Gallardo v. United States of America

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
FRANK GALLARDO,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.
5:22-CV-05007-KES
REPORT AND RECOMMENDATION
INTRODUCTION
This matter is before the court on the pro se motion of Frank Gallardo to
vacate, correct, or set aside his sentence pursuant to 28 U.S.C. § 2255. 	See
Docket No. 1.1 Now pending is a motion by respondent the United States
(“government”) to dismiss Mr. Gallardo’s motion without holding an evidentiary
hearing. 	See Docket No. 23. 	This matter was referred to this magistrate judge
for a recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and Local
Rule 57.11.
FACTS
A. 	Pretrial Proceedings
A criminal complaint was initially filed charging Mr. Gallardo with
abusive sexual contact of a minor. 	CR Docket No. 1. 	That complaint was
1 Documents cited from this civil habeas file will be cited using the court’s
assigned docket number. 	Documents from Mr. Gallardo’s underlying criminal
case, United States v. Gallardo, 5:15-CR-50061-JLV (D.S.D.), will be cited
using the court’s assigned docket number preceded by “CR.”
Case 5:22-cv-05007-KES Document 26 Filed 09/14/22 Page 1 of 26 PageID #: <pageID>

2
replaced by an indictment two months later which charged Mr. Gallardo with
two counts of sexual contact with A.B., a child under the age of 12 on March
12 and March 14, 2015. 	CR Docket No. 4. 	The indictment recited that A.B.
was an Indian child, that the events took place in Indian country, and
referenced 18 U.S.C. §§ 1152, 2244(a)(5) and 2246(3) as the charging
statutes. 	Id.
Mr. Gallardo was arrested on the indictment in Montana on October 16,
2015. 	CR Docket entry after entry 11. 	At his hearing in Montana,
Mr. Gallardo waived his right to an identity hearing, admitting that he was the
person named in the District of South Dakota indictment. 	CR Docket No. 13-
2.2 The District of Montana court ordered Mr. Gallardo to be transported to the
District of South Dakota by the United States Marshal. 	CR Docket No. 13-1
at p. 1.
Mr. Gallardo made his initial appearance in this district on November 20,
2015, and was ordered detained. 	CR Docket Nos. 17 & 18. 	During the
hearing, the magistrate judge asked how to pronounce “Gallardo” and
Mr. Gallardo obliged with the correct pronunciation. 	CR Docket No. 24 at p. 3
(transcript of initial appearance). 	The court then asked if he was
“Mr. Gallardo,” and he responded “yeah.” 	Id. 	Attorney Jamy Patterson noticed
her appearance as retained counsel on behalf of Mr. Gallardo. 	CR Docket Nos.
15 & 24 at p. 6.
2 Mr. Gallardo signed the waiver form “Frank Thunder Hawk.” 	CR Docket
No. 13-2.
Case 5:22-cv-05007-KES Document 26 Filed 09/14/22 Page 2 of 26 PageID #: <pageID>

3
Three weeks later, on December 11, 2015, Ms. Patterson moved the court
to continue the deadlines in the scheduling order, noting that a jury trial had
been set for January 26, 20153, [sic] and that counsel needed additional time
to locate witnesses, complete her investigation and prepare for trial. 	CR Docket
No. 21. 	Accompanying Ms. Patterson’s motion was a waiver of the right to a
speedy trial signed by Mr. Gallardo.4 CR Docket No. 22. 	The district court
granted the motion and set a new trial date of March 22, 2016. 	CR Docket
No. 23.
On March 4, 2016, defense and government counsel stipulated that there
were still 50 days remaining under the Speedy Trial Act (“STA”) for
Mr. Gallardo’s trial to be held. 	CR Docket No. 40. 	Two days earlier,
Ms. Patterson had filed a motion seeking admission of evidence at trial that the
victim, A.B., had previously been molested by another person. 	CR Docket
No. 36.
On June 7, 2016, Ms. Patterson moved to dismiss the indictment under
the STA, arguing that all briefing on defendant’s motion (Docket No. 36) had
been completed by March 17, 2016; that the court was allowed to exclude the
briefing time plus 30 days following the filing of the last brief from the STA
calculation; that even allowing for the exclusion of the briefing time plus the 30
3 The original scheduling order listed a jury trial date of January 26, 2016. 	CR
Docket No. 19 p. 2.
4 Although Ms. Patterson typed the name “Frank Gallardo” on this form
proposed for her client’s signature, Mr. Gallardo signed the document “Frank
Thunder Hawk.” 	CR Docket No. 22.
Case 5:22-cv-05007-KES Document 26 Filed 09/14/22 Page 3 of 26 PageID #: <pageID>

