821 F.3d 1136 (9th Cir. 2016), 14-55681, Gimenez v. Ochoa

Docket Nº14-55681
Citation821 F.3d 1136
Opinion JudgeKOZINSKI, Circuit Judge:
Party NameALAN G. GIMENEZ, Petitioner-Appellant, v. J.T. OCHOA, Warden; KAMALA D. HARRIS, Attorney General, Respondents-Appellees
AttorneyGeorge L. Schraer (argued), San Diego, California, for Petitioner-Appellant. Kevin Vienna (argued), Supervising Deputy Attorney General; Julie L. Garland, Senior Assistant Attorney General; Gerald A. Engler, Chief Assistant Attorney General; Kamala D. Harris, Attorney General, San Diego, Californ...
Judge PanelBefore: Alex Kozinski, Sandra S. Ikuta and John B. Owens, Circuit Judges.
Case DateMay 09, 2016
CourtUnited States Courts of Appeals, United States Court of Appeals (9th Circuit)

Page 1136

821 F.3d 1136 (9th Cir. 2016)

ALAN G. GIMENEZ, Petitioner-Appellant,

v.

J.T. OCHOA, Warden; KAMALA D. HARRIS, Attorney General, Respondents-Appellees

No. 14-55681

United States Court of Appeals, Ninth Circuit

May 9, 2016

Argued and Submitted, Pasadena, California October 22, 2015.

Page 1137

Appeal from the United States District Court for the Southern District of California. D.C. No. 3:12-cv-01137-LAB-BLM. Larry A. Burns, District Judge, Presiding.

SUMMARY[*]

Habeas Corpus

The panel affirmed the district court's dismissal of Alan Gimenez's second habeas corpus petition challenging his conviction for the second degree murder of his infant daughter based on the prosecution's theory that his daughter was a victim of shaken baby syndrome.

The panel held that Gimenez's ineffective assistance of counsel claim, which concerns errors primarily related to the use of expert testimony, is barred as successive because his arguments don't present a claim for relief that is distinct from the claim raised in his first petition.

The panel held that Gimenez can't obtain relief under 28 U.S.C. § 2244(b)(2)(B)(ii) on the theory that the prosecution introduced false testimony by incorrectly interpreting key hospital records in violation of his due process rights, where Gimenez simply presents a battle between experts who have different opinions about how his daughter died. The panel held that the district court properly found that he didn't demonstrate the requisite " constitutional error" under § 2244(b)(2)(B)(ii).

Gimenez also argued that new scientific evidence undermines the prosecution's theory that his daughter was a victim of shaken baby syndrome and thus shows that he's actually innocent of her murder. The panel held that habeas petitioners can allege a constitutional violation from the introduction of flawed expert testimony at trial if they show that the introduction of this evidence undermined the fundamental fairness of the entire trial. The panel concluded that Gimenez isn't entitled to relief. The panel explained that Gimenez failed to show that permitting the prosecution's experts to testify based on a triad-only theory of shaken baby syndrome was so extremely unfair that it violated fundamental conceptions of justice, and that he presented literature revealing not so much a repudiation of triad-only shaken baby syndrome, but a vigorous debate about its validity within the scientific community.

The panel wrote that Gimenez could not obtain relief if the panel were to decouple his claim of actual innocence from any due process violation and repackage it as a freestanding " actual innocence" claim. The panel noted that this court has only assumed, but not held, that petitioners may bring such a freestanding innocence claim. The panel explained that Gimenez's " new" evidence doesn't undermine the prosecution's case so much as beef up the theory that the jury already rejected: that his daughter suffered from health problems at birth that caused her subdural hematoma, brain swelling, retinal hemorrhage and eventually her death.

George L. Schraer (argued), San Diego, California, for Petitioner-Appellant.

Kevin Vienna (argued), Supervising Deputy Attorney General; Julie L. Garland, Senior Assistant Attorney General; Gerald A. Engler, Chief Assistant Attorney General; Kamala D. Harris, Attorney General, San Diego, California, for Respondents-Appellees.

Before: Alex Kozinski, Sandra S. Ikuta and John B. Owens, Circuit Judges.

OPINION

Page 1138

KOZINSKI, Circuit Judge:

Two decades after being convicted of murdering his infant daughter, Alan Gimenez seeks federal habeas relief for the second time. We consider whether Gimenez's ineffective assistance of counsel claims are barred as successive. We also consider whether he may advance a due process claim on the ground that expert evidence presented at trial has been undermined by subsequent scientific developments.

I. Background

A. Medical History

Gimenez's daughter, Priscilla, was seven weeks old when she died. During her short life, she vomited on multiple occasions after being fed. She also had seizures. On one occasion when Gimenez was at home alone with Priscilla, he saw her shaking and having difficulty breathing. Gimenez performed CPR and called 911. Paramedics took Priscilla to the hospital,

Page 1139

where she stayed for three days; she was diagnosed with epilepsy.

