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Gallegos v. Yordy

United States District Court, D. Idaho

August 8, 2016

ANDY GENE GALLEGOS, Petitioner,
v.
KEITH HOWARD YORDY, Respondent.

          MEMORANDUM DECISION AND ORDER

          Hon. Ronald E. Bush United States Magistrate Judge.

         Pending before the Court is Petitioner Andy Gene Gallegos’s Petition for Writ of Habeas Corpus. (Dkt. 1.) Respondent has filed a Motion for Summary Dismissal, arguing that all of Petitioner’s claims are procedurally defaulted. (Dkt. 11.) The Motion is now ripe for adjudication. (See Dkt. 13, 14, 15.)[1]

         The parties have consented to the jurisdiction of a United States Magistrate Judge to conduct all proceedings in this case in accordance with 28 U.S.C. § 636(c). (Dkt. 8.) Having carefully reviewed the record, including the state court record, the Court finds that the parties have adequately presented the facts and legal arguments in the briefs and record and that oral argument is unnecessary. See D. Idaho L. Civ. R. 7.1(d).

         The Court concludes that Petitioner’s claims are procedurally defaulted and that Petitioner has not established a legal excuse for the default. Alternatively, Petitioner’s claims fail on the merits under de novo review. Accordingly, the Court enters the following Order granting the Motion and dismissing this case with prejudice.

         BACKGROUND

         The facts underlying Petitioner’s conviction are known to the parties and will not repeated here except as necessary to explain the Court’s decision.

         1.2006 Charges

         In 2006, Petitioner was originally charged, in the Fifth Judicial District in Cassia County, Idaho, with lewd conduct and attempted lewd conduct. See State v. Gallegos, Cassia County Case No. CR-2006-3760. (State’s Lodging A-2 at 3-7.) Dr. Brek Pilling was appointed to examine Petitioner for purposes of determining his competency to stand trial. Around the same time, the doctor was treating a young patient who, during the course of mental health treatment, suggested to Dr. Pilling that an unidentified friend of hers had falsely accused the friend’s father of sexual abuse. (Id.) Believing it was possible that the unidentified friend and the victim in Petitioner’s case were the same individual-based on similar facts the doctor had gleaned from his treatment of his patient and from his evaluation of Petitioner-Dr. Pilling informed Petitioner’s counsel of the existence of the patient and the fact that she had referred to her unidentified friend, but the doctor did not disclose the patient’s identity. The defense then subpoenaed Dr. Pilling to disclose the patient’s identity, and Dr. Pilling filed a motion to quash or for a protective order, relying on the doctor-patient privilege. (Id.)

         The trial court held an evidentiary hearing at which Dr. Pilling testified. (State’s Lodging A-2.) The court initially denied the motion, but later reconsidered its decision and granted Dr. Pilling’s motion for protective order. It appears that both Petitioner’s counsel and the prosecutor attempted to learn the identity of Dr. Pilling’s patient independently of Dr. Pilling. (State’s Lodging A-3 at 41-42.)

         This earlier case against Petitioner was eventually dismissed without prejudice.

         2.2007 Charges Resulting in Petitioner’s Convictions

         In 2007, the State re-charged Petitioner, this time with two counts of sexual abuse of a child under sixteen years of age and a persistent violator enhancement. It is this re-filed case that is the subject of the instant habeas Petition. Petitioner’s counsel subpoenaed Dr. Pilling, again requesting the identity of the doctor’s patient. Dr. Pilling filed another motion to quash or for protective order. (State’s Lodging A-1 at 98-106.)

         The trial court reviewed the transcript of the doctor’s testimony at the evidentiary hearing, as well as the other judge’s opinions, in the previous case. (State’s Lodging A-3 at 50-51.) Following oral argument, the court granted the Dr. Pilling’s motion for two reasons. First, the court concluded that it would take a “huge speculative leap” to find a connection between the unidentified patient’s statements and the allegations against Petitioner. (Id. at 51.) Second, the court determined that if the identity of the patient were disclosed and she were interviewed by the attorneys in the case, the patient would suffer “serious and significant harm” to her mental health (Id.) The trial court prohibited the parties from mentioning Dr. Pilling, his patient, or any statements that patient might have made during the course of her treatment with Dr. Pilling. (State’s Lodging A-1 at 135-36.)

         The jury convicted Petitioner of the two counts of sexual abuse, and Petitioner pled guilty to the persistent violator enhancement. (State’s Lodging H-7 at 1.) Petitioner received a unified sentence of thirty years in prison with ten years fixed on the first count, and a concurrent unified sentence of twenty-five years with ten years fixed on the second count. Petitioner appealed, contending that the trial court abused its discretion in sentencing. (State’s Lodging B-1.) The Idaho Court of Appeals affirmed, and the Idaho Supreme Court denied review. (State’s Lodging B-4, B-7.)

