Allan Gilmore v. Debra Dexter

MEMORANDUM

Allan Tracy Gilmore appeals the district court’s denial of his petition for a writ of habeas corpus. We affirm. Because the parties are familiar with the factual and procedural history of the case, we need not recount it here in detail.

I

The California Court of Appeal’s adjudication of Gilmore’s claim 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. 28 U.S.C. § 2254 (d)(2); Harrington v. Richter, 562 U.S.-, 131 S.Ct. 770, 783-84 , 178 L.Ed.2d 624 (2011). The Court of Appeal denied relief on Gilmore’s claim of ineffective assistance of counsel because the court determined that Gilmore had failed to submit any evidence with his claim and relied only on conclusory allegations. However, Gilmore did in fact tender a substantial amount of evidence with his State petition, none of which was mentioned by the Court of Appeal. Given the record actually before the State Court of Appeal, its conclusion was unreasonable under § 2254(d)(2).

Moreover, although Gilmore had diligently developed his ineffective assistance of counsel claim in the State court proceedings, the Court of…