Gallo v. Guerrero

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
TOMAS RAUL GALLO,
Petitioner,
v.
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CIVIL ACTION NO. H-13-1897
ERIC GUERRERO, Director,
Texas Department of Criminal
Justice - Correctional
Institutions Division,
Respondent.
MEMORANDUM OPINION AND ORDER
The petitioner, Tomas R. Gallo, initiated this federal habeas
corpus action in 2013. At that time, Gallo was incarcerated under
a death sentence. During the long course of these proceedings, the
Texas Court of Criminal Appeals reformed his sentence to one of
life imprisonment. Gallo's federal litigation now only proceeds on
claims relating to his capital-murder conviction.
After extensive litigation, Gallo ultimately filed a Third
Amended Petition for Writ of Habeas Corpus in 2025. (Docket Entry
No. 97). This case is before the court on Director Eric Guerrero
of the Texas Department of Criminal Justice-Correctional
Institutions Division's Answer with Brief in Support. (Docket
Entry No. 105). After considering the pleadings, the record, and
the applicable law, the court will deny Gallo's petition and
dismiss this action for the reasons explained herein.
United States District Court
Southern District of Texas
ENTERED
March 02, 2026
Nathan Ochsner, Clerk
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I. Factual and Procedural Background
On December 11, 2001, Destiny Flores ("the victim") turned
three years old. That morning her mother, Cristina Arredondo, left
the victim in her boyfriend Gallo's care while she worked. Hours
later, Gallo called Arredondo and reported that the victim was not
breathing. Instead of calling 9-1-1 immediately, Arredondo
returned home. Arredondo found the victim in the bathroom, looking
pale, bruised, and lifeless. Gallo was performing CPR on the
victim. Arredondo asked what happened, but Gallo did not respond.
Arredondo called 9-1-1.
When first responders arrived, Gallo was outside. Gallo
directed them to the residence and then left. Gallo went to a
friend's house, smoked marijuana, ate pizza, and slept.
First responders found the victim unresponsive in the
bathroom. Bruises and bite marks covered her body. Her body bore
signs of violent sexual abuse. After being rushed to the
hospital, the victim died later that afternoon. A subsequent
autopsy revealed that the victim had suffered at least 180
external, and more than thirty internal, injuries.
The police investigation quickly turned its attention toward
Gallo. After his arrest on December 12, 2001, Gallo provided a
written statement. Gallo claimed that he had been asleep, awoke to
find the victim not breathing, and then tried to perform CPR.
Gallo told officers: "I did not sexually assault [the victim] but
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I did cause several bruises on her face and several bite marks on
[her] back, side, stomach and buttocks area 111
The State of Texas charged Gallo with the capital murder of a
child under the age of six. 2 In 2004, Gallo stood trial in the
182nd Judicial District Court of Harris County, Texas with the
Honorable Jeannine Barr presiding.3 The prosecution's case
emphasized that Gallo had been the only adult home with the victim,
that he had acted suspiciously, and that he had confessed to
hurting her. The prosecution also presented testimony that Gallo
had made incriminating statements to others. Additionally, the
State relied on forensic evidence which told the story of a violent
sexual assault accompanied by brutal physical injuries, ending when
Gallo struck the victim's head against a bathtub.
The State cemented its case with testimony from jail inmate
Thomas Michael Gilstrap who said that Gallo had described how he
had injured and killed the victim. The Texas Court of Criminal
Appeals described Gilstrap's testimony as follows:
[Gilstrap] testified that [Gallo] talked to him about the
instant offense when they were housed in the Harris
1 Reporter's Record, Docket Entry No. 109-55, p. 48; Docket
Entry No. 109-68, p. 19. For purposes of identification all page
numbers reference the pagination of each docket entry in the
court's electronic case filing ("ECF") system.
2Clerk's Record, Docket Entry No. 109-160, p. 13.
3The State originally tried Gallo in 2002, but the trial court
granted a mistrial because of juror illness. Attorneys Robert
Morrow and Gerald Bourque represented Gallo at trial. The court
will refer to his attorneys collectively as "trial counsel."
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County Jail in January 2003. He testified that [Gallo]
stated, "I'm the one that killed that little girl."
[Gallo] told Gilstrap that he was watching his
girlfriend's daughter while she was at work, that the
child was "bothering" him and "making a lot of noise,"
that he "spanked her four or five times," that she "quit
breathing" after he "slammed her into the bathtub," and
that he "got real scared," "tried to clean her up," and
"called her mother at work." He also told Gilstrap that
"he failed the IQ test" and "he'd probably beat the case
because he was retarded."4
The jury found Gallo guilty of capital murder. A subsequent
punishment hearing resulted in a death sentence.
Through appointed counsel, Gallo unsuccessfully filed a direct
appeal in the Texas Court of Criminal Appeals.5 The United States
Supreme Court denied Gallo's petition for writ of certiorari on
June 2, 2008. 6
During the pendency of his direct appeal, Gallo filed an
initial state habeas application raising thirty-eight claims. The
lower habeas court issued written findings of fact and conclusions
of law recommending the denial of relief.7 On January 9, 2013, the
Court of Criminal Appeals denied relief based on those findings and
its own independent review.8
4Gallo v. State, 239 S.W.3d 757, 765 (Tex. Crim. App. 2007).
5 See Gallo v. State, 239 S.W.3d 757 (Tex. Crim. App. 2007),
reh'g denied (Nov. 21, 2007).
6� Gallo v. Texas, 128 S. Ct. 2872 (2008).
7 See Findings of Fact and Conclusions of Law, Docket Entry
No. 109-172, pp. 285-337.
8 Ex parte Gallo, No. WR-77,940-01, 2013 WL 105277 (Tex. Crim.
App. Jan. 9, 2013).
