     Case: 10-30861     Document: 00511969448         Page: 1     Date Filed: 08/24/2012




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

                                                                            FILED
                                                                          August 24, 2012
                                       No. 10-30861                        Lyle W. Cayce
                                                                                Clerk

ELRICK J. GALLOW,

                                                  Petitioner–Appellant,
v.

LYNN COOPER, Warden Avoyelles Parish Correctional Center,


                                                  Respondent–Appellee.



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:04-CV-1905


Before DAVIS, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Elrick J. Gallow appeals the district court’s dismissal with prejudice of his
application for a writ of habeas corpus. This court granted a certificate of
appealability (COA) to determine if the district court erred in denying Gallow’s
ineffective-assistance-of-counsel claim and in denying an evidentiary hearing on
his ineffective-assistance claim. We affirm.




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 10-30861

                                         I
      Gallow was indicted for aggravated second-degree battery, armed robbery,
and second-degree kidnapping in Louisiana.             Gallow retained Ahmad
Muhammad and Dele Adebamiji as counsel, but only Muhammad was present
in court during the two-day trial. On November 23, 1999, during the second day
of Gallow’s trial, Gallow pleaded guilty, pursuant to a plea agreement, to the
battery and kidnapping charges and was sentenced to concurrent terms of thirty
years and fifteen years of imprisonment.
      On February 18, 2000, Gallow, through his counsel, Adebamiji, filed a
Motion to Withdraw Guilty Plea. An affidavit by Muhammad was attached to
the February motion, which indicated that Muhammad provided ineffective
assistance of counsel because he operated under a conflict of interest and
suffered from psychological problems during his representation of Gallow.
Although the motion and affidavit do not appear in the state court record and
Gallow originally was unable to produce a copy of the motion or the original
affidavit, Gallow produced a “Docket History” prepared by the Clerk of Court,
which confirms that Gallow filed a Motion to Withdraw in state court on
February 18, 2000. Additionally, state court transcripts suggest that the state
court and prosecutor had access to the affidavit at some point. There is also a
note addressed to Gallow from the Clerk of Court for the Thirteenth Judicial
District of Louisiana acknowledging that the clerk received the filing but
indicating that it was sent to the District Attorney’s office and “for some reason
the motion was not returned to [the clerk’s] original file.” Gallow later filed, in
both state and federal district court, an October 2006 affidavit by Muhammad
that is similar in form and substance to Muhammad’s missing affidavit.
      According to Muhammad’s October 2006 affidavit, Muhammad was
suffering from emotional and psychological problems during Gallow’s trial and
was later diagnosed with depression, anxiety disorder, and post-traumatic stress

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                                  No. 10-30861

disorder. At the time of Gallow’s trial, Muhammad was no longer practicing law
because of these mental health issues, but he agreed to represent Gallow
because he was “led to believe the State would offer a plea bargain.”
Muhammad admits he was unable to effectively cross-examine the victim
because he was suffering from panic attacks and, more importantly, is related
to the victim. Because of this, Muhammad advised Gallow to plead guilty
despite Gallow’s reluctance to do so, and failed to inform both Gallow and the
State that he had evidence to impeach the victim’s testimony.
      On September 1, 2000, Gallow filed through Adebamiji a second motion to
withdraw his guilty plea, claiming that it was involuntary due to Muhammad’s
ineffective assistance of counsel. Gallow elaborated that Muhammad has a
familial relationship with the victim and the victim’s mother and refused to
continue with a defense at trial after the victim was called to testify, but instead
improperly advised Gallow to plead guilty. Muhammad’s affidavit was not
attached to this motion.
      On October 5, 2000, a hearing was convened on Gallow’s motions.
However, when Adebamiji failed to take the appropriate actions to have Gallow
or Muhammad brought to court for the hearing, the hearing was continued until
December 1, 2000.      Before the December hearing, Adebamiji requested a
continuance so that he could take a personal trip, and the state court denied this
motion. On December 1, when neither Gallow nor Adebamiji appeared, the state
trial court granted the State’s oral motion to pass the matter without date.
      On August 29, 2001 and October 15, 2001, Adebamiji filed applications on
Gallow’s behalf for post-conviction relief in Louisiana trial court.         These
pleadings raised the same claims contained in the previously filed motions to
withdraw Gallow’s guilty plea. At a hearing on November 15, 2001, Adebamiji
again failed to produce Muhammad and admitted that he did not issue a
subpoena for Muhammad. The state trial court recessed the hearing for one day,