         3.Collateral Proceedings in State and Federal Court

         Several months later, Petitioner filed a federal habeas corpus petition, which was dismissed without prejudice for failure to exhaust. See Gallegos v. Carlin, Case No. 3:10-cv-00179-LMB, Dkt. 19. While that federal petition was pending, Petitioner filed a petition for postconviction relief in state court. (State’s Lodging C-1 at 1-27.) Petitioner-who was represented by several different counsel at different times-later supplemented his petition with additional issues and submitted three amended petitions. (Id. at 81-92, 100-06, 117-24; C-2 at 239-46.) In the operative third amended initial postconviction petition, Petitioner raised numerous claims and sub-claims: First, Petitioner claimed his trial counsel was ineffective in failing (a) to conduct a proper pretrial investigation, (b) to subpoena certain witnesses at a motion hearing, (c) to lay a proper foundation during that motion hearing, (d) to be prepared for trial, or (e) to secure a stipulation regarding a psychosexual evaluation. (State’s Lodging C-1 at 242-43.) Second, Petitioner claimed his attorney during his motion for a new trial was ineffective in failing (a) to research the law regarding polygraphs or (b) to subpoena the polygraph examiner. (Id. at 243-44.) Third, Petitioner claimed that his direct appeal counsel were ineffective in failing to challenge, on appeal, (a) the trial court’s decision not to order Dr. Pilling to disclose the identity of his patient, (b) the court’s denial of Petitioner’s motion to offer evidence under Idaho Rule of Evidence 412, (c) the court’s denial of Petitioner’s request for private counsel, (d) the court’s decision to permit hearsay evidence, (e) the court’s decision to allow an expert witness to testify, (f) the court’s denial of Petitioner’s motion for acquittal, and (g) the prosecutor’s statements during closing argument. (Id. at 244-45.)

         The state district court dismissed the postconviction petition. (State’s Lodging C-2 at 402-19.)

         Petitioner appealed the dismissal of his initial state postconviction petition. However, Petitioner, acting pro se, later voluntarily dismissed that appeal. (State’s Lodging at D-5, D-6.)

         While his initial postconviction petition was still pending in the state district court, Petition filed a second petition for postconviction relief, as well as an amended petition, claiming that the prosecution failed to disclose favorable evidence under Brady v. Maryland, 373 U.S. 83 (1963). (State’s Lodging E-1 at 21-25, 52-59.) The trial court dismissed this second postconviction case. (Id. at 359-68.) Petitioner appealed, but-as with the appeal from the dismissal of his first postconviction petition-he voluntarily dismissed the appeal. (State’s Lodging F-1, F-3.)

         After the trial court dismissed Petitioner’s second petition for postconviction relief, but before the appeal was dismissed, Petitioner filed a third petition for postconviction relief in state court. (State’s Lodging G-1 at 1-38.) The state district court dismissed this third postconviction petition as procedurally improper pursuant to Idaho’s successive petitions bar found in Idaho Code § 19-4908, which provides that, without a “sufficient reason, ” all grounds for postconviction relief must be asserted in an initial postconviction conviction. (Id. at 83-87.)

         Petitioner appealed the dismissal of his third petition for state postconviction relief. On appeal, Petitioner argued that (1) trial counsel rendered ineffective assistance in failing to request an in camera hearing wherein Dr. Pilling’s patient could testify as to what she told Dr. Pilling, (2) direct appeal counsel rendered ineffective assistance in failing to raise a trial ineffectiveness claim on appeal, and (3) the State of Idaho denied him the right to counsel on direct appeal because, in Idaho, initial postconviction counsel’s ineffectiveness is not a sufficient reason to file a successive postconviction petition. (State’s Lodging H-5.) The Idaho Court of Appeals affirmed, holding that all of Petitioner’s claims should have been raised, or in fact were raised, in his initial postconviction petition. (State’s Lodging H-7 at 3.) The court also held that the alleged ineffective assistance of Petitioner’s initial postconviction counsel was not a sufficient reason for purposes of the successive petitions bar in § 19-4908, citing Murphy v. State, 156 Idaho 591, 596 (2014). (Id.)

         The Court has construed the instant federal habeas corpus petition as asserting the following claims:

Claim A: Ineffective assistance of trial counsel based on counsel’s failure to move for an in camera hearing to allow the judge to interview Dr. Pilling’s still-unidentified patient.
Claim B: Ineffective assistance of counsel on direct appeal for failing to raise a trial ineffectiveness claim of failure to move for an in camera hearing with Dr. Pilling’s patient.
Claim C: Complete denial of appellate counsel based on the difficulty in raising, on appeal, claims of ineffective assistance of trial counsel.[2]

(See Initial Review Order, Dkt. 5, at 2; Petition, Dkt. 1, at 4-11.)

         Respondent now argues that Petitioner’s claims are procedurally defaulted and must be dismissed.

         DISCUSSION

         1.Summary ...


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