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Gallo initiated federal proceedings9 but then began litigating
again in state court.10 The court stayed this action to allow state
proceedings to go forward.11 On November 7, 2016, Gallo filed a
third state habeas application ("third habeas application") in the
Texas Court of Criminal Appeals raising eight claims.12 The Court
of Criminal Appeals remanded the case for the consideration of two
issues: (1) a claim that Gallo was a person with intellectual
disability who was exempt from exaction under Atkins v. Virginia,
122 S. Ct. 2242 (2002) and (2) a claim that the State presented
9Gallo initiated this action by filing a motion for the
appointment of federal counsel. See Letter, Docket Entry No. 1;
Order Granting Motion for the Appointment of Counsel, Docket Entry
No. 4. Before reassignment to the undersigned, the Honorable
United States District Judge Vanessa D. Gilmore presided over this
action.
10 See Application for Post-Conviction Writ of Habeas Corpus
Pursuant to Tex. Crim. Proc. Code Ann. Art. 11.071, Docket Entry
No. 109-178, pp. 5-34. Gallo's initial state habeas attorney filed
the successive application on Gallo's behalf. Because initial
habeas counsel's representation did not extend to successive
proceedings, the Court of Criminal dismissed that pleading but
granted Gallo's federally appointed attorney leave to file another
habeas application. � Ex Parte Gallo, 448 S.W.3d 1, 6 (Tex.
Crim. App. 2014).
11 See Order, Docket Entry No. 61. Gallo had filed a skeletal
federal habeas petition on January 8, 2014. See Protective
Skeletal Petition for Writ of Habeas Corpus, Docket Entry No. 24.
Gallo filed an 490-page first amended federal petition on January
6, 2016. See Amended Petition for Writ of Habeas Corpus, Docket
Entry No. 51. After being ordered to set out his claims
succinctly, Gallo filed a 200-page Second Amended Petition for Writ
of Habeas Corpus on May 4, 2016. See Second Amended Petition for
Writ of Habeas Corpus, Docket Entry No. 58.
12 See Subsequent Application for Writ of Habeas Corpus (Article
11.071 of the Texas Code of Criminal Procedure), Docket Entry
No. 109-194, pp. 4-251.
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false testimony in the penalty phase. 13 After factual development,
the parties agreed that Gallo's Atkins claim entitled him to relief
from his death sentence. 14
After conducting its own review, the Court of Criminal Appeals
granted relief on Gallo's Atkins claim on April 17, 2024. The
Court of Criminal Appeals reformed Gallo's death sentence to one of
life imprisonment. 15 With that ruling, the Court of Criminal
Appeals rejected Gallo's penalty-phase false-evidence claim as moot
and dismissed any remaining claims under Texas' abuse-of-the-writ
doctrine. 16
The parties returned to federal court. Because Gallo is no
longer on death row, he has withdrawn any previously-raised claims
challenging his sentence. 17 Gallo filed a ninety-eight-page Third
Amended Petition for Writ of Habeas Corpus on January 28, 2025. 18
Gallo's petition raises the following claims:
13 See Ex parte Gallo, No. WR-77,940-03, 2024 WL 1644214, at *l
(Tex. Crim. App. 2024).
14 See Agreed Proposed Findings of Fact, Conclusions of Law,
Order, Docket Entry No. 109-200, pp. 3-29.
15Ex parte Gallo, 2024 WL 1644214, at *l (Tex. Crim. App.
Apr. 17, 2024).
16..I_g__._ at *2.
17 See Third Amended Petition for Writ of Habeas Corpus, Docket
Entry No. 97, p. 13.
18 See Third Amended Petition for Writ of Habeas Corpus, Docket
Entry No. 97.
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1. Gallo is actually innocent of capital murder.
2. Two erroneous rulings from the trial court deprived
Gallo of a fair trial.
3. His trial attorneys provided constitutionally
ineffective representation.
4. Counsel on direct appeal provided constitutionally
deficient representation.
5. The cumulative effect of the alleged errors creates
an independent constitutional violation.
6. The State suppressed evidence and presented false
testimony at trial.
Respondent submitted an answer arguing that most claims are
procedurally barred and that all are meritless. 19 Gallo has filed
a reply. 20 This matter is ripe for adjudication.
II. Availability of Federal Review
The procedural availability of federal habeas review is a
primary concern in this case. Respondent argues that Gallo has not
presented claims one, three, four, and six in a manner which allows
for federal review of their merits. 21 The court must decide whether
Gallo's claims are procedurally barred.
19Respondent Guerrero's Answer with Brief in Support, Docket
Entry No. 105.
20see Petitioner's Reply to Respondent's Answer with Brief in
Support, Docket Entry No. 108.
21Respondent also argues that claim five is procedurally barred
because, even though Gallo had exhausted a similar claim in state
court, his federal claim covers broader ground and aggregates error
that was not alleged in state court. In the interests of justice,
however, the court will treat the claim as exhausted and address
its merits.
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The procedural barriers in this case arise from two sources.
First, Gallo never litigated claims one, three, and four in state
court. Under the Anti-Terrorism and Effective Death Penalty Act,
a federal habeas petition "shall not be granted unless appears
that" the petitioner "has exhausted the remedies available in the
courts of the State." 28 U.S.C. § 2254 (b) (1) (A). A federal
procedural bar results when a petitioner "failed to exhaust state
remedies and the court to which the pet ioner would be required to
present his claims in order to meet the exhaustion requirement
would now find the claims procedurally barred." Coleman v.
Thompson, 111 S. Ct. 2546, 2557 n.l (1991). Gallo has not argued
that any state avenue relief remains open to him. Because the
Texas courts enforce a strict abuse-of-the-writ doctrine, Gallo
cannot litigate his unexhausted claims in state court.
result, "there is a procedural default."
As a
Second, the Court of Criminal Appeals dismissed claim six when
Gallo raised it in a successive habeas application. Texas'
rel on its own procedural law bars federal review. Dretke
v. Haley, 124 S. Ct. 1847, 1852 (2004) ("[F]ederal courts will not
disturb state court judgments based on adequate and independent
state law procedural grounds."); see also Gutierrez v. Stephens,
590 F. App'x 371, 384 (5th Cir. 2014) (finding that Texas' abuse
of-the-writ dismissal is an independent and adequate state ground
which bars federal review).