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                                        No. 10-30861

but when Adebamiji yet again failed to produce Muhammad, the court denied
both applications. While Muhammad’s original affidavit is no longer in the state
court record, the judge and parties referenced an affidavit by Muhammad during
this hearing. However, the State objected to the admission of the affidavit as
evidence in lieu of live testimony by Muhammad, which would be subject to
cross-examination. The court declined to accept the affidavit as evidence.
      On November 26, 2001, Adebamiji filed a “Motion and Order for Appeal”
on behalf of Gallow requesting reconsideration of the trial court’s decision, which
was granted the following day. Gallow filed a pro se application to proceed in
forma pauperis on appeal, which was denied. Adebamiji then filed a second
application for Gallow to proceed in forma pauperis. A hearing was convened on
March 25, 2002, and Adebamiji appeared on Gallow’s behalf. At that hearing,
the trial court determined that Gallow was not eligible to proceed in forma
pauperis and that Gallow had not paid the costs for preparing the hearing
transcripts. Accordingly, the motion to proceed in forma pauperis was denied,
and Gallow’s appeal was dismissed for failure to pay costs. Adebamiji filed a
notice of appeal of this order. However, at the hearing addressing the appeal,
he withdrew his representation of Gallow.
      Now proceeding pro se, Gallow filed an “Application for Supervisory Writ
of Review” in the Louisiana Third Circuit Court of Appeals, which the Third
Circuit denied, stating, “Relator was given an opportunity to present evidence
in support of his claims which are not dispositive on the record alone. Relator
failed to present evidence, which was subject to cross-examination, to prove his
claims.” Gallow applied to the Louisiana Supreme Court for “Supervisory or
Remedial Writs,” which the court denied without comment.1




      1
          State ex rel. Gallow v. State, 2003-2310 (La. 8/20/04); 882 So. 2d 576.

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      Gallow raised his ineffective-assistance-of-counsel claim regarding
Muhammad on the merits in numerous other state filings, again claiming that
Muhammad acted under a conflict of interest and wrongly persuaded Gallow to
plead guilty. None of these filings were successful. Despite the numerous
motions and hearings, Muhammad has yet to appear as a witness in state court.
      In 2001, Gallow filed a motion “to reopen” his application for post-
conviction relief, again asserting Muhammad’s ineffective assistance. He again
sought reopening in a writ application filed in the Louisiana Third Circuit Court
of Appeals in 2004. The Third Circuit remanded the matter for disposition in
state district court, and Gallow was appointed counsel to represent him in a
hearing on the matter. Despite only addressing his claims against Muhammad
in his briefing, during the hearing Gallow also faulted Adebamiji, his post-
conviction counsel, for failing to secure Muhammad’s presence at the original
post-conviction hearing. The court attempted to clarify whether Gallow was
claiming that his trial counsel or post-conviction counsel was ineffective, and
Gallow’s appointed counsel stated that it was a claim for ineffective assistance
by his post-conviction counsel, Adebamiji. The court denied the application.
      On September 16, 2004, Gallow filed the instant federal habeas corpus
petition.   He asserted two claims for relief: (1) Muhammad’s ineffective
assistance of counsel at trial, and (2) the denial of his right to compulsory
process at a post-trial evidentiary hearing. A United States magistrate judge
recommended dismissing the petition as time-barred under the Antiterrorism
and Effective Death Penalty Act’s (AEDPA) one-year limitations period because
Gallow’s motions to withdraw his guilty plea were not timely filed in accordance
with 28 U.S.C. § 2244(d) and recommended dismissing the compulsory-process
claim as having no factual basis. The district court accepted the magistrate
judge’s recommendations and dismissed the petition.



