Michael Gallegos v. Charles L. Ryan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MICHAEL GALLEGOS, No. 08-99029
Petitioner-Appellant,
D.C. No.
v. 2:01-cv-01909-NVM

CHARLES L. RYAN,
Respondent-Appellee. ORDER AND
OPINION

Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding

Argued and Submitted
December 10, 2010—Pasadena, California

Filed April 7, 2016

Before: Marsha S. Berzon, Consuelo M. Callahan,
and Carlos T. Bea, Circuit Judges.

Order;
Dissent to Order by Judge Berzon;
Dissent to Order by Judge Callahan;
Opinion by Judge Berzon
2 GALLEGOS V. RYAN

SUMMARY*

Habeas Corpus

The panel, in an opinion, affirmed the district court’s
denial of habeas corpus relief on ineffective assistance of
counsel claims, and, in an order, remanded the case for
consideration of a Brady claim based on newly discovered
evidence, in a case in which Arizona state prisoner Michael
Gallegos challenges his conviction and death sentence for
first-degree murder and sexual conduct with a minor.

Given the Antiterrorism and Effective Death Penalty
Act’s highly deferential standards, and the extreme difficulty
the trial attorney would have had in presenting either a viable
guilt phase defense or a stronger penalty presentation, the
panel had no choice but to conclude it was not objectively
unreasonable for the state court to deny Gallegos’s ineffective
assistance of counsel claims.

As to Gallegos’s challenge to his lawyer’s basic strategy
during the guilt phase—specifically, his decisions to concede
guilt and not pursue before the jury a coherent legal theory
that could have resulted in a conviction of some offense less
than first-degree murder—the panel held that the state court
reasonably concluded that counsel’s representation was not
constitutionally ineffective and, to the extent it may have
been, was not prejudicial under Supreme Court precedent. As
to other aspects of the guilt phase representation—
specifically, contentions that the lawyer vilified Gallegos and

*
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

failed adequately to investigate the technical defense or
prepare his cross-examination of a medical examiner—the
panel concluded that the state court reasonably determined
that Gallegos suffered no prejudice as a result of his lawyer’s
purportedly deficient conduct, and affirmed on that ground
alone.

The panel rejected Gallegos’s claims that counsel at
sentencing were ineffective for failing fully to prepare and
present mitigating evidence concerning his health and
personal history, where any of the evidence that could have
been introduced at sentencing would have been cumulative of
evidence already presented in detail at the sentencing
hearings, and the district court’s application of Strickland was
therefore not objectively unreasonable.

In the simultaneously-filed order, the panel (1) denied
Gallegos’s Motion for Stay and Partial Remand and
Reconsideration in Light of Martinez v. Ryan; and (2) granted
in part Gallegos’s Motion to Remand to the District Court and
Request for Authorization of Federal Habeas Counsel to
Appear in State Court Litigation. The panel instructed the
district court on remand to consider in the first instance
whether to permit Gallegos to supplement his existing
petition with his Brady claim based on newly discovered
evidence, and wrote that the district court may permit an
evidentiary hearing on the issue whether that claim is timely
under 28 U.S.C. § 2244(d)(1)(D). Dissenting in part, Judge
Berzon would grant the Motion for Stay and Partial Remand
for the district court to evaluate whether Gallegos can show
cause and prejudice in light of Martinez. Dissenting in part,
Judge Callahan would deny the motion to remand based on an
alleged Brady claim and would find that the proposed Brady
claim is untimely.
4 GALLEGOS V. RYAN

COUNSEL

Jon M. Sands, Federal Public Defender, Ashley McDonald
and Jaleh Najafi, Assistant Federal Public Defenders,
Phoenix, Arizona, for Petitioner-Appellant.

Terry Goddard, Attorney General, Kent Cattani, Chief
Counsel, and Jon G. Anderson, Assistant Attorney General,
Capital Litigation Section, Phoenix, Arizona, for Respondent-
Appellee.

ORDER

The panel DENIES petitioner-appellant Michael
Gallegos’s Motion for Stay and Partial Remand for
Reconsideration in Light of Martinez v. Ryan.

The panel GRANTS IN PART Gallegos’s Motion to
Remand to the District Court and Request for Authorization
of Federal Habeas Counsel to Appear in State Court
Litigation and REMANDS the case to the District Court for
further consideration. On remand, the District Court shall
consider in the first instance whether to permit Gallegos to
supplement his existing petition with his Brady claim based
on newly discovered evidence. The District Court may permit
an evidentiary hearing on the issue whether that claim is
timely under 28 U.S.C. § 2244(d)(1)(D). The panel retains
jurisdiction over any appeal.
 GALLEGOS V. RYAN 5

BERZON, Circuit Judge, dissenting in part:

I agree that we should remand as to the Brady issue. I
would, however, also grant the Motion for Stay and Partial
Remand for Reconsideration in Light of Martinez v. Ryan.
Petitioner-appellant Gallegos has presented this panel with
potentially mitigating evidence of organic brain damage
sufficient to render his claim of ineffective-assistance-of-
sentencing-counsel a “new claim” under Dickens v. Ryan,
740 F.3d 1302 (9th Cir. 2014). I would remand to the District
Court to evaluate whether Gallegos can show cause and
prejudice in light of Martinez v. Ryan, 132 S. Ct. 1309
(2012).

CALLAHAN, Circuit Judge, dissenting in part:

I concur in the denial of Michael Gallegos’ motion to
remand in light of Martinez v. Ryan, 132 S. Ct. 1309 (2012).
I dissent from our grant of his motion to remand based on an
alleged claim under Brady v. Maryland, 373 U.S. 83 (1963).

I would find that Gallegos’ proposed Brady claim is
untimely pursuant to AEDPA’s one-year period of
limitations. See 28 U.S.C. § 2244(d)(1) (“a 1-year period of
limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a
State court.”); Mardesich v. Cate, 668 F.3d 1164, 1173 (9th
Cir. 2012) (applying “the AEDPA statute of limitations on a
claim-by-claim basis”). The motion—Gallegos’ first
suggestion that he has a Brady claim—was filed in the Ninth
Circuit just one day short of the anniversary of our decision
in Milke v. Ryan, 711 F.3d 998, 1020–21 (9th Cir. 2014). It
6 GALLEGOS V. RYAN

does not appear that Gallegos has filed such a claim in an
Arizona state court, or in the federal district court. Gallegos
appears to be relying on his motion to somehow stay the time
for seeking relief in the state court or district court. But the
materials before us reveal that even if a Brady claim could be
raised for the first time in a motion on appeal, here the motion
is untimely.

A number of factors compel this conclusion. First,
Detective Saldate’s misdeeds were recorded in state court
decisions that issued in 1989 and 1990. See Milke, 711 F.3d
at 1020–21. Thus, the information was not something that
was hidden from, or unavailable to, Gallegos. It was in the
public domain, presumably available to all, years before
Gallegos filed his motion to remand.

Second, the Arizona Federal Public Defender —the office
that has represented Gallegos since at least February 2009 —
raised similar allegations concerning Saldate in Runningeagle
v. Ryan, 686 F.3d 758 (9th Cir. 2012). The December 2009
opening brief in Runningeagle indicates that even if
Gallegos’s counsel did not actually know about Saldate’s
misdeeds, they should have known about them well before
the March 2013 opinion in Milke. The Arizona Federal
Public Defender’s Office does excellent work on death
penalty cases. It seems incredible to me that in light of the
allegation that Saldate had “been repeatedly accused of
improper behavior and coercive interrogation,” the attorneys
representing Gallegos were unaware of Saldate’s flaws.
Certainly, they could not have been unaware of the relevance
of Saldate’s character, as the trial court denied the motion to
suppress based on his testimony.
 GALLEGOS V. RYAN 7

Third, the motion only represents what defense counsel
did after we issued our opinion in Milke. After Milke,
counsel attempted to speak to Saldate and requested
documents from the Maricopa County Attorney’s Office.
Counsel alleges that then, in the summer of 2013, they
learned that “all of Det. Saldate’s files had been destroyed by
unknown persons on unknown dates.” Motion at 4.
However, counsel’s efforts in 2013 simply do not excuse the
failure to act sooner.1

Accordingly, I would deny Gallegos’ motion to remand
based on an alleged Brady claim as untimely pursuant to
28 U.S.C. § 2244(d)(1).

OPINION

BERZON, Circuit Judge:

An Arizona jury found petitioner Michael S. Gallegos
guilty of first-degree murder and sexual conduct with a
minor. The allegation against Gallegos was that he had
anally raped and killed eight-year-old Kendall Wishon, a girl
his brother had raised as a daughter. The trial judge
sentenced him to death under the Arizona sentencing scheme

1
Contrary to the implication raised in the motion to remand, it is not
unusual that documents that no one had looked at or requested in over
twenty years would no longer be available.
8 GALLEGOS V. RYAN

then in place.1 After exhausting his state court remedies,
Gallegos filed a federal habeas petition seeking relief from
his conviction and sentence. The petition alleged, among
other things, that Gallegos’s counsel was unconstitutionally
ineffective at both the guilt and penalty phases of his trial.
See Strickland v. Washington, 466 U.S. 668 (1984). The
district court denied relief, and Gallegos appealed.

Our review of the state court’s determinations is governed
by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2254. Given AEDPA’s highly
deferential standards as interpreted in recent United States
Supreme Court cases, and the extreme difficulty the trial
attorney would have had in presenting either a viable guilt
phase defense or a stronger penalty phase presentation than
he did, we have no choice but to conclude it was not
“objectively unreasonable” for the state court to deny
Gallegos’s ineffective assistance of counsel claims. See
28 U.S.C. § 2254(d); see also, e.g., Harrington v. Richter,
131 S. Ct. 770, 788–92 (2011).2

1
Arizona’s judicial sentencing in death penalty cases was later
invalidated as an unconstitutional denial of the Sixth Amendment right to
jury trial in Ring v. Arizona, 536 U.S. 584, 609 (2002). Ring does not
apply retroactively to cases like this one, in which the direct appeals were
concluded before Ring was decided. See Schriro v. Summerlin, 542 U.S.
348, 358 (2004).
2
Simultaneously with the filing of this opinion we are filing an order
remanding the case for consideration of a Brady claim based on newly
discovered evidence. That evidence principally concerns the
constitutional legality of the confession. This opinion assumes, but does
not decide, that the confession was admissible. We do not now determine
whether, if the confession was not admissible, the habeas petition would
be granted.
 GALLEGOS V. RYAN 9

I. BACKGROUND

A. Factual History

Gallegos grew up in Flagstaff, Arizona.3 His older
brother, Jerry Gallegos, Jr., lived in Phoenix with Cindy
Wishon and Cindy’s eight-year-old daughter, Kendall. Cindy
also had a teenage son from a previous relationship, George
Smallwood, who was living with Gallegos and his parents in
Flagstaff. Gallegos and Smallwood attended school together
and were close friends.