4
days, it had been more than 70 days since Mr. Gallardo made his initial
appearance on November 20, 2015. 	CR Docket No. 51.
The court denied the motion, noting that counsel’s reliance on
subsection (h)(1)(H) of 18 U.S.C. § 3161 was misplaced because the motion
made by counsel required a hearing before the motion could be resolved and no
hearing had yet been held. 	CR Docket No. 56. 	Furthermore, the court
observed that Mr. Gallardo’s earlier waiver of his STA rights tolled the running
of the STA time until March 26, 2016, by the very terms of the waiver and
accompanying motion, so his STA clock did not resume running until that
date. 	Id. 	Then, the court noted, the STA clock was tolled again by counsel’s
filing of the motion to dismiss. 	Id. 	Jury trial was scheduled for August 30,
2016. 	CR Docket No. 60.
Ms. Patterson moved for the issuance of trial subpoenas for ten
witnesses, some of whom were also government witnesses, and the court
granted her motion.5 CR Docket Nos. 68 & 69. 	Ms. Patterson also made a
motion in limine to exclude any hearsay statements made by A.B. to the child
forensic interviewer, Brandi Tonkel, as well as to exclude any expert testimony
from Ms. Tonkel. 	CR Docket No. 70. 	The motion also sought to exclude any
evidence that Mr. Gallardo had engaged in a high-speed chase with police, fled
the jurisdiction, or had been sought, wanted, or captured by the FBI. 	Id.
5 The ten witnesses were: 	Vanessa Swallow, Alfred Swallow, Cedric Young
Bear, Sr., Suzette Thunder Hawk, Don Myers, Lauren Craft, Elizabeth Young
Bear, FBI Special Agent Bob Bennett, Brandi Tonkel, and Barbara
Neiwswander. 	CR Docket No. 68.
Case 5:22-cv-05007-KES Document 26 Filed 09/14/22 Page 4 of 26 PageID #: <pageID>

5
The district court denied the motion as to hearsay statements by A.B. to
Ms. Tonkel, denied the motion to prevent Ms. Tonkel giving expert testimony,
granted the motion to exclude evidence of Mr. Gallardo’s flight or “wanted”
status, and granted defense counsel’s motion to introduce the fact (via
stipulation) that A.B. had been sexually abused by a third party before the
events involving Mr. Gallardo were alleged to have taken place. 	CR Docket
No. 94.
A few days before trial, the government filed a superseding indictment
alleging all the same statutes, facts and crimes as the original indictment
except that the new indictment alleged an attempt in the alternative and
specified that Mr. Gallardo performed the alleged acts “with the intent to
abuse, humiliate, harass, degrade, and arouse and gratify the sexual desire of
any person.” 	Compare CR Docket No. 82, with CR Docket No. 4.
Before trial, defense counsel and government counsel stipulated that
A.B. had been sexually abused by Jaron Thunder Hawk in 2013, that A.B. had
reported the abuse, that Jaron had been charged, and had pleaded guilty to
committing the acts A.B. alleged. 	CR Docket No. 93.
B. 	The Jury Trial
Trial began on August 29, 2016, and continued until the 31st, when the
jury returned a verdict of guilty on both counts in the superseding indictment.
CR Docket No. 105. 	A.B. testified as did her mother, forensic interviewer
Brandi Tonkel, and the investigating agent. 	See CR Docket Nos. 164 & 165.
Case 5:22-cv-05007-KES Document 26 Filed 09/14/22 Page 5 of 26 PageID #: <pageID>

6
Defense counsel called three witnesses who called into question the credibility
of A.B. and her mother. 	Id.
After the jury had begun deliberations, a note from one of the jurors was
communicated to the district court requesting that the alternate juror be
allowed to substitute in for one of the deliberating jurors. 	CR Docket No. 98.
The district court responded by stating that the “alternate juror has been
discharged from any duties in connection with the case. 	Under the law, he
cannot participate in deliberations.” 	CR Docket No. 99. 	The jury did not
indicate how the jury stood in terms of agreement on a verdict at this point.
CR Docket No. 98. 	And the district court did not admonish the jury to bring
back a unanimous verdict at this time. 	CR Docket No. 99.
C. 	Post-Trial and Sentencing
Following trial, Mr. Gallardo filed a motion with the district court seeking
to discharge Jamy Patterson as his counsel. 	CR Docket No. 121. 	The
magistrate judge held a hearing, granted the motion and appointed Ellery Grey
to represent Mr. Gallardo. 	CR Docket Nos. 123 & 124. 	Mr. Gallardo then
moved to discharge Mr. Grey, but then withdrew the motion. 	CR docket Nos.
128 & 129.
The final presentence investigative report (PSR) was filed July 14, 2017.
CR Docket No. 136. 	Mr. Grey filed objections to portions of the PSR. 	CR
Docket No. 142. 	Mr. Grey also submitted letters of support on Mr. Gallardo’s
behalf for sentencing. 	CR Docket Nos. 145, 149.
Case 5:22-cv-05007-KES Document 26 Filed 09/14/22 Page 6 of 26 PageID #: <pageID>

7
Mr. Gallardo again filed a motion to discharge Mr. Grey and the court
granted the motion. 	CR Docket Nos. 147, 150 & 153. 	Attorney Terry Pechota
was then appointed to represent Mr. Gallardo. 	CR Docket No. 153.
Mr. Pechota filed a motion for acquittal and for a new trial, arguing
among other things that the evidence had been insufficient to support the
verdict; the alleged victim had never been examined by a medical doctor;
Mr. Gallardo was denied by his attorney of his right to testify at trial; that
crucial and highly probative evidence was not presented to the jury from Shelly
Neprud that A.B.’s mother had said she was going to frame Mr. Gallardo;
Mr. Gallardo’s signature on the STA waiver form was forged; the jury indicated
one of its members wished to be replaced by an alternate and, when the district
court refused that request without ascertaining why the juror wanted to leave,
the jury returned a guilty verdict shortly thereafter, giving rise to the possibility
the court unduly pressured the jury to return a guilty verdict; and the district
court failed to submit the issue to the jury whether Mr. Gallardo was an
Indian. 	CR Docket No. 177. 	Mr. Gallardo submitted an affidavit attesting that
it was not his signature on the STA waiver. 	CR Docket No. 179. 	Mr. Pechota
also submitted an opinion of a document examiner that the signature on the
STA waiver was not consistent with samples of Mr. Gallardo’s handwriting
provided to the expert specifically for purposes of examination. 	CR Docket
No. 182-1.
The government responded to Mr. Pechota’s motion for a new trial by
producing an affidavit from Ms. Patterson that she personally visited
Case 5:22-cv-05007-KES Document 26 Filed 09/14/22 Page 7 of 26 PageID #: <pageID>

