Gallo v. Kernan, No. C-94-20603 RPA.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Citation933 F. Supp. 878
Decision Date04 June 1996
Docket NumberNo. C-94-20603 RPA.
PartiesJoseph Angelo GALLO, Petitioner, v. P.L. KERNAN, Warden, California State Prison-Solano, Respondent.

933 F. Supp. 878

Joseph Angelo GALLO, Petitioner,
v.
P.L. KERNAN, Warden, California State Prison-Solano, Respondent.

No. C-94-20603 RPA.

United States District Court, N.D. California.

June 4, 1996.


933 F. Supp. 879
COPYRIGHT MATERIAL OMITTED
933 F. Supp. 880
Richard Keys, Redwood City, CA, George L. Schraer, San Diego, CA, for plaintiff

Bruce Ortega, Ronald Niver, California State Attorney General's Office, San Francisco, CA, for defendant.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

AGUILAR, District Judge.

I. INTRODUCTION

Petitioner Joseph Gallo, an inmate at Solano State Prison, filed this Petition for Habeas Corpus pursuant to 28 U.S.C. § 2254. Gallo, through counsel, alleges that he is unlawfully confined in violation of the Sixth and Fourteenth Amendments. Specifically, Gallo alleges prosecutorial misconduct and the denial of effective assistance of counsel.

II. BACKGROUND

Gallo was convicted by a Santa Clara County jury on two counts of sodomy, in violation of Cal.Penal Code § 286(c), and one count of oral copulation, in violation of Cal.Penal Code § 288a(c). The trial court sentenced him to 28 years in prison. Gallo was also convicted of nineteen other criminal counts, including assault, extortion, false imprisonment, and dissuading a witness. The trial court sentenced him to an additional 27 years in prison for these crimes. In the present petition, Gallo challenges only his convictions for the three sex offenses. These offenses were perpetrated against Gallo's then wife, Valerie Wright Gallo ("Wright").

Wright married Gallo in October, 1982. Over the next five months, Gallo beat Wright on eight separate occasions, sometimes with his fists, at other times with a phone receiver or a baseball bat. As a result, Wright was hospitalized three times with severe head injuries, including a skull fracture, internal bleeding, acute swelling of the brain, blood clots on the brain, and brain hemorrhaging. At trial, a prosecution expert testified that the repetitive beatings had adversely affected Wright's memory.

Following her third hospitalization, which lasted almost three weeks, Wright left Gallo. She filed a complaint with the Redwood City Police Department. Initially, Wright reported the battering and a single sodomy, which she stated had taken place in a Redwood City hospital. In a subsequent written statement she did not mention the oral copulation. However, at the preliminary hearing Wright testified to two forced sodomies and one oral copulation, all occurring at her San Jose home. She denied she was sodomized in the hospital. At a subsequent deposition, Wright mentioned two sodomies and no oral copulation.

At trial, Wright testified that the three sexual assaults occurred at her house, sometime in between her second and third hospitalization. Wright's testimony was the sole evidence presented on the three sex offenses. Gallo's counsel did not attempt to impeach Wright with her prior inconsistent statements. Gallo was convicted on all charges pertaining to Wright.

In the course of preparing a petition for a writ of habeas corpus, Gallo's current wife, Cheryl, went to San Jose to listen to three tapes of a recorded conversation between the prosecutor, Joyce Dougherty, and Wright. The conversation had taken place prior to the preliminary hearing and the tapes had been turned over to the defense. Side two of tape three was blank. However, when Cheryl listened to the copies lodged with the court, she discovered recorded conversation on side two of the tape.