Hours after Priscilla was discharged, Gimenez's wife, Teresa, left for work and Gimenez fed Priscilla. Almost immediately, Priscilla vomited forcefully and experienced another seizure. Gimenez administered medicine as he was instructed by Priscilla's doctors and called Teresa. The couple rushed back to the hospital with Priscilla, where they remained for three days until her death. Gimenez was charged with her murder.

B. Trial

Gimenez and the government offered competing narratives at trial. The prosecution theorized that Gimenez had caused Priscilla's death by forcefully shaking her on at least two occasions. The defense argued that Priscilla was a sickly baby with birth injuries that worsened over time and eventually killed her.

Prosecution witnesses testified that Priscilla experienced a fairly normal birth, did not have a misshapen head, fed well and displayed normal vital signs in the days after she was born. Pediatrician Dr. Gooding testified that she discovered a suspicious fresh tear of Priscilla's frenulum1 when she examined Priscilla upon her first hospital visit. Dr. Gooding commented that the injury usually results from " fairly vigorous trauma to the oral cavity." At the hospital, Gimenez accused an emergency-room doctor of tearing Priscilla's frenulum during an examination, but at trial he testified that he'd inadvertently caused the injury while cleaning Priscilla's mouth. The jury also heard that Gimenez accused Teresa of infidelity, slapped her and pushed her during an argument late in her pregnancy, causing her to fall.

Experts provided the linchpin for the prosecution's theory that Priscilla was a victim of shaken baby syndrome (SBS). Radiologist Dr. Hilton analyzed x-rays of Priscilla's ribs and concluded that she was born without any bone damage but had a rib fracture at the time of her death. Coroner Dr. Eisele estimated that the rib fracture was about two weeks old when Priscilla died. He also testified that Priscilla had a subdural hematoma, or hemorrhage between the lining of her skull and the surface of the brain. Dr. Eisele also observed hemorrhaging in Priscilla's retinas and that her brain was " severely swollen." He concluded that Priscilla had been shaken.

Pediatrician Dr. Alexander testified that the hallmarks of SBS include subdural hematoma, brain swelling and retinal hemorrhage. He also noted that rib fractures are extremely uncommon in infants. He attributed Priscilla's two hospital admissions to separate shaking episodes.

Gimenez's experts countered with evidence that Priscilla was born with serious ailments that ultimately caused her death. Obstetrician Dr. Kerley testified that Teresa needed a C-section because she was in labor for more than 24 hours without achieving full dilation. He opined that the prolonged pressure of the narrow pelvic canal on Priscilla's skull may have caused molding or deformation of Priscilla's head.

Forensic pathologist Dr. Guard concluded that Teresa's strenuous labor caused Priscilla's subdural hemorrhage, pointing to doctors' notes from the delivery room documenting molding in Priscilla's head. He explained that Priscilla's hemorrhage likely clotted, healed and re-bled in an uncontrollable " chain reaction" in the weeks following her birth, causing brain swelling and retinal hemorrhages. He explained that Priscilla's vomiting and seizures were an expected outward manifestation

Page 1140

of re-bleeding as her brain healed. Finally, Dr. Guard attributed Priscilla's broken rib to physicians grasping her firmly while lifting her from the uterus during the C-section.

Neurologist Dr. Tiznado-Garcia analyzed Priscilla's hospital records and CT scans and concluded that she died from complications caused by a brain bleed that began at birth. Dr. Tiznado-Garcia ruled out SBS as a cause, explaining that brain bleeds caused by shaking are acute, while Priscilla's was chronic. Radiologist Dr. Harvey, however, conceded on cross-examination that Priscilla's injuries were consistent with non-accidental trauma.

The jury found Gimenez guilty of murder in the second degree. He was sentenced to an indeterminate prison term of fifteen years to life.

C. Previous Habeas Proceedings

In his first federal habeas petition, Gimenez alleged that his trial counsel was ineffective for failing to gather Priscilla's entire medical record. The missing documents suggested that Priscilla suffered from a congenital blood disorder with effects that mimic those of SBS. He also claimed that his counsel was ineffective by failing to consult a hematologist or question the experts he did retain about whether Priscilla had a blood disorder.

The district court determined that Gimenez suffered no prejudice from any deficient use of expert testimony or failure to obtain medical records: The prosecution's case would have been just as strong, and the evidence wouldn't have enabled the defense to overcome Gimenez's credibility problems. We affirmed in a memorandum disposition. Gimenez v. Alameida, 135 Fed.Appx. 20 (9th Cir. 2005).