8
Mr. Gallardo at the Pennington County Jail on December 11, 2015. 	CR Docket
No. 187-2. 	During the jail visit Ms. Patterson presented the STA waiver to
Mr. Gallardo and discussed it with him. 	Id. 	Mr. Gallardo then signed the STA
waiver. 	Id. 	Following the visit, Ms. Patterson took the waiver back to her office
and filed the waiver electronically through the court’s docketing system,
CM/EMF. 	Id. 	The government also filed a copy of Mr. Gallardo’s signature on
the waiver of his identity hearing in Montana. 	CR Docket No. 187-1. 	The
government criticized Mr. Gallardo’s document examiner for not examining
known samples of Mr. Gallardo’s signatures, such as the waiver of the identity
hearing, which (according to the government) clearly showed that the
signatures on the STA waiver and the identity hearing waiver were the same.
CR Docket No. 187 at p. 18.
The district court denied Mr. Gallardo’s motion for a new trial or for
acquittal. 	Docket No. 189. 	The court found the evidence was sufficient to
support the jury’s verdict. 	Id. at pp. 7-18, 36-37. 	The court also found the
motion to be untimely. 	Id. at pp. 1-6, 18-20.
The court held the note from the juror wanting to be replaced was not
grounds for a new trial. 	Id. at pp. 27-28. 	As to this claim, the court noted that
the juror did not give a reason for wanting to be replaced and the district court
when responding to the jury question did not admonish the jury that it must
be unanimous . 	Id. 	The court found it had jurisdiction over Mr. Gallardo and
the crimes charged whether Mr. Gallardo was an Indian or a non-Indian. 	Id. at
pp. 28-31.
Case 5:22-cv-05007-KES Document 26 Filed 09/14/22 Page 8 of 26 PageID #: <pageID>

9
The district court found that it had advised Mr. Gallardo on the record
that the decision to testify at trial was his and his alone. 	Id. at p. 33. 	The
court recounted that Ms. Patterson took a recess to discuss with Mr. Gallardo
whether to testify. 	Id. 	When counsel announced the defense rested, the court
noted that Mr. Gallardo did not ask to speak with his attorney or the court
about this decision. 	Id. 	The district court declined to decide if the STA waiver
signature was forged, but indicated the allegation did not suffice for the
granting of a new trial. 	Id. at p. 36.
At the subsequent sentencing hearing, the district court imposed a
sentence of 36 months’ imprisonment for each count of conviction, with the
sentences to run consecutively for a total of 72 months’ imprisonment. 	CR
Docket No. 202. 	Mr. Gallardo timely appealed. 	CR Docket No. 203.
D. 	Direct Appeal
On appeal, Mr. Gallardo raised the following issues: 	(1) whether the
evidence was sufficient to support the verdict; (2) whether the district court
erred by admitting hearsay evidence from A.B. through the forensic interviewer;
(3) whether the district court should have instructed the jury on specific intent;
(4) whether the district court should have granted a mistrial because Bikers
Against Child Abuse members appeared at the courthouse in clothing with the
group’s insignias on it; (5) whether Mr. Gallardo’s STA rights were violated;
(6) whether Mr. Gallardo’s constitutional right to testify was violated; and
(7) whether the indictment was defective because it did not identify
Mr. Gallardo as an Indian and it identified him as “Frank Gallardo” instead of
Case 5:22-cv-05007-KES Document 26 Filed 09/14/22 Page 9 of 26 PageID #: <pageID>

10
by his real name, “Frank Ray Thunder Hawk.”6 United States v. Gallardo, 970
F.3d 1042, 1044 (8th Cir. 2020); Appellant’s brief at p. 25. 	The court rejected
each of these claims and affirmed the district court. 	Id.
The court held that considering all of the evidence except the testimony
of Brandi Tonkel, the evidence was sufficient to sustain the verdict. 	Id. at
1045. 	The government was required to prove five essential elements of the
crime beyond a reasonable doubt: 	(1) that Mr. Gallardo knowingly and
intentionally engaged in sexual contact with a person; (2) the sexual contact
was an intentional touching of the genitalia, groin, inner thigh, or buttocks of
the victim, through the clothing, with the intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any person; (3) the victim was
less than 12 years old; (4) the victim was an Indian; and (5) the act took place
in Indian country. 	Id. 	The court held the testimony of A.B. satisfied all five
elements. 	Id.
Regarding the admission of A.B.’s hearsay statements through
Ms. Tonkel’s testimony, the court elided the question whether it was error to
admit this evidence, but held that if it was error, the error was harmless. 	Id.
at 1046. 	The error was harmless because Ms. Tonkel’s testimony did not add
any facts or details to what A.B. herself testified to. 	Id.
The court held that the district court properly instructed the jury as to
the intent element required by the crimes charged. 	Id.
6 The PSR filed in Mr. Gallardo’s case indicated he had used a number of
aliases including Frank Thunder Hawk, Frank Lovato, Frank Ray Gallardo, and
Frank 54 Gallardo. 	CR Docket No. 136 at p. 2. 	Mr. Gallardo also had an
alternate Social Security Number issued to him. 	Id.
Case 5:22-cv-05007-KES Document 26 Filed 09/14/22 Page 10 of 26 PageID #: <pageID>

