           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         February 11, 2008

                                       No. 05-10885                   Charles R. Fulbruge III
                                                                              Clerk

MANUEL GALLEGOS

                                                  Petitioner-Appellant
v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                                  Respondent-Appellee



                   Appeal from the United States District Court
                       for the Northern District of Texas
                             USDC No. 3:05-cv-00029


Before WIENER, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
       Appellant Manuel Gallegos (Gallegos) appeals the district court’s denial
of his petition for habeas corpus relief filed under 28 U.S.C. § 2254. Specifically,
Gallegos challenges the district court’s denial of his request for an evidentiary
hearing and his ineffective assistance of counsel claim. Because the district court
did not abuse its discretion by not holding an evidentiary hearing and because




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                    No. 05-10885

it properly concluded that Gallegos failed to establish that he received ineffective
assistance of counsel, we affirm.
                               I. BACKGROUND
      On July 21, 2000, Gallegos was involved in an altercation with Alfredo
“Little Freddy” Lopez (Lopez) and Jesse Hernandez (Hernandez). Hernandez
testified at trial that following a verbal exchange with Gallegos, Lopez took off
running while Hernandez stayed behind to face Gallegos. Gallegos approached
Hernandez and stated that he was only interested in Lopez. Gallegos fired a shot
into the air and Hernandez ran. While he was running Hernandez heard a
second shot but did not see who fired it. Hernandez returned to the area where
the shots were fired and found Lopez lying on the ground, apparently dead, shot
once in the back. Albert Ayala (Ayala) was on his front porch across the street
from where Lopez was shot. Ayala testified that he heard the first shot and saw
Hernandez and Lopez running. Ayala also saw the muzzle blast from the second
shot, and immediately lay on the ground. When he looked up, he saw Lopez lying
on the street and Gallegos walking away. Later that evening, Gallegos was
stopped by police, who found a pistol in the truck in which he was traveling.
Investigators found one .40 caliber casing that was fired from the pistol in the
area where the shots were fired. Police conducted a handwiping test on possible
suspects and only Gallegos tested positive for recently firing a gun. After his
arrest, Gallegos admitted in a written statement to the police that he fired two
shots, one in the air and one in the direction of Lopez. However, he maintained
that neither shot hit Lopez and that Lopez continued running after both shots
were fired.
      On April 16, 2001, a Texas state court jury found Gallegos guilty of first-
degree murder. The court sentenced Gallegos to fifty years in prison. After
Gallegos exhausted his direct appeals, he filed a state habeas corpus application
alleging, inter alia, ineffective assistance of counsel at trial. Specifically,


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Gallegos alleged that his trial counsel was ineffective for failing to present any
forensic evidence at trial. Gallegos believed that forensic evidence would have
shown that Lopez was shot while he lay on the ground and not while he was
running as Ayala had testified. Gallegos also requested an evidentiary hearing.
      The state habeas court did not hold an evidentiary hearing but did request
two affidavits from Gallegos’s trial counsel, Anthony Calisi (Calisi). The
affidavits stated that: (1) Calisi’s decisions “were well thought out and
appropriately implemented”; (2) Gallegos was provided with “effective assistance
of counsel”; (3) he hired a “forensic scientist”; (4) he obtained Lopez’s clothing for
the forensic scientist to study; and (5) he “visit[ed] with the Medical Examiner
at her office.” Calisi also stated that he ultimately presented only those
witnesses he believed to be credible: “In that regard, it was quite difficult to
present witnesses for the defense . . . .” The state habeas court also considered
the affidavit of Raul Guajardo (Guajardo), submitted by Gallegos. Guajardo, a
forensic scientist, stated his belief that the evidence, which he had examined
after the trial at Gallegos’s request, showed that Lopez was struck while he was
either “falling and close to the ground” or was “in a prone position and on the
ground.” This conclusion contradicted Ayala’s eye-witness testimony that Lopez
was running when the fatal shot was fired. The state habeas court found Calisi’s
affidavits to be “true, correct, and dispositive” of Gallegos’s ineffective assistance
of counsel claims, and thus recommended denial of Gallegos’s habeas
application. On October 20, 2004, the State Court of Criminal Appeals denied his
habeas application without a written order.
      On January 5, 2005, Gallegos filed a § 2254 petition with the federal
district court, raising the same issues as he did in his state habeas claim and
again requesting an evidentiary hearing. The magistrate judge issued its
“findings, conclusions and recommendations,” concluding that the state court’s
decision was not an unreasonable application of federal law, nor was it based on