In March 1990, during spring break of their senior year in
high school—about a week after Gallegos turned
eighteen—he and Smallwood traveled to Phoenix to stay with
Jerry, Cindy, and Kendall. On Thursday of that week,
Gallegos and Smallwood went to the garage where Jerry
worked as a car mechanic. They drank beer, and Jerry
supervised them while they fixed their cars. Around 9:30
p.m., the three returned to Jerry’s home, resumed working on
Gallegos’s transmission in Jerry’s carport, and continued
drinking alcohol. About an hour later, Gallegos and
Smallwood went inside and began playing video games.
Kendall took a bath and went to bed, and Cindy and Jerry
retired to bed shortly thereafter. Gallegos and Smallwood
stayed up playing games and drinking beers.

Later that night, Kendall was sexually abused and killed.
Gallegos gave detailed confessions to two police officers

3
We base our recitation of the facts on the Arizona Supreme Court
opinion upholding Gallegos’s conviction and sentence on direct appeal,
see State v. Gallegos, 178 Ariz. 1 (1994) (“Gallegos I”), and on our own
review of the record.
10 GALLEGOS V. RYAN

soon after Kendall’s death and testified at trial to his
involvement in the crimes. It is his version that follows:

While they were playing video games, Gallegos suggested
to Smallwood that they go into Kendall’s room and “fondle”
her. To Gallegos’s surprise, Smallwood agreed. On their
way upstairs, one of the two retrieved a bottle of baby oil
from the bathroom, and they both entered Kendall’s room.
Gallegos lifted up Kendall’s nightgown and rubbed the baby
oil on the small of her back. When she began to wake up,
Smallwood put his hand over her mouth; Gallegos put his
hand over Smallwood’s hand and over Kendall’s nose.
Kendall gasped for air, struggled, grunted, and went limp.

Gallegos and Smallwood believed Kendall was dead.
Smallwood said that they might as well “finish her off,” and
they pulled her off the bed and onto the floor. Smallwood
attempted, unsuccessfully, to vaginally penetrate her.
Gallegos then had anal intercourse with Kendall’s body for
15 to 20 minutes, using the baby oil as a lubricant, and
eventually ejaculated. During this time, Smallwood placed
his penis in her mouth, but did not ejaculate.

When Gallegos and Smallwood finished committing these
unfathomable acts, they carried Kendall’s naked body out of
the house. Gallegos made sure the house was locked when
they left, so that if his brother woke up, he would not wonder
why the door had been opened and start checking around the
house. They dropped her body under a nearby tree, returned
to the house, locked the door again, and went to bed.

The next morning, Cindy and Jerry woke up as usual.
After Cindy gave some money to Smallwood to purchase
milk, she and Jerry left for work, and Smallwood went to the
 GALLEGOS V. RYAN 11

store. Upon his return, Smallwood told Gallegos that he
could not find Kendall and he asked Gallegos what to do.
The two decided to call Cindy, Jerry, and the police, and
inform them Kendall was missing.

Shortly thereafter, the police arrived and organized a
search. Gallegos and Smallwood participated but
intentionally avoided the area where they had dropped
Kendall’s body the night before. After several hours of
searching, the police found the body underneath the tree
where Gallegos and Smallwood had left it, only 250 feet from
the house.

After discovering the body, the police searched Jerry and
Cindy’s house, seizing as articles of evidence Kendall’s
underwear, nightshirt, and bedsheet. In the kitchen, they
found several empty beer cans and two empty cardboard beer
cartons in a trash container. They also observed several hard
liquor bottles on the kitchen shelves. In the carport, they
noted a box filled three or four feet high with empty beer and
soda cans. Jerry later testified at trial that he had given
Gallegos and Smallwood about four to six beers each, and,
after checking the next morning, he saw nothing suggesting
any additional beers of his had been consumed.

Having found no signs of forced entry, the police began
to suspect Gallegos and Smallwood were involved in
Kendall’s death and took them to the police station for
questioning. According to Detective Armando Saldate, Jr.,
after escorting Gallegos and Smallwood into separate rooms,
he advised Gallegos of his Miranda rights and questioned
12 GALLEGOS V. RYAN

him about the previous night; detective Michael Chambers
simultaneously questioned Smallwood.4

Gallegos initially denied involvement in the murder.
Officer Saldate, however, told Gallegos he did not believe
him and urged him to tell the truth. After some hesitation,
Gallegos confessed to his participation in the crime, relaying
details about his intoxication, Kendall’s murder, the sexual
assault, and Smallwood’s involvement in the events.
Gallegos a little while later confessed a second time to the
same details, this time in the presence of both detectives
Saldate and Chambers.5

Smallwood, for his part, denied any involvement in
Kendall’s death or the sexual assault. He claimed that if
Gallegos implicated him, it was only because he did not want
to take the blame alone. Gallegos and Smallwood were
subsequently indicted for first-degree murder and sexual
conduct with a minor.

The police submitted for DNA analysis the physical
evidence obtained at the crime scene as well as blood and
saliva samples from Gallegos, Smallwood, and Kendall. The
testing revealed that Smallwood “could not be included as a

4
The Brady motion concerns the truth of Detective Saldate’s account at
trial of the confession. For present purposes, we summarize and rely on
the trial record.
5
The trial court determined these confessions were voluntary. Gallegos
did not challenge that determination in his petition for habeas relief.
 GALLEGOS V. RYAN 13

contributor to the evidence,” and the state dismissed the
charges against him.6

The physical evidence did, however, implicate Gallegos:
(1) A fingerprint matching his finger was removed from
Kendall’s bedroom; (2) semen was detected on Kendall’s
underwear, nightshirt, and bedsheet; (3) DNA testing showed
that the stain on Kendall’s underwear contained a banding
pattern matching Gallegos’s blood; and (4) the probability
that an individual other than Gallegos was the source of the
stain was 1 in 10 million for Caucasians and 1 in 67 million
for Hispanics, which Gallegos is.

B. Procedural History

1. The Guilt Phase

Given Gallegos’s detailed confessions and the compelling
physical evidence against him, Greg Clark, Gallegos’s
lawyer, was confronted with an exceedingly difficult task in
formulating a defense. Gallegos faced the death penalty if
convicted of first-degree murder, which, of course, included
premeditated murder. See ARIZ. REV. STAT. § 13-1105(A)(1)
& (C) (1989).7 He also faced the death penalty if convicted

6
Gallegos’s confessions and testimony were the only evidence
implicating Smallwood. At Gallegos’s trial, Smallwood invoked his Fifth
Amendment right not to testify.
7
Unless otherwise noted, all references to the Arizona criminal code are
to the provisions as they existed at the time of the crime, trial, and
conviction.
14 GALLEGOS V. RYAN

of first-degree felony murder. See id. § 13-1105(A)(2).8 In
the context of this case, first-degree felony murder required
proof that Gallegos “commit[ted] or attempt[ed] to commit
sexual conduct with a minor” under the age of fifteen, and
that “[i]n the course of and in furtherance of such offense or
immediate flight from such offense, [Gallegos] or another
person cause[d] the death of any person.” See id. § 13-
1105(A)(2).

The first of the two predicate felonies that could have
supported a conviction for first-degree felony murder, “sexual
conduct with a minor,” required the prosecution to prove
(1) that Gallegos knowingly penetrated Kendall’s anus with
any part of his body, and (2) that Kendall had not reached her
fifteenth birthday. See id. §§ 13-1401, 13-1405. The
alternative predicate felony that could have supported a
conviction for first-degree murder, attempted sexual conduct
with a minor, required proof of one of three things: (1) that
Gallegos intentionally engaged in conduct which would have
been a crime if the attendant circumstances were as he
believed them to be; (2) that he intentionally committed any
act which was a step in a course of conduct planned to
culminate in commission of a crime; or (3) that he engaged in
conduct intended to aid another to commit a crime, in a
manner which would make him an accomplice, had the crime
been committed or attempted by the other person. See id.
§ 13-1001(A)(1)–(3).

8
Cf. Enmund v. Florida, 458 U.S. 782, 797 (1982) (holding that the
Eighth Amendment requires finding that a felony murder defendant killed
or attempted to kill); Tison v. Arizona, 481 U.S. 137, 158 (1987)
(qualifying Enmund by holding that the Eighth Amendment permits the
execution of a felony murder defendant who is a “major participa[nt] in
the felony committed” and who demonstrates “reckless indifference to
human life”).
 GALLEGOS V. RYAN 15

To avoid the possibility of the death penalty, then, Clark
had to defend against both premeditated and felony murder.
In addition to those offenses, the jury was instructed on
second degree murder and reckless manslaughter.

Clark never attempted to convince the jury that Gallegos
was not involved in the crime. To the contrary, he conceded
in his opening statement that Gallegos was “absolutely
responsible” for Kendall’s death and warned the jury that he
would “ask [them] to convict [his] client.” He did not,
however, specify of what offense Gallegos was guilty,
cautioning that the proceedings were “not quite at that point
yet.”

Clark went on to develop a case against premeditated
murder, by, in the main, portraying Gallegos as a confused,
scared teenager who made a terrible mistake and never
intended to kill Kendall. Detective Saldate, the officer who
first obtained Gallegos’s confession, testified for the State.
During cross-examination, he was emphatic that he believed
Gallegos’s description of the crime, including Gallegos’s
insistence that he did not mean to kill Kendall and “things
just got carried away.” He also told the jury that Gallegos
was “sobbing” while he confessed.

Clark also called Gallegos himself to testify for the
defense. Gallegos gave some personal background, relaying
that he was in high school and had a learning disability that
seriously affected his spelling and math skills. He also
provided in detail his account of the night of the crime,
explaining that he participated in Kendall’s death and sexual
assault but never meant to kill her. According to Gallegos, he
entered Kendall’s room intending only to fondle her, and
rubbed her back with oil because he liked “the feel of baby oil
16 GALLEGOS V. RYAN

on skin.” She started to “stir, to wake up” because, he
surmised, the baby oil was cold. As she awoke, Smallwood
put his hand over Kendall’s mouth, and Gallegos put his hand
over Smallwood’s and over Kendall’s nose in an effort to
keep her quiet. Gallegos “didn’t realize [he] was hurting her.
[He] had no intentions of hurting her.” “She didn’t struggle
very long,” Gallegos said, “[s]he just went limp.” He
admitted that he initially lied to the police about his
involvement but explained that he did so only because he was
“scared.” Gallegos maintained that he considered Kendall
part of his family, and, aside from being severely intoxicated
at the time of the crime, he could not explain why he did what
he did. Clark thus mustered some potentially persuasive
evidence against premeditated murder: Gallegos, who was
quite young and not unsympathetic, had convinced the
detective most familiar with his case that he never meant to
kill Kendall, the detective so testified, and Gallegos himself
confirmed that account to the jury.