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A petitioner has the burden to overcome a procedural bar. See
Mccleskey v. Zant, 111 S. Ct. 1454, 1470 (1991). A federal court
may review an inmate's unexhausted or procedurally barred claims
only if the inmate shows: (1) cause and actual prejudice; or
(2) that "a constitutional violation has 'probably resulted' in the
conviction of one who is 'actually innocent , ff	
Haley, 124
S. Ct. at 1852 (quoting Murray v. Carrier, 106 S. Ct. 2639, 2639
(1986)); see also Schlup v. Delo, 115 S. Ct. 851 (1995). Federal
review may only proceed if Gallo can overcome the procedural bar.
Forgiving a procedural bar depends on the operation of equity.
See Haley, 124 S. Ct. at 1852 ("[W]e have recognized an equitable
exception to the bar when a habeas applicant can demonstrate cause
and prejudice for the procedural default."). The court stayed this
case so that Gallo could litigate in state court, but he still
decided not to exhaust claims one, three, and four. Gallo knew
about the defects in his unexhausted claims but he chose not to
cure them in state court. 22 Gallo's choice to bypass the state
courts weighs heavily against forgiving the procedural bar of his
unexhausted claims.
For the reasons discussed below, the court cannot reach the
merits of claims one, three, four, and six.
22 See Protective Skeletal Petition for Writ of Habeas Corpus,
Docket Entry No. 24, p. 44.
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A. Claim One: Actual Innocence
In claim one, says that he is actually innocent of
capital murder. Respondent argues that s claim is subject to
dismissal because Gallo never exhausted it in state court.
Respondent also contends that this claim is meritless.
Inmates raise actual-innocence claims in two separate
contexts: (1) as a stand-alone claim and (2) as a gateway to the
consideration of other claims. Gallo does not advance claim one as
an independent ground for federal habeas relief but only as the
gateway to the consideration of other barred claims. Gallo
concedes that "a federal court may not grant relief . . . based
purely upon a gateway claim" of innocence.23 The court, therefore,
denies claim one because it does not provide a basis
relief.
habeas
The court, however, will briefly examine whether Gallo's
actual-innocence argument provides a vehicle for the consideration
of any procedurally deficient claims. Under Schlup v. Delo, 115
S. Ct. 851, 867 (1995), an inmate's innocence may allow federal
review of procedurally barred claims when "it is more likely than
not that no reasonable juror would have found [him] guilty beyond
a reasonable doubt." Schlup was specific about what evidence an
inmate must use to show his innocence: only "new reliable evidence
- whether it be exculpatory scienti evidence, trustworthy
23 Third Amended Petition for Writ of Habeas Corpus, Docket
Entry No. 97, p. 43.
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eyewitness accounts, or critical physical evidence." Id. at 865;
see also Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir. 1999)
( "Examples of new, reliable evidence that may establish factual
innocence include exculpatory scientific evidence, credible
declarations of guilt by another, trustworthy eyewitness accounts,
and certain physical evidence.").
Gallo does not rely on evidence that is of the kind or nature
that will allow him to litigate a federal habeas petition. Gallo
does not bring forward any new scientific evidence, previously
unavailable testimony, or physical evidence. Gallo instead revives
"[h]is trial attorneys' theory of the case [which] was that the
murder had actually been committed by [the victim's] mother."24
Gallo does so by relying on two factors: (1) his consistent
protestations of innocence throughout his legal proceedings and
(2) alleged contradictions and weaknesses in the trial testimony,
most particularly in that involving the victim's mother. 25 In other
words, Gallo's actual-innocence argument is grounded in the trial
evidence and testimony, not on new, reliable evidence that he did
not kill the victim.
As described by Respondent, "Gallo's proclamations of
innocence are based entirely on weak circumstantial evidence that
24 See Petitioner's Reply to Respondent's Answer with Brief in
Support, Docket Entry No. 108, p. 15.
25 See Third Amended Petition for Writ of Habeas Corpus, Docket
Entry No. 97, pp. 4 0-42; see also Petitioner's Reply to
Respondent's Answer with Brief in Support, Docket Entry No. 108,
p. 18.
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was elicited at his trial" which are "no more compelling today than
. when his jury rejected his defensive theory twenty-one years
ago."26 Gallo does not present any new evidence that would support
a valid actual-innocence claim. Gallo's arguments for innocence
cannot forgive any procedural bar.
B. Claim Three: Ineffective Assistance of Trial Counsel
In claim three, Gal alleges that various errors by his trial
attorneys violated his Sixth Amendment right to effective legal
representation under Strickland v. Washington, 104 S. Ct. 2052
(1984) .27 Gallo concedes that he never exhausted claim three. 28 A
federal procedural bar forecloses review of Gallo's Strickland
claim.
lo relies on Martinez v. Ryan, 132 S. Ct. 1309 (2012) to
overcome the procedural bar. 29 "In Martinez v. Ryan, the Supreme
Court held that a procedural default not bar a federal habeas
court hearing a substantial claim ineffective assistance at
Respondent Guerrero's Answer with Brief in Support,
Docket Entry No. 105, p. 53.
Third Amended Petition for Writ of Habeas Corpus, Docket
Entry No. 97, pp. 66-91. To prevail on an ineffective-ass ance
claim, an inmate must demonstrate that (1) his counsel's
performance was deficient and (2) the deficient performance
resulted in prejudice. Strickland, 104 S. Ct. at 2064.
28 Petitioner's Reply to Respondent's Answer with
Support, Docket Entry No. 108, p. 49.
in
29 See Third Amended Petition for Writ of Habeas Corpus, Docket
Entry No. 97, p. 91.
