               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


MICHAEL GALLEGOS,                    No. 08-99029
         Petitioner-Appellant,
                                       D.C. No.
              v.                 2:01-cv-01909-NVM

CHARLES L. RYAN,
         Respondent-Appellee.             ORDER


              Filed November 30, 2016

   Before: Marsha S. Berzon, Consuelo M. Callahan,
           and Carlos T. Bea, Circuit Judges.

                       Order;
              Dissent by Judge Callahan
2                       GALLEGOS V. RYAN

                            SUMMARY*


                          Habeas Corpus

   The panel granted a petition for panel rehearing, and
amended its April 7, 2016 order in a habeas corpus case in
which Arizona state prisoner Michael Gallegos challenges his
conviction and death sentence for first-degree murder and
sexual conduct with a minor.

    The panel amended the first paragraph of the April 7
order to grant in part Gallegos’s motion for stay and partial
remand for reconsideration in light of Martinez v. Ryan, 132
S. Ct. 1309 (2012). The panel instructed the district court to
consider, on remand, Gallegos’s timely Martinez claim and
to determine whether he can show cause and prejudice to
excuse the procedural default with respect to his claim that
counsel failed to investigate and present mitigating evidence
of Gallegos’s alleged organic brain damage. The panel
denied as moot Gallegos’s request for a stay of appellate
proceedings.

    The panel wrote that the second paragraph of the April 7
order remains in effect, and that the panel’s April 7 opinion
affirming the denial of Gallegos’s other habeas claim remains
in force.

    Dissenting from the grant of a partial remand for
reconsideration in light of Martinez, Judge Callahan wrote
that she does not think that Gallegos had made the minimal

    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                     GALLEGOS V. RYAN                         3

showing of ineffective assistance of counsel required for a
remand.


                           ORDER

   Appellant Gallegos’s Petition for Panel Rehearing is
granted.

   The first paragraph of the panel’s April 7, 2016 order is
amended to read as follows:

    The panel GRANTS IN PART Appellant Gallegos’s
Motion for Stay and Partial Remand for Reconsideration in
Light of Martinez v. Ryan, 132 S. Ct. 1309 (2012). On
remand, the District Court shall consider Gallegos’s timely
Martinez claim and, accordingly, determine whether he can
show cause and prejudice to excuse the procedural default
with respect to his claim that counsel failed to investigate and
present mitigating evidence of Gallegos’s alleged organic
brain damage. See Dickens v. Ryan, 740 F.3d 1302, 1320
(9th Cir. 2014) (en banc). Gallegos’s request for a stay of
appellate proceedings is denied as moot.

    The second paragraph of the April 7, 2016 order remains
in effect.

   The panel’s April 7, 2016 opinion affirming the denial of
Appellant’s other habeas claim remains in force.

    The Clerk shall issue the mandate seven days after the
date of this order.
4                      GALLEGOS V. RYAN

    No further petitions for rehearing or rehearing en banc
shall be entertained.



CALLAHAN, Circuit Judge, dissenting:

    I respectfully dissent from the grant of a partial remand
for reconsideration in light of Martinez v. Ryan, 132 S. Ct.
1309 (2012). We held in Dickens v. Ryan, 740 F.3d 1302,
1320 (9th Cir. 2014) (en banc), that Martinez may provide a
path for a state defendant such as Gallegos “to demonstrate
cause, if he can show the first two Martinez elements: (1) the
claim is substantial and (2) that his PCR counsel was
ineffective under Strickland [v. Washington, 466 U.S. 668
(1984)].” I do not think that Gallegos has made the minimal
showing required for a remand.1

     An Arizona jury found that in 1990 Gallegos “had anally
raped and killed eight-year-old Kendall Wishon, a girl his
brother had raised as a daughter.” Gallegos v. Ryan, 820 F.3d
1013, 1016 (9th Cir. 2016). The trial judge sentenced
Gallegos to death. Id. The Arizona Supreme Court initially
affirmed the conviction but remanded for resentencing. State
v. Gallegos, 870 P.2d 1097 (Ariz. 1994). At resentencing, the
trial judge again imposed the death penalty and on appeal the
Arizona Supreme Court affirmed the sentence. State v.
Gallegos, 916 P.2d 1056 (Ariz. 1996) (en banc), cert. denied,
519 U.S. 996 (1996). At the resentencing, Gallegos’ counsel
presented evidence concerning Gallegos’ learning disabilities,

    1
      In Martinez, 132 S. Ct. at 1318–19, the Supreme Court indicated
that a defendant need only meet the standard for a certificate of
appealability.
                     GALLEGOS V. RYAN                          5

that he was a follower, used drugs extensively, was an
alcoholic, and was intoxicated at the time of the crime.

