Gallardo v. McVay

• Court: U.S. District Court — Eastern District of California
• Writing for the Court: HELENA M. BARCH-KUCHTA, UNITED STATES MAGISTRATE JUDGE
• Docket Number: 1:23-cv-01616-KES-HBK (HC)
• Decision Date: 28 October 2025
• Citation: Gallardo v. McVay, 1:23-cv-01616-KES-HBK (HC) (E.D. Cal. Oct 28, 2025)
• Parties: ERIC GALLARDO, Petitioner, v. MATTHEW McVAY, Respondent.
• topic: Constitutional Law,Criminal Law,Ongoing or Prospective Litigation,Civil Procedure

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ERIC GALLARDO, Petitioner, v. MATTHEW McVAY, Respondent.

No. 1:23-cv-01616-KES-HBK (HC)

United States District Court, E.D. California

October 28, 2025

FINDINGS AND RECOMMENDATIONS TO DENY PETITIONER RELIEF ON HIS PETITION FOR WRIT OF HABEAS CORPUS ^[1]

FOURTEEN-DAY OBJECTION PERIOD

(DOC. NO. 1)

HELENA M. BARCH-KUCHTA, UNITED STATES MAGISTRATE JUDGE

I. STATUS

Petitioner Eric Gallardo (“Petitioner” or “Gallardo”), a state prisoner proceeding with counsel, has pending a petition for writ of habeas corpus filed under 28 U.S.C. § 2254 on November 15, 2023. (Doc. No. 1, “Petition”). Petitioner challenges his conviction after a jury trial for second degree murder with firearm specifications. (Case No. F16900466). (Doc. No. 1216 at 2; see Doc. No. 12-2 at 95-96).^[2] The Fresno County Superior Court sentenced Petitioner to an aggregate term of 40 years to life in state prison. (Doc. No. 12-16 at 2; see Doc. No. 12-2 at 245-46).

On appeal, the Fifth Appellate District conditionally reversed Petitioner's sentence and remanded the case to the trial court to consider whether a firearm enhancement should be struck or modified, or whether the original sentence should be reinstated. (Case No. F079072). (Doc. No. 12-16 at 39). The appellate court otherwise affirmed the judgment. (Id.). On August 17, 2022, the California Supreme Court denied Gallardo's petition for review. (Case No. S275129). (Doc. No. 12-18).

The instant Petition advances the following three grounds for relief:

(1) Defense counsel was ineffective in not objecting to the improper closing argument and deadlock breaking instructions, in violation of petitioner's Sixth Amendment right to the effective assistance of counsel.

(2) The prosecutor engaged in prejudicial misconduct during closing argument, depriving Petitioner of a fair trial in violation of his Fourteenth Amendment right to due process, when the prosecutor (a) misstated the law concerning the “heat of passion” necessary to reduce murder to manslaughter; (b) vouched for her own credibility and good faith, using the court as a silent witness to this, and misstating the law as to the court's function; and (c) disparaging the defense and falsely accusing defense counsel of trickery and dishonesty.

(3) The court deprived petitioner of his Sixth and Fourteenth Amendment right to a unanimous jury and a fair trial by giving the jury a coercive deadlockbreaking instruction.

(Doc. No. 1 at 18).^[3]

Respondent filed an Answer (Doc. No. 13), arguing Petitioner was not entitled to relief on any of his grounds, and lodged the state court record in support (Doc. Nos. 12, 12-1 through 1218, 25^[4]). Petitioner filed a traverse.^[5] (Doc. No. 23). This matter is deemed submitted on the record before the Court. After careful review of the record and applicable law, the undersigned recommends the district court deny Petitioner relief on his Petition and decline to issue a certificate of appealability.

II. GOVERNING LEGAL PRINCIPLES

A. Evidentiary Hearing

In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007). “It follows that if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.” Id.

