Gimenez v. Ochoa, No. 14-55681 (9th Cir. 2016)
Annotate this CasePetitioner, convicted of murdering his infant daughter, appealed the district court's grant of the state's motion to dismiss his second federal habeas petition. In regard to petitioner's claims of ineffective assistance of counsel concerning errors related to the use of expert testimony, the court concluded that these claims have already been adjudicated and petitioner's new arguments failed to present a distinct claim for relief. In regard to petitioner's due process challenge based on false testimony, the court concluded that petitioner cannot obtain relief under 28 U.S.C. 2244(b)(2)(B)(ii) on the theory that the prosecution introduced false testimony at trial where he presents a battle between experts who have different opinions about how the baby died. Finally, in regard to claims based on changes in scientific knowledge, the court joined the Third Circuit in recognizing 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.” In this case, petitioner failed to show that permitting the prosecution’s experts to testify based on a triad-only theory of shaken baby syndrome (SBS) was so extremely unfair that it violated the fundamental conceptions of justice. Petitioner failed to prove by clear and convincing evidence that no reasonable factfinder would have found him guilty but for the introduction of purportedly flawed SBS testimony. Nor could petitioner obtain relief if the court were to decouple his claim of actual innocence from any due process violation and repackage it as a freestanding “actual innocence” claim. Accordingly, the court affirmed the judgment.
Court Description: 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 GIMENEZ V. OCHOA 3 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. 4 GIMENEZ V. OCHOA
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