In 2009, Gimenez filed a habeas petition in the Superior Court of California nearly identical to the federal petition at the heart of this case, which the California courts denied. Gimenez then filed a second federal habeas petition with this court's permission. The district court granted...

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52 practice notes
  • Klippenstein v. Fraunheim, 031921 CAEDC, 2:21-cv-00086 KJM GGH P
    • United States
    • Federal Cases United States District Courts 9th Circuit United States District Courts. 9th Circuit. Eastern District of California
    • 19 d5 Março d5 2021
    ...of Appeal was spot on, dubious, or unreasonable. No cognizable federal claim exists. Petitioner cites Gimenez v. Ochoa, 821 F.3d 1136, 1145 (9th Cir. 2016), for the proposition that the introduction of flawed expert testimony can rise to the level of a due process violat......
  • 460 F.Supp.3d 346 (S.D.N.Y. 2020), 18-cv-11260 (JGK), Cosey v. Lilley
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Courts. 2nd Circuit. Southern District of New York
    • 19 d2 Maio d2 2020
    ..."section 2244(b)(2)(B)(ii) also requires petitioners to state a predicate `constitutional error.'" Gimenez v. Ochoa, 821 F.3d 1136, 1143 (9th Cir. 2016). The court noted that "[t]he Supreme Court has never recognized `actual innocence' as a constituti......
  • Sanchez v. Martinez, 111620 CAEDC, 2:17-cv-0455 DB P
    • United States
    • Federal Cases United States District Courts 9th Circuit United States District Courts. 9th Circuit. Eastern District of California
    • 16 d1 Novembro d1 2020
    ...violation where the introduction of that evidence “undermined the fundamental fairness of the entire trial.”5 Giminez v. Ochoa, 821 F.3d 1136, 1145 (9th Cir. 2016) (quoting Lee v. Houtzdale SCI, 798 F.3d 159, 162 (3d Cir. 2015)). On the basis that petitioner may arg......
  • Ochoa v. Thomas, 060221 CACDC, CV 11-6864-JGB (GJS)
    • United States
    • United States District Courts. 9th Circuit. Central District of California
    • 2 d3 Junho d3 2021
    ...error that would provide grounds for relief without an independent constitutional violation.” Gimenez v. Ochoa, 821 F.3d 1136, 1143 (9th Cir. C. Federal Habeas Relied Is Not Warranted. Applying these principles, the Court concludes that Ground One does not warrant h......
  • Request a trial to view additional results
52 cases
  • Klippenstein v. Fraunheim, 031921 CAEDC, 2:21-cv-00086 KJM GGH P
    • United States
    • Federal Cases United States District Courts 9th Circuit United States District Courts. 9th Circuit. Eastern District of California
    • 19 d5 Março d5 2021
    ...of Appeal was spot on, dubious, or unreasonable. No cognizable federal claim exists. Petitioner cites Gimenez v. Ochoa, 821 F.3d 1136, 1145 (9th Cir. 2016), for the proposition that the introduction of flawed expert testimony can rise to the level of a due process violat......
  • 460 F.Supp.3d 346 (S.D.N.Y. 2020), 18-cv-11260 (JGK), Cosey v. Lilley
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Courts. 2nd Circuit. Southern District of New York
    • 19 d2 Maio d2 2020
    ..."section 2244(b)(2)(B)(ii) also requires petitioners to state a predicate `constitutional error.'" Gimenez v. Ochoa, 821 F.3d 1136, 1143 (9th Cir. 2016). The court noted that "[t]he Supreme Court has never recognized `actual innocence' as a constituti......
  • Sanchez v. Martinez, 111620 CAEDC, 2:17-cv-0455 DB P
    • United States
    • Federal Cases United States District Courts 9th Circuit United States District Courts. 9th Circuit. Eastern District of California
    • 16 d1 Novembro d1 2020
    ...violation where the introduction of that evidence “undermined the fundamental fairness of the entire trial.”5 Giminez v. Ochoa, 821 F.3d 1136, 1145 (9th Cir. 2016) (quoting Lee v. Houtzdale SCI, 798 F.3d 159, 162 (3d Cir. 2015)). On the basis that petitioner may arg......
  • Ochoa v. Thomas, 060221 CACDC, CV 11-6864-JGB (GJS)
    • United States
    • United States District Courts. 9th Circuit. Central District of California
    • 2 d3 Junho d3 2021
    ...error that would provide grounds for relief without an independent constitutional violation.” Gimenez v. Ochoa, 821 F.3d 1136, 1143 (9th Cir. C. Federal Habeas Relied Is Not Warranted. Applying these principles, the Court concludes that Ground One does not warrant h......
  • Request a trial to view additional results

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