On the tape Wright asked Dougherty if she could bring notes with her to the hearing. Dougherty asked if the notes were the ones Wright had previously given to her and which she, in turn, had passed on to the defense attorney. Wright stated that they were her mother's notes of a conversation

933 F. Supp. 881
they had had while Wright was in the hospital. Dougherty asked to see them. Wright said "okay" and appeared to shuffle and handle some papers. Wright continued, "I have to go through all this stuff 'cause I have things in here that might help. I have a letter to my brother that I wrote after I left that has things I remember a lot more than I do now. It might help." The tape recording ends after a few moments of silence

After the tape was discovered, Gallo brought a petition for habeas corpus in Santa Clara County Superior Court. Gallo alleged, among other things, that the prosecution had suppressed evidence that was materially favorable to his case and that as a result, he was denied due process of law. After an evidentiary hearing, Superior Court Judge Chang found that the prosecution had not withheld Wright's letter or her mother's notes. Judge Chang did find that the prosecution had suppressed the tape recording (tape three, side two), but concluded that the taped statements were cumulative, not material, evidence. Accordingly, Gallo's petition was denied.

In the present petition, Gallo asks this Court to revisit these due process claims and other claims previously addressed by the California Court of Appeal and Supreme Court. Gallo argues that he was denied due process of law by the prosecution's failure to disclose evidence material to Wright's credibility. Specifically, Gallo alleges that the prosecution withheld the tape recording, Wright's letter to her brother, her mother's notes, and knowledge of Wright's personal relationship with an investigating officer. Further, Gallo alleges that he was denied due process when the prosecutor failed to recuse herself after becoming emotionally involved in the case. Lastly, Gallo claims he was denied effective assistance of counsel when his trial attorney failed to impeach Wright with prior inconsistent statements.

For the following reasons, Gallo's due process claims are DISMISSED.

III. DISCUSSION

A. Ineffective Assistance of Counsel

Gallo alleges that he was deprived of his Sixth Amendment right to adequate assistance of counsel when his trial counsel failed to attempt to impeach Wright's testimony with prior inconsistent statements. Gallo asserts that but for this error he would not have been convicted of the three sex offenses.

The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The Strickland court set forth a two-part test for ineffective assistance of counsel claims. First, a habeas petitioner must show that counsel's performance was deficient and fell below an objective standard of reasonableness. Id. at 688, 104 S.Ct. at 2064. Judicial scrutiny of counsel's performance must be deferential. Because of the difficulties inherent in making the evaluation, the courts must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. Second, petitioner must show that the deficient performance prejudiced his defense. The test for prejudice requires the defendant to 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 694, 104 S.Ct. at 2068.

Examining the trial record, the Court finds that Gallo has not shown deficient performance by his trial counsel. The record shows that Gallo's counsel made a tactical decision not to use Wright's inconsistent statements to impeach her. It is well settled that impeachment strategy is a matter of trial tactics. Gustave v. United States, 627 F.2d 901, 906 (9th Cir.1980). Tactical decisions are not ineffective assistance simply because in retrospect better tactics are known to have been available. Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir.1984), cert. denied, 469 U.S. 838, 105 S.Ct. 137, 83 L.Ed.2d 77 (1984). Further, a mere difference of opinion as to trial tactics does not constitute denial of effective assistance. United States v. Mayo, 646 F.2d 369, 375

933 F. Supp. 882
(9th Cir.1981), cert. denied sub nom., Dondich v. United States, 454 U.S. 1127, 102 S.Ct. 979, 71 L.Ed.2d 115 (1981)

Trial counsel Bauer recognized several inconsistencies in Wright's statements. When Gallo first made his ineffective assistance claim, in state court, Bauer testified that he consciously decided not to use the inconsistencies to impeach Wright. This decision was a tactical one, based on Wright's impact on the jury during direct examination. Wright testified at length to the numerous brutal beatings and the sexual attacks she received from Gallo. Bauer noticed three jurors crying, and concluded that there was an unacceptable risk that the jury would feel he was pursuing "little picky things" if he attempted to impeach Wright. Bauer's decision not to impeach Wright with her inconsistent statements was within the wide range of reasonable professional judgment.