11
As to the mistrial Mr. Gallardo argued should have been granted after
Bikers Against Child Abuse showed up at the courthouse in regalia, the court
rejected that argument too. 	Id. at 1047. 	When the district court questioned
the jury, none of the jurors indicated that they had seen the Bikers’ insignias
on their clothing. 	Id. 	The Bikers appeared only the first day of trial, after
which the district court took protective measures. 	Id. 	The court noted that the
question of whether a spectator’s conduct can affect a defendant’s fair-trial
rights is an open question which the Supreme Court has not yet answered. 	Id.
Because there was no evidence of any impact on the jury, the court found no
error. 	Id.
As to the arguments that Mr. Gallardo never waived his STA rights and
was denied the right to testify, the court held the issues were essentially
ineffective assistance of counsel claims and declined to decide those issues on
appeal without further development of the record. 	Id. at 1048.
Finally, as to Mr. Gallardo’s claim that the indictment was defective
because he was an Indian and 18 U.S.C. § 1152 does not apply to crimes
committed by one Indian against another Indian, the court also affirmed the
district court. 	Id. 	The court held the district court had the power to try
Mr. Gallardo, whether he was an Indian or not, because he was convicted of a
crime that applies to Indians and non-Indians alike. 	Id. 	Therefore, whether
the indictment failed to allege Mr. Gallardo was an Indian was irrelevant. 	Id.
As to Mr. Gallardo’s argument the name on the indictment was wrong, the
Case 5:22-cv-05007-KES Document 26 Filed 09/14/22 Page 11 of 26 PageID #: <pageID>

12
court only noted that Mr. Gallardo’s counsel referred to him as “Gallardo” so
the court followed suit. 	Id. at 1044 n.2.
E. 	Mr. Gallardo’s § 2255 Motion
The government, as well as this court, had some difficulty deciphering
the claims Mr. Gallardo was asserting in his original pleading. 	See Docket
No. 1; Docket No. 24. 	In his response in opposition to the government’s motion
to dismiss, Mr. Gallardo states “[government counsel] does not know of the
case he is speaking of.” 	Docket No. 25 at p. 1.
Mr. Gallardo claims the government misconstrued his claims in his
original petition and he states “my claims are:”
1. 	My right to testify was taken from me.
2. 	My signature was forged on a consent to continuance in which I
was DepriveD [sic] of my right to a speedy trial.
3. 	The indictment was Defective.
4. 	The [district court] deprived me of my right to a mistrial.
5. 	The [district court] deprived me of my right to a Hung jury.
6. 	The prosecutor and [district court] violated federal court rules
Because Brandi Tonkel’s Testimony should not have been Allowd
[sic].
7. 	There was insufficient evidence to submit the case to Jury.
8. 	The prosecutor said rape to the Jury and then spoke of the alleged
victim being rapted by Jaron Thunder Hawk and what he did to his
victim Biseno and then the prosecutor after telling the jury what
Jaron did to he’s victim Briseno and then [the prosecutor] after
telling the jury what Jaron did to the alleged victim and he
addmitted [sic] to doing to [the prosecutor] pointed at Mr. Gallardo
and said he did it to her.
Case 5:22-cv-05007-KES Document 26 Filed 09/14/22 Page 12 of 26 PageID #: <pageID>

13
9. 	[One of the jurors] is related to [the] alleged victim and the mother
of the alleged victim.
See Docket No. 25 at pp. 2-3.
The government now moves to dismiss Mr. Gallardo’s claims without
holding an evidentiary hearing. 	Docket No. 23. 	Mr. Gallardo resists the
motion. 	Docket No. 25. 	The court addresses the claims as clarified by
Mr. Gallardo in his responsive brief as set forth immediately above.
DISCUSSION
A. 	Scope of a § 2255 Motion
Section 2255 of Title 28 of the United States Code was enacted to
supersede habeas corpus practice for federal prisoners. 	Davis v. United States,
417 U.S. 333, 343-44 (1974). 	Section “2255 was intended to afford federal
prisoners a remedy identical in scope to federal habeas corpus.” 	Id. at 343.
Prior to the enactment of ' 2255, habeas claims had to be brought in the
district where the prisoner was confined, resulting in overburdening those
districts where federal correctional institutions were located and presenting
logistical issues because the record in the underlying criminal case was often
in a distant location. 	United States v. Hayman, 342 U.S. 205, 212-16 (1952).
The enactment of ' 2255 resolved these issues by requiring that the motion be
filed in the sentencing court. 	Id.
The scope of a ' 2255 motion is seemingly broader than the scope of a
habeas petition, the latter of which is typically limited to allegations of a
constitutional dimension. 	Section 2255 allows a federal prisoner to “vacate, set
aside or correct” a federal sentence “upon the ground that the sentence was
Case 5:22-cv-05007-KES Document 26 Filed 09/14/22 Page 13 of 26 PageID #: <pageID>

14
imposed in violation of the Constitution or laws of the United States, or that
the court was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or is otherwise
subject to collateral attack.” 	See 28 U.S.C. ' 2255(a). 	Where the allegation for
relief is not based on a violation of a Constitutional or federal statutory right or
an assertion that the court was without jurisdiction, the Supreme Court has
read a “fundamentality” requirement into ' 2255—relief is available for only
those errors which constitute a “fundamental defect which inherently results in
a complete miscarriage of justice” or “an omission inconsistent with the
rudimentary demands of fair procedure.” 	Hill v. United States, 368 U.S. 424,
428 (1962); see Peguero v. United States, 526 U.S. 23, 27-30 (1999) (noting
collateral relief may be appropriate when a movant is prejudiced by a
court’s error).
Generally, petitioners are precluded from asserting claims pursuant to
' 2255 that they failed to raise on direct appeal. 	United States v. Frady, 456
U.S. 152, 158-59,167-68 (1982); United State v. Darden, 915 F.3d 579, 586
(8th Cir. 2019) (finding proper standard for reviewing claims not raised on
direct appeal is cause and prejudice). 	When a ' 2255 petitioner asserts a claim
that is procedurally defaulted because it was not raised on direct appeal, the
claim can only proceed after the petitioner has shown either: 	(1) actual
innocence or (2) that the procedural default should be excused because there
was both cause for the default and actual prejudice to the petitioner.
Bousley v. United States, 523 U.S. 614, 621-22 (1998); McNeal v. United
Case 5:22-cv-05007-KES Document 26 Filed 09/14/22 Page 14 of 26 PageID #: <pageID>

15
States, 249 F.3d 747, 749 (8th Cir. 2001). 	Therefore, barring a claim of actual
innocence, a petitioner must show both cause for why he failed to raise an
issue on direct appeal as well as actual prejudice caused by the alleged errors.
If a movant fails to demonstrate prejudice, the court need not address whether
cause exists to excuse a procedural default. 	Moore-El v. Luebbers, 446 F.3d
890, 898 (8th Cir. 2006).
Appellate courts generally refuse to review claims of ineffective assistance
of counsel on direct appeal; such claims are, therefore, properly addressed in a
28 U.S.C. ' 2255 motion such as the one here. 	See United States v. Campbell,
6 F.4th 764, 775-76 (8th Cir. 2014); United States v. Lee, 374 F.3d 637, 654
(8th Cir. 2004) (“[I]neffective assistance of counsel [claims] are generally not
cognizable on direct appeal” and “may be heard only if a miscarriage of justice
would otherwise result . . . or if the district court has developed a record on the
issues.”). 	Therefore, no procedural default analysis is required before
examining petitioner=s claims of constitutionally-deficient counsel.
B. 	Relitigation of Issues is Prohibited
Issues 3 (defective indictment), 4 (mistrial because of Bikers at trial),
6 (admission of Tonkel’s testimony), and 7 (sufficiency of the evidence) asserted
by Mr. Gallardo in this § 2255 motion (see Docket No. 25 at pp. 2-3), were
already asserted and decided in Mr. Gallardo’s direct appeal. 	Gallardo, 970
F.3d at 1044. 	With rare exceptions not applicable here, an issue that was
raised and rejected on direct appeal may not be relitigated in a § 2255 motion.
Sun Bear v. United States, 644 F.3d 700, 702 (8th Cir. 2011) (en banc) (citing
Case 5:22-cv-05007-KES Document 26 Filed 09/14/22 Page 15 of 26 PageID #: <pageID>

16
Davis v. United States, 417 U.S. 333, 346-47 (1974)). 	This court concludes
that issues 3, 4, 6 and 7 must be dismissed with prejudice because these
issues were actually litigated and decided in Mr. Gallardo’s direct appeal.
C. 	Procedural Default
Three other issues must also be dismissed pursuant to the procedural
default doctrine. 	If an issue could have been raised on appeal and it was not
raised, the issue is procedurally defaulted. 	Frady, 456 U.S. at 158-59,167-68;
Darden, 915 F.3d at 586. 	In issues 5 (hung jury), 8 (prosecutor’s remarks),
and 9 (relation of a juror to A.B. and her mother), Mr. Gallardo articulates
claims that could have been raised on appeal. 	These are direct assignments of
error on the part of the district court and the prosecutor as clarified by
Mr. Gallardo in his responsive brief. 	See Docket No. 25 at pp. 2-3.
When a § 2255 movant presents claims that are procedurally defaulted,
this court cannot reach the merits of those claims unless the movant shows
cause for the default and actual prejudice. 	Bousley, 523 U.S. at 621-22;
McNeal, 249 F.3d at 749. 	Here, Mr. Gallardo makes no attempt to show cause
and prejudice. 	Therefore, the court cannot consider claims 5, 8 and 9. 	The
court recommends these claims be dismissed with prejudice.
D. 	Whether Mr. Gallardo’s Sixth Amendment Right to Effective Counsel
Was Violated
The only remaining claims from those articulated by Mr. Gallardo in his
brief in opposition that are not barred from consideration by this court are (1)
his claim that his rights under the STA were violated because he never signed
the 	STA waiver and (2) he was denied his right to testify. 	The court interprets
Case 5:22-cv-05007-KES Document 26 Filed 09/14/22 Page 16 of 26 PageID #: <pageID>

