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08-99029 - Michael Gallegos v. Charles L. Ryan


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08-99029 - Michael Gallegos v. Charles L. Ryan
April 7, 2016
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FILED ORDER AND OPINION (MARSHA S. BERZON, CONSUELO M. CALLAHAN and CARLOS T. BEA) Order; Dissent to Order by Judge Berzon; Dissent to Order by Judge Callahan; ORDER: The panel DENIES petitioner-appellant Michael Gallegos’s Motion for Stay and Partial Remand for Reconsideration in Light of Martinez v. Ryan. The panel GRANTS IN PART Gallegos’s Motion to Remand to the District Court and Request for Authorization of Federal Habeas Counsel to Appear in State Court Litigation and REMANDS the case to the District Court for further consideration. On remand, the District Court shall consider in the first instance whether to permit Gallegos to supplement his existing petition with his Brady claim based on newly discovered evidence. The District Court may permit an evidentiary hearing on the issue whether that claim is timely under 28 U.S.C. § 2244(d)(1)(D). The panel retains jurisdiction over any appeal. OPINION: AFFIRMED in part and REMANDED for further proceedings consistent with the concurrently filed order. Opinion by Judge Berzon. FILED AND ENTERED JUDGMENT. [9930784]
November 30, 2016
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Filed Order for PUBLICATION (MARSHA S. BERZON, CONSUELO M. CALLAHAN and CARLOS T. BEA)(Dissent by Judge Callahan) 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. No further petitions for rehearing or rehearing en banc shall be entertained. [10214908]