Even assuming, arguendo, that Bauer's conduct was unreasonable, Gallo does not meet the second prong of Strickland. Gallo has not shown sufficient prejudice as a result of Bauer's failure to impeach Wright with prior inconsistent statements. Gallo contends that had Wright been impeached, there would have been a reasonable probability that the jury would have acquitted on the three sex offenses.

Gallo bases his position on the fact that he was acquitted on the one sex offense involving Kim Sherry. Sherry was impeached with...

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9 practice notes
  • Franklin v. Warden, No. 2:05-cv-0304 KJM
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • December 30, 2014
    ...involvement in a case might lead to improper bias in violation of a criminal defendant's due process rights. See, e.g., Gallo v. Kernan, 933 F. Supp. 878, 885 (N.D. Cal. 1996), aff'd, 141 F.3d 1175 (9th Cir. 1998) (table). Courts considering the question also have said, however, that review......
  • Johnson v. Hofbauer, No. CIV.99-CV-75467-DT.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • June 18, 2001
    ...are not ineffective assistance of counsel simply because in retrospect better tactics may have been available. Gallo v. Kernan, 933 F.Supp. 878, 881 (N.D.Cal.1996); aff'd Page 608 F.3d 1175 (9th Cir.1998); cert. den. 525 U.S. 856, 119 S.Ct. 137, 142 L.Ed.2d 111 (1998). The Court first notes......
  • Gill v. Martel, 2: 09 - cv - 748 JAM TJB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • May 24, 2011
    ...constituted an irregularity 'sufficiently fundamental' to justify our setting aside the conviction in this case."); Gallo v. Kernan, 933 F. Supp. 878, 885 (N.D. Cal. 1996) (denying habeas relief where it was claimed that prosecutor demonstrated an improper personal and emotional bias agains......
  • Harrison v. Tegels, 16–cv–124–bbc
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • October 27, 2016
    ...sub nom. Kidd v. North ern NH Correctional Facility , No. 11–cv–350–JL, 2012 WL 5873709 (D.N.H. Nov. 20, 2012) ; Gallo v. Kernan , 933 F.Supp. 878, 881–82 (N.D. Cal. 1996) (upholding counsel's tactical decision not to impeach victim with inconsistent statements because of concern that "the ......
  • Request a trial to view additional results
9 cases
  • Franklin v. Warden, No. 2:05-cv-0304 KJM
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • December 30, 2014
    ...involvement in a case might lead to improper bias in violation of a criminal defendant's due process rights. See, e.g., Gallo v. Kernan, 933 F. Supp. 878, 885 (N.D. Cal. 1996), aff'd, 141 F.3d 1175 (9th Cir. 1998) (table). Courts considering the question also have said, however, that review......
  • Johnson v. Hofbauer, No. CIV.99-CV-75467-DT.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • June 18, 2001
    ...are not ineffective assistance of counsel simply because in retrospect better tactics may have been available. Gallo v. Kernan, 933 F.Supp. 878, 881 (N.D.Cal.1996); aff'd Page 608 F.3d 1175 (9th Cir.1998); cert. den. 525 U.S. 856, 119 S.Ct. 137, 142 L.Ed.2d 111 (1998). The Court first notes......
  • Gill v. Martel, 2: 09 - cv - 748 JAM TJB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • May 24, 2011
    ...an irregularity 'sufficiently fundamental' to justify our setting aside the conviction in this case."); Gallo v. Kernan, 933 F. Supp. 878, 885 (N.D. Cal. 1996) (denying habeas relief where it was claimed that prosecutor demonstrated an improper personal and emotional bias against petit......
  • Harrison v. Tegels, 16–cv–124–bbc
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • October 27, 2016
    ...sub nom. Kidd v. North ern NH Correctional Facility , No. 11–cv–350–JL, 2012 WL 5873709 (D.N.H. Nov. 20, 2012) ; Gallo v. Kernan , 933 F.Supp. 878, 881–82 (N.D. Cal. 1996) (upholding counsel's tactical decision not to impeach victim with inconsistent statements because of concern that "......
  • Request a trial to view additional results

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