But felony murder, whether predicated on committing or
on attempting to commit sexual conduct with a minor, was a
much harder charge to defend. Gallegos had confessed to
anally raping Kendall, and DNA evidence corroborated that
account. As he could not plausibly deny the sexual assault
occurred, Clark devised a technical defense—that Kendall
had died prior to the rape, so Gallegos did not assault a
“person,” as required by the pertinent Arizona statute.9 Clark
also hoped to establish that Gallegos was severely intoxicated
and so could not have had the requisite mental state to

9
The applicable statute provided: “A person commits sexual conduct
with a minor by intentionally or knowingly engaging in sexual intercourse
or oral sexual contact with any person who is under eighteen years of
age.” Ariz. Rev. Stat. § 13-1405(A) (emphasis added).
 GALLEGOS V. RYAN 17

commit attempted sexual conduct with a minor—specifically,
that Gallegos could not have acted “intentionally.”10

As the trial progressed, Clark attempted to develop
evidence supporting those theories: Gallegos testified that
after he held his hand over Kendall’s nose, she went limp,
and he thought he had killed her. He also claimed he had
smoked marijuana, and drunk scotch, tequila, and very large
quantities of beer that day, so he was severely intoxicated
when the crime occurred. Detective Saldate confirmed that
Gallegos, in his confession, stated that Kendall appeared dead
before the sexual assault took place, and, moreover, Gallegos
had admitted to drinking heavily throughout the day. Again,
Detective Saldate emphasized he believed Gallegos was
telling the truth as he relayed these details in his confession.

Clark did not, however, present any expert testimony
confirming the sequence of Kendall’s death and the sexual
assault. The only expert testimony came from Dr. Bolduc,

10
The Arizona criminal code, at that time, provided that “when the
actual existence of the culpable mental state of intentionally or with the
intent to is a necessary element to constitute any particular species or
degree of offense, the jury may take into consideration the fact that the
accused was intoxicated at the time in determining the culpable mental
state with which he committed the act.” See Ariz. Rev. Stat. § 13-503.
Accordingly, on Clark’s request, the court instructed the jury that, “[f]or
the crime of Attempted Sexual Conduct with a Minor there must be proof
that the defendant acted intentionally. If you determine that the defendant
was intoxicated at the time, you may consider whether he could have
committed the crime intentionally.” (emphasis added). The charges of
premeditated murder and sexual conduct with a minor required only that
the conduct be committed “knowingly,” so the instruction did not pertain
to those charges. Gallegos I, 178 Ariz. at 11–12; see also State v. Schurz,
176 Ariz. 46, 54–55 (Ariz. 1993) (describing the intoxication instruction
as it existed at the time of Gallegos’s trial).
18 GALLEGOS V. RYAN

the medical examiner during the investigation of the crime,
who testified for the State. According to Dr. Bolduc,
Kendall’s body exhibited bruises and abrasions, including a
blunt force injury to her head, some of which appeared to
have been inflicted while she was alive. Dr. Bolduc further
testified that Kendall’s rectum and anal canal were “markedly
dilated,” and that he observed “injected” capillaries and
arteries in her rectum, meaning they stood out to the naked
eye. He concluded, although not all that distinctly, that such
capillary visibility would only result from injuries suffered
while a person was still alive.

On cross-examination, Clark attempted to elicit that the
dilation of Kendall’s anal sphincter muscle was consistent
with a rape that occurred after she had died, because that
muscle is elastic and would spring back to its ordinary shape
in a live individual. Dr. Bolduc, however, responded that,
given Kendall’s young age, her muscle might not have
contracted back even had she been alive during the rape. Dr.
Bolduc then reiterated, this time quite distinctly, that, while
he could not be absolutely certain, it was his opinion that the
injuries to Kendall’s anus occurred, at least in part, prior to
her death. On redirect, Dr. Bolduc emphasized that
conclusion, stating that penetration would not have occurred
“solely after death.”

Just after the State presented its case—and so before
Clark called Gallegos to testify—Clark moved outside the
presence of the jury for acquittal of sexual conduct with a
minor, articulating his technical defense that Kendall was not
a “person” at the time of the rape. See ARIZ. R. CRIM. P.
20(a). To support his theory, Clark pointed out that,
according to Gallegos’s confession as relayed through
Detective Saldate, Kendall had gone limp before the sexual
 GALLEGOS V. RYAN 19

assault occurred. Moreover, argued Clark, Dr. Bolduc
admitted that he could not be certain about his opinion that
the sexual assault began while Kendall was alive, although it
was his considered opinion that it had. The court denied the
motion, finding there was sufficient evidence to allow the
jury to determine that Kendall had not in fact died before the
rape.

The court also analogized the circumstances to an Arizona
Supreme Court case, State v. Comer, 165 Ariz. 413, 420–21
(1990), interpreting the state armed robbery statute. Although
that statute required contemporaneous use of force and taking
of property, Comer rejected the argument that a robbery does
not occur if property is taken after the victim is dead; a
defendant can still be found guilty of robbery if he intended
to take the victim’s property before killing him, and the death
occurred “in furtherance of his previously formulated plan to”
take the property. See id. The court in Gallegos’s trial, citing
Comer, held that even if there was insufficient evidence to
find that Kendall was alive during the rape, there was
sufficient evidence for the jury to determine Gallegos had
formed the intent to sexually assault Kendall prior to her
death.11

11
According to the trial transcript, the court said it would “analogize [to]
State versus McCumber” in denying the motion to acquit. We assume the
court was referring to State v. Comer, and the name “McCumber” was a
transcription error. The court accurately described the holding of Comer,
stating it was referring to instances “in the armed robbery area where the
act of taking actually occurs after the death, and they talk about the
intent.” Moreover, the State Supreme Court on direct appeal, relied on
State v. Comer in rejecting Gallegos’s argument that there was insufficient
evidence to sustain a conviction of sexual conduct with a minor. See
Gallegos I, 178 Ariz. at 9.
20 GALLEGOS V. RYAN

After Gallegos testified for the defense, Clark renewed his
motion for acquittal. It was again denied.

In closing argument, the prosecutor stated, “As you recall,
Mr. Clark said he would ask you to find him guilty, but you
recognize without any question it’s a matter of what degree,
what charge.” The prosecution went on to explain the felony
murder requirements and argued that “[t]he facts will . . .
flush out strong support, support beyond a reasonable doubt
. . . that charge of felony first degree murder is supported.”
The prosecutor also argued at some length for a premeditated
murder conviction, commenting that it was “granted,
probably a tougher question for you.”

Clark, in his closing argument, conceded this was a
difficult case and that Gallegos had committed an
unspeakable crime. He admitted to treating Gallegos with
“contempt” while he was on the stand, explaining that that
approach helped to illustrate that Gallegos is a “child. . . .
He’s pathetic, he’s despicable, but he’s a child.” He also
reminded the jury that Detective Saldate, who had been a
police officer for over 20 years, believed Gallegos when, in
his confession, he lamented that he “never intended for this
to happen.” Clark suggested that the evidence established
only reckless manslaughter, not premeditated murder, and he
urged the jury to be “fair,” although he did not explain what
such treatment might entail. Notably, Clark did not articulate
any defense to felony murder or to the predicate felonies of
sexual conduct or attempted sexual conduct with a minor
beyond referring vaguely to Dr. Bolduc’s testimony, despite
the prosecutor’s emphasis on evidence supporting those
crimes in his closing argument immediately prior.
 GALLEGOS V. RYAN 21

After deliberating for just two hours, the jury found
Gallegos guilty of both first-degree murder and sexual
conduct with a minor. The jury was unanimous as to first-
degree murder but split (to a degree not recorded) as to
whether Gallegos committed premeditated murder or only
felony murder. Cf. Schad v. Arizona, 501 U.S. 624, 644–45
(1991) (plurality opinion) (holding constitutional Arizona’s
scheme of providing general verdicts for first-degree murder
based on either premeditation or felony murder, without
requiring jury unanimity).

2. The First Sentencing Hearing

Gallegos had two sentencing hearings. At the first, the
State presented only one witness, Cindy, who testified that
the crime had had a devastating impact on her and her family.

Clark, for the defense, called Noah Stalvey, Gallegos’s
probation officer, who testified that Gallegos had gotten into
some minor trouble—he had been arrested for stealing a
chemistry scale from his high school and for possession of
marijuana—but he was “likable, friendly,” and “one of the
kids that really came to [him] looking for some help.” He
testified that Gallegos was “scared” and sorry for what he had
done to Kendall. Clark then called several of Gallegos’s
family members, who, in the main, asked for leniency and
testified that Gallegos was remorseful.

Notably, Detectives Saldate and Chambers also testified
for the defense, both strongly recommending against the
death penalty. Detective Saldate explained he was convinced
Gallegos would not have committed the crimes without the
involvement of Smallwood and without being intoxicated.
Saldate emphasized that Gallegos’s case was unique: While
22 GALLEGOS V. RYAN

many of the investigations in which he had been the agent-in-
chief ended with first-degree murder convictions, he had
never recommended against the death penalty when it had
been sought.

Detective Chambers testified that the circumstances
suggested the murder may have been an “accident.” He also
considered Gallegos to be particularly immature and
“unsophisticated,” and noted that he found Gallegos to be
remorseful. Like Saldate, Chambers had never recommended
against the death penalty. In fact, quite the opposite was true:
He had “about eight death sentences last year for defendants
[he had] no compassion for.”

Gallegos himself also testified that he never intended to
kill Kendall and would trade places with her if he could. He
expressed remorse, pleaded for mercy, and maintained he
could rehabilitate himself if given the chance.

Finally, the sentencing court considered a presentence
memorandum submitted on behalf of Gallegos, as well as
numerous letters from his family, friends, and school
employees.