                                       5
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      Following the district court’s denial of a COA, Gallow appealed to this
court, which granted a COA to determine if Gallow’s ineffective-assistance-of-
counsel claim against Muhammad was tolled pursuant to 28 U.S.C. § 2244(d)(2)
during the pendency of Gallow’s state-court motions to withdraw his guilty plea.
Gallow was denied a COA regarding the district court’s dismissal of his
compulsory-process claim. On appeal, this court held that his claim was tolled
and remanded it for consideration of “the length of time that Gallow’s motions
to withdraw guilty plea were pending, whether any were successive, and
consideration of any further issues regarding these or other filings, dispositions
or matters that bear on the timeliness of Gallow’s § 2254 application.”2
      On remand, Respondent continued to allege that Gallow’s Motions to
Withdraw Guilty Plea could not serve to toll limitations because they were
untimely pursuant to Louisiana Code of Criminal Procedure Article 559(A).3
Respondent did, however, admit that Gallow had exhausted his state court
remedies for the claims in his § 2254 application.
      A magistrate judge prepared another report and recommendation. The
report recommended rejecting Respondent’s argument that Gallow’s petition was
time-barred because this court had already rejected that argument. This court
determined the motions were properly-filed state post-conviction motions
sufficient to toll limitations pursuant to § 2244(d)(2). However, the report
recommended that Gallow’s ineffective-assistance claim be denied on the merits
without an evidentiary hearing. After Gallow objected to the report, the district
court independently reviewed the record and adopted the report, dismissing
Gallow’s application with prejudice and denying a COA.



      2
          Gallow v. Cooper, 301 F. App’x 342, 345 (5th Cir. 2008) (per curiam) (unpublished).
      3
         See LA. CODE CRIM. PROC. ANN. art. 559(A) (2012) (“The court may permit a plea of
guilty to be withdrawn at any time before sentence.”) (emphasis added).

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                                       No. 10-30861

      This court granted a COA on (1) whether the district court erred in
denying Gallow’s ineffective-assistance claim pertaining to Muhammad, and
(2) whether the district court erred in denying an evidentiary hearing on
Gallow’s ineffective-assistance claim. The parties were also directed “to brief
whether this appeal is affected by any matter that remains pending in state
court or that was decided in state court subsequent to the district court’s
decision.” Respondent declined to file any further briefing.
                                              II
      On appeal from the denial of a § 2254 application, this court reviews the
district court’s findings of fact for clear error and its conclusions of law de novo,
“applying the same standard of review to the state court’s decision as the district
court.”4 The district court’s review of the state court’s adjudication of a claim is
limited by the standards of review provided in § 2254.5 Under § 2254(e)(1), a
state court’s determination of a factual issue shall be presumed to be correct
unless the applicant rebuts the presumption by clear and convincing evidence.6
Additionally, pursuant to § 2254(d), federal habeas relief cannot be granted on
claims adjudicated on the merits in state court unless the adjudication of the
claim resulted in a decision that was either “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States,”7 or was “based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.”8


      4
          Robertson v. Cain, 324 F.3d 297, 301 (5th Cir. 2003).
      5
          Williams v. Quarterman, 551 F.3d 352, 357-58 (5th Cir. 2008).
      6
          Dowthitt v. Johnson, 230 F.3d 733, 741 (5th Cir. 2000).
      7
          28 U.S.C. § 2254(d)(1).
      8
          Id. § 2254(d)(2).

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                                         No. 10-30861

       The district court determined that § 2254(d) applied to Gallow’s
ineffective-assistance claim because the state court had adjudicated Gallow’s
claim on the merits by dismissing it for failure to carry his burden of proof. We
agree.
       “When a federal claim has been presented to a state court and the state
court has denied relief, it may be presumed that the state court adjudicated the
claim on the merits in the absence of any indication or state-law procedural
principles to the contrary.”9 However, “[t]he presumption may be overcome
when there is reason to think some other explanation for the state court’s
decision is more likely.”10 We have held that whether a state court’s decision
constitutes an adjudication on the merits for purposes of § 2254(d) depends on
whether the state court’s disposition was substantive or merely procedural.11 To
determine this, we apply a three-factor test, which considers:
       (1)       what the state courts have done in similar cases;
       (2)       whether the history of the case suggests that the state court
                 was aware of any ground for not adjudicating the case on the
                 merits; and
       (3)       whether the state courts’ opinions suggest reliance upon
                 procedural grounds rather than a determination on the
                 merits.12
All three factors do not have to weigh in favor of procedural grounds in order to
hold that the decision was procedural.13