Here, Petitioner argues “the state courts unreasonably determined the facts by not holding an evidentiary hearing at which defense counsel could be questioned on his reasons, if any, for failing to object” such that Petitioner is entitled to an evidentiary hearing in these federal proceedings. (Doc. No. 1 at 19). However, as discussed below in addressing the merits of Petitioner's claims, any objection would have been meritless and, even if defense counsel performed deficiently, the record does not show that Petitioner was prejudiced. Thus, counsel's reasons for failing to object are immaterial to the issues before the Court. This Court finds that the pertinent facts of this case are fully developed in the record before the Court and no evidentiary hearing is required. Cullen v. Pinholster, 563 U.S. 170 (2011).

B. ADEPA General Principles

A federal court's statutory authority to issue habeas corpus relief for persons in state custody is set forth in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA requires a state prisoner seeking federal habeas relief to first “exhaus[t] the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). If the state courts do not adjudicate the prisoner's federal claim “on the merits,” a de novo standard of review applies in the federal habeas proceeding; if the state courts do adjudicate the claim on the merits, then AEDPA mandates a deferential, rather than de novo, review. Kernan v. Hinojosa, 136 S.Ct. 1603, 1604 (2016). This deferential standard, set forth in § 2254(d), permits relief on a claim adjudicated on the merits, but only if the 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). This standard is both mandatory and intentionally difficult to satisfy. Sexton v. Beaudreaux, 138 S.Ct. 2555, 2558 (2018); White v. Woodall, 572 U.S. 415, 419 (2014).

“Clearly established federal law” consists of the governing legal principles in the decisions of the United States Supreme Court when the state court issued its decision. White, 572 U.S. at 419. Habeas relief is appropriate only if the state court decision was “contrary to, or an unreasonable application of,” that federal law. 28 U.S.C. § 2254(d)(1). A decision is “contrary to” clearly established federal law if the state court either: (1) applied a rule that contradicts the governing law set forth by Supreme Court case law; or (2) reached a different result from the Supreme Court when faced with materially indistinguishable facts. Mitchell v. Esparza, 540 U.S. 12, 16 (2003).

A state court decision involves an “unreasonable application” of the Supreme Court's precedents if the state court correctly identifies the governing legal principle, but applies it to the facts of the petitioner's case in an objectively unreasonable manner, Brown v. Payton, 544 U.S. 133, 134 (2005), or “if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams v. Taylor, 529 U.S. 362, 407, (2000). “A state court's determination that a claim lacks merit precludes federal habeas relief so long as fair-minded jurists could disagree on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011). The petitioner must show that the state court decision “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.

When reviewing a claim under § 2254(d), any “determination of a factual issue made by a State court shall be presumed to be correct[,]” and the petitioner bears “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Burt v. Titlow, 571 U.S. 12, 18 (2013) (“[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.”) (quoting Woodv. Allen, 558 U.S. 290, 293 (2010)).

Even if a petitioner meets AEDPA's “difficult” standard, he must still show that any constitutional error had a “substantial and injurious effect or influence” on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). As the Supreme Court explained, while the passage of AEDPA “announced certain new conditions to [habeas] relief,” it didn't eliminate Brecht's actualprejudice requirement. Brown v. Davenport, 596 U.S. 118, 134 (2022). In other words, a habeas petitioner must satisfy Brecht, even if AEDPA applies. See id. at 138 (“[O]ur equitable precedents remain applicable ‘whether or not' AEDPA applies.”) (citing Fry v. Pliler, 551 U.S. 112, 121 (2007)). In short, a “federal court must deny relief to a state habeas petitioner who fails to satisfy either [Brecht] or AEDPA. But to grant relief, a court must find that the petition has cleared both tests.” Id. at 134.

As discussed supra, for the deferential § 2254(d) standard to apply there must have been an “adjudication on the merits” in state court. An adjudication on the merits does not require that there be an opinion from the state court explaining the state court's reasoning. Richter, 562 U.S. at 98. “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Id. at 99. “The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely.” Id. at 99-100. This presumption applies whether the state court fails to discuss all the claims or discusses some claims but not others. Johnson v. Williams, 568 U.S. 289, 293, 298-301 (2013).

While such a decision is an “adjudication on the...