Gimenez v. Ochoa, No. 14–55681.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtKOZINSKI, Circuit Judge
Citation821 F.3d 1136
Docket NumberNo. 14–55681.
Decision Date09 May 2016
PartiesAlan G. GIMENEZ, Petitioner–Appellant, v. J.T. OCHOA, Warden; Kamala D. Harris, Attorney General, Respondents–Appellees.

821 F.3d 1136

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.

Argued and Submitted Oct. 22, 2015.
Filed May 9, 2016.


821 F.3d 1138

George L. Schraer (argued), San Diego, CA, 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, CA, for Respondents–Appellees.

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

Before: ALEX KOZINSKI, SANDRA S. IKUTA and JOHN B. OWENS, Circuit Judges.

OPINION

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,

821 F.3d 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

821 F.3d 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 the state's motion to dismiss, which Gimenez appeals.

II. Discussion

Gimenez's second federal habeas petition presents three grounds for relief: (1) his counsel rendered ineffective assistance; (2) he was convicted based on false expert testimony; and (3) his due process rights were violated when he was convicted based on flawed scientific evidence even though he was innocent. Gimenez must clear the high hurdles erected by 28 U.S.C. § 2244(b) for obtaining relief on any of these grounds.

A. Ineffective Assistance Claim

Gimenez's ineffective assistance claim concerns errors primarily related to the use of expert testimony.2 We must dismiss

821 F.3d 1141

this claim if it is identical to the one raised in his first habeas petition—that is, if the two share the same “legal basis for granting ... relief.” Sanders v. United States, 373 U.S. 1, 14–16, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963) ; see 28 U.S.C. § 2244(b)(1).

The standard for “distinguishing repetitious claims from new ones is the ‘substantial similarity’ rule” used to determine whether a claim has been exhausted in state court. See Randy Hertz & James S. Liebman, 2 Federal Habeas Corpus Practice & Procedure § 28.1 n. 8 (6th ed.2011). Under the exhaustion test, a petitioner can introduce additional facts to support a claim on federal habeas review so long as he presented the “substance” of the claim to the state courts. Vasquez v. Hillery, 474 U.S. 254, 257–58, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986). That the additional facts provide more sophisticated or reliable support is of no moment where the information does not “fundamentally alter the legal claim already considered.” Id. at 260, 106 S.Ct. 617. A claim in a successive petition is barred when its “basic thrust or gravamen” is the same as a claim that's already been...

To continue reading

Request your trial
62 practice notes
  • Klippenstein v. Fraunheim, No. 2:21-cv-00086 KJM GGH P
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 19, 2021
    ...of the Court 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 violation. Th......
  • Long v. Hooks, No. 18-6980
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • August 24, 2020
    ...New evidence can, of course, include advances in scientific knowledge that cast old evidence in a new light. Cf. Gimenez v. Ochoa , 821 F.3d 1136, 1143 (9th Cir. 2016). A defendant convicted before the existence of DNA testing, for example, could certainly be exonerated by a later DNA analy......
  • Cosey v. Lilley, 18-cv-11260 (JGK)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • May 19, 2020
    ...and noted that "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 constitutional error that would pr......
  • Sanchez v. Martinez, No. 2:17-cv-0455 DB P
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • November 16, 2020
    ...process 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 arguably state a fed......
  • Request a trial to view additional results
62 cases
  • Klippenstein v. Fraunheim, No. 2:21-cv-00086 KJM GGH P
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 19, 2021
    ...of the Court 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 violation. Th......
  • Long v. Hooks, No. 18-6980
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • August 24, 2020
    ...New evidence can, of course, include advances in scientific knowledge that cast old evidence in a new light. Cf. Gimenez v. Ochoa , 821 F.3d 1136, 1143 (9th Cir. 2016). A defendant convicted before the existence of DNA testing, for example, could certainly be exonerated by a later DNA analy......
  • Cosey v. Lilley, 18-cv-11260 (JGK)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • May 19, 2020
    ...and noted that "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 constitutional error that would pr......
  • Sanchez v. Martinez, No. 2:17-cv-0455 DB P
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • November 16, 2020
    ...process 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 arguably state a fed......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT