124 F.3d 1065 (9th Cir. 1997), 96-99006, Gallego v. McDaniel

Docket Nº:96-99006.
Citation:124 F.3d 1065
Party Name:D.A.R. 11,509 Gerald Armond GALLEGO, Petitioner-Appellant, v. E.K. McDANIEL, Warden, Ely State Prison; Ron Angelone, Director, Nevada Department of Prisons; Frankie Sue Del Papa, Attorney General of the State of Nevada, Respondents-Appellees.
Case Date:September 04, 1997
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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124 F.3d 1065 (9th Cir. 1997)

D.A.R. 11,509

Gerald Armond GALLEGO, Petitioner-Appellant,


E.K. McDANIEL, Warden, Ely State Prison; Ron Angelone,

Director, Nevada Department of Prisons; Frankie

Sue Del Papa, Attorney General of the

State of Nevada, Respondents-Appellees.

No. 96-99006.

United States Court of Appeals, Ninth Circuit

September 4, 1997

Argued and Submitted Dec. 10, 1996.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Richard F. Cornell, Law Offices of Richard F. Cornell, Reno, NV, for petitioner-appellant.

Robert E. Wieland, Deputy Attorney General, Carson City, NV, for respondent-appellee.

Appeal from the United States District Court for the District of Nevada; Howard D. McKibben, District Judge, Presiding. D.C. No. CV-N-93-00631-HDM.

Before: CANBY, NORRIS, and LEAVY, Circuit Judges.

LEAVY, Senior Circuit Judge:

Gerald Armond Gallego, a Nevada death row inmate, appeals from the district court's denial of his petition for a writ of habeas corpus, arguing that his state conviction and sentence for murder were unconstitutional due to (1) inappropriate trial venue, (2) improper denials of trial continuance motions, (3) unfair restriction on the scope of cross-examination, (4) insufficient evidence of guilt, (5) unlawful jury instruction, (6) denial of effective assistance of trial counsel, and (7) prejudice resulting from the prosecutor's having a pecuniary interest in the case. For the reasons which follow, we affirm in part, reverse in part and remand for further proceedings.


On the afternoon of September 11, 1978, two teenaged girls, Kippi Vaught and Rhonda Scheffler, disappeared from the parking lot of a Sacramento shopping mall. Their bodies were found two days later in a rural area outside of Sacramento. Although both victims had suffered blows to the head, they died of gunshot wounds. Vaught's hands were tied behind her back. Scheffler, who had apparently been raped, died clutching a piece of cord similar to that used to bind Vaught's hands.

On the afternoon of April 24, 1980, two teenaged girls, Karen Twiggs and Stacey Redican, disappeared from the parking lot of a Sacramento shopping mall. Their bodies were found three months later in a rural area outside of Lovelock, Nevada. Both victims had died from blows to the head. Twiggs' arms were tied behind her back. A piece of rope similar to that used to bind Twiggs' arms was found nearby. The bodies were too decomposed for an autopsy to determine whether either victim had been raped.

On November 2, 1980, Mary-Beth Sowers and Craig Miller disappeared from the parking lot of a Sacramento shopping mall. Miller's body was found a few hours later in a rural area outside of Sacramento; Sowers' body was found in a different rural area three weeks later. Both victims had died of gunshot wounds. Sowers' body was too decomposed for an autopsy to determine whether she had been raped.

One of Miller's friends had been in the mall parking lot on November 2d and had seen Miller and Sowers leave in a vehicle with Gallego and Gallego's "wife," Charlene Williams. 2 The friend gave the police a description

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of Gallego, Williams, their vehicle, and its license number. The police eventually tracked Gallego and Williams to Omaha, Nebraska, where the two were arrested and brought back to California to stand trial for the Sowers/Miller murders.

Williams entered into a plea agreement with authorities in California, Nevada, and Oregon. Under the terms of that agreement, Williams (1) provided information concerning her involvement with Gallego in ten "sex slave" murders the pair had committed in those three states; (2) promised to testify against Gallego in the California and Nevada prosecutions; (3) pleaded guilty to two counts of second-degree murder, for which she received a sentence of less than seventeen years' imprisonment; and (4) was granted transactional immunity for the remaining eight murders.

