view, a petitioner like Gallow is in a situation 

indistinguishable from that of a petitioner like Trevino: 

Each of these two petitioners failed to obtain a hearing 

on the merits of his ineffective-assistance-of-trial-counsel 

claim because state habeas counsel neglected to “properly 

presen[t]” the petitioner’s ineffective-assistance claim in 

state court. Martinez v. Ryan, 566 U. S. 1, ___ (2012) (slip 

op., at 2). A claim without any evidence to support it 

might as well be no claim at all. In such circumstances, 

where state habeas counsel deficiently neglects to bring 

forward “any admissible evidence” to support a substantial 

claim of ineffective assistance of trial counsel, there seems 

to me to be a strong argument that the state habeas counsel’s ineffective assistance results in a procedural default 

of that claim. The ineffective assistance of state habeas 

counsel might provide cause to excuse the default of the

claim, thereby allowing the federal habeas court to consider the full contours of Gallow’s ineffective-assistance 

claim. For that reason, the Fifth Circuit should not necessarily have found that it could not consider the affidavit

and testimony supporting Gallow’s claim because of Cullen v. Pinholster, 563 U. S. ___ (2011). 

Nonetheless, I recognize that no United States Court of 

Appeals has clearly adopted a position that might give

Gallow relief. But I stress that the denial of certiorari 

here is not a reflection of the merits of Gallow’s claims.