      9
          Harrington v. Richter, 131 S. Ct. 770, 784-85 (2011).
       10
            Id. at 785.
      11
        Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999) (per curiam) (citing Green v.
Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997)).
       12
            Id. at 274 (quoting Green, 116 F.3d at 1121).
      13
        See id. (holding that despite the third factor not coming into play, the “first and
second Green factors weigh heavily in favor of our treating the state court denial as a
procedural decision”).

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                                          No. 10-30861

       In determining that Gallow’s claims were adjudicated on the merits, the
district court relied on the Louisiana Court of Appeals’ statement that Gallow
“was given an opportunity to present evidence in support of his claims which
[were] not dispositive on the record alone” and that Gallow “failed to present
evidence, which was subject to cross-examination, to prove his claims.” Gallow’s
writ application raised the same claims and was rejected without comment by
the Louisiana Supreme Court.14 When the last state-court judgment does not
indicate whether it is based on procedural default or the merits of a federal
claim, it is presumed that the court relied upon the same grounds as the last
reasoned state-court opinion.15
       Turning to the first factor, we must assess what the Louisiana state courts
have done in similar circumstances. Louisiana Code of Criminal Procedure
Article 930.2 states that “[t]he petitioner in an application for post conviction
relief shall have the burden of proving that relief should be granted.”16 The
Louisiana Supreme Court has relied on this provision to determine that a
petitioner failed to carry the burden on both the merits of the case17 and on
procedural grounds.18           Although in Gallow’s case the state court did not
specifically reference article 930.2, its rationale is consistent with article
930.2—the court held that Gallow failed to carry the “burden of proving that


       14
            State ex rel. Gallow v. State, 2003-2310 (La. 8/20/04); 882 So. 2d 576.
       15
            Ylst v. Nunnemaker, 501 U.S. 797, 802 (1991).
       16
            LA. CODE CRIM. PROC. ANN. art. 930.2 (2012).
       17
         See, e.g., State v. LeBlanc, 2006-0169 (La. 9/15/06); 937 So. 2d 844, 844 (citing article
930.2 after stating that petitioner failed to show he pleaded guilty involuntarily); State v.
Berry, 430 So. 2d 1005, 1013 (La. 1983) (citing article 930.2 in denying petitioner’s claim
because petitioner’s claim was “unsubstantiated and therefore without merit”).
       18
        See, e.g., State v. Russell, 2004-1622 (La. 11/15/04); 887 So. 2d 462 (relying on article
930.2 when petitioner failed to carry his burden of proof that his post-conviction application
was timely filed).

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                                        No. 10-30861

relief should be granted” just as article 930.2 requires, making these cases
helpful in determining what the state courts have done in similar circumstances.
      In Woodfox v. Cain, this court explored whether a ruling based on article
930.2 is a substantive or procedural ruling and held that because there are cases
holding that article 930.2 is procedural and cases holding it is substantive, it is
not a dispositive indication of whether the case was adjudicated on the merits.19
However, the two cases Woodfox identifies as examples of rulings that apply
article 930.2 to deny a claim on substantive grounds are similar to Gallow’s—one
held that the petitioner failed to show he pleaded guilty involuntarily, and the
other denied the petitioner’s claim because it was unsubstantiated and thus
meritless.20
      Applying the second factor to Gallow’s claim, it appears that the state
court at least attempted to adjudicate Gallow’s claim on the merits. The court
gave Gallow multiple opportunities to present Muhammad and granted
continuances to secure his presence. Only after Gallow’s counsel repeatedly
failed to present Muhammad did the court deny a further continuance and
exclude Muhammad’s affidavit evidence. Gallow’s counsel then refused to
litigate the claim, prompting the trial court to dismiss the applications with
prejudice. Respondent consistently maintained the position that Gallow’s filings
alone, including an inadmissable affidavit, did not entitle Gallow to relief.
Gallow even concedes that, other than the affidavit, there was no evidence to
support his claim.
      The third factor, “whether the state courts’ opinions suggest reliance upon
procedural grounds rather than a determination on the merits” further suggests
that the merits of Gallow’s claim were considered. The state court found that


      19
           609 F.3d 774, 796 (5th Cir. 2010).
      20
           LeBlanc, 937 So. 2d at 844; Berry, 430 So. 2d at 1013.