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trial , in the initial-review collateral proceeding,
counsel . . . was ineffective.11 Ramey v. Davis, 942 F.3d 241, 254
(5th . 2019) (quotation omitted). Courts have distilled three
factors for a valid Martinez argument: ( 1) "his claim . . is
substantial - i.e., has some merit11 ; (2) habeas couns was
ineffective under Strickland for not raising the underlying claim;
and (3) actual prejudice resulted. Cantu v. Davis, 665 F. App'x
384, 386 (5th Cir. 2016) (quotation omitted).
lo's Martinez arguments fail for three reasons. First,
Gallo has not adequately briefed his arguments. Gallo devotes only
one paragraph in his petition and a short discussion in his reply
to his post-conviction attorneys' efforts.30 Martinez, however,
requires a more-detailed review of habeas counsel's representation,
which involves considering the possible reasons for which an
effective attorney may omit certain claims. See Jones v. Barnes,
103 S. Ct. 3308, 3313 ( 1983) ("Experienced advocates since time
beyond memory have emphasized the importance of winnowing out
weaker arguments and focusing on one central issue if
possible, or at most on a few key issues."). Gallo's shallow
briefing is insufficient to show that his initial habeas attorneys
were ineffective.
Second, Gallo neglected opportunities to exhaust same
claims he faults initi habeas couns for not exhausting. When
Third Amended Petition for Writ of Habeas Corpus, Docket
Entry No. 97, p. 91; Petitioner's Reply to Respondent's Answer with
Brief in Support, Docket Entry No. 108, pp. 49-51.
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Gallo filed his federal petition over a decade ago, he acknowledged
that he had not exhausted his Strickland arguments. 31 Before
returning to state court, Gallo blamed his initial habeas attorneys
for not exhausting his Strickland arguments. 32 Yet
withheld those claims when he returned to state court.
lo then
Gallo
cannot show that his initial habeas attorney acted deficiently by
not ing claims that he himself chose not to champion later.
Finally, Gallo's failure to show actual prejudice under
Martinez forecloses federal review. As previously mentioned, a
petitioner must show "a reasonable probability that he would have
been granted state habeas relief if not for [habeas] counsel's
deficiency." Wessinger v. Vannoy, 864 F.3d 387, 391 (5th Cir.
2017) (quotation omitted). Gallo extensively discusses his
Strickland claims, but does not place them into the context of
Texas j sprudence and demonstrate a reasonable probability that
the state courts would have granted relief he had them
earlier. Gallo has not shown actual prejudice as understood by
Martinez.
Gallo has not overcome the procedural bar of his Strickland
claim. The court dismisses claim three as unexhausted and
procedurally barred.
Protective Skeletal Petition for Writ of Habeas Corpus,
Docket Entry No. 24, p. 44.
Second Amended Petition for Writ of Habeas Corpus, Docket
Entry No. 58, pp. 202-04.
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C. Claim Four: Ineffective Assistance of Appellate Counsel
In claim four, Gallo complains that his state appellate
attorney provided de cient representation. The court dismisses
this claim for two reasons. First, Gallo did not exhaust this
claim.33 Gallo makes no effort to demonstrate cause and prejudice
which would allow federal review. The court summarily dismisses
this claim as procedurally barred.
Second, Gallo has not adequately briefed this claim. Gallo's
briefing only spans one-and-a-half pages. Without providing any
details, Gallo argues that "[a]ny purely-record-based claims or
sub-claims discussed [ his federal petition] could and should
have been raised on the direct appeal
entirely present in the record itself. "34
the basis for them was
Gallo then summarily
declares that, if counsel had raised those unspecified errors, his
"conviction would have been reversed on direct appeal."35
Respondent gave notice in the answer that Gallo had inadequately
33Gallo counters Respondent's exhaustion argument by stating
that "is false as this was Claim Nine in the Second Amended
Petition." Petitioner's Reply to Respondent's Answer with Brief in
Support, Docket Entry No. 108, p. 52. Gallo filed his Second
Amended Petition in federal, not state, court. See Second Amended
Petition for Writ of Habeas Corpus, Docket Entry No. 58, p. 8. It
is axiomatic that an inmate cannot exhaust remedies through federal
filings. Gallo's Second Amended Petition indicated that he
withdrew nearly all allegations of ineffective appellate
representation. See p. 8.
34 Third Amended
Entry No. 97, p. 92. ion for Writ
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briefed this claim, but Gallo sti did not cure the defect.
Gallo's reply rests on the briefing from his petition.36
Gallo must provide details about what counsel failed to raise,
why he did so, and what effect it would have had. See Mallard v.
Cain, 515 F.3d 379, 383 (5th Cir. 2008} (finding that vague and
conclusory Strickland arguments provide no grounds for relief}. A
court will not scour the record for claims which an attorney could
have sed and then assess prejudice without any explicit briefing
on the matter. See Murthy v. Missouri, 144 S. Ct. 1972, 1991 n.7
(2024) ("Judges are not ke pigs, hunting for truffles buried in
the record."} (quotation omitted and cleaned up}.
inadequately briefed this claim.
Simply, Gallo
The court summarily dismisses this claim as unexhausted and
inadequately briefed.
D. Claim Six: Suppressed Evidence and False Testimony
In his sixth ground for relief, Gallo alleges that State
violated the Eighth and Fourteenth Amendments by suppressing
evidence and presenting se testimony. Gallo bases this claim on
testimony from two witnesses: Thomas lstrap and Christina
Arredondo.37 Gallo says that he "is informed, believes, and
Petitioner's Reply to Respondent's Answer with Brief in
Support, Docket Entry No. 108, p. 52.
37 Third Amended Petition for Writ of Habeas Corpus, Docket
Entry No. 97, p. 94. At trial, Thomas lstrap testif about
(continued...)
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therefore alleges that the testimony of these witnesses was false
and fabricated," yet still provides no proof of suppression or
false testimony.38
Gallo raised this claim in his third state habeas application.
The Court of Criminal Appeals dismissed this claim under its abuse
of-the-writ law without considering its merits. The dismissal
results in a procedural bar on federal review.
Gallo makes two arguments to overcome the procedural bar. 39
First, Gallo argues that cause exists to overcome the procedural
bar because he could not raise the claim previously. "A showing of
cause requires that 'some objective factor external to the defense
impeded counsel's efforts to comply with the State's procedural
rule,' such as 'the factual or legal basis for a claim was not
reasonably available to counsel, or that some interference by
officials made compliance impracticable.'" Smith v. Quarterman,
515 F.3d 392, 403 (5th Cir. 2008) (quoting Murray v. Carrier, 106
S. Ct. 2639, 2645 (1986)). Gallo's entire claim, however, rests on
unsupported assumptions. Gallo admits that he merely "alleges that
37 ( ••• continued)
statements Gallo made while incarcerated, including that he was the
"one that killed that little girl." Reporter's Record, Docket
Entry No. 109-59, p. 13. Christina Arredondo, the victim's mother,
testified concerning the circumstances of the offense.
