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Gallardo v. Cate

United States District Court, N.D. California

February 3, 2015

GUSTAVO GALLARDO, Plaintiff,
v.
MATTHEW L. CATE, Defendant.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY

BETH LABSON FREEMAN, District Judge.

Petitioner, a state parolee proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.[1] Respondent was ordered to show cause why the petition should not be granted on the basis of the first and second claims, while the third claim was dismissed. Respondent filed an answer addressing the merits of the two claims. In response, Petitioner filed a traverse, a request for judicial notice, a declaration, and a "supplemental pleading." Having reviewed the briefs and the underlying record, the Court concludes that Petitioner is not entitled to relief and denies the petition.

BACKGROUND

The California Court of Appeal summarized the relevant procedural and factual history of the case as follows:

Gallardo was charged by information with one count of possession of a controlled substance while incarcerated. (§ 4573.6.) The information further alleged that Gallardo had suffered 26 prior strike convictions within the meaning of section 1170.12, subdivision (c)(2).
Prior to trial, Gallardo brought a Marsden [2] motion to replace his appointed counsel. At the hearing on that motion, Gallardo stated that his trial counsel believed him to be guilty and that there was "nothing he can do about anything." Gallardo also said that counsel made representations in a pretrial Romero [3] motion that were "not true, " counsel failed to challenge the validity of his prior convictions on statute of limitations grounds, counsel failed to provide him with hearing transcripts and counsel failed to bring a motion for selective prosecution.
Counsel explained that he was "invited to bring a motion to strike a sufficient number of the strikes to bring this down to a determinate sentence pre-plea, " but that motion was denied. He also explained that, although Gallardo wanted him to bring multiple motions, "there were two that possibly had some merit. One was selective prosecution, which was laid to rest with very little legal research. There just [were] no grounds. The other was that he said he had never waived time. [¶] So I got all the minute orders. They all reflected a time waiver. But just to show him, I provided him with a transcript of his initial arraignment, wherein he waived time."
The trial court denied the Marsden motion, stating "I have not heard anything that you've said that makes me believe that your counsel is not competent, has not been working on your case, or is not going to work on your case in the future, or that he has failed to provide adequate representation, or that he will fail in the future to provide adequate representation."
At trial, the following evidence was presented.
On December 2, 2008, Charles Henderson, a correctional officer at the California Correctional Training Facility in Soledad, was conducting a search of Gallardo's cell. He asked Gallardo to step out of the cell and put his hands on the wall. Henderson noticed that Gallardo's left hand was clenched, so he asked Gallardo to give him what was in his hand. Gallardo opened his hand and Henderson saw he was holding a folded piece of paper and a white substance wrapped in cellophane. In the course of an "unclothed-body search" of Gallardo, Henderson discovered another folded piece of paper in Gallardo's shoe and another bindle taped inside one of Gallardo's socks. It was stipulated that the bindles contained usable amounts of methamphetamine and heroin.
Gallardo testified that he had been in prison for 10 years, serving a 54 year sentence after being convicted of 24 counts[4] of child molestation. In December 2008, he had a cellmate, Joe Hildalgo, [5] who was a drug addict. Hildalgo's arm became infected, which Gallardo believed was from using a dirty needle, and Gallardo encouraged him to seek medical attention. On the morning of December 2, 2008, Gallardo believed Hildalgo left the cell in the morning, while Gallardo was at a class. Gallardo returned at approximately 11:20 a.m., and started cleaning the cell to get rid of Hildalgo's drugs. He put some in his shoe and his sock and had some in his hand when he was interrupted by Henderson. It was his intent to flush all the drugs down the toilet, but the toilet can only be flushed twice within five minutes and then not again for an hour.
Gallardo told Henderson and Henderson's supervisor that the drugs belonged to his cellmate and he was merely attempting to get rid of them.
The jury ultimately deadlocked, 8-4 in favor of acquittal, and the court declared a mistrial on May 12, 2010.
After the prosecutor elected to retry the case, Gallardo entered into a plea bargain and pleaded no contest to the charge of possession of a controlled substance while incarcerated and admitted one strike. In exchange, the court struck the remaining 23 strikes and agreed to impose a full term consecutive sentence with no credits. Gallardo was sentenced to the middle term of three ...

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