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Gallow “was given an opportunity to present evidence in support of his claims
which [were] not dispositive on the record alone.” This indicates that the court
attempted to review the merits of Gallow’s case, but as the state court explained,
Gallow simply “failed to present evidence, which was subject to cross-
examination, to prove his claims.”21
      In light of the above factors and the presumption that in the absence of
any indication or state-law procedural principles to the contrary a denial of relief
is on the merits, we hold that Gallow’s claim was adjudicated on the merits. As
Gallow’s claim was substantively denied, we need not address Gallow’s
contention that, based on the Supreme Court’s recent decision in Martinez v.
Ryan,22 his claim concerning Muhammad is not procedurally defaulted.
                                              III
      Because Gallow’s claim was adjudicated on the merits in state court, we
apply AEDPA’s standard of review set forth in § 2254(d). The federal statute
creates a “highly deferential standard for evaluating state-court rulings, which
demands that state-court decisions be given the benefit of the doubt.”23 Under
§ 2254(d), a state prisoner must show that the state court’s ruling on his claim
“was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.”24 In assessing Gallow’s ineffective-assistance claim, the pivotal
question under § 2254(d) is whether the state court’s application of clearly



      21
         See Woodfox, 609 F.3d at 797 (holding that the state court’s statement that it
reviewed the record and the State’s responses suggested a merit-based adjudication).
      22
           132 S. Ct. 1309 (2012).
      23
         Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (citations omitted) (internal
quotation marks omitted).
      24
           Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011).

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established federal law was not only incorrect but objectively unreasonable.25
“A state court must be granted a deference and latitude that are not in operation
when the case involves review under the [federal constitutional standard]
itself.”26
       Gallow claims that the district court erred in denying his claim that
Muhammad provided ineffective assistance of counsel because Muhammad had
a conflict of interest and wrongfully convinced him to plead guilty. The only
evidence Gallow offered to the state court to prove his claim was an affidavit
given by Muhammad, which the state court declined to admit into evidence
because Muhammad was not available for cross-examination.
       Gallow now offers an additional sworn statement given by Muhammad
before the Louisiana Attorney Disciplinary Board as well as his recovered initial
Motion to Withdraw Guilty Plea and Muhammad’s original affidavit. On appeal
to this court and now represented by appointed counsel, Gallow filed a Motion
to Expand the Record Pursuant to Federal Rule of Appellate Procedure 10(E).
He claimed that he has been unable to discover these necessary documents
because he has been incarcerated throughout the proceedings in state and
federal court, and has never been granted an evidentiary hearing because it was
either denied or because his post-conviction counsel failed to subpoena
Muhammad to testify. The motion advocated admitting his initial motion and
affidavit because the state court noted it as “lost,” and it has since been in the
possession of the District Attorney. This court granted the motion to expand the
appellate record.
       The expanded record includes an affidavit by Muhammad much like the
one discussed above. It also includes the sworn statement given by Muhammad


       25
            Id. at 785; Williams v. Taylor, 529 U.S. 362, 409-11 (2000).
       26
            Richter, 131 S. Ct. at 785.