17
Mr. Gallardo’s claims to be asserted under the Sixth Amendment guaranty of
the right to effective assistance of counsel.
1. 	The Standard for Ineffective Assistance Claims
The Sixth Amendment of the Constitution of the United States affords a
criminal defendant with the right to assistance of counsel. 	U.S. Const. amend.
VI. 	The Supreme Court “has recognized that ‘the right to counsel is the right to
effective assistance of counsel.’ ” 	Strickland v. Washington, 466 U.S. 668, 698
(1984) (citing McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)).
Strickland is the benchmark case for determining if counsel’s assistance was
so defective as to violate a criminal defendant’s Sixth Amendment rights and
require reversal of a conviction. 	Id. at 687.
“When a convicted defendant complains of the ineffectiveness of
counsel’s assistance, the defendant must show that counsel’s representation
fell below an objective standard of reasonableness.” 	Id. at 687-88. 	The
defendant must also show that counsel’s unreasonable errors or deficiencies
prejudiced the defense and affected the judgment. 	Id. at 691. 	The defendant
must show, “there is a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting guilt.” 	Id. at 695. 	In
sum, a defendant must satisfy the following two-prong test. 	Id. at 687.
First, the defendant must show that counsel’s performance was
deficient. 	This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. 	Second, the
defendant must show that the deficient performance prejudiced the
defense. 	This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable. 	Unless a defendant makes both showings, it
Case 5:22-cv-05007-KES Document 26 Filed 09/14/22 Page 17 of 26 PageID #: <pageID>

18
cannot be said that the conviction or death sentence resulted from
a breakdown in the adversary process that renders the result
unreliable.
Id.
“There is a presumption that any challenged action was sound trial
strategy and that counsel rendered adequate assistance and made all
significant decisions in the exercise of professional judgment.” 	Hall v.
Luebbers, 296 F.3d 685, 692 (8th Cir. 2002) (quotation omitted). 	It is the
petitioner’s burden to overcome this presumption, and a “petitioner cannot
build a showing of prejudice on a series of errors, none of which would by itself
meet the prejudice test.” 	Id. 	Counsel’s conduct must be judged by the
standards for legal representation which existed at the time of the
representation, not by standards promulgated after the representation. 	Bobby
v. Van Hook, 558 U.S. 4, 7-9 (2009). 	“ ‘American Bar Association standards
and the like’ are ‘only guides’ to what reasonableness means, not its definition.”
Id. at 8 (quoting Strickland, 466 U.S. at 688).
The Supreme Court distinguishes between those cases “in which the new
evidence would barely have altered the sentencing profile presented to the
sentencing judge,” and those that would have had a reasonable probability of
changing the result. 	Porter v. McCollum, 558 U.S. 30, 41 (2009). 	In assessing
the prejudice prong, it is important for courts to consider “the totality of the
available mitigation evidence—both that adduced at trial, and the evidence
adduced in the habeas proceeding” and “reweigh it against the evidence in
aggravation.” 	Id. at 40-41 (quotations omitted). 	It is not necessary for the
Case 5:22-cv-05007-KES Document 26 Filed 09/14/22 Page 18 of 26 PageID #: <pageID>

19
petitioner to show “that counsel’s deficient conduct more likely than not altered
the outcome” of his case, only that there is “a probability sufficient to
undermine confidence in [that] outcome.” 	Id. at 44 (quoting Strickland, 466
U.S. at 693-94). 	“Judicial scrutiny of counsel’s performance must be highly
deferential” with “a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” 	Strickland, 466 U.S. at 698.
2. 	Application of the Law to Mr. Gallardo’s STA Claim
In Thomas v. United States, 737 F.3d 1202, 1205 (8th Cir. 2013), a
§ 2255 movant argued his trial counsel had been ineffective because his Sixth
Amendment right to a speedy trial was violated and counsel did not move to
dismiss the indictment against him. 	The court analyzed the issue by noting
that an accused has the “ultimate authority to make certain fundamental
decisions regarding the case” while the province of the attorney is to make
tactical trial strategy decisions. 	Id. at 1207 (quoting Jones v. Barnes, 463 U.S.
745, 751 (1983)).
The Supreme Court has recognized only four “fundamental” decisions
belonging solely to the accused: 	the decision “whether to plead guilty, waive a
jury, testify in his or her own behalf, or take an appeal.” 	Id. at 1208 (quoting
Jones, 463 U.S. at 751). 	The Eighth Circuit noted that the speedy trial right
guaranteed by the Sixth Amendment is not among these four enumerated
decisions reserved to the accused. 	Id. 	Nor is it like any of those four
decisions. 	Id.
Case 5:22-cv-05007-KES Document 26 Filed 09/14/22 Page 19 of 26 PageID #: <pageID>