Judge Hotham, the same judge who presided over the
guilt phase of the trial, found that the State proved two
statutory aggravating factors: (1) that Kendall was eight
years old, and Gallegos eighteen, at the time of the crime; and
(2) that Gallegos committed the crime “in an especially
heinous, cruel, or depraved manner.” See ARIZ. REV. STAT.
§ 13-703(F)(6) & (9). He further found that Gallegos carried
his burden only as to one statutory mitigating factor—that he
was young, only eighteen years old. See ARIZ. REV. STAT.
§ 13-703(G)(5). Judge Hotham also acknowledged the
 GALLEGOS V. RYAN 23

detectives’ recommendations and Gallegos’s remorse as
nonstatutory mitigating circumstances. Balancing the
aggravating and mitigating factors, Judge Hotham sentenced
Gallegos to death.

On appeal, the Arizona Supreme Court affirmed
Gallegos’s convictions but remanded the case for
resentencing, finding Gallegos’s impairment due to
intoxication to be an additional nonstatutory mitigating
circumstance not properly considered by the trial court. See
Gallegos I, 178 Ariz. at 23.

3. The Second Sentencing Hearing

Gallegos was represented at the resentencing hearing by
new counsel, John Antieau. Antieau called many of the same
witnesses who had testified at the first hearing, including
Gallegos’s mother and sister, and Gallegos himself.
Likewise, Detectives Saldate and Chambers again testified,
both once more recommending emphatically against the death
penalty.12

Additionally, Antieau called witnesses who had not
testified at the first hearing, including: another of Gallegos’s
sisters, his brother-in-law, several of his friends, and his
niece. Counsel also proffered a two-page letter from Dr.
Charles Shaw, in which Shaw opined that (1) there was “[n]o
question” Gallegos was an alcoholic, and (2) Gallegos had an

12
The court considered the testimony from the first hearing given by
Gallegos’s older brother Jerry and by Gallegos’s probation officer. The
court also considered the presentence memorandum submitted in the first
hearing.
24 GALLEGOS V. RYAN

estimated blood alcohol concentration of 0.10% to 0.20% at
the time of the murder. Shaw did not testify.

The State offered its own expert, Dr. Alex Don, who
testified that Shaw’s conclusions, based only on Gallegos’s
self-reporting years after the crime, amounted to “fanciful
guessing.” In fact, Don stated, the evidence suggested that it
was unlikely Gallegos was as intoxicated on the night of the
crime as Shaw had concluded.

Judge Hotham found the same three mitigating
circumstances as he had found in the first hearing, as well as
two more nonstatutory mitigating factors: (1) a history of
alcohol and drug use; and (2) alcohol impairment on the night
of the crime. Nonetheless, he again sentenced Gallegos to
death, stating that “[e]ach aggravating circumstance standing
alone outweighs the total mitigation. In other words, even if
the Arizona Supreme Court told this Court to weigh the
alcohol and drug history and impairment ten times, this Court
would still find that each aggravating circumstance standing
alone would outweigh all collective mitigation.”

This time, the Arizona Supreme Court affirmed
Gallegos’s death sentence. See State v. Gallegos, 185 Ariz.
340, 348 (1996) (“Gallegos II”). The United States Supreme
Court denied Gallegos’s petition for certiorari. See Gallegos
v. Arizona, 519 U.S. 996 (1996).

4. The State Post-Conviction Proceedings

Gallegos then filed a petition for state post-conviction
relief, arguing, among other things, that he was denied
effective assistance of counsel at both the guilt and penalty
 GALLEGOS V. RYAN 25

stages of trial. Judge Hotham held an evidentiary hearing to
review these ineffective assistance claims.

At the hearing, Clark testified that, given the strength of
the State’s case, he felt it was necessary vividly to
acknowledge the horrific details of the crime and to admit
candidly Gallegos’s involvement. Doing so, he hoped, would
“draw the sting” from those facts and develop credibility with
the jury, encouraging them to convict Gallegos of something
less than first-degree murder. In particular, Clark defended
his decision to call Gallegos to testify and acknowledged that
he “pushed him when he was on the stand,” because he felt
that would help portray Gallegos as a “young man” who
“simply made a bad mistake.” The jury could not realistically
make that assessment, according to Clark, if Gallegos sat
there “being mute and emotionless.” Clark had hoped that
the jury would recognize Gallegos was not “cold-blooded and
uncaring,” but rather was “literally a child.”

In addition, Clark explained his failed efforts to establish
that Kendall had died prior to the sexual assault. He had
known from a pre-trial interview that Dr. Bolduc could not be
absolutely sure about whether Kendall was alive during the
assault, and he had hoped to highlight that uncertainty on
cross-examination. Clark also testified that while he had
consulted with a medical expert, that expert could not provide
an opinion directly contradicting Dr. Bolduc’s.

Finally, Clark sought to justify his conduct during the first
sentencing hearing:13 He stated that he had worked with an
investigator who helped him develop mitigating evidence, but

13
Antineau died before the state post-conviction proceedings and so was
unavailable to testify about the second sentencing hearing.
26 GALLEGOS V. RYAN

they had not uncovered anything of note, including nothing
suggesting Gallegos had “mental problems.” Gallegos’s post-
conviction relief counsel submitted no additional evidence
supporting mitigating circumstances or undermining the
aggravating factors found by the sentencing court.

The state trial court, Judge Hotham again presiding,
denied Gallegos’s petition for post-conviction relief. The
court first declined to presume prejudice under the standard
articulated in United States v. Cronic, 466 U.S. 648 (1984),
because Clark’s representation did not constitute total
abandonment of his client, Gallegos. The court also reasoned
that Clark’s treatment of his client was not constitutionally
deficient. While recognizing that Clark’s descriptions of
Gallegos’s conduct were “harsh,” the court surmised that they
“probably added to counsel’s credibility with the jury.”
Finally, the court concluded that Gallegos had not proven
prejudice; the State’s evidence was so “completely
overwhelming” that there was no reasonable probability that
the result of the trial would have been different absent any
errors by counsel.

The Arizona Supreme Court denied Gallegos’s petition
for review.

5. The Federal Habeas Proceedings

Gallegos next filed a timely petition for a writ of habeas
corpus in the U.S. District Court for the District of Arizona.
He sought to expand the record, attaching various exhibits not
presented in the state proceedings. The district court declined
to expand the record or hold an evidentiary hearing, and
eventually denied Gallegos’s petition in its entirety.
 GALLEGOS V. RYAN 27

The district court issued a certificate of appealability with
respect only to Gallegos’s claim that he was denied effective
assistance of counsel at sentencing. See 28 U.S.C. § 2253(c)
(governing certificates of appealability). Gallegos appealed,
arguing that he received ineffective assistance of counsel at
both the sentencing and guilt phases of his trial.14

II. DISCUSSION

AEDPA allows federal habeas relief with respect to
claims “adjudicated on the merits in State court proceedings”
only if the petitioner can show that the state court’s
adjudication:

(1) resulted in a decision that was contrary to,
or involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an
unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.

28 U.S.C. § 2254(d)(1)–(2). The “clearly established”
Supreme Court standard for ineffective assistance claims was
set forth in Strickland v. Washington, 466 U.S. 668 (1984).
To prevail on those claims, Gallegos must show (1) “that

14
We construe Gallegos’s inclusion of the claim of ineffective assistance
of counsel at the guilt phase as a motion to expand the certificate of
appealability. See Ninth Circuit Rule 22-1(e). We previously provided
the State an opportunity to brief the issue and now grant Gallegos’s
motion.
28 GALLEGOS V. RYAN

counsel’s performance was deficient,” and (2) “that the
deficient performance prejudiced the defense.” Id. at 687.

Counsel’s performance can be held constitutionally
deficient only if it “fell below an objective standard of
reasonableness . . . under prevailing professional norms.” Id.
at 688. We are “highly deferential” in reviewing counsel’s
performance and must be careful not to “conclude that a
particular act or omission of counsel was unreasonable”
simply because the defense was ultimately unsuccessful. Id.
at 689. That deference requires application of a “‘strong[]
presum[ption]’” that counsel “‘rendered adequate assistance
and made all significant decisions in the exercise of
reasonable professional judgment.’” Cullen v. Pinholster,
131 S. Ct. 1388, 1403 (2011) (quoting Strickland, 466 U.S. at
690).

To prove prejudice, Gallegos must “‘show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different.’” Id. at 1403 (quoting Strickland, 466 U.S. at 694).
That standard “requires a ‘substantial,’ not just ‘conceivable,’
likelihood of a different result.” Id. (quoting Richter, 131 S.
Ct. at 791).

Moreover, AEPDA restricts our ability to correct what we
perceive to be unconstitutionally deficient representation
prejudicially infecting state court proceedings. “For purposes
of § 2254(d)(1), ‘an unreasonable application of federal law
is different from an incorrect application of federal law.’”
Richter, 131 S. Ct. at 785 (quoting Williams v. Taylor,
529 U.S. 362, 410 (2000)). In other words, our review of the
Arizona state court’s determinations regarding deficiency is
“doubly deferential”: “We take a highly deferential look at
 GALLEGOS V. RYAN 29

counsel’s performance [under the Strickland standard],
through the deferential lens of § 2254(d).” Pinholster, 131 S.
Ct. at 1403 (quotations omitted). Habeas relief, we have been
instructed, is reserved for those instances where a petitioner
can “show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that
there was an error well understood and comprehended in
existing law beyond any possibility for fairminded
disagreement.” Richter, 131 S. Ct. at 786–87.

On the present record, we cannot so characterize the state
appellate court’s rulings with regard to whether Clark’s
performance was deficient or whether any deficient
representation could have affected the guilty or death penalty
verdicts.

A. The Guilt Phase

Gallegos challenges several aspects of Clark’s
performance at the guilt phase of his trial, maintaining that
Clark’s conduct as to each was constitutionally deficient.
Specifically, Gallegos (1) disputes Clark’s decision to
concede guilt and faults Clark for failing to pursue and
articulate a coherent legal theory that could result in a
conviction of some offense less than first-degree murder;
(2) contends Clark vilified him while he was testifying as a
witness, and in Clark’s opening and closing statements; and
(3) maintains that Clark’s investigation of the technical
defense was inadequate and his consultation with medical
experts insufficient. Had Clark done more, Gallegos claims,
30 GALLEGOS V. RYAN

he would not have pursued the chosen defense or would have
been better prepared to cross-examine Dr. Bolduc.15

We address first the challenge to Clark’s basic strategy
during the guilt phase—specifically, his decisions to concede
guilt and not pursue before the jury a coherent legal theory
that could have resulted in a conviction of some offense less
than first-degree murder. As to that purportedly deficient
conduct, we hold that the state court reasonably concluded
that counsel’s representation was not constitutionally
ineffective and, to the extent it may have been, was not
prejudicial under Supreme Court precedent.