    Gallegos filed a petition for post-conviction relief in state
court in 1999. Although the petition mentioned that counsel
had failed to adequately investigate Gallegos’ mental health,
the issue was not argued. In 2000, the state court, after
holding an evidentiary hearing, determined that Gallegos’
claims regarding ineffective assistance of counsel lacked
merit and denied Gallegos’ petition.

    Gallegos filed his federal habeas petition in the United
States District Court for the District of Arizona in 2001. In
its 2008 order denying the petition, the District Court
carefully reviewed the presentation of evidence in Gallegos’
resentencing and in his state post-conviction proceeding, and
concluded that “[i]t is difficult to envision how counsel could
have presented a more complete picture of Petitioner’s
impairment and history of substance abuse, as well as his
passive personality and the dynamics of his relationship with
Smallwood.”

    The District Court did certify the question of ineffective
assistance of counsel at sentencing for appeal, and in our
April 2016 opinion we basically affirmed the District Court’s
decision. Gallegos, 820 F.3d 1013.

    However, in 2011, while this appeal was pending,
Gallegos’ counsel procured a new diagnosis of Gallegos’
mental health from a clinical neuro-psychologist. In part on
the basis of Gallegos self-reporting of “what appear to be at
6                       GALLEGOS V. RYAN

least three significant head traumas when he was a youth,”2
the neuro-psychologist opined that “[o]verall, considering the
history, interview information, and neuropsychological
profile elucidated above, it is my opinion that there is
objective evidence of cognitive dysfunction reflecting brain-
based disturbances in functioning.” He further opined “that
Mr. Gallegos’ brain damage was present at the time he
committed the crimes.”

    On the existing record, Gallegos has not made the
minimal showing of ineffective assistance of counsel in
regard to investigating his mental health. The record
indicates that over the course of the first decade after the
crime, Gallegos’ attorneys queried Gallegos, his friends, and
family about his mental health. Considerable information
was developed concerning his learning disabilities, his drug
use, his alcoholism, and being a follower, but nobody
suggested that he had “organic brain damage.” It is possible
that, as Dr. Heilbronner opines, Gallegos has “organic brain
damage.” But this does not even suggest ineffective
assistance of counsel at resentencing or on post-conviction
review because the diagnosis is offered for the first time some
30 years after the crime and is based on Gallegos’ self
reporting, also some 30 years after the crime, of possible
“significant head traumas” that occurred before the crime.
Dr. Heilbronner’s report states that Gallegos did not go to a
hospital for the most serious of his head traumas, and the

    2
     The alleged incidents are (1) when he had been drinking he tried to
jump over a flower bed, but fell backwards, hit his head on a concrete
block, and has no memory of what happened the rest of the night; (2) on
an occasion when he was riding a 3-wheeler which crashed, “he recalls
waking up on the living room floor the next day and the back of his shirt
was bloody”; and (3) another time when he was on a 3-wheeler he hit the
back of at tree and “was out for awhile.”
                       GALLEGOS V. RYAN                              7

implication is that he did not seek medical attention for either
of the other traumas. Counsel can hardly be faulted when
Gallegos, his friends, and his family all failed to relate the
occurrence of head traumas (not medically reported) when
asked about Gallegos’ mental health including his learning
disabilities, use of drugs, and alcoholism.

    This is not to suggest that the State’s other arguments for
rejecting Gallegos’ “new claim” lack merit.3 Rather, I would
hold that even assuming that Gallegos hurdled all the other
obstacles to asserting an ineffective assistance of counsel
claim some 30 years after the crime, he nonetheless has failed
to make the minimal showing of ineffective assistance of
counsel required for a remand and an evidentiary hearing in
the district court. Accordingly, I dissent from the grant of a
partial remand for reconsideration in light of Martinez, 132 S.
Ct. 1309.




    3
      In opposing Gallegos’ petition for rehearing, the State raises a
number of non-frivolous arguments including whether Gallegos’ claim is
new, whether it is timely, and whether, even if the claim is new, it is
substantial.