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to the Disciplinary Board that reveals in detail the extent of his conflict.
Muhammad explains that Gallow is his nephew and that the victim is both his
and Gallow’s cousin. Muhammad admits that while Gallow obviously knew of
the familial relationship, he did not explain to Gallow the very close nature of
his relationship to the victim’s mother. Similarly, he did not inform Gallow of
his inability to cross-examine the victim, or that he possessed evidence to
impeach the victim on cross-examination.
      When asked by the Disciplinary Board why he would not withdraw when
such an obvious conflict was present, Muhammad responded that he did not
want appointed counsel representing his nephew, and that he thought he could
use his position between the parties as an effective tool in reaching a plea
bargain. When the parties were unable to reach an agreement, Muhammad felt
he had an obligation to try the case. Despite his decision to try the case,
Muhammad admitted to being “really hurt by what [Gallow] had done.”
Muhammad testified that things he learned about Gallow after agreeing to
represent him created “another conflict because of my religious beliefs” and “part
of me felt that [Gallow] should have been punished for a lot of things he had
done in the past and gotten away with” and “I became his, ‘Judgor’ instead of his
counsel.”
      Despite being represented by retained counsel throughout the majority of
his state court proceedings, Gallow repeatedly failed to present this evidence to
the state court.    Adebamiji did not take the proper steps to subpoena
Muhammad, nor did he attempt to present evidence of the familial relationship
between the parties through other family members or even through Gallow
himself. Instead, at every opportunity, both Gallow and his counsel maintained
the position that without Muhammad’s testimony, they could not present
evidence of his ineffective assistance.



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                                        No. 10-30861

      The Supreme Court recently held in Cullen v. Pinholster that in granting
or denying an application for a writ of habeas corpus on behalf of a state
prisoner, “[i]f a claim has been adjudicated on the merits by a state court, a
federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the
record that was before that state court.”27 This is because “[s]tate-court decisions
are measured against [the Supreme Court’s] precedents as of ‘the time the state
court renders its decision.’”28 “It would be strange to ask federal courts to
analyze whether a state court’s adjudication resulted in a decision that
unreasonably applied federal law to facts not before the state court.”29 Thus,
neither the district court nor this court are permitted to consider any evidence
presented for the first time in federal court in determining whether Gallow has
met the standard under § 2254(d)(1).30
      This means we cannot consider either of Muhammad’s affidavits.
Although Gallow filed Muhammad’s affidavit in state court, the state court
rejected it on evidentiary grounds. “[F]ederal courts sitting in habeas do not
review state courts’ application of state evidence law.”31 A federal court may
only review a state court’s application of state evidence rules to determine if it
violated a constitutional right.32          Gallow has never made a constitutional
challenge to the state court’s evidentiary ruling; thus, we cannot consider the
affidavit as evidence. We recognize that the district court considered this



      27
           131 S. Ct. at 1400.
      28
           Id. at 1399 (quoting Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)).
      29
           Id.
      30
           Id. at 1401; Rabe v. Thaler, 649 F.3d 305, 309 (5th Cir. 2011).
      31
           Jones v. Cain, 600 F.3d 527, 536 (5th Cir. 2010).
      32
           See id.

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                                         No. 10-30861

affidavit in denying Gallow’s claims. However, its ruling was without the benefit
of Pinholster’s guidance.
      Neither can we consider Muhammad’s sworn testimony to the Disciplinary
Board. Unfortunately, Gallow’s post-conviction counsel made no effort to present
the evidence of Muhammad’s sworn testimony before the Disciplinary Board to
the state court, nor did he make any effort to present evidence of Muhammad’s
conflict from any other source. Despite having expanded the appellate record,
we are bound by Pinholster and cannot consider Muhammad’s newly presented
testimony; we may only consider what was presented to the state court. We are
loathe to turn a blind eye to the facts presented in the expanded record.
However, the state court was not given the opportunity to review it, and we
cannot now do so for the first time on federal habeas review pursuant to
§ 2254(d)(1).33 This means that because Gallow’s claim was adjudicated on the
merits in state court and the state court excluded Muhammad’s affidavit, there
is nothing, save Gallow’s pleadings and the state court record, upon which to
review his ineffective-assistance-of-counsel claim concerning Muhammad.
      Under Strickland, a defendant claiming ineffective assistance of counsel
must show that his “counsel’s performance was deficient” and that “the deficient
performance prejudiced the defense.”34 When an actual conflict adversely affects
counsel’s performance, prejudice is presumed.35 Gallow asserts that there was
an actual conflict of interest, so prejudice must be presumed. Again, neither
Gallow nor his post-conviction counsel provided any evidence of this claim to the
state court.36 Because Gallow did not provide any admissible evidence in state


      33
           Pinholster, 131 S. Ct. at 1400.
      34
           Strickland v. Washington, 466 U.S. 668, 687 (1984).
      35
           Cuyler v. Sullivan, 446 U.S. 335, 350 (1980).
      36
           See Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983).

