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GALLO v. KERNAN

June 4, 1996

JOSEPH ANGELO GALLO, Petitioner,
v.
P.L. KERNAN, Warden, California State Prison-Solano, Respondent.



The opinion of the court was delivered by: AGUILAR

 I. INTRODUCTION

 Petitioner Joseph Gallo, an inmate at Solano State Prison, filed this Petition for Habeas Corpus pursuant to 28 U.S.C. § 2254. Gallo, through counsel, alleges that he is unlawfully confined in violation of the Sixth and Fourteenth Amendments. Specifically, Gallo alleges prosecutorial misconduct and the denial of effective assistance of counsel.

 II. BACKGROUND

 Gallo was convicted by a Santa Clara County jury on two counts of sodomy, in violation of Cal. Penal Code § 286(c), and one count of oral copulation, in violation of Cal. Penal Code § 288a(c). The trial court sentenced him to 28 years in prison.

 Gallo was also convicted of nineteen other criminal counts, including assault, extortion, false imprisonment, and dissuading a witness. The trial court sentenced him to an additional 27 years in prison for these crimes. In the present petition, Gallo challenges only his convictions for the three sex offenses. These offenses were perpetrated against Gallo's then wife, Valerie Wright Gallo ("Wright").

 Wright married Gallo in October, 1982. Over the next five months, Gallo beat Wright on eight separate occasions, sometimes with his fists, at other times with a phone receiver or a baseball bat. As a result, Wright was hospitalized three times with severe head injuries, including a skull fracture, internal bleeding, acute swelling of the brain, blood clots on the brain, and brain hemorrhaging. At trial, a prosecution expert testified that the repetitive beatings had adversely affected Wright's memory.

 Following her third hospitalization, which lasted almost three weeks, Wright left Gallo. She filed a complaint with the Redwood City Police Department. Initially, Wright reported the battering and a single sodomy, which she stated had taken place in a Redwood City hospital. In a subsequent written statement she did not mention the oral copulation. However, at the preliminary hearing Wright testified to two forced sodomies and one oral copulation, all occurring at her San Jose home. She denied she was sodomized in the hospital. At a subsequent deposition, Wright mentioned two sodomies and no oral copulation.

 At trial, Wright testified that the three sexual assaults occurred at her house, sometime in between her second and third hospitalization. Wright's testimony was the sole evidence presented on the three sex offenses. Gallo's counsel did not attempt to impeach Wright with her prior inconsistent statements. Gallo was convicted on all charges pertaining to Wright.

 In the course of preparing a petition for a writ of habeas corpus, Gallo's current wife, Cheryl, went to San Jose to listen to three tapes of a recorded conversation between the prosecutor, Joyce Dougherty, and Wright. The conversation had taken place prior to the preliminary hearing and the tapes had been turned over to the defense. Side two of tape three was blank. However, when Cheryl listened to the copies lodged with the court, she discovered recorded conversation on side two of the tape.

 On the tape Wright asked Dougherty if she could bring notes with her to the hearing. Dougherty asked if the notes were the ones Wright had previously given to her and which she, in turn, had passed on to the defense attorney. Wright stated that they were her mother's notes of a conversation they had had while Wright was in the hospital. Dougherty asked to see them. Wright said "okay" and appeared to shuffle and handle some papers. Wright continued, "I have to go through all this stuff 'cause I have things in here that might help. I have a letter to my brother that I wrote after I left that has things I remember a lot more than I do now. It might help." The tape recording ends after a few moments of silence.

 After the tape was discovered, Gallo brought a petition for habeas corpus in Santa Clara County Superior Court. Gallo alleged, among other things, that the prosecution had suppressed evidence that was materially favorable to his case and that as a result, he was denied due process of law. After an evidentiary hearing, Superior Court Judge Chang found that the prosecution had not withheld Wright's letter or her mother's notes. Judge Chang did find that the prosecution had suppressed the tape recording (tape three, side two), but concluded that the taped statements were cumulative, not material, evidence. Accordingly, Gallo's petition was denied.

 In the present petition, Gallo asks this Court to revisit these due process claims and other claims previously addressed by the California Court of Appeal and Supreme Court. Gallo argues that he was denied due process of law by the prosecution's failure to disclose evidence material to Wright's credibility. Specifically, Gallo alleges that the prosecution withheld the tape recording, Wright's letter to her brother, her mother's notes, and knowledge of Wright's personal relationship with an investigating officer. Further, Gallo alleges that he was denied due process when the prosecutor failed to recuse herself after becoming emotionally involved in the case. Lastly, Gallo claims he was denied effective assistance of counsel when his trial attorney failed to impeach Wright with prior inconsistent statements.

 For the following reasons, Gallo's due process claims are DISMISSED.

 III. DISCUSSION

 A. Ineffective Assistance of ...


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