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an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(1)-(2). The
magistrate judge also concluded that Calisi’s affidavits implied that a forensic
scientist had been hired but was not called as a witness because his testimony
ultimately would not have aided Gallegos’s defense at trial. On June 21, 2007,
the district court adopted the magistrate judge’s findings and denied Gallegos’s
§ 2254 application. Gallegos timely filed a notice of appeal and request for a
Certificate of Appealability (COA), which was denied by the district court. The
Fifth Circuit granted Gallegos a COA on the issue of whether his trial counsel
was ineffective for failing to obtain and present forensic evidence. Gallegos v.
Quarterman, No. 05-10885, slip op. at 2 (5th Cir. Aug. 10, 2006) (unpublished).
      On appeal, Gallegos contends that Ayala was the star witness against him
at trial, and that his trial counsel’s failure to present forensic evidence to rebut
Ayala’s testimony prejudiced him. Gallegos also asserts that the state habeas
court relied on Calisi’s “vague” affidavits rather than conduct an evidentiary
hearing, which resulted in a decision that was an unreasonable determination
of the facts in light of the evidence presented. Finally, Gallegos asserts that he
was entitled to an evidentiary hearing in the district court because the state
habeas court improperly denied his request for a hearing, which would have
allowed him to develop the factual basis of his claim.
                                  II. ANALYSIS
A.    Standard of review
      Gallegos filed his habeas petition in district court on January 5, 2005, after
the effective date of the Anti-Terrorism and Effective Death Penalty Act of 1996
(AEDPA). We therefore review his appeal pursuant to AEDPA. See 28 U.S.C. §
2253; Lindh v. Murphy, 521 U.S. 320, 336 (1997). AEDPA provides in relevant
part that:
             [a]n application for a writ of habeas corpus . . . shall not
             be granted with respect to any claim that was
             adjudicated on the merits in State court proceedings

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              unless the adjudication of the claim . . . 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). Federal habeas relief is only available when the state court’s
decision was incorrect and objectively unreasonable. Yarborough v. Gentry, 540
U.S. 1, 5 (2003). Further, state court findings of fact are presumed correct unless
the defendant rebuts this presumption with clear and convincing evidence. 28
U.S.C. § 2254(e)(1).
B.     Denial of evidentiary hearing
       Before we address whether Gallegos received ineffective assistance of
counsel, we consider Gallegos’s assertion that the district court erred by not
holding an evidentiary hearing on his ineffective assistance of counsel claim. We
review a district court’s denial of a request to hold an evidentiary hearing for
abuse of discretion. Clark v. Johnson, 202 F.3d 760, 765 (5th Cir. 2000).
       A petitioner must develop the factual basis of his claim in state court to be
entitled to an evidentiary hearing in federal court. 28 U.S.C. § 2254(e)(2).
However, a petitioner who has not developed the factual basis of his claim may
still be granted an evidentiary hearing if one of the two conditions set forth in
§ 2254(e)(2) is met.1 Id. § 2254(e)(2)(A),(B). “‘Under the opening clause of §
2254(e)(2), a failure to develop the factual basis of a claim is not established
unless there is a lack of diligence, or some greater fault, attributable to the




       1
         First, the petitioner’s claim must rely on “a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court,” or on a “factual predicate that
could not have been previously discovered through the exercise of due diligence.” Id. §
2254(e)(2)(A). Alternatively, the applicant must show that “the facts underlying the claim
would be sufficient to establish by clear and convincing evidence that but for constitutional
error, no reasonable factfinder would have found the applicant guilty of the underlying
offense.” Id. § 2254(e)(2)(B).

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prisoner or the prisoner’s counsel.’” Dowthitt v. Johnson, 230 F.3d 733, 758 (5th
Cir. 2000) (quoting Williams v. Taylor, 529 U.S. 420, 432 (2000)).
      Assuming without deciding that Gallegos’s request for an evidentiary
hearing is not barred by the preclusive effect of § 2254(e)(2), we find that the
district court did not abuse its discretion in denying Gallegos an evidentiary
hearing. “[O]vercoming the preclusive effect of § 2254(e)(2) does not guarantee
an evidentiary hearing, it only opens the door for one.” Clark, 202 F.3d at 765.
The district court still has the discretion to grant or deny an evidentiary hearing.
Id. There is no requirement for a federal habeas court to conduct a hearing with
live testimony. McDonald v. Johnson, 139 F.3d 1056, 1060 (5th Cir. 1998). When
“[t]he district court ha[s] sufficient facts before it to make an informed decision
on the merits of [the habeas petitioner’s] claim” it does not abuse its discretion
in failing to conduct an evidentiary hearing, even where no factual findings are
explicitly made by any state court. See id.
      Furthermore, the lack of an evidentiary hearing in state court does not
effect the presumption that the state court findings of fact are correct. See 28
U.S.C. § 2254(e)(1); see also Valdez v. Cockrell, 274 F.3d 941, 950-51 (5th Cir.
2001), cert. denied, 537 U.S. 883 (2002). In contrast to the pre-AEDPA law,
deference to a state habeas court’s factual determinations is not dependent upon
the quality of the state court’s evidentiary hearing. Valdez, 274 F.3d at 950. “[A]
full and fair hearing is not a precondition to according § 2254(e)(1)’s presumption
of correctness to state habeas court findings of fact nor to applying § 2254(d)’s
standards of review.” Id. at 951.
      Gallegos argues that an evidentiary hearing would have allowed him to
present evidence to establish his claim for ineffective assistance of counsel.
However, when requesting an evidentiary hearing, Gallegos offered only
Guajardo’s affidavit for support. Guajardo’s affidavit essentially calls into
question Gallegos’s liability for the shooting; it does not raise an issue as to

