Mr. Gallegos alleged ineffective assistance of counsel at both guilt and penalty phases. At trial counsel presented an argued that his client was not guilty of pre-meditated murder. On the felony murder count, he argued that since the victim was already dead at the time of the felony he did not “assault a ‘person’ as required by the pertinent Arizona statute” and that he was too intoxicated to form the necessary intent to commit the felony. The court held that the findings by the state court were not unreasonable and denied the effective assistance claims and, even if, counsel was deficient in his defense on the premeditated murder there was no prejudice as his conviction on the felony murder would still support the death penalty. On the felony murder defense, the court commented that “[t]he choice to pursue a bad strategy makes no comment on an attorney’s judgment where no better choice exists.” The court rejected the penalty phase ineffective assistance of counsel claim by first finding his representation did not amount to abandonment under Cronic, therefore, he was required to prove prejudice, which the court found the state court’s finding of a lack thereof was not an unreasonable determination of the law and facts. Additionally, for the same reasons the court rejected his penalty phase claim on failing to fully prepare and present mitigating evidence concerning his mental health and personal history.
Remanded for a hearing on his Brady claims.