Gallo v. Texas

Tomas Gallo sought habeas relief to challenge the death sentence he received when a jury convicted him of capital murder in 2007. Specifically, Gallo argued that the jury's answer to the special issue submitted during the punishment stage of his trial was corrupted by false testimony of the State's expert witness. The Court of Criminal Appeals denied relief on Gallo's initial post-conviction application. The attorney appointed to represent Gallo in the original habeas proceedings was Jerome Godinich, Jr. Godinich filed a subsequent application for habeas relief (the pleading at issue in this case). However, between the Court's denial of the initial writ application in 2013 and the filing of this application, Gallo was appointed a different attorney, A. Richard Ellis. Shortly after he was appointed to represent the applicant in federal court proceedings, Ellis filed a notice of appearance in this case and a motion to strike the subsequent post-conviction application that Godinich had filed, claiming that Godinich had filed it without the Gallo's permission. The convicting court forwarded the subsequent state post-conviction writ application to the Court of Criminal Appeals, who then remanded the subsequent writ application to the convicting court for additional fact development and recommended findings with respect to how it should proceed with the subsequent writ application that Godinich filed. In response, the convicting court entered the recommendation “that it [was] Attorney Godinich’s duty to continue representing [Gallo] until and unless relieved of his duties by [the Court of Criminal Appeals] or another court possessing jurisdiction.” The Court of Criminal Appeals concluded that Godinich's duty to represent Gallo did not extend beyond its denial of the state habeas application. In his affidavit on remand, Godinich opined that Gallo was "not of sufficiently sound mind to understand” Ellis’s ministrations, with the suggestion being that Gallo lacked the capacity to make a rational decision to forego Godinich’s services on his behalf in this subsequent writ application. The Court of Criminal Appeals held that Gallo had the benefit of court-appointed counsel in Ellis, albeit only for the federal habeas corpus proceedings. As long as Ellis remained Gallo's appointed federal habeas attorney, he had an obligation to continue to represent the applicant all the way through the state executive clemency process. "After conducting his federal investigation, Ellis would presumably be in a better position to gauge all of the potential claims for inclusion in a first subsequent writ application under Section 5 of Article 11.071, and thereby at least minimize the risk of additional procedural default by the failure to include reasonably available claims in the applicant’s first subsequent (-02) writ application that could bar him from raising them successfully in any subsequent subsequent (-03 or -04) writ application." The application Godinich filed was dismissed without prejudice to Gallo to later file a subsequent writ application that could be evaluated for abuse-of-write purposes under Texas law, as if it were Gallo's first subsequent writ application. View "Gallo v. Texas" on Justia Law