Rainwater Law Group

Effective Criminal Defense

Gallegos v. Ryan, No. 08-99029 [April 7, 2016]

Gallegos v. Ryan

Mr. Gallegos alleged ineffective assistance of counsel at both guilt and penalty phases. At trial counsel presented an argued that his client was not guilty of pre-meditated murder. On the felony murder count, he argued that since the victim was already dead at the time of the felony he did not “assault a ‘person’ as required by the pertinent Arizona statute” and that he was too intoxicated to form the necessary intent to commit the felony. The court held that the findings by the state court were not unreasonable and denied the effective assistance claims and, even if, counsel was deficient in his defense on the premeditated murder there was no prejudice as his conviction on the felony murder would still support the death penalty. On the felony murder defense, the court commented that “[t]he choice to pursue a bad strategy makes no comment on an attorney’s judgment where no better choice exists.” The court rejected the penalty phase ineffective assistance of counsel claim by first finding his representation did not amount to abandonment under Cronic, therefore, he was required to prove prejudice, which the court found the state court’s finding of a lack thereof was not an unreasonable determination of the law and facts. Additionally, for the same reasons the court rejected his penalty phase claim on failing to fully prepare and present mitigating evidence concerning his mental health and personal history.

Remanded for a hearing on his Brady claims.

UPDATE: 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.


Fue v Biter, No. 12-55307 [November 17, 2016]

Fue v. Biter

The en banc court, in an opinion written by Bybee, who also wrote the dissent in the panel opinion, found that “Fue’s lack of knowledge of the denial [of his state court petition], if proven, would entitle him to equitable tolling” and reversed and remanded to the district court. The Court found that Fue’s 14 month wait to contact the California court about the status of his case was “’not an ununsually long time to wait for a court’s decision,’ given his reasonable expectation of being notified by the California Supreme Court, based on application of that court’s rules, and “actually shows his diligence, not a lack thereof.” The Court disagreed with the State's argument that he failed to establish his diligence by only contacting the court once regarding the status of his case and did not show a continued contact with the court. The Court further found that “[t]o the extent that we have required that petitioners must demonstrate that it was ‘impossible’ to file a timely petition, such a requirement is inconsistent with Holland’s requirement that a habeas petitioner demonstrate only ‘”(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way’ and prevented timely filing.’” Holland, 560 U.S. at 649 (citation omitted).” Therefore, the states argument that he could filed a petition, which was true if he omitted his non-exhausted claims only, did not preclude a finding of equitable tolling.


United States v McCandless, No. 16-15411 [November 10, 2016]

United States v. McCandless

McCandless sought bail pending a decision by the district court on his petition for a writ of habeas corpus under 28 U.S.C. § 2255. He argued that he is entitled to bail as his likely sentence of 71 months has already been served. He argued that he is entitled to the reduced sentence as he should not have had the career-offender Guideline provision applied to him as under the U.S. Supreme Court decision in Johnson v. United States, 135 S. Ct. 2551 (2015) he did not have two prior conviction for a crime of violence. The district court stayed its decision pending a decision by the Supreme Court in Beckles [In which it is expected to decide “whether Johnson applies to sentences imposed under the residual clause of the Guidelines’ career-offender provisions and, if so, whether that rule applies retroactively to cases on collateral review.”] Because the district court’s decision is not appealable in the 9th Cir. the Court construed his petition as a writ of mandamus challenging the district court’s refusal to grant McCandless’ motion for bail. To be entitled to mandamus relief, McCandless must “show at a minimum that the district court’s order was clearly erroneous as a matter of law.” To grant bail, assuming that district courts have that authority, it is reserved for “extraordinary cases involving special circumstances or a high probability of success.” Because there are substantial arguments on both sides of the case the court found that is was “far from clear” how the Supreme Court will rule and, therefore, he cannot show a high probability of success. Further, McCandless cannot establish that his sentence would be served before a ruling in Beckles because even with a new guideline range of 130 to 162 months “there is no way of predicting whether the district court would grant a downward departure below that range [, or the mandatory minimum of 120 months,] or by how much.”


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