Next, we go on to consider the other aspects of the guilt
phase representation challenged as ineffective—specifically,

15
Contrary to the State’s contention, Gallegos did not procedurally
default his claims that Clark was ineffective for failing adequately to
consult an independent expert and for failing adequately to prepare to
cross-examine Dr. Bolduc. Gallegos presented these claims in his
supplemental petition for post-conviction relief. A copy of that petition
was included in an appendix to his petition for review to the Arizona
Supreme Court, which “is sufficient to present the issue[s] in a full and
fair manner to the state courts.” Scott v. Schriro, 567 F.3d 573, 582 (9th
Cir. 2009) (holding a petitioner accomplished a “full and fair presentation
of his claims” because they were “included [in] a copy of the amended
petition for post-conviction relief,” which was attached “in the appendix
of his petition for review to the Arizona Supreme Court”) (citing
Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005)).

That Gallegos now articulates his argument as a failure to investigate,
with the aid of an expert, the technical defense before pursuing it does not
change the nature of the claim such that it was not fairly presented. He
advanced “to the state court the legal and factual basis of his federal
constitutional claim”; he was “not required to present his arguments in the
same amount of detail” to the state courts. Robinson v. Schriro, 595 F.3d
1086, 1102 (9th Cir. 2010).
 GALLEGOS V. RYAN 31

the contentions that Clark vilified Gallegos and failed
adequately to investigate the technical defense or prepare his
cross-examination of Dr. Bolduc. As to those contentions, we
conclude that the state court reasonably determined that
Gallegos suffered no prejudice as a result of Clark’s
purportedly deficient conduct, and affirm on that ground
alone. See Bible v. Ryan, 571 F.3d 860, 870 (9th Cir. 2009)
(acknowledging that we “‘need not determine whether
counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged
deficiencies.’” (quoting Strickland, 466 U.S. at 697)).

1. Basic Strategy During Guilt Phase.

i.

To begin, the state court reasonably concluded that Clark
was not deficient for conceding Gallegos’s guilt16—by, for
example, “ask[ing] [the jury] to convict [his] client”;
admitting that Gallegos “caused the death of another person”;
and confirming that his client was “absolutely responsible for
the taking of Kendall’s Wishon’s life.”

As a factual matter, although Clark never articulated for
the jury a coherent basis for a lesser verdict, he did not
concede that Gallegos was guilty of first-degree murder.
Rather, in his opening statement he reminded the jury of the
State’s burden, arguing that Gallegos “is presumed to be
innocent. He is innocent.” In his closing argument, Clark

16
We defer to the state trial court’s post-conviction relief disposition of
Gallegos’s ineffective assistance of counsel claims as the state courts’
“last reasoned judgment.” Brown v. Ornoski, 503 F.3d 1006, 1010 (9th
Cir. 2007).
32 GALLEGOS V. RYAN

“submit[ted] to [the jury] that all of the facts that [they had]
heard certainly show that” Gallegos was guilty of “reckless
manslaughter.” His admission, therefore, was only that
Gallegos was guilty of some offense involving Kendall’s
death; it was not a concession of a lack of reasonable doubt
on all factual issues or of guilt of a capital offense. See
Hovey, 458 F.3d 892, 906 (9th Cir. 2006) (holding counsel
did not concede premeditation when he stated that “there
could be findings . . . of willful, deliberate and premeditated,”
because “he made this point in the context of weighing the
jury’s options”).

As a strategic matter, disputing Gallegos’s involvement
in the crime would have been unpersuasive given the
evidence, and Clark’s acknowledgment of his client’s guilt in
the killing could reasonably have been intended to establish
credibility with the jury in the face of horrendous facts. See,
e.g., id., 458 F.3d at 906–07 (acknowledging that a
concession of guilt can be a valid technique to protect
credibility); United States v. Thomas, 417 F.3d 1053,
1057–58 (9th Cir. 2005) (same); Anderson v. Calderon,
232 F.3d 1053, 1088 (9th Cir. 2000) (same), overruled on
other grounds by Osband v. Woodford, 290 F.3d 1036 (9th
Cir. 2002). Establishing such credibility was important to
further the strategy Clark did pursue, the strategy we now
address.

ii.

To avoid facing the death penalty at sentencing, it was
necessary for Clark initially to convince the jury that
Kendall’s murder was not premeditated. Clark was
somewhat successful in that respect, as evidenced by the
jury’s verdict, showing it was unanimous as to first-degree
 GALLEGOS V. RYAN 33

murder but split as to whether Gallegos committed
premeditated or only felony murder. In other words, at least
one juror, and perhaps more, did not think the evidence
supported premeditation.

But establishing a reasonable doubt about premeditation
would not have precluded conviction of first-degree murder
or eliminated the possibility of the death penalty, as Gallegos
still faced the possibility of being convicted of first-degree
felony murder. In his briefs on appeal, Gallegos largely
ignores the felony murder basis for first-degree murder. He
principally faults Clark for not articulating more clearly that
Gallegos should have been convicted of lesser-included
offenses such as second-degree murder or manslaughter,
rather than for premeditated murder.

That argument misses the point. The evidence that
Gallegos was guilty of either predicate felony—sexual
conduct with a minor or attempted sexual conduct with a
minor—was quite strong. Given the circumstances of the
case, if either felony was established, a conviction of felony
murder would then almost certainly have followed; the
circumstances strongly supported the determination that
Gallegos or another person “cause[d]” Kendall’s death “[i]n
the course of and in furtherance of such offense,” as was
required to find him guilty of felony murder. See Ariz. Rev.
Stat. § 13-1105(A)(2). The prosecutor so emphasized in
closing argument. The jury in fact accepted that argument:
It returned a unanimous verdict of guilt for the predicate
felony of sexual conduct with a minor, and a split verdict for
first degree murder, some jurors finding him guilty of
34 GALLEGOS V. RYAN

premeditated murder and some finding him guilty only of
felony murder.17

Gallegos does not argue that a juror might have convicted
him of a predicate felony—as the jury unanimously did—yet
not have found him guilty of felony murder. Thus, even if
Clark successfully established that the murder was not
premeditated, Gallegos could still have been convicted of
felony murder and faced the death penalty at sentencing. In
other words, under the Strickland prejudice prong, ineffective
assistance with regard to premeditated murder, even if it
occurred, cannot provide a “reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different” at the guilt phase,
Strickland, 466 U.S. at 694, unless Gallegos would also likely
have prevailed on the felony murder issue. The focus of our

17
On the jury verdict form, the jury was presented with three possible
choices: (1) “Unanimous as to First Degree Premeditated Murder”;
(2) “Unanimous as to First Degree Felony Murder”; and (3) “Unanimous
as to First Degree Murder, but split as to whether it was Premeditated
Murder or Felony Murder.” The jury selected the third option. Gallegos
suggested at oral argument on this appeal, for the first time, that the jury’s
verdict could be read as indicating that some jurors concluded that
Gallegos was guilty of only premeditated murder and not felony murder.
Given the unanimous verdict on the predicate felony and the absence of
any viable theory as to how Gallegos could be guilty of the predicate
felony but not felony murder, we think it evident that the jury meant only
to record, among the choices given, the conclusion that some of the jurors
were of the view that Gallegos was guilty of premeditated murder, and not
only of felony murder. In any event, “‘[i]n Arizona, first degree murder
is only one crime regardless whether it occurs as a premeditated murder
or a felony murder,’” Schad v. Arizona, 501 U.S. at 629 (quoting State v.
Schad, 163 Ariz. 411, 417 (1989)), so it was the “Unanimous as to First
Degree Murder” conclusion that mattered.
 GALLEGOS V. RYAN 35

inquiry, therefore, is on the felony murder charge, and
specifically on the predicate felonies themselves.

To defend against the felony murder charge, Clark came
up with a novel, if disturbing, technical defense—that
Kendall was dead before the assault occurred and so not a
“person” under the pertinent statute. That defense was not
certain to lose, but its chances of success were exceedingly
slim. The only expert testimony at trial was that Kendall had
been alive during at least part of the sexual assault. During
cross-examination, Clark attempted to chip away at Dr.
Bolduc’s testimony, pointing out that the doctor was not
certain of his conclusions and that the dilation of Kendall’s
anus could be inconsistent with the doctor’s position. In the
end, though, Dr. Bolduc’s testimony went largely unrefuted
and clearly conveyed his opinion that Kendall was alive at
least when the assault began.

Gallegos maintains that, in light of Dr. Bolduc’s
unrebutted testimony, Clark never should have pursued the
technical defense on which he settled. Importantly, however,
Gallegos suggests no alternate theory, let alone one more
likely to succeed than the one chosen. Absent any defense
that could have promised a greater chance of success, we
cannot conclude that Clark was deficient for choosing the one
he did. “The choice to pursue a bad strategy makes no
comment on an attorney’s judgment where no better choice
exists.” Hendricks v. Calderon, 70 F.3d 1032, 1042 (9th Cir.
1995).

iii.

As it turned out, Clark pursued the technical defense to
the predicate felony only in legal motions before the judge
36 GALLEGOS V. RYAN

and not, for the most part, in arguments before the jury. The
state court could reasonably have concluded that Clark was
not constitutionally deficient for failing to articulate with any
clarity to the jury the technical defense that Kendall had died
prior to the assault. Importantly, it seems clear that, as a
strategic matter, Clark never meant to direct that defense to
the jury; it was meant primarily as a purely legal defense, a
basis for a motion for acquittal. On this appeal, Gallegos
does not contend otherwise, nor does he fault Clark for not
arguing the technical “she was dead” defense to the jury.

The record supports the notion that both the theory itself
and the plan to present it in the form of a motion for acquittal
were strategic measures devised prior to trial. During pre-
trial motions, for instance, the prosecutor recognized that “the
bottom line is . . . what comes first, the cart or the horse,
death or the sexual penetration. That’s the issue. That’s the
issue in this case. That is the one sole primary issue.” The
prosecutor also correctly predicted that Gallegos would “get
on the stand and say she was dead. She was limp. He doesn’t
even have to do that because that’s what he told the detective,
‘she went limp, and that’s when I had anal penetration.’ . . .
And [that will be the argument] when Mr. Clark makes his
Rule 20 motion [for acquittal].” As the prosecutor suspected,
Clark did in fact make the argument to the court in a motion
for acquittal.

