FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL GALLEGOS,

Petitioner-Appellant,

v.

CHARLES L. RYAN,

Respondent-Appellee.

No. 08-99029

D.C. No.

2:01-cv-01909-NVM

ORDER

Filed November 30, 2016

Before: Marsha S. Berzon, Consuelo M. Callahan,

and Carlos T. Bea, Circuit Judges.

Order;

Dissent by Judge Callahan
2 GALLEGOS V. RYAN

SUMMARY*

Habeas Corpus

The panel granted a petition for panel rehearing, and

amended its April 7, 2016 order in a habeas corpus case in

which Arizona state prisoner Michael Gallegos challenges his

conviction and death sentence for first-degree murder and

sexual conduct with a minor.

The panel amended the first paragraph of the April 7

order to grant in part Gallegos’s motion for stay and partial

remand for reconsideration in light of Martinez v. Ryan, 132

S. Ct. 1309 (2012). The panel instructed the district court to

consider, on remand, Gallegos’s timely Martinez claim and

to determine whether he can show cause and prejudice to

excuse the procedural default with respect to his claim that

counsel failed to investigate and present mitigating evidence

of Gallegos’s alleged organic brain damage. The panel

denied as moot Gallegos’s request for a stay of appellate

proceedings.

The panel wrote that the second paragraph of the April 7

order remains in effect, and that the panel’s April 7 opinion

affirming the denial of Gallegos’s other habeas claim remains

in force.

Dissenting from the grant of a partial remand for

reconsideration in light of Martinez, Judge Callahan wrote

that she does not think that Gallegos had made the minimal

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
GALLEGOS V. RYAN 3

showing of ineffective assistance of counsel required for a

remand.

ORDER

Appellant Gallegos’s Petition for Panel Rehearing is

granted.

The first paragraph of the panel’s April 7, 2016 order is

amended to read as follows:

The panel GRANTS IN PART Appellant Gallegos’s

Motion for Stay and Partial Remand for Reconsideration in

Light of Martinez v. Ryan, 132 S. Ct. 1309 (2012). On

remand, the District Court shall consider Gallegos’s timely

Martinez claim and, accordingly, determine whether he can

show cause and prejudice to excuse the procedural default

with respect to his claim that counsel failed to investigate and

present mitigating evidence of Gallegos’s alleged organic

brain damage. See Dickens v. Ryan, 740 F.3d 1302, 1320

(9th Cir. 2014) (en banc). Gallegos’s request for a stay of

appellate proceedings is denied as moot.

The second paragraph of the April 7, 2016 order remains

in effect.

The panel’s April 7, 2016 opinion affirming the denial of

Appellant’s other habeas claim remains in force.

The Clerk shall issue the mandate seven days after the

date of this order.
4 GALLEGOS V. RYAN

No further petitions for rehearing or rehearing en banc

shall be entertained.

CALLAHAN, Circuit Judge, dissenting:

I respectfully dissent from the grant of a partial remand

for reconsideration in light of Martinez v. Ryan, 132 S. Ct.

1309 (2012). We held in Dickens v. Ryan, 740 F.3d 1302,

1320 (9th Cir. 2014) (en banc), that Martinez may provide a

path for a state defendant such as Gallegos “to demonstrate

cause, if he can show the first two Martinez elements: (1) the

claim is substantial and (2) that his PCR counsel was

ineffective under Strickland [v. Washington, 466 U.S. 668

(1984)].” I do not think that Gallegos has made the minimal

showing required for a remand.1

An Arizona jury found that in 1990 Gallegos “had anally

raped and killed eight-year-old Kendall Wishon, a girl his

brother had raised as a daughter.” Gallegos v. Ryan, 820 F.3d

1013, 1016 (9th Cir. 2016). The trial judge sentenced

Gallegos to death. Id. The Arizona Supreme Court initially

affirmed the conviction but remanded for resentencing. State

v. Gallegos, 870 P.2d 1097 (Ariz. 1994). At resentencing, the

trial judge again imposed the death penalty and on appeal the

Arizona Supreme Court affirmed the sentence. State v.