Ms. Arredondo also attempted to conceal the fact that she had
written Gallo love letters while he was incarcerated.
38Third Amended Petition for Writ of Habeas Corpus, Docket
Entry No. 97, p. 96.
39See Petitioner's Reply to Respondent's Answer with Brief in
Support, Docket Entry No. 108, pp. 54-55.
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the testimony of these witnesses was false and fabricated" and
"acknowleges that he cannot provide more in support of the claim"
than his speculation. 40
speculation and surmise.
Gallo bases this claim entirely on
Gallo could have raised the same
unsupported arguments at any point in his long litigation history.
As his second argument to overcome the procedural bar, Gallo
says that his innocence should open the door to full federal
review. As previously discussed, Gallo has not met the specific
requirements of a gateway actual-innocence claim.
therefore, cannot overcome the procedural bar of claim six.
E. Conclusion of Procedurally Deficient Claims
Gallo,
Gallo has not overcome the procedural bar of claims one,
three, four, and six. The court, therefore, dismisses those claims
without reaching their merits.
Given the seriousness of this case, however, the court has
alternatively considered Gallo's barred claims in the context of
40Third Amended Petition for Writ of Habeas Corpus, Docket
Entry No. 97, p. 96. Gallo says that, "[i]n another capital case,
. information has come to light that [the] trial prosecutor
[from his case] threatened and intimidated witnesses in order to
secure the death penalty." Id., pp. 94-95. From that, Gallo
extrapolates that the prosecutor's "misconduct . . . at least casts
doubt on his use of j ailhouse informant Mr. Gilstrap in [his]
case." Id., p. 95. Still, Gallo has not provided any evidence
that the State suppressed anything relating to Gilstrap.
Similarly, Gallo does not present any direct evidence that the
State suppressed evidence about, or presented false testimony
through, Ms. Arredondo. Instead, Gallo refers to "serious
unanswered questions" about her testimony and highlights conflicts
between her account and other trial testimony. Id.
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the pleadings, the record, and the law. Having carefully
considered the merits of the claims, the Court does not find them
worthy of habeas relief. The court alternatively denies claims
one, three, four, and six on the merits.
2254(b)(2).
III. Procedurally Proper Claim
See 28 U.S.C. §
Only the merits of claim two and five are before the court in
a procedurally actionable manner. The state courts' rejection of
both claims qualifies as an "adjudication on the merits" which is
subject to deference under Anti-Terrorism and Effective Death
Penalty Act ("AEDPA"). See 28 U.S.C. § 2254(d); Anaya v. Lumpkin,
976 F.3d 545, 550 (5th Cir. 2020). Under AEDPA, "habeas relief
'shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless' the
state court adjudication '(1) resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established federal law, as determined by the Supreme Court of the
United States;'" or it "'(2) resulted in a decision that was based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.'" Moore v.
Vannoy, 968 F.3d 482, 485 (5th Cir. 2020)(quoting 28 U.S.C.
§ 2254(d)).41
41"A state court's decision is deemed contrary to clearly
established federal law if it reaches a legal conclusion in direct
conflict with a prior decision of the Supreme Court or if it
(continued...)
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A. Claim Two: Trial Court Error
Claim two alleges that the trial court violated Gallo's rights
under the Fifth, Sixth, Eighth, and Fourteenth Amendments by:
( 1) ing to grant a continuance when the State announced a
"surprise" witness and (2) disallowing the presentation of expert
testimony.42 The Court of Criminal Appeals considered, and
rejected, both arguments on direct appeal. Gallo must show that
the Court of Criminal Appeals' decision was contrary to, or an
unreasonable application of,
§ 2254 (d) (1).
1. Claim Two(a)
federal law. See 28 U.S.C.
lo argues that the trial court violated his constitutional
rights by refusing to grant a continuance the State announced
a new witness. The of Gallo's guilt began on February 3,
(...continued)
reaches a different conclusion than the Supreme Court on materially
indistinguishable facts." Matamoros v. Stephens, 783 F.3d 212,
215 ( Cir. 2015) (citations and internal quotation marks
omitted). To constitute an "unreasonable application of" clearly
established federal law, a state court's holding "must be
objectively unreasonable, not merely wrong; even clear error will
not suffice." Woods v. Donald, 135 s. Ct. 1372, 1376 (2015)
(quoting White v. Woodall, 134 S. Ct. 1697, 1702 (2014)). "To
satis this high bar, a habeas petitioner is required to 'show
that the state court's ruling on the claim being presented in
federal court was so lacking in justi ion that there was an
error well understood and comprehended existing law beyond any
possibility for fairminded disagreement.'" Woods v. Donald, 135
S. Ct. 1372, 1376 (2015) (quoting Harrington v. Richter, 131 S. Ct.
770, 786-87 (2011)).
Third Amended Pet ion for Writ of Habeas Corpus, Docket
Entry No. 97, pp. 44-64.
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2004. On Thursday, February 5, 2004, the State told the defense
that a jail inmate, Thomas Gilstrap, had just come forward with
information.43 On that same day, the State provided the defense
with information it had received from Gilstrap and records
detailing his criminal history.44
On Monday, February 9, 2004, trial counsel filed a written
motion asking for a continuance based on the emergence of
Gilstrap's testimony. 45 The defense requested time to investigate
Gilstrap's background, including his prior convictions.46 During
trial proceedings that same day, the defense approached the bench
to discuss the continuance motion. In the subsequent discussion,
the State argued that there it was "not bad faith by the
prosecution" because "the State [was] surprised" when Gilstrap came
forward with information. 47
The trial court then held a hearing outside the jury's
presence in which Gilstrap's testified. Gilstrap described the
circumstances surrounding Gallo's incriminating statements.48 The
trial court overruled the defense motion to suppress Gilstrap's
43Reporter's Record, Docket Entry No. 109-57, pp. 71-73.