20
The court noted that the four enumerated decisions are easily
understood by the accused from the perspective of a lay person. 	Id. 	The
choices involve alternatives easy for a person untrained in the law to
understand (i.e. admit guilt or not), while the speedy trial right decision can
involve “the complicated weighing of factors and predicting of possible
outcomes.” 	Id. 	Delay is not necessarily a disadvantage to an accused but can
be a strategic advantage. 	Id. 	Therefore, a denial of a speedy trial is not an
automatic violation of the Sixth Amendment, but it is subject to a balancing
test. 	Id.
Given the nature of the right to a speedy trial, the Eighth Circuit held it
was not a fundamental right reserved solely for the accused to make. 	Id. at
1208-09. 	Instead, whether to assert a speedy trial right was a strategic
decision reserved to the lawyer to make. 	Id. 	In Thomas’ case, counsel had
identified reasons for not moving to enforce Thomas’ speedy trial rights. 	Id. at
1209. 	Thomas did not dispute the lawyer’s rationale; Thomas complained only
that the lawyer allegedly did not consult with him before making the decision.
Id. 	The Eighth Circuit held that counsel’s decision whether to assert the
speedy trial claim was a tactical decision which counsel was entitled to
“properly make without his client’s input.” 	Id. 	Therefore, since Thomas’ only
argument was that counsel failed to confer with him, and because counsel gave
reasons for making this tactical decision, Thomas could not obtain relief under
§ 2255. 	Id.
Case 5:22-cv-05007-KES Document 26 Filed 09/14/22 Page 20 of 26 PageID #: <pageID>

21
The Thomas case applies with special force herein. 	Mr. Gallardo’s
counsel gave reasons for the request for the continuance: 	she had only been
representing Mr. Gallardo for three weeks at the time she moved to continue
the trial date and she needed additional time to locate witnesses and to
complete her investigation. 	CR Docket No. 21. 	Furthermore, counsel
requested only a two-month delay, which in itself is abundantly reasonable.
Id. 	Finally, counsel showed herself more than willing to raise an STA issue on
Mr. Gallardo’s behalf when she moved to dismiss the indictment on STA
grounds some months later. 	CR Docket No. 51.
This court notes that Mr. Gallardo, like the movant in Thomas, never
disputed his counsel’s stated reasons for asking for the continuance: 	i.e. that
she needed additional time to prepare for trial. 	He never claims this was a ruse
or untruthful or that counsel should have been prepared for trial after
representing him for only three weeks (which included a long Thanksgiving
holiday weekend). 	Instead, his only complaint is that counsel did not seek his
permission before moving to continue. 	Like the movant in Thomas, this
allegation does not entitle Mr. Gallardo to relief under § 2255. 	Thomas, 737
F.3d at 1209. 	Accordingly, this court recommends dismissing Mr. Gallardo’s
STA claim on the merits because he has not shown deficient performance
by counsel.
In addition, Mr. Gallardo has failed to demonstrate prejudice. 	As the
Supreme Court has recognized, delay often favors a criminal defendant.
Barker v. Wingo, 407 U.S. 514, 521 (1972). 	Without a showing by Mr. Gallardo
Case 5:22-cv-05007-KES Document 26 Filed 09/14/22 Page 21 of 26 PageID #: <pageID>

22
of how the two-month delay occasioned by counsel’s motion harmed him, he
cannot meet the second prong of the Strickland test. 	He points to no evidence
that was lost as a result of the delay nor any other adverse development. 	The
court finds Mr. Gallardo’s claim fails under both Strickland prongs.
In resolving this issue, the court does not decide whether Mr. Gallardo’s
signature on the STA waiver form was his actual signature. 	However, should
the court undertake that analysis, it is significant that counsel typed her
client’s name on the form as “Frank Gallardo” but the form is signed “Frank
Thunder Hawk.” 	CR Docket No. 22. 	If counsel were going to forge a client’s
signature, it seems logical to the court that counsel would ensure the
typewritten name corresponded to the cursive signature. 	Why would a forger
cast doubt on her forged document by inserting a discrepancy like a variance
between the typed and cursive names? 	Furthermore, the signature on the STA
waiver does bear a nearly-identical resemblance to Mr. Gallardo’s admitted
signature on his waiver of an identity hearing. 	Compare CR Docket No. 22,
with CR Docket No. 13-2. 	In any case, determining whether a forgery occurred
is not necessary to the resolution of this issue.
3. 	Mr. Gallardo’s Right-to-Testify Claim
Mr. Gallardo’s argument that he was denied the right to testify on his
own behalf is not procedurally defaulted nor was it decided on appeal. 	At trial,
after the last defense witness testified and the jury left the courtroom, Ms.
Patterson stated to the court, “I just wanted to confirm my discussion I have
had with my client regarding whether he will testify or not, because we are
Case 5:22-cv-05007-KES Document 26 Filed 09/14/22 Page 22 of 26 PageID #: <pageID>

