On June 27, 2013, the Supreme Court denied Elrick Gallow’s petition for writ of certiorari, 12-7516. The question raised by Gallow was:
Can a federal court consider new evidence to support a state prisoner’s application for habeas relief under 28 U.S.C.§ 2254(d), when the state court record was not developed as a result of incompetent and likely conflicted post conviction counsel.
Justice Breyer, joined by Justice Sotomayor, provided a statement with respect to the denial of the petition. Gallow had raised a claim of ineffective assistance of trial counsel related to counsel’s advice midway through trial that Gallow plead guilty, advice Gallow reluctantly accepted without knowing that trial counsel had evidence to impeach the alleged victim’s testimony. (Counsel later admitted in an affidavit that he had been unable to cross-examine the alleged victim both because counsel was suffering from panic attacks and because he was related to the alleged victim.) The claim was presented in state post-conviction proceedings but Gallow’s new attorney failed to present admissible evidence to support the claim, resulting in the state court rejecting the affidavit from trial counsel on state evidentiary grounds.
Justice Breyer found that Gallow’s situation was indistinguishable from the petitioner in Trevino v. Thaler, 569 U.S. ___ (2013), who did not receive a hearing on the merits of his ineffective assistance of trial counsel claim due to state habeas counsel’s failure to properly present the claim in state court. Justice Breyer continued:
A claim without any evidence to support it might as well be no claim at all. In such circumstances, where state habeas counsel deficiently neglects to bring forward "any admissible evidence" to support a substantial claim of ineffective assistance of trial counsel, there seems to me to be a strong argument that the state habeas counsel’s ineffective assistance results in a procedural default of that claim. The ineffective assistance of state habeas counsel might provide cause to excuse the default of theclaim, thereby allowing the federal habeas court to consider the full contours of Gallow’s ineffective-assistance claim. For that reason, the Fifth Circuit should not necessarily have found that it could not consider the affidavit and testimony supporting Gallow’s claim because of Cullen v. Pinholster, 563 U. S. ___ (2011).
Nonetheless, I recognize that no United States Court of Appeals has clearly adopted a position that might give Gallow relief. But I stress that the denial of certiorari here is not a reflection of the merits of Gallow’s claims.