A lawyer exercising reasonable professional judgment
may well have chosen to tailor the technical defense for
presentation to the court, not the jury. Clark recognized that
his credibility was important in presenting to the jury the
theory that the murder was not premeditated. The state post-
conviction court reasoned that Clark’s strategy was aimed at
obtaining a conviction of a lesser-included offense, such as
 GALLEGOS V. RYAN 37

second-degree murder or manslaughter. Gallegos, in his
briefs on appeal, makes more or less the same argument,
contending that Clark should have worked harder at
persuading the jury to convict Gallegos only of such lesser-
included offenses. Because Gallegos faced the possibility of
first-degree felony murder, that strategy would have entailed
hoping the jury would slide over the charge of first-degree
felony murder—in other words, that it would exercise
something akin to jury nullification.

In Anderson v. Calderon, we held a similar approach to a
felony murder charge to be a “‘strategic choice,’” falling
within the “‘wide range of reasonable professional
assistance,’” and so not deficient. 232 F.3d at 1089 (quoting
Strickland, 466 U.S. at 689). The trial court in that case
refused to instruct the jury that it could find the defendant
guilty of murder but not of burglary, a predicate for felony
murder. Id. at 1087. That refusal was problematic for the
defense, because it was “obvious” that the defendant had
killed the victim, and the death penalty would have been
available only for a conviction of felony-murder. Id. at
1087–88. The defense planned to present a diminished
capacity defense to the burglary charge, but such a defense
“would be asking the jury to acquit on both the charge of
burglary and first degree felony murder,” something the jury
would be unlikely to do, given the defendant’s clear
participation in the murder. Id. at 1088. Given those
circumstances, “[i]n effect, what [counsel] sought [in his
closing argument] was jury nullification; to convict [the
defendant] for murder, but to do so outside of the bounds of
the jury instructions, thereby saving [the defendant] the
possibility of the death penalty.” Id.
38 GALLEGOS V. RYAN

In assessing adequacy of representation, we are “required
not simply to give the attorneys the benefit of the doubt, but
to affirmatively entertain the range of possible reasons
[defense] counsel may have had for proceeding as [he] did.”
Pinholster, 131 S. Ct. at 1407 (internal citation and quotations
omitted). Doing so, we recognize that like the lawyer in
Anderson, Clark, after losing (twice) on the motion to acquit
on the technical defense to the predicate felony, could have
seen his best hope as being that the jury might get lost in the
morass of evidence and legal theories and convict Gallegos
of some offense less than first-degree murder out of mercy or
confusion, ignoring the charge of first-degree felony murder.

The alternative of explaining and arguing to the jury the
technical, “she was dead first” defense was not attractive.
Clark’s technical defense to the predicate felony was
convoluted, inherently repulsive, and unsympathetic.
Pushing the defense before the jury would have hurt the
chances of avoiding a premeditated murder conviction, as it
required insisting—at the same time Clark was attempting to
convince the jury that Gallegos was not an evil person and so
not a cold-blooded killer—that Gallegos should be acquitted
of sexual conduct with a minor because he “merely” raped a
child’s corpse. Even assuming a jury might accept such a
counterintuitive, unpalatable legal argument if the evidence
affirmatively supported the theory, the only expert testimony
introduced at trial was directly to the contrary. Although the
jury could have chosen to believe Gallegos’s overall story,
including his nonexpert perception as to when Kendall died,
or to rely on Dr. Bolduc’s minor equivocation as creating a
reasonable doubt, the State’s expert testimony went virtually
unrefuted. There was therefore little Clark could have done
in his statements to the jury to advance the technical
argument that Kendall had died prior to the assault. Arguing
 GALLEGOS V. RYAN 39

the point would only have highlighted the lack of evidence
supporting it, undermined Clark’s own credibility, and cast
Gallegos in an awful light. The defense, in short, was quite
unlikely to be successful with a jury, even as compared to a
judge.

Given those circumstances, Clark might well have
decided to make a “passive request that the jury reach some
verdict, rather than an express demand for acquittal,”
Yarborough v. Gentry, 540 U.S. 1, 10 (2004), as the latter
technique would have required wading into the
unsympathetic and unpersuasive details of the felony defense.
Consistent with that supposition, Clark did not entirely
neglect the felony murder theory, but his reference to it was
fleeting. The jury was aware of the technical defense, as the
prosecutor in his closing statement implied that Gallegos had
manufactured, in his confession to Detective Saldate, the
story that Kendall had died prior to the assault, stating, “Does
it work in conveniently because then the sodomy occurs after
she’s dead, therefore you cannot convict me?” Clark, in his
closing, responded: “Mr. Stalzer has told you or intimated to
you that my client, an 18-year-old high school boy, mere
hours after this event happened, was quick enough and
cunning enough to concoct some theory to defend himself
with. I think you ought to be offended.” Clark did not,
however, explicate in what ways the evidence supported his
technical theory. Beyond Gallegos’s own statements, it really
did not.

Instead, Clark emphasized his strongest evidence in his
closing argument, even though it supported only a defense to
premeditation, not felony murder. Clark repeatedly reminded
the jury that Gallegos was an 18-year-old high school student,
and described him as a “man-child” who “never intended for
40 GALLEGOS V. RYAN

this to happen.” He also emphasized that Detective Saldate
believed Gallegos’s narrative, reminding them that Detective
Saldate had “been a police office for 20-plus years,” and
urging them to “see what Detective Saldate saw. . . . He told
you that he believed Michael Gallegos. Michael told him that
he never intended for this to happen. And he told you that he
believed him.” These arguments were the “centerpiece of his
case,” id. at 6—namely, Gallegos committed these despicable
acts, but he was young, and, moreover, a seasoned police
officer believed his story that the death itself was
unintentional and relatively non-violent.

After reminding the jury of this mildly favorable
evidence, Clark concluded that “the facts that you have heard
certainly” support a conviction of reckless manslaughter.
What Clark did not tell the jury is that such a verdict was
possible only if Gallegos was not guilty of felony murder.
Clark could well have understood that there was no viable
defense to that charge, and so thought it best to avoid the
issue, hoping the jury might as well. It was an extremely
risky tactic, but he could reasonably have believed there was
no better alternative, a conclusion supported by Gallegos’s
failure on habeas to suggest a better approach to the felony
murder charge. See Anderson, 232 F.3d at 1090.

A related strategy, supportive of Clark’s chosen approach,
is that once the motion for acquittal was denied, Clark hoped
to avoid a unanimous conviction for premeditated murder,
because such a conviction could have had negative
consequences during the sentencing phase, as compared to a
conviction of felony murder or a mixed verdict. Specifically,
under Arizona law, it was a statutory mitigating factor that
“[t]he defendant could not reasonably have foreseen that his
conduct in the course of the commission of the offense for
 GALLEGOS V. RYAN 41

which the defendant was convicted would cause, or would
create a grave risk of causing, death to another person.” Ariz.
Rev. Stat. 13-703(G)(4). During the sentencing phase, Clark
in fact urged the court to adopt that statutory mitigating
circumstance, arguing that Gallegos was impaired during the
crime and that he intended only to fondle Kendall. Clark
continued, “all of a sudden this poor girl is not moving,” and
only then did Gallegos “realize[] what happened.” Clark
“firmly [did not] believe that [Gallegos] had the capacity to
appreciate what, in fact, his actions were going to lead to.”
The court was not persuaded, and found the mitigating
circumstance did not exist. Still, had Gallegos been
convicted unanimously of premeditated murder, that
potentially viable mitigating circumstance could not
realistically have been pursued at all. And, as explained,
highlighting the gruesome details underlying the technical
theory would have seriously undermined Clark’s attempts to
convince the jury that the murder was not premeditated.

The trial court, moreover, had indicated that, even if the
jury were to conclude that Kendall was dead at the time of the
rape, Gallegos could still have been found guilty of the
predicate felony, sexual conduct with a minor, so long as he
formed the intent before her death to sexually assault her.
That determination further reduced the chances that Clark’s
technical defense could have been successful if presented to
the jury, providing additional incentive for Clark to avoid
explicitly raising the defense in his closing argument. While
Clark could have highlighted Gallegos’s testimony that he
formed the intent to rape Kendall only after her death, that
testimony was largely uncorroborated, and plenty of contrary,
damaging evidence existed. For one, Kendall’s body was
badly battered, and Dr. Bolduc opined that some of her
bruises were inflicted while she was alive. That evidence cut
42 GALLEGOS V. RYAN

against Gallegos’s narrative of the crime as being relatively
non-violent, as well as the image that Clark was trying to
portray of Gallegos as a child who had not intended to hurt
Kendall.

Detective Saldate’s testimony at trial, moreover, was
inconsistent with the argument that Gallegos did not intend to
rape Kendall until after she died: According to the detective,
Gallegos had confessed he was thinking about the “last time
he had had sexual intercourse” before he raised the possibility
of fondling Kendall with Smallwood, and that he was “really
. . . turned on” by the feeling of baby oil on skin. Detective
Saldate further testified that Gallegos had told him he used
the baby oil on his penis and Kendall’s anus to facilitate the
rape, permitting the inference that Gallegos had retrieved the
oil for that purpose. Finally, when asked why he raped
Kendall, according to Saldate, Gallegos responded that he and
Smallwood thought they “might as well finish, in terms of
ejaculating.”

iv.

We also acknowledge, for the sake of completeness,
another tack that may have appeared to be available to Clark
at the time of trial, although not raised by Clark at trial or by
the parties in their briefs on this appeal: Clark might have
argued that Gallegos did not “knowingly” sexually assault
Kendall, because Gallegos believed Kendall dead before he
raped her.18 Unlike the theory that Kendall was no longer a

18
Again, the applicable statute provided: “A person commits sexual
conduct with a minor by intentionally or knowingly engaging in sexual
intercourse or oral sexual contact with any person who is under eighteen
years of age.” Ariz. Rev. Stat. § 13-1405(A) (emphasis added).
 GALLEGOS V. RYAN 43

“person” after death, which Clark presented to the court in his
motion for acquittal, Clark never explicitly articulated to the
trial court this distinct mens rea theory. The argument,
however, was raised before the Arizona Supreme Court on
direct appeal as part of a sufficiency of the evidence claim
and soundly rejected as resting on an incorrect interpretation
of the applicable statute. The Arizona Supreme Court held it
contrary to “public policy” to interpret the sexual conduct
with a minor statute as permitting a defendant to be acquitted
of sexual conduct if he believed his victim to have died prior
to the assault, even though she had not. That interpretation,
held the Arizona Supreme Court, would “encourage sex
offenders to first kill their victims or render them unconscious
before committing the sexual offense.” Gallegos I, 178 Ariz.
at 9.

True, the “I thought she was dead” theory was not
precluded by appellate precedent at the time of trial. But it is
unlikely that Clark’s conduct “fell below an objective
standard of reasonableness,” Strickland, 466 U.S. at 688, for
failing to make to the jury a novel, extremely unattractive,
argument, later definitively rejected as a matter of law on
appeal in the same case.