23
essentially ready to close, depending on that. 	I just wanted to double confirm
that.” 	CR Docket No. 165 at p. 32 (Trial Transcript (TT) at p. 255).
The court responded, “That’s an important decision. 	Take all the time
you need for that.” 	Id. 	Counsel then inquired whether the court would want to
have a colloquy with Mr. Gallardo on the record concerning his right to testify.
Id. at p. 33 (TT at p. 256).
The court responded that “I don’t involve myself with colloquy about that
decision. 	That is a decision that belongs to Mr. Gallardo alone. 	You can advise
him.” 	Id.
After a recess, court reconvened and defense counsel announced that the
defense rested their case. 	Id. 	Mr. Gallardo did not speak up or ask the court
to take another recess. 	Id.
In Ms. Patterson’s affidavit submitted herein, she states that during the
recess she discussed with Mr. Gallardo the possibility of him testifying and that
he made the decision not to testify. 	Docket No. 18 at p. 3, ¶ 4. 	Counsel
described the risks of testifying: 	Mr. Gallardo would be cross-examined by an
experienced federal prosecutor and Mr. Gallardo might open the door to the
introduction of the flight evidence and a prior warrant for Mr. Gallardo’s arrest
in another matter. 	Id. 	Counsel states under oath she would never have
prevented Mr. Gallardo from testifying if he wanted to. 	Id.
Mr. Gallardo offers no details regarding what he and his counsel
discussed during the recess. 	He never asserts in this § 2255 action that he
told Ms. Patterson he wanted to testify. 	And, as indicated above, he did not
Case 5:22-cv-05007-KES Document 26 Filed 09/14/22 Page 23 of 26 PageID #: <pageID>

24
protest or make any remarks when court reconvened and counsel announced
that the defense rested. 	Furthermore, he makes no representation about what
he would have testified to had he been called as a witness.
The accused has a constitutional right to testify in his own defense.
Rock v. Arkansas, 483 U.S. 44, 49 (1987). 	As discussed above, the right to
testify is one of the “fundamental” rights the Supreme Court has recognized
belongs to the accused and only the accused. 	Thomas, 737 F.3d at 1208. 	Any
waiver of the right to testify must be knowing and voluntary. 	United States v.
Bernloehr, 833 F.2d 749, 751 (8th Cir. 1987).
As the Eighth Circuit noted in its decision in Mr. Gallardo’s case, circuit
case law provides that a defendant’s silence when his lawyer announces that
the defense has rested its case without calling the defendant to testify is
sufficient to show a knowing and voluntary waiver of the right to testify.
Gallardo, 970 F.3d at 1048 (citing Frey v. Schuetzle, 151 F.3d 893, 898 (8th
Cir. 1998)). 	When counsel announces that the defense rests without calling
the accused to testify, the defendant under these circumstances “must act
‘affirmatively’ rather than apparently ‘acquiesc[ing] in his counsel’s advice that
he not testify, and then later claim[ing] that his will to testify was overcome.’ ”
Frey, 151 F.3d at 898.
Here, Mr. Gallardo did not act on his right to testify at the time during
the trial and he offers no evidence in this § 2255 action other than his
conclusory assertion that he was “denied his right to testify.” 	Under Frey, the
court concludes Mr. Gallardo made a knowing and voluntary waiver of his right
Case 5:22-cv-05007-KES Document 26 Filed 09/14/22 Page 24 of 26 PageID #: <pageID>

25
to testify during his trial. 	As such, counsel was not ineffective for failing to call
him as a witness.
In addition, because Mr. Gallardo offers no clues to the substance of
what he would have testified to had he been called, he fails to demonstrate
prejudice. 	The court recommends dismissing this claim on the merits as well.
E. 	No Hearing Is Warranted.
“While ‘[a] petitioner is entitled to an evidentiary hearing on a section
2255 motion unless the motion and the files and the records of the case
conclusively show that [he] is entitled to no relief,’ no hearing is required ‘where
the claim is inadequate on its face or if the record affirmatively refutes the
factual assertions upon which it is based.’ ” 	United States v. New, 652 F.3d
949, 954 (8th Cir. 2011) (quoting Anjulo-Lopez v. United States, 541 F.3d 814,
817 (8th Cir. 2008)). 	“A district court may deny an evidentiary hearing where
(1) accepting the petitioner’s allegations as true, the petitioner is not entitled to
relief, or (2) ‘the allegations cannot be accepted as true because they are
contradicted by the record, inherently incredible, or conclusions rather than
statements of fact.’ ” 	Guzman-Ortiz v. United States, 849 F.3d 708, 715 (8th
Cir. 2017) (quoting United States v. Sellner, 773 F.3d 927, 929-30
(8th Cir. 2014)).
Here, Mr. Gallardo’s claims are rebutted by the record or, even if taken
as true, do not warrant relief. 	Therefore, no hearing is warranted.
Case 5:22-cv-05007-KES Document 26 Filed 09/14/22 Page 25 of 26 PageID #: <pageID>

26
CONCLUSION
Based on the foregoing facts, law, and analysis, this magistrate judge
respectfully recommends granting the government’s motion to dismiss [Docket
No. 23], and dismissing Mr. Gallardo’s § 2255 motion with prejudice and
without holding an evidentiary hearing.
NOTICE TO PARTIES
The parties have fourteen (14) days after service of this report and
recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1),
unless an extension of time for good cause is obtained. 	Failure to file timely
objections will result in the waiver of the right to appeal questions of fact.
Objections must be timely and specific in order to require de novo review by the
district court. 	Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black,
781 F.2d 665 (8th Cir. 1986).
DATED this 14th day of September, 2022.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
Case 5:22-cv-05007-KES Document 26 Filed 09/14/22 Page 26 of 26 PageID #: <pageID>