44See id., p. 72.
45 See Clerk's Record, Docket Entry No. 109-165, pp. 48-50.
46Reporter's Record, Docket Entry No. 109-57, p. 72.
47 Id., p. 73.
48 See Reporter's Record, Docket Entry No. 109-58, pp. 7-13.
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testimony and for a continuance.49
In his trial testimony, Gilstrap described his prior
convi ons, including the fact that he had been jailed 2002 for
"hitting [his] wife. 1150 Gilstrap then testified about a
conve ion he had with Gallo while housed together in January
2003.51 Gallo said: "I guess you know who I am, huh? . I'm the
one that killed that girl."52 Gallo described how the victim
had been "bothering" him by "making a lot of noise and everything,"
so he "spanked her," "took her in the bathroom," and "slammed her
into the bathtub 1153 After divulging other speci cs about
the murder, Gallo stopped talking. The defense's cross-examination
extensively explored Gilstrap's crimes, discussed his history of
substance abuse, and suggested that he hoped for some bene
his testimony.54
from
On direct appeal, Gallo argued that without a continuance he
could not fully investigate Gilstrap's background and prepare an
effective cross-examination.55 The Court of Criminal Appeals found
no constitutional error. The Court of Criminal Appeals held that
pp. 14-15.
50Reporter's Record, Docket Entry No. 109-59, pp. 7-8.
52
53
pp. 11-13.
p. 13.
pp. 14-16.
id., pp. 18-32.
55Corrected Applicant's Brief, Docket Entry No. 109-139,
pp. 70 2.
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Gallo "failed to show that he was actually prejudiced by the trial
court's ruling" on the continuance motion because
[d]efense counsel cross-examined Gilstrap about the
details of his assault on his wife, his '26 years of
heroin abuse,' the medications he was taking in the jail
'psych ward,' his cocaine abuse, his thirty-year criminal
history, and the fact that he waited so long to come
forward with information pertaining to [Gallo].56
"Given trial counsel's extensive cross-examination," the Court of
Criminal Appeals concluded that Gallo "failed to show what surprise
remained or in what manner counsel could have been more effective
if he had been given more time to prepare for this witness."57
Gallo's federal claim argues that the Sixth Amendment's
guarantee of effective legal representation should have resulted in
a continuance.58 Gallo argues that the Court of Criminal Appeals'
"analysis is erroneous" because trial counsel did not have
sufficient time to investigate Gilstrap's background.59 Despite the
short notice, trial counsel cross-examined Gilstrap extensively.
In the many years since his trial, Gallo has not brought forward
any information about Gilstrap beyond that discussed at trial which
would have undermined his credibility. Gallo has never identified
any unexplored area of cross-examination which counsel could not
56Gallo v. State, 239 S.W.3d 757, 765 (Tex. Crim. App. 2007).
58 See Third Amended Petition for Writ of Habeas Corpus, Docket
Entry No. 97, p. 47.
59See id., p. 48.
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reach because of time constraints. In short, Gallo has not shown
how a continuance would have changed trial counsel's cross-
examination. Gallo, therefore, has not shown that the state
court's decision was contrary to, or an unreasonable application
of, federal law. See 28 U.S.C. § 2254 (d) (1).
2. Claim Two (B)
Gallo contends that the trial court violated his
constitutional right to present a complete defense by not letting
an expert witness testify about the phenomenon of filicide. The
defense faced a difficult challenge at trial. The evidence
strongly pointed to Gallo as the one who committed a vicious,
inexplicable crime against an innocent, vulnerable victim.
Testimony indicated that Gallo was the only adult home when the
victim stopped breathing. Emergency responders observed numerous
brutal injuries including bruises and bite marks. A later
examination revealed more than 200 injuries to the child's body.
Gallo initially blamed the injuries on other children.
Without admitting to the sexual assault or murder, Gallo eventually
confessed to hurting the child. The State, however, presented
testimony that Gallo said he had killed the victim. While in jail,
Gallo confessed to another inmate: "I'm the one that killed the
little girl. 1160
Trial counsel prepared a defense which attempted to shift
60 Reporter's Record, Docket Entry No. 109-59, p. 13.
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blame from Gallo to the victim's mother. The defense called
witnesses who questioned the State's time line of events to suggest
that the victim's mother may have had the opportunity to commit the
murder. The defense also wanted to show that the victim's mother
was the type of person who could kill her own child. Trial counsel
specifically wanted to call Dr. George Holden, a pro sor of
psychology at the University of Texas at Austin, as an expert on
filicide.
The trial court held a hearing outside the jury's presence to
determine the admissibility of Dr. Holden's testimony.61 The
parties framed the admissibility of Dr. Holden's testimony under
Rule 702 of the Texas Rules of Evidence. Under Rule 702, "[i]f
scienti c, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education may testify thereto II
Rule 702 requires "the proponent of scienti c evidence [to] show
by clear and convincing proof that proffered evidence is
sufficiently reliable and relevant to assist the jury in accurately
understanding other evidence or in determining a fact in sue."
Wells v. State, 611 S.W.3d 396, 426 (Tex. Crim. App. 2020). In
fields study like psychology, the Texas trial court must assess
"(1) whether the eld of expertise is a legitimate one,
(2) whether the subject matter of the expert's testimony is within
61Reporter's Record, Docket Entry No. 109-60, pp. 235 7.
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the scope of that field, and (3) whether the expert's testimony
properly relies upon and/or utilizes the principles involved in the
field." Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App.
1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d
720, 727 (Tex. Crim. App. 1999).
The parties questioned Dr. Holden outside the jury's presence.
The parties' questioning focused on whether Dr. Holden's research
on filicide met the requirements for admissibility under Texas law.