Moreover, and dispositively, any such contention would
fail at the Strickland prejudice prong, under the Supreme
Court’s application of that prong in Lockhart v. Fretwell,
506 U.S. 364, 372 (1993). Lockhart held that a habeas
petitioner cannot demonstrate prejudice under Strickland if
his counsel failed to raise a legal issue viable at the time of
trial but subsequently definitively repudiated. Failure of
counsel to make an argument later deemed non-meritorious,
Lockhart ruled, “does not deprive the defendant of any
substantive or procedural right to which the law entitles him,”
44 GALLEGOS V. RYAN

and so does not render “the result of the trial unreliable or the
proceeding fundamentally unfair.” Id. at 372. See also id. at
369–70 (“To set aside a conviction or sentence solely because
the outcome would have been different but for counsel’s error
may grant the defendant a windfall to which the law does not
entitle him.”). Given Lockhart and the State Supreme Court’s
ruling on appeal in Gallegos’s case concerning the mens rea
for sexual conduct with a minor, Clark’s failure to advance
the “I thought she was dead” mens rea theory could not
possibly be constitutionally prejudicial.

In sum, it would have been reasonable, had the state court
expressly addressed the issue, for it to conclude that Clark’s
failure to explicate a coherent theory to the jury against first-
degree murder was driven by the set of bad choices he faced
and so not constitutionally deficient. There is a “broad range
of legitimate defense strategy” at the closing argument stage;
“which issues to sharpen and how best to clarify them are
questions with many reasonable answers.” See Gentry,
54 U.S. at 6. “When counsel focuses on some issues to the
exclusion of others, there is a strong presumption that he did
so for tactical reasons rather than through sheer neglect.” Id.
at 8. Given the inherently disturbing nature of the technical
theory Clark adopted, for lack of an available alternative, to
defend against the felony murder charge, as well as its
counter-intuitive nature, it was reasonable to tailor the
defense as an argument to the court in the form of a motion
for acquittal, and, when the motion was denied and closing
arguments remained, not press the theory to the jury.
 GALLEGOS V. RYAN 45

2. Other Guilt Phase Ineffective Assistance Claims.

i.

Before addressing whether the state court was objectively
unreasonable in concluding that no prejudice resulted from
the other conduct Gallegos purports was constitutionally
deficient, we address whether the state court reasonably
determined Clark’s conduct to be not so egregious as to
warrant a presumption of prejudice under United States v.
Cronic, 466 U.S. 648 (1984). It did.

“Cronic recognized a narrow exception” to Strickland’s
requirement that a petitioner must demonstrate prejudice, and
“instructed that a presumption of prejudice would be in order
in ‘circumstances that are so likely to prejudice the accused
that the cost of litigating their effect in a particular case is
unjustified.’” Florida v. Nixon, 543 U.S. 175, 190 (2004)
(quoting Cronic, 466 U.S. at 658). The Cronic exception
“applies when the attorney’s failure to oppose the prosecution
goes to the proceeding as a whole—not when the failure
occurs only at specific points in the trial.” United States v.
Thomas, 417 F.3d 1053, 1057 (9th Cir. 2005) (citing Bell v.
Cone, 535 U.S. 685, 697 (2002)); Hovey, 458 F.3d at 906–07.

Assuming, without deciding, that Clark’s conduct was at
times constitutionally deficient in respects other than those
already discussed, he did not fail entirely to advocate for
Gallegos. Before trial, he moved to suppress Gallegos’s
confessions as involuntary. Although the arguments were
unsuccessful, he presented reasoned arguments in favor of
that position at a suppression hearing. Clark also developed
significant factual evidence favorable to Gallegos at trial.
While cross-examining Detective Saldate, for example, Clark
46 GALLEGOS V. RYAN

elicited evidence that: (1) Gallegos never meant to kill
Kendall; (2) prior to the assault, Gallegos planned only to
fondle Kendall, not rape her; (3) Gallegos believed Kendall
was dead prior to the sexual assault; (4) Smallwood was a
major participant in the crime; (5) Gallegos expressed
remorse for his involvement soon after the crime; and (6) the
detective believed Gallegos had told him the truth during his
confession. Clark elicited from Gallegos testimony
confirming Saldate’s accounts, as well as evidence that
Gallegos was quite intoxicated on the day of the crime. Clark
also moved twice, albeit unsuccessfully, for acquittal on the
sexual conduct with a minor charge.

Moreover, as we have explained, although Clark
conceded that Gallegos should be convicted, he did not
concede that his client was guilty of first-degree murder, and
acknowledging that Gallegos was responsible for the death
could reasonably have been a strategic maneuver. See Hovey,
458 F.3d at 907 (holding Cronic not applicable where
“counsel conceded his client’s guilt to protect his own
credibility and avoid conviction on other charges”); Thomas,
417 F.3d at 1058 (declining to presume prejudice where the
defendant was tried on multiple counts, and counsel conceded
certain points that were “for all practical purposes,
incontestible,” because he “believed that doing so would
enhance his credibility on counts where the evidence was
somewhat less clear and the penalties significantly greater”);
Anderson, 232 F.3d at 1087–90 (finding Cronic inapplicable
where trial counsel conceded that defendant murdered the
victim but asked the jury to convict him of first-degree
murder rather than felony murder in order to avoid eligibility
for the death penalty).
 GALLEGOS V. RYAN 47

Thus, the state court reasonably determined that Clark’s
conduct did not constitute abandonment, and that Strickland,
not Cronic, therefore applies to the question of prejudice.

ii.

As already explained, the crux of Gallegos’s case turned
on the first-degree felony murder charge. The prosecutor
recognized in closing argument that establishing
premeditation was more difficult than proving felony murder,
and he focused much of his argument on that charge. To
establish prejudice, then, Gallegos must show there is a
reasonable probability that, absent Clark’s remaining
purportedly unprofessional errors—namely, that he
unnecessarily vilified Gallegos, inadequately developed his
technical theory factually, and failed adequately to prepare
for cross-examination of Dr. Bolduc—he would not have
been convicted of first-degree felony murder.

It was not unreasonable for the state court to conclude that
Gallegos was not able to do so. On the facts developed at
trial, convincing the court or jury that Gallegos was not guilty
of the predicate felonies supporting first-degree felony
murder—sexual conduct with a minor or attempted sexual
conduct with a minor—would have been an exceedingly
difficult task for even the most skilled attorney. Clark’s
inability to avoid a conviction of a predicate offense was
unrelated to any allegedly deficient conduct.

As we have explained, Dr. Bolduc, the only medical
expert to testify at trial, expressed his opinion that the assault
began before Kendall died, even if it continued after her
death. After consulting with a medical expert, Clark was
unable to obtain anyone who could contradict Dr. Bolduc’s
48 GALLEGOS V. RYAN

position. Even if Clark could have done more to prepare for
his cross-examination of Dr. Bolduc or to develop his
technical defense, the state court was not unreasonable to
hold that it would have made no difference. In his state post-
conviction proceedings, Gallegos did not adduce any expert
testimony suggesting the sexual assault could have occurred
only after Kendall died, nor did he present any evidence
otherwise undermining Dr. Bolduc’s opinions. There is
therefore no factual basis whatsoever for concluding that
further preparation or investigation would have made any
difference. Gallegos’s speculative assertions that more
consultation with an expert could somehow have aided Clark
in preparing his defense or in cross-examining Dr. Bolduc are
unpersuasive and insufficient to establish prejudice. See
Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001)
(acknowledging that conjecture that a favorable expert might
have been found cannot establish prejudice (citing Grisby v.
Blodgett, 130 F.3d 365, 373 (9th Cir. 1997)).

Because the only expert evidence introduced at trial cut
squarely against Clark’s defense to the felony murder charge,
it was reasonable to conclude that any amount of unnecessary
vilification, as Gallegos purports occurred, could not have
affected the outcome of the trial. Gallegos’s conviction of
sexual conduct with a minor rested on his own confession that
he raped Kendall, introduced at trial through Detective
Saldate and Gallegos and confirmed by DNA evidence, not
on the jury’s possibly negative views of Gallegos.

At most, it might be the case that Clark’s harsh treatment
of his client decreased Gallegos’s chances of avoiding a
conviction of premeditated murder. But absent the jury
improperly ignoring the charge of felony murder, Gallegos
would have nonetheless faced the death penalty at sentencing
 GALLEGOS V. RYAN 49

even if no juror found him guilty of premeditated murder.
That the jury might have irrationally ignored the felony
murder alternative is insufficient to establish prejudice,
because, with regard to prejudice, we must “exclude the
possibility of arbitrariness, whimsy, caprice, ‘nullification,’
and the like.” Strickland, 466 U.S. at 695.

Thus, even assuming Clark was constitutionally deficient
for vilifying Gallegos or insufficiently investigating the
medical evidence, and recognizing that “‘prejudice may result
from the cumulative impact of multiple deficiencies,’” Boyde
v. Brown, 404 F.3d 1159, 1176 (9th Cir. 2005) (quoting
Cooper v. Fitzharris, 586 F.2d 1325, 1333 (9th Cir. 1978) (en
banc)), we cannot say that the state court was “objectively
unreasonable” to conclude Gallegos failed to show a
“substantial . . . likelihood of a different result” had Clark not
committed any constitutional errors in his defense.19
Pinholster, 131 S. Ct. at 1403 (citation and quotation marks
omitted); see Allen v. Woodford, 395 F.3d 979, 999 (9th Cir.
2005) (denying claims that counsel was ineffective because
the petitioner could not establish prejudice “in light of the
overwhelming evidence of guilt”).

Finally, it would not have been unreasonable for the state
court to hold that any deficiencies committed by Clark during
the guilt phase did not prejudice Gallegos at the penalty stage.
First, the state court found as an aggravating factor that

19
We note that in the extremely unlikely event that Clark had created a
reasonable doubt as to the predicate felony of sexual conduct with a
minor, he would nonetheless still have had to defend against attempted
sexual conduct with a minor, further confirming our conclusion that it was
reasonable to conclude Gallegos was not prejudiced by the purportedly
deficient conduct.
50 GALLEGOS V. RYAN

Gallegos was an adult at the time of the offense and that
Kendall was under fifteen years of age. Nothing Clark did, of
course, could have affected that determination.