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                                         No. 10-30861

court to support this allegation, Gallow cannot show that the state court’s
decision was “contrary to, or involved an unreasonable application of, clearly
established Federal law.”37
       In the alternative, Gallow claims that his guilty plea was not voluntary
because Muhammad persuaded him to plead guilty to avoid having to cross-
examine the victim. The entry of a valid guilty plea waives nonjurisdictional
defects in the plea proceedings, including claims of ineffective assistance of
counsel, except for ineffectiveness claims related to the voluntariness of the
plea.38 Because Gallow’s ineffective-assistance claim attacks the voluntariness
of his guilty plea, the claim is not considered waived.39
       A failure to establish either deficient performance or prejudice defeats
Gallow’s ineffective assistance claim.40 To demonstrate prejudice with respect
to his guilty plea, Gallow was required to show that “there [was] a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.”41 Even in those instances “where counsel
has rendered totally ineffective assistance to a defendant entering a guilty plea,
the conviction should be upheld if the plea was voluntary.”42                         “[T]he
representations of the defendant, his lawyer, and the prosecutor [at the original
plea hearing], as well as any findings made by the judge accepting the plea,



       37
            28 U.S.C. § 2254(d)(1).
       38
            Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983).
       39
            See id.
       40
            Strickland v. Washington, 466 U.S. 668, 687 (1984).
       41
            Hill v. Lockhart, 474 U.S. 52, 59 (1985).
       42
        Deville v. Whitley, 21 F.3d 654, 659 (5th Cir. 1994) (quoting Diaz v. Martin, 718 F.2d
1372, 1379 (5th Cir. 1983)) (explaining that a voluntary plea negates Strickland’s prejudice
requirement).

                                                16
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                                        No. 10-30861

constitute a formidable barrier in any subsequent collateral proceedings.
Solemn declarations in open court carry a strong presumption of verity.”43
      The voluntariness of a plea can be demonstrated by showing that the
defendant understood the charge and the consequences of pleading guilty.44 The
trial court’s finding of voluntariness is entitled to a presumption of correctness
on federal habeas review, which Gallow must rebut by clear and convincing
evidence.45 “We review the district court’s finding for clear error, but decide any
issues of law de novo.”46
      The district court reviewed the state trial court record in detail, finding
that the transcript reflects that Muhammad explained the general contours of
the plea agreement and that the state trial court engaged in a lengthy discussion
with Gallow, explaining his rights and the effects of pleading guilty. The record
also reflects that the state trial court questioned Gallow extensively as to
whether he had been forced, threatened, or intimidated or if anyone had
promised him anything to induce his plea. Gallow answered “no” to both
questions. Gallow additionally affirmed that he understood that he did not have
to plead guilty, that he had no reservations about doing so, and that the various
crimes were explained to him. After this extensive discussion, the state trial
court found that “both of your pleas of guilty were made freely, voluntarily and
intelligently and that you want me to accept them and I do accept them.” The
court then asked additional questions of Gallow and Muhammad to ensure that
they affirmed and acknowledged that Gallow’s plea was a direct result of his plea
bargain. Again, Gallow answered “yes.” Gallow offered no reviewable evidence


      43
           Blackledge v. Allison, 431 U.S. 63, 743-74 (1977).
      44
           Deville, 21 F.3d at 657.
      45
           28 U.S.C. § 2254(e)(1); see Patterson v. Dretke, 370 F.3d 480, 484 (5th Cir. 2004).
      46
           Deville, 21 F.3d at 656.