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whether Calisi provided ineffective assistance of counsel at trial. Thus,
Gallegos’s primary argument for ineffective assistance of counsel is that Calisi
either lied in his affidavits or that the affidavits lacked enough specificity for
Gallegos to determine whether Calisi developed an effective forensic defense
strategy. Gallegos has not presented any evidence to support his claim, relying
instead on unsubstantiated attacks on Calisi’s affidavits. The state habeas court
found that Calisi’s affidavits were correct and dispositive of Gallegos’s ineffective
assistance of counsel claims. Calisi’s affidavits make clear that he hired a
forensic scientist, obtained evidence for the forensic scientist to examine, and
discussed Gallegos’s case with the Medical Examiner. Both the state habeas
court and the federal district court determined that a hearing was unnecessary
and a decision could be rendered based on the affidavits before the court. We find
no error with the federal district court’s decision. Gallegos has failed to marshal
clear and convincing evidence to rebut the presumption of correctness afforded
the state court’s findings of fact. The district court did not improperly rely on the
state habeas court’s factual findings or improperly infer from the affidavits that
the expert was not called at trial because his testimony would not have aided
Gallegos. When a state court’s rulings are vague, its implied factual findings and
legal rulings are still entitled to deference. See, e.g., Young v. Dretke, 356 F.3d
616, 629 (5th Cir. 2004) (implicit factual findings are entitled to deference);
Santellan v. Cockrell, 271 F.3d 190, 193-94 (5th Cir. 2001) (ultimate ruling of
state court entitled to deference even if no explanation for ruling is given).
Because we conclude that the district court did not abuse its discretion by not
holding an evidentiary hearing, we turn to Gallegos’s ineffective assistance of
counsel claim.
C.    Ineffective assistance of counsel




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         We review the district court’s findings of fact for clear error and issues of
law de novo when reviewing the denial of habeas relief. Moody v. Johnson, 139
F.3d 477, 480 (5th Cir. 1998).
         To establish his claim for ineffective assistance of counsel, Gallegos must
show (1) that his counsel was deficient and (2) that the deficiency prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The court applies
an objective standard of reasonableness, as measured by professional norms, to
determine whether counsel’s performance was deficient. Id. To prove deficiency,
Gallegos must show that his trial counsel was not functioning as the “counsel”
guaranteed him by the Sixth Amendment. Id. Our scrutiny of counsel’s
performance is “highly deferential” and there is a “strong presumption” that any
alleged deficiency “falls within the wide range of reasonable professional
assistance.” Id. at 689. To demonstrate prejudice, Gallegos “must 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. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Id. A failure to establish either deficiency or prejudice defeats the claim. Id. at
697.
         Calisi’s affidavit states that he hired a forensic expert and obtained
evidence for the expert to analyze, indicating that he did some forensic
investigation of Gallegos’s case. Gallegos has not overcome the presumption we
afford Calisi’s trial strategy and decision not to call the forensic expert to the
stand at trial. See, e.g., Williams v. Cain, 125 F.3d 269, 278-79 (5th Cir. 1997)
(“[F]ailure to present . . . evidence would not constitute ‘deficient’ performance
within the meaning of Strickland if [counsel] could have concluded, for tactical
reasons, that attempting to present such evidence would be unwise.”). Gallegos
failed to establish that his trial counsel was deficient in his representation at
trial.

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      Furthermore, Gallegos has failed to show a reasonable probability that
but for his trial counsel’s failure to call a forensic expert he would have been
found not guilty of fatally shooting Lopez. Although Guajardo’s affidavit calls
into question the path of the bullet in relation to the position of Lopez’s body
when he was shot, testimony from the Medical Examiner at trial indicated that
the path of a bullet could be influenced by a number of factors, including the
victim’s body movement, the shooter’s movement, and whether the bullet struck
a bone or an organ. Gallegos also admitted to shooting in Lopez’s direction, was
found with a pistol in his brother’s truck, and tested positive for firing a gun the
night of the shooting. Finally, there was eye-witness testimony from Ayala who
saw the second shot being fired and moments later saw Lopez lying in the street
as Gallegos walked away.
      Because Gallegos has failed to establish his claim for ineffective assistance
of counsel, we affirm.
AFFIRMED.




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