Nor is there a substantial probability Clark’s purported
failings affected the other aggravating factor—that Gallegos
committed the offense in an especially heinous, cruel, or
depraved manner. Given the circumstances, if Clark’s harsh
treatment of Gallegos was constitutionally deficient, any
possible negative consequences pale in comparison to the
simple, unrefuted circumstance that Gallegos, while a guest
in her family’s home, raped an unconscious young girl whom,
he maintained, he thought was dead. In fact, the very
substance of Clark’s chosen theory carried with it a virtually
guaranteed finding that Gallegos committed the murder in a
depraved manner. See Gallegos I, 178 Ariz. at 15 (noting that
an “act of necrophilia ‘without question’ constitute[s] the
infliction of gratuitous violence on [a] victim,” thereby
establishing depravity (quoting State v. Brewer, 170 Ariz.
486, 502 (1992)).

Moreover, while Gallegos is correct that the sentencing
court relied on some information that can be traced back to
Clark’s purportedly deficient performance—for instance, the
trial court noted that Kendall “flailed her arms” as she awoke,
evidence introduced only through Gallegos’s testimony—the
bulk of the circumstances relied on by the state court was not
related to Clark’s performance. For one, the sentencing court
observed that Kendall’s body was bruised and battered. Even
accepting Gallegos’s contention that Clark was deficient for
failing to undermine the testimony regarding the timing of
Kendall’s anal trauma, Gallegos does not argue there is
anything Clark could have done to refute that Kendall’s body
 GALLEGOS V. RYAN 51

exhibited other injuries. Those injuries, moreover, have
nothing to do with whether Clark vilified his client.

The sentencing court also relied on the fact that Kendall
was helpless, noting she weighed only 57 pounds and was
asleep at the time of the attack, and that the crime was
“senseless because Kendall loved and trusted” Gallegos.
Again, Gallegos makes no contentions that Clark’s
performance could have influenced those findings.

In sum, even if Clark’s purportedly deficient conduct
contributed somewhat to the state court’s sentencing
determinations, we cannot say it was objectively
unreasonable to conclude Gallegos’s sentence would likely
remain unaffected absent any errors. Pinholster, 131 S. Ct.
at 1410 (quoting Richter, 131 S. Ct. at 792).

B. The Penalty Phase

We also reject Gallegos’s claims that counsel at
sentencing were ineffective for failing fully to prepare and
present mitigating evidence concerning his mental health and
personal history.20

20
Gallegos did not procedurally default this claim for the same reason
his claims regarding Clark’s development and preparation of medical
evidence are not procedurally defaulted: Gallegos argued in his
supplemental petition for post-conviction relief that he was denied
effective assistance of counsel because his mental health and personal
history were insufficiently investigated and presented at sentencing.
Gallegos renewed that claim in his petition for review to the Arizona
Supreme Court, and included a copy of his supplemental petition for post-
conviction relief in the appendix to his state supreme court petition,
thereby adequately presenting his claims. See Scott, 567 F.3d at 582; see
also supra note 15.
52 GALLEGOS V. RYAN

The state post-conviction court adjudicated Gallegos’s
claim on the merits, so he must “overcome the limitation of
§ 2254(d)(1) on the record that was before th[e] state court.”
Pinholster, 131 S. Ct. at 1400. Moreover, because the state
court summarily denied Gallegos’s penalty phase ineffective
assistance claims, we “must determine what arguments or
theories . . . could have supporte[d] the state court’s decision;
and then [we] must ask whether it is possible fairminded
jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision of [the
Supreme Court].” Id. at 1402 (quoting Richter, 131 S. Ct. at
786).

Gallegos has the burden of showing a reasonable
probability that, but for counsel’s deficient performance, the
death sentence would not have been imposed. See Wong v.
Belmontes, 130 S. Ct. 383, 386 (2009). We hold that the state
court could reasonably have determined that he was not
prejudiced at the penalty phase, and so do not address
whether his representation was deficient. See Bible, 571 F.3d
at 870 (quoting Strickland, 466 U.S. at 697).

The state post-conviction court held an evidentiary
hearing, affording Gallegos the chance to present evidence
supporting his claims. Gallegos, however, adduced no
additional mitigating evidence, nor did he offer evidence to
undermine the aggravating circumstances found by the state
court. The sentencing profile presented to the state post-
conviction court—in fact, to the very judge who had
previously sentenced Gallegos to death—was identical to the
profile at the time of resentencing. Under these
circumstances, and because Gallegos’s claim was adjudicated
on the merits, we are “limited to the record that was before
the state court.” Pinholster, 131 S. Ct. at 1398. Without any
 GALLEGOS V. RYAN 53

additional evidence before the state post-conviction court, it
cannot have been “unreasonable for [that court] to conclude
that [Gallegos] had failed to show a ‘substantial’ likelihood
of a different sentence.” Pinholster, 131 S. Ct. at 1410
(quoting Richter, 131 S. Ct. at 792); Wiggins v. Smith,
539 U.S. 510, 534 (2003) (“[W]e [must] reweigh the evidence
in aggravation against the totality of available mitigating
evidence.”).

Moreover, the types of evidence Gallegos now argues
could have been augmented had counsel performed
adequately were all presented to the sentencing courts in
some detail. See Bobby v. Van Hook, 130 S. Ct. 13, 19 (2009)
(confirming that proposed new evidence would have “added
nothing of value”). For instance, Gallegos maintains counsel
should have more fully documented his history of drug and
alcohol abuse. Such evidence, however, was developed at
length during his sentencing hearings. Gallegos’s sister, for
example, noted that he abused alcohol and used marijuana
and “coke or crystal.” Several of his friends testified that he
drank heavily and used marijuana, mushrooms, and acid.
And Gallegos himself explained that he started drinking
around age thirteen, starting using marijuana in sixth grade,
and used methamphetamine in high school. That testimony
was confirmed by Dr. Shaw’s report, introduced at the second
sentencing hearing, in which he explained that Gallegos was
drinking beer and “smoking marijuana almost daily,” by the
ninth grade, and opined that “there is no question that
[Gallegos] is an alcoholic.” The sentencing court
acknowledged Gallegos’s history of alcohol and drug use and
weighed it as a non-statutory mitigating circumstance. On
appeal, the Arizona Supreme Court agreed the history of
substance abuse should have been afforded “little, if any,
weight,” in light of state law specifying that the failure to
54 GALLEGOS V. RYAN

seek treatment for substance abuse reduces its mitigating
weight. Gallegos II, 185 Ariz. at 345 (citing State v. King,
180 Ariz. 268, 288 (1994)); Gallegos I, 178 Ariz. at 18.
Gallegos makes no argument that more from his counsel
would have undermined that conclusion.

We are similarly unpersuaded that additional evidence of
Gallegos’s tendency to be a “follower,” incapable of standing
up to Smallwood, would have made a difference to
Gallegos’s sentence, because a substantial amount of such
evidence was developed at his resentencing hearing.
Gallegos’s probation officer, for instance, testified that
Gallegos was “very susceptible” to peer pressure. Gallegos’s
mother agreed that Smallwood exerted influence over
Gallegos, and that Gallegos “followed” Smallwood.
Gallegos’s sister, niece, and several of his friends provided
similar accounts of Smallwood’s destructive sway over
Gallegos. The sentencing court found that evidence
unpersuasive, stating there was “no reliable corroborating
evidence” that Smallwood was involved. Again, additional
evidence that Gallegos was excessively influenced by
Smallwood would not have affected the court’s
determination.

Nor was Gallegos prejudiced by counsel’s failure to
present evidence that he had a learning disability and was
placed in special education classes. Gallegos’s presentence
report noted that he had been “in special education classes
throughout his education career.” The juvenile probation
report, attached to the presentence report, confirmed he had
a learning disability. Gallegos himself also testified to his
placement in special education classes. Consistent with that
evidence, the sentencing court acknowledged Gallegos’s
 GALLEGOS V. RYAN 55

“documented learning disability,” but gave it little weight as
there was no evidence he was “mentally deficient.”

In sum, any evidence Gallegos maintained could have
been introduced at sentencing would have been cumulative of
evidence already presented in detail at the sentencing
hearings. The state court’s application of Strickland,
therefore, was not “objectively unreasonable,” as there exists
no “reasonable probability” that the additional information
Gallegos suggests should have been uncovered and presented
“could have resulted in a different outcome of the penalty
phase of the trial.” Brown, 503 F.3d at 1014; see also Bible,
571 F.3d at 872.

CONCLUSION

Had Gallegos been sentenced by a jury of his peers, as
would now be his constitutional right, see Ring, 536 U.S. at
609, his sentence may very well have been different. To be
sure, his crime was an unspeakable one. At the same time, it
is nothing short of remarkable that the two detectives in
charge of his case both testified against imposition of the
death penalty, especially considering that neither officer had
ever so recommended. Perhaps a jury would not
unanimously have sentenced Gallegos to die after hearing that
the two officers most familiar with his case found such a
punishment unwarranted. See Scott E. Sundby, The Jury as
Critic: An Empirical Look at How Capital Juries Perceive
Expert and Lay Testimony, 83 Va. L. Rev. 1109, 1146 & n.91
(1997) (concluding that witnesses “perceived to be testifying
counter to their usual inclinations or who would not normally
be seen as supportive of the defendant” are “[e]specially
effective,” and discussing the testimony of a prison employee
whose mitigating “testimony was later instrumental in
56 GALLEGOS V. RYAN

swaying the jurors holding out for death to agree instead to a
life sentence”). On top of that, Gallegos was barely eighteen
years old at the time of the crime and had no serious criminal
background. A jury could have viewed the horrendous
offense as aberrational and declined to impose the death
penalty.

The sentencing judge was adamant. Indeed, he
proclaimed that “even if the Arizona Supreme Court told this
Court to weigh the alcohol and drug history and impairment
ten times, this Court would still find that each aggravating
circumstance standing alone would outweigh all collective
mitigation.” Some jurors—at least one—might well have
taken a different approach. There is really no way to know.
Such diversity of views is one of the bedrock values
underlying our jury system, facilitating sentencing that
“express[es] the conscience of the community on the ultimate
question of life or death.” Witherspoon v. Illinois, 391 U.S.
510, 519 (1968). Nonetheless, and even though “[t]he right
to jury trial is fundamental to our system of criminal
procedure,” Summerlin, 542 U.S. at 358, that Gallegos was
sentenced by a method later held unconstitutional is, under
Summerlin, not a ground for granting relief, and he advances
no such claim. Id. (holding that the rule announced in Ring
does not apply retroactively to cases already final on direct
review).

For the reasons given above and applying the highly
deferential AEDPA standard, Gallegos is not entitled to
habeas relief on the claims covered in this opinion.

AFFIRMED in part and REMANDED for further
proceedings consistent with the concurrently filed order.