Gallegos, 916 P.2d 1056 (Ariz. 1996) (en banc), cert. denied,

519 U.S. 996 (1996). At the resentencing, Gallegos’ counsel

presented evidence concerningGallegos’ learning disabilities,

1

In Martinez, 132 S. Ct. at 1318–19, the Supreme Court indicated

that a defendant need only meet the standard for a certificate of

appealability.
GALLEGOS V. RYAN 5

that he was a follower, used drugs extensively, was an

alcoholic, and was intoxicated at the time of the crime.

Gallegos filed a petition for post-conviction relief in state

court in 1999. Although the petition mentioned that counsel

had failed to adequately investigate Gallegos’ mental health,

the issue was not argued. In 2000, the state court, after

holding an evidentiary hearing, determined that Gallegos’

claims regarding ineffective assistance of counsel lacked

merit and denied Gallegos’ petition.

Gallegos filed his federal habeas petition in the United

States District Court for the District of Arizona in 2001. In

its 2008 order denying the petition, the District Court

carefully reviewed the presentation of evidence in Gallegos’

resentencing and in his state post-conviction proceeding, and

concluded that “[i]t is difficult to envision how counsel could

have presented a more complete picture of Petitioner’s

impairment and history of substance abuse, as well as his

passive personality and the dynamics of his relationship with

Smallwood.”

The District Court did certify the question of ineffective

assistance of counsel at sentencing for appeal, and in our

April 2016 opinion we basically affirmed the District Court’s

decision. Gallegos, 820 F.3d 1013.

However, in 2011, while this appeal was pending,

Gallegos’ counsel procured a new diagnosis of Gallegos’

mental health from a clinical neuro-psychologist. In part on

the basis of Gallegos self-reporting of “what appear to be at
6 GALLEGOS V. RYAN

least three significant head traumas when he was a youth,”2

the neuro-psychologist opined that “[o]verall, considering the

history, interview information, and neuropsychological

profile elucidated above, it is my opinion that there is

objective evidence of cognitive dysfunction reflecting brainbased disturbances in functioning.” He further opined “that

Mr. Gallegos’ brain damage was present at the time he

committed the crimes.”

On the existing record, Gallegos has not made the

minimal showing of ineffective assistance of counsel in

regard to investigating his mental health. The record

indicates that over the course of the first decade after the

crime, Gallegos’ attorneys queried Gallegos, his friends, and

family about his mental health. Considerable information

was developed concerning his learning disabilities, his drug

use, his alcoholism, and being a follower, but nobody

suggested that he had “organic brain damage.” It is possible

that, as Dr. Heilbronner opines, Gallegos has “organic brain

damage.” But this does not even suggest ineffective

assistance of counsel at resentencing or on post-conviction

review because the diagnosis is offered for the first time some

30 years after the crime and is based on Gallegos’ self

reporting, also some 30 years after the crime, of possible

“significant head traumas” that occurred before the crime. 

Dr. Heilbronner’s report states that Gallegos did not go to a

hospital for the most serious of his head traumas, and the

2 The alleged incidents are (1) when he had been drinking he tried to

jump over a flower bed, but fell backwards, hit his head on a concrete

block, and has no memory of what happened the rest of the night; (2) on

an occasion when he was riding a 3-wheeler which crashed, “he recalls

waking up on the living room floor the next day and the back of his shirt

was bloody”; and (3) another time when he was on a 3-wheeler he hit the

back of at tree and “was out for awhile.”
GALLEGOS V. RYAN 7

implication is that he did not seek medical attention for either

of the other traumas. Counsel can hardly be faulted when

Gallegos, his friends, and his family all failed to relate the

occurrence of head traumas (not medically reported) when

asked about Gallegos’ mental health including his learning

disabilities, use of drugs, and alcoholism.

This is not to suggest that the State’s other arguments for

rejecting Gallegos’ “new claim” lack merit.3 Rather, I would

hold that even assuming that Gallegos hurdled all the other

obstacles to asserting an ineffective assistance of counsel

claim some 30 years after the crime, he nonetheless has failed

to make the minimal showing of ineffective assistance of

counsel required for a remand and an evidentiary hearing in

the district court. Accordingly, I dissent from the grant of a

partial remand for reconsideration in light of Martinez, 132 S.

Ct. 1309.

3

In opposing Gallegos’ petition for rehearing, the State raises a

number of non-frivolous arguments including whether Gallegos’ claim is

new, whether it is timely, and whether, even if the claim is new, it is

substantial.