Dr. Holden explained that his testimony would "set up a profile for
somebody that kills their own child."62 Dr. Holden admitted that
he did not interview the victim's mother, but instead based his
testimony primarily on (1) his "extensive research in the area of
parent/child relationships and family violence and child
mistreatment"; and (2) "the profile of [the victim's mother]" based
on a "psychological report" and "CPS records."63 From that review,
Dr. Holden concluded that the victim's mother "would fit the
profile" of someone who could murder their child.64 On
cross-examination, however, Dr. Holden explained that "[t]he
science of predicting one who is capable of killing is inexact" and
"there hasn't been
62 Id. , p . 2 4 3 .
extensive enough research into the
63Third Amended Petition for Writ of Habeas Corpus, Docket
Entry No. 97, p. 49.
64 Reporter's Record, Docket Entry No. 109-60, p. 253.
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characteristics of filicide in order to come up with a set
profile."65
After questioning by the parties, the trial court disallowed
Dr. Holden's testimony. The trial court gave "a couple of reasons"
for not permitting the testimony. The trial court questioned
whether filicide was "a legitimate field of expertise and whether
it would be helpful to the jury or not, 11
particularly because
Dr. Holden did not have "extensive enough research for him to give
any kind of risk factors as to the study of licide."66 The trial
court concluded that Dr. Holden's "testimony with regard to the
studies of filicide or child abuse [was not] reliable."67
Gallo argues that the exclusion Dr. Holden's testimony
violated his Sixth and Fourteenth Amendment right "'to present a
complete defense.'" Crane v. Kentucky, 106 S. Ct. 2142, 2146
(quoting California v. Trombetta, 104 S. Ct. 2528, 2532
see also Chambers v. Mississippi, 93 s. Ct. 1038, 1049
(1986)
(1984));
(1973). Gallo raised this claim on direct appeal. Gallo argues
that (1) the state court did not rule on the federal aspects of his
claim, excluding it from AEDPA deference and (2) even if AEDPA
applied, the state court's rejection of this claim was contrary to,
or an unreasonable application of federal law.
§ 2254 (d) (1).
Gs Id.
66 Id., pp. 253, 255.
p. 256.
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a. AEDPA
Gallo first argues that AEDPA does not apply because the state
court did not adjudicate his federal constitutional arguments.
Gallo contends that the state-court decision "is silent on [his]
federal constitutional claim." 68 A state court's silence alone does
not mean it failed to adjudicate an inmate's claim. "[I]t is not
the practice of busy state courts to discuss separately every
single claim to which a defendant makes a passing reference." See
Johnson v. Williams, 133 S. Ct. 1088, 1094 (2013). Federal courts
employ a rebuttable presumption that the state courts adjudicated
all claims on the merits. See id. at 1096; see also Grant v.
Vannoy, 829 F. App'x 23, 30 (5th Cir. 2020); Woodfox v. Cain, 772
F.3d 358, 371 (5th Cir. 2014). An inmate carries his "heavy burden
of rebuttal" by "offer[ing] evidence of state-law procedural
principles contrary to the presumption," or evidence that
"very clearly'' establishes that "a federal claim was inadvertently
overlooked in state court." Jimenez v. Guerrero, 133 F.4th 483,
489 (5th Cir. 2025) (quotation omitted). The Fifth Circuit has
said that showing a claim "was properly presented to the state
courts" but "somehow not adjudicated" is "probably impossible in
practice . II Id. at 490.
68Petitioner's Reply to Respondent's Answer with Brief in
Support, Docket Entry No. 108, p. 29.
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Gallo has not shown that the state courts ignored this claim.
Gallo's state appellate briefing primarily relied on state law and
only made a "passing reference" to a federal const ional
argument. Williams, 133 S. Ct. at 1094. Gallo's appellate
briefing referred to the federal constitution in the heading to the
relevant section, but only devoted a few sentences to any
discussion of federal law. 69 Gallo did not explicitly place his
state appellate brie in a federal constitutional context or
significantly develop any federal arguments. Instead, Gallo's
arguments heavily emphasized state evidentiary law. Gallo, in
fact, expressly framed his "arguments and authorities" in the
context of Rule 702 of the Texas Rules Evidence.
The Court of Criminal Appeals' written opinion followed
Gallo's lead, mentioning that he had " leg [ed] that the trial
court's ruling denied him a meaningful opportunity to present a
complete defense," but then analyzing the state law arguments Gallo
had ed. Gallo, 239 S.W.3d at 766. addressing issues
as Gallo had raised them, the Court of Criminal Appeals ended its
discussion by stating that "the trial court's ruling did not
69Gallo's state and federal briefing rely on the "Eighth and
Fourteenth Amendments . . . . " Corrected Applicant's Brief, Docket
Entry No. 109-139, p. 73; Third Amended Petition for Writ
Corpus, Docket Entry No. 97, pp. 52-53. The federal const ional
right to present a complete defense is "rooted directly in the Due
Process Clause of the Fourteenth Amendment or in the
Compulsory Process or Confrontation clauses of the Sixth
Amendment, 11 not the Eighth Amendment. Crane v. Kentucky, 106
S. Ct. 2142, 2146 ( 19 8 6) .
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prevent [Gallo] from arguing that the victim's mother could have
committed the crime." at 767. The Court of Criminal Appeals
then overruled his appellate claim. See
Nothing in the state court's decision suggests that failed
to adjudicate Gallo's ing federal arguments. The Court of
Criminal Appeals did not extensively discuss the federal
constitutional component of Gallo's claim, yet its discussion
mirrored the emphasis Gallo had put on the issue. Quite simply,
the Court of Criminal Appeals "resolv [ed] an issue in the exact
same terms" as Gallo presented it. Lucio v. Lumpkin, 987 F.3d 451,
482 (5th Cir. 2021). Gallo has not overcome the presumption that
the state courts adjudicated his federal claim.
b. Federal Review
lo must show that the state court's rejection of this claim
was contrary to, or an unreasonable application of, federal law.
See 28 U.S.C. § 2254(d)(1). Federal courts uphold "state courts'
wide latitude to make discretionary evidentiary decisions." Lucio,
987 F.3d at 471; see also Caldwell v. Davis, 757 F. App'x 336, 339
(5th C . 2018). The Constitution specifically "permits judges to
exclude evidence that is . . . only marginally relevant or poses an
undue sk of confusion of the issues." Holmes v.