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                                         No. 10-30861

to rebut the presumption of verity of his guilty plea, nor has he demonstrated
that the state courts’ denial of relief resulted in an unreasonable application of
law or was based on an unreasonable determination of the facts.47
                                                IV
       The district court denied Gallow’s request for an evidentiary hearing,
holding that “the record clearly shows that [Gallow] failed to develop the factual
basis for his claim” by failing to present “ANY” evidence regarding his
ineffective-assistance claim, despite having the opportunity to do so at seven
evidentiary hearings. Further, the district court held that Gallow failed to meet
the requirements in § 2254(e)(2) to overcome his failure. A district court’s ruling
that it was legally forbidden to hold an evidentiary hearing is reviewed de
novo.48
       Gallow’s COA was granted to determine if Muhammad provided ineffective
assistance of counsel. We have denied Gallow’s claim pursuant to § 2254(d).
Pinholster dictates that evidence presented for the first time on federal habeas
review may not be considered under § 2254(e)(2) for claims denied pursuant to
§ 2254(d)(1).49 Similarly, the language of § 2254(d)(2) limits review to the
“evidence presented in the State court proceeding.”50 Because we may not
consider newly presented evidence, an evidentiary hearing would be futile;
Gallow cannot meet the requirements of § 2254(e)(2) as the record now stands.




       47
            See 28 U.S.C. § 2254(d).
      48
            Roberts v. Dretke, 381 F.3d 491, 497 (5th Cir. 2004).
      49
         Cullen v. Pinholster, 131 S. Ct. 1388, 1400-01 (2011) (explaining that “Section
2254(e)(2) continues to have force where § 2254(d)(1) does not bar federal habeas relief”).
      50
            28 U.S.C. § 2254(d)(2).

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                                       No. 10-30861

                                              V
       Finally, the parties were directed to file supplemental briefing to address
whether this appeal is affected by any matter that remains pending in state
court or that was decided in state court subsequent to the district court’s
decision. Respondent acknowledged in answering Gallow’s § 2254 application
that state court proceedings remained pending on Gallow’s claim but
nevertheless indicated that Gallow had exhausted his state-court remedies.
Respondent has not since briefed the issue of exhaustion or the current status
of proceedings in state court.
       After Gallow filed a motion styled “Motion for Issuance of Subpoena Duces
Tecum Attorney’s Motion to Withdraw the Guilty Plea” in state court seeking
a copy of his February 18, 2000 motion to withdraw his guilty plea, the state
trial court seemed willing to again entertain arguments on the merits of Gallow’s
motion to withdraw his guilty plea. The court appointed counsel for Gallow and
reset the matter for March 19, 2009, in order to allow Muhammad, who was in
federal prison, to be secured for appearance as a witness. Muhammad’s presence
could not be obtained for the hearing, which the state court attributed to a
conflict with the federal prison. Though the state court ordered that the matter
be reset to a later date to allow for compliance with federal-prison requirements,
the state-court record does not reflect any further activity, and Gallow has stated
that it has been “continued without date.”
       The most recent state-court records before this court end in April 2009.
This court takes judicial notice of Louisiana Supreme Court rulings in 2009 and
2011, both of which appear to deny Gallow’s application for supervisory and/or
remedial writs.51       However, neither of these summary denials offers an
explanation for the underlying claims or requests for relief that were denied.

       51
         See State ex rel. Gallow v. State, 2010-1756 (La. 8/19/11); 67 So. 3d 1257; Gallow v.
Stadler, No. 2009-CI-0365 (La. 11/25/09); 220 So. 3d 173.

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                                          No. 10-30861

      Our concern here lies in whether Gallow’s claim is exhausted, as
“[a]pplicants seeking habeas relief [] are required to exhaust all claims in state
court prior to requesting federal collateral relief.”52 To satisfy the exhaustion
requirement, Gallow must give the state courts an opportunity to act on his
claim.53 The Respondent has not contended that claims are unexhausted and at
one point asserted that all claims were exhausted. Despite the possibility of
there being a motion pending in state court, the state court has had multiple
opportunities to address Gallow’s claim that Muhammad provided ineffective
assistance and has consistently denied his claim. We conclude that Gallow’s
claims have been presented to the state courts and are exhausted.
                                      *        *         *
      For the foregoing reasons, we AFFIRM the judgment of the district court.




      52
           Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir. 1999) (per curiam).
      53
           O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).

                                              20