In 1983, Gallego was tried, convicted, and sentenced to death in California for the Sowers/Miller murders. The following year he was brought to trial in Nevada for the Twiggs/Redican murders. During the guilt phase of Gallego's Nevada trial, the prosecution introduced evidence of the then-uncharged Vaught/Scheffler crimes. 3 The jury returned verdicts of guilty on two counts each of first degree kidnapping and first degree murder. During the penalty phase of Gallego's trial, the prosecution introduced evidence of the Sowers/Miller crimes. Gallego was sentenced to die.

The Nevada Supreme Court affirmed Gallego's conviction and death sentence. Gallego v. State, 101 Nev. 782, 711 P.2d 856 (1985). After all of his Nevada state court collateral attacks had failed, including petitions for post-conviction and habeas corpus relief, Gallego filed the instant petition for a writ of habeas corpus in federal district court. The district court denied relief, and Gallego has timely appealed.


Standard of Review

We review de novo a district court's decision to grant or deny habeas corpus relief. Woratzeck v. Stewart, 97 F.3d 329, 332 (9th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1443, 137 L.Ed.2d 549 (1997). We also review de novo any underlying state court conclusions of law. Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir.1997) (en banc) (citing 28 U.S.C. § 2254(d)(1)). While we examine for clear error any factual findings made by the district court in reaching its decision, Woratzeck, 97 F.3d at 332, we must defer to state court findings of fact unless "based on an unreasonable determination of the facts in light of the evidence presented[.]" Jeffries, 114 F.3d at 1500 (citations and internal quotations omitted).


As a preliminary matter, we must first determine which issues are properly before us on appeal. Gallego originally asserted forty issues in his federal habeas petition, but abandoned thirteen of these issues and voluntarily withdrew one more, subject to its later possible incorporation into sixteen of the remaining twenty-six issues. The district court then dismissed nine issues on the ground of procedural default, and portions of four others on the grounds of failure to exhaust, failure to state a claim, and abuse of the writ. The court finally disposed of the remaining seventeen issues on their merits in an elaborate and carefully reasoned fifty-four page opinion. 4

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The appellees argued below, and continue to insist on appeal, that Gallego waived and/or procedurally defaulted as to most of those seventeen issues. The appellees contend that the district court should have declined to reach their merits, because those issues either had not been exhausted in the state courts, or had "metamorphosed" in the federal courts from the form in which Gallego had presented them to the Nevada courts.

We reject this contention. The district court carefully and thoroughly dealt with each of these arguments, and properly rejected them on their merits. While our comparison of the issues raised by Gallego in each of his state proceedings with those presented in his federal habeas petition reveals certain differences in wording and presentation, we conclude that the district court correctly determined that the remaining issues in dispute had been fairly presented to the Nevada state courts.

This does not fully answer, however, the question of which of Gallego's original forty issues are now before us. In his opening brief, Gallego asserted only eight issues, which he reduced to seven in his reply brief. In their answering brief, the appellees rephrased Gallego's issues and expanded them into a total of thirteen issues. After careful review of the materials provided, we conclude that all of Gallego's issues fall into four broad categories, viz., Fair Trial, Improper Jury Instruction, Ineffective Assistance of Counsel, and Prosecutorial Misconduct, each of which will be dealt with in turn.


  1. Denial of Motion for Change of Venue

    Arguing that a change of venue was necessary because pervasive "media hype" made it impossible to assemble a panel of impartial local jurors, Gallego contends that the trial court deprived him of his right to a fair trial when it denied his motion for a change of venue. We disagree.

    A criminal defendant facing trial by jury is entitled to be tried by "a panel of impartial, 'indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). Accordingly, a trial judge must grant a motion for change of venue if prejudicial pretrial publicity makes it impossible to seat an impartial jury. Harris v. Pulley, 885 F.2d 1354, 1360 (9th Cir.1988). As we recently noted,

    A defendant need only demonstrate one of two different types of prejudice in support of a motion to transfer venue: presumed or actual. Prejudice is presumed when the record demonstrates that the community where the trial was held was saturated with prejudicial and inflammatory media publicity about the crime. Prejudice is rarely presumed because "saturation" defines conditions found only in extreme situations. To establish actual prejudice, the defendant must demonstrate that the jurors exhibited actual partiality or hostility that could not be laid aside.

    United States v. Sherwood, 98 F.3d 402, 410 (9th Cir.1996) (as amended) (internal citations and quotations omitted).

    1. Presumptive Prejudice

      Among the items to which Gallego cites in support of his claim of presumptive prejudice is the defense's "scientifically conducted poll" purporting to show pervasive local bias. From our review of the record, we agree with the district court's conclusion that the trial...

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