South Carolina, 126 S. Ct. 1727, 1732 (2006) (internal quotation
and citations omitted) . "Due process is implicated only for
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rulings of such a magnitude or so egregious that they render the
trial fundamentally unfair." Gonzales v. Thaler, 643 F.3d 425, 430
(5th Cir. 2011) (footnotes and internal quotation marks omitted).
The exclusion of the expert testimony did not impair Gallo's
ability to present a meaningful defense. The Supreme Court has
only found a complete-defense violation in cases involving "an
idiosyncratic state rule of evidence that was 'arbitrary,' 'did not
rationally serve any discernible purpose,' and 'could not be
rationally defended.'" Lucio, 987 F.3d at 473-74 (quoting Nevada
v. Jackson, 133 S. Ct. 1990, 1992 (2013)). The "Supreme Court has
never applied its complete-defense cases to discretionary
evidentiary decisions under rules that are themselves
constitutional," such as Rule 702. Lucio, 987 F.3d at 474. Gallo
has not alleged any constitutional defect in Texas' evidentiary
rule, only in its application in his case.
As previously discussed, the trial court did not completely
prevent Gallo from presenting a defense based on filicide; the
primary defensive theme throughout trial was to cast blame on the
victim's mother. The Court of Criminal Appeals found on direct
review that "[t]he trial court's ruling did not prevent [Gallo]
from arguing that the victim's mother could have committed the
crime." Gallo, 239 S.W.3d at 766-67. The trial court only
excluded one expert's testimony on characteristics common to those
who kill their children.
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The trial court explored the bas for Dr. Holden's testimony
in a hearing. The trial court allowed the parties to examine
Dr. Holden and assessed the support for his proposed testimony.
The court found that his proposed testimony was not
adequately supported, reliable, or helpful. The state court's
decision was not arbitrary or without legal justification.
Accordingly, the state court's finding of no constitutional error
was not contrary to, or an unreasonable application of, federal
law. 28 U.S.C. § 2254 (d) (1).
B. Claim Five: Cumulative Error
In claim five, Gallo claims that the cumulative effect of any
error causes an independent constitutional violation under the
Fourteenth Amendment.70 Gallo raised a cumulative-error claim in
his state habeas application.71 The state habeas court found
that Gallo "fail[ed] to demonstrate error in the trial or direct
appeal" and thus his claim "based on the cumulative
alleged error [was] without merit."72
of
Third Amended Petition for Writ of Habeas Corpus, Docket
Entry No. 97, pp. 93-94.
Application Post-Conviction Writ of Habeas Corpus,
Docket Entry No. 109-170, p. 252
72 Findings of Fact and Conclusions of Law, Docket Entry
No. 10 172, p. 327. Respondent argues that Gallo did not exhaust
this claim because his state habeas application alleged different
errors than those he attempts to cumulate on federal review. Even
if Gallo's state litigation did not fully exhaust his federal
claim, the court may deny any meritless unexhausted claim. See 28
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Gallo has not shown any constitutional error. An independent
cumulative-error claim based is viable only when: "(1) the
individual errors involved matters of constitutional dimension
rather than mere violations of state law; (2) the errors were not
procedurally defaulted
infected the entire
habeas purposes; and (3) the errors 'so
that the resulting conviction violates
due process.'" Derden v. McNeel, 978 F.2d 1453, 1454 (5th Cir.
1992) (quoting Cupp v. Naughten, 94 s. Ct. 396, 400 (1973)).
"Merit ss claims or claims that are not prejudicial cannot be
cumulated, regardless the total number raised." Westley v.
Johnson, 83 F.3d 714, 726 (5th Cir. 1996); see also Mullen v.
Blackburn, 808 F.2d 1143, 1147 (5th Cir. 1987) ("Twenty times zero
equals zero."). There simply no error to cumulate. court
denies Gallo's cumulative-error claim.
V. Certificate of Appealability
Rule 11 of the Rules Governing Section 2254 Cases requires a
district court to issue or deny a certi cate of appealabi when
entering a final order that is adverse to the petitioner. A
certificate of appealability will not issue unless the petitioner
makes "a substantial showing of the denial of a constitutional
right," 28 U.S.C. § 2253(c)(2), which requires a petitioner to
demonstrate "that 'reasonable jurists would find the di ct
court's assessment of the constitutional claims debatable or
U.S.C. § 2254(b)(2).
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wrong.'" Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004) (quoting
Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000)). Under the
controlling standard s requires a petitioner to show that
"jurists of reason could disagree with the [reviewing] court's
resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement
to proceed further." Buck v. Davis, 137 S. Ct. 759, 773 (2017)
(citation and internal quotation marks omitted).
After a careful review of the pleadings and the applicable
law, court concludes that reasonable j sts would not find the
assessment of the constitutional claims debatable or wrong.
Because Gallo does not demonstrate that his claims could be
resolved in a different manner, a certificate of appealability will
not issue in this case.73
73The court has allowed the parties extraordinary leeway in
submitting lengthy briefs and other written materials in connection
with s federal habeas action. The court has expended
considerable time reading these papers and performing a significant
amount of independent research to be as fully informed as possible
when addressing the part s' arguments. Despite Gallo's lure to
cure procedural defects in many of his claims, the court has spent
substantial time considering their merits in the alternative.
While, because of the sheer volume of information presented, it is
not impossible that some arguments were overlooked, the parties
should assume that to expres address a particular
argument in this Memorandum Opinion and Order reflects the court's
judgment that the argument lacked sufficient merit to warrant
discussion. Accordingly, the court strongly discourages the
parties from seeking reconsideration based on arguments they have
previously raised or that they could have raised.
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V. Conclusion and Order
The court ORDERS as follows:
1. The Third Amended Petition for Writ of Habeas
Corpus filed by Tomas Raul Gallo (Docket Entry
No. 97) is DENIED, and this action will be
dismissed with prejudice.
2. A certificate of appealability is DENIED.
The Clerk shall provide a copy of this Memorandum Opinion and
Order to the parties.
SIGNED at Houston, Texas, on this 2nd day of March, 2026.
SIM LAKE
SENIOR UNITED STATES DISTRICT JUDGE
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