                  Cite as: 570 U. S. ____ (2013)             1

                     Statement of BREYER, J.

SUPREME COURT OF THE UNITED STATES
ELRICK J. GALLOW, PETITIONER v. LYNN COOPER,
                  WARDEN
   ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

    STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

              No. 12–7516. Decided June 27, 2013


  The petition for a writ of certiorari is denied.
  Statement of JUSTICE BREYER, with whom JUSTICE
SOTOMAYOR joins, respecting the denial of the petition for
writ of certiorari.
  Petitioner Elrick Gallow, like the petitioner in the re-
cently decided case of Trevino v. Thaler, 569 U. S. ___
(2013), alleges that he received ineffective assistance of
counsel both at his criminal trial and during his first state
postconviction proceeding. Specifically, petitioner’s trial
counsel has admitted in an affidavit and testimony be-
fore the State’s Disciplinary Board that “he was unable to
effectively cross-examine the victim because he was suffer-
ing from panic attacks and, more importantly, is related to
the victim. Because of this, [he] advised Gallow to plead
guilty despite Gallow’s reluctance to do so, and failed to in-
form both Gallow and the State that he had evidence to
impeach the victim’s testimony.” 1 App. to Pet. for Cert. 3.
In reliance on this conflicted advice, Gallow pleaded guilty
midway through trial. His trial counsel was subsequently
disbarred. When Gallow, represented by a different attor-
ney, filed for state postconviction relief, his new attorney
failed to bring forward “any admissible evidence” to sup-
port his claim of ineffective assistance of trial counsel. Id.,
at 15. Namely, in state court Gallow’s habeas counsel
repeatedly neglected to subpoena the trial counsel, which
led the state court to reject the counsel’s affidavit on state
evidentiary grounds. This meant that Gallow was left
with a claim that had virtually no evidentiary support.
2                    GALLOW v. COOPER

                    Statement of BREYER, J.

  In my view, a petitioner like Gallow is in a situation
indistinguishable from that of a petitioner like Trevino:
Each of these two petitioners failed to obtain a hearing
on the merits of his ineffective-assistance-of-trial-counsel
claim because state habeas counsel neglected to “properly
presen[t]” the petitioner’s ineffective-assistance claim in
state court. Martinez v. Ryan, 566 U. S. 1, ___ (2012) (slip
op., at 2). 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 coun-
sel’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 the
claim, thereby allowing the federal habeas court to con-
sider the full contours of Gallow’s ineffective-assistance
claim. For that reason, the Fifth Circuit should not neces-
sarily have found that it could not consider the affidavit
and testimony supporting Gallow’s claim because of Cul-
len 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.
