Hernandez #157569 v. Ryan, et al.

Filing 27

ORDER ACCEPTING REPORT AND RECOMMENDATION 23 - The Amended Petition for writ of habeas corpus (Doc. 7 ) is denied with prejudice. The Clerk of the Court is directed to terminate this action. (See document for further details). Signed by Judge David G Campbell on 1/30/17. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Danny Hernandez,

No. CV-15-01266-PHX-DGC

Petitioner,

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v.

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ORDER

Charles L Ryan, et al.,

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Respondents.

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Petitioner Danny Hernandez filed a pro se petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254 on July 7, 2015. Doc. 1. Petitioner then filed an amended

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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on August 11, 2015.

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Doc. 7. The Court referred the petition to Magistrate Judge Deborah M. Fine. Doc. 3.

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On November 30, 2016, Judge Fine issued a report and recommendation that the Court

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dismiss the petition as untimely (“R&R”). Doc. 23. Petitioner filed pro se objections to

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the R&R.

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objections and adopt Judge Fine’s recommendation.

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I.

Doc. 24.

For the reasons set forth below, the Court will overrule his

Background.

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A.

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The Arizona Court of Appeals provided the following summary of Petitioner’s

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Petitioner’s Conviction.

conviction:
Hernandez lived in an apartment with his girlfriend, her mother
(“Grandmother”), and the eight-month old victim, Angelica. Hernandez
and his girlfriend were Angelica’s parents. Janson “Jay” Simms, a

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homeless person, lived in the apartment temporarily at the invitation of
Grandmother.
The week before the events giving rise to the charges, Angelica appeared
fine as she visited with her great-grandparents. She did not typically cry,
but had been crying sporadically because of teething pain. On the morning
of the crime, Grandmother awakened and played with Angelica, who acted
fine. Grandmother then drove Angelica’s mother to work and returned
home. She played with Angelica again, who continued to seem fine.
Grandmother eventually went to work at approximately 9:30 that morning.
When she left the apartment, Angelica was in the bedroom with Hernandez.
When Grandmother called home between approximately 11:30 and noon to
check on Angelica, there was no answer. She called again a few minutes
later and spoke to Hernandez, who stated that he had been home all
morning but did not hear the telephone ringing. As she spoke to
Hernandez, Grandmother heard Angelica crying in the background. She
described the crying as a “fussy, hurting type [of] crying,” which she
attributed to teething, although Angelica had not been crying, nor was she
“fussy,” before Grandmother went to work.
At approximately 12:30 p.m., law enforcement officers were called to the
apartment complex to check on a report of a crying baby. The officers did
not locate the child. As the officers walked through the complex, they
encountered Simms, who was returning to the second floor apartment.
Although asked, Simms could provide no information regarding a crying
baby.

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Simms entered the apartment, where he observed Hernandez take Angelica
to the bedroom. A few minutes later, Simms entered the bathroom. While
Simms was inside, Hernandez began to bang on the bathroom door, saying
that Angelica had stopped breathing. Simms ran to Angelica and, believing
she was choking, placed her over his shoulder and began applying
percussions to her back. She spit up mucous and blood. Simms placed
Angelica on the sofa and told Hernandez to call 911. Hernandez replied,
“[n]o, don’t call 911, get her to breathe.” Simms called 911. As he did so,
he recalled meeting the officers downstairs. Simms then ran out of the
apartment onto the balcony and called for help. The officers heard him and
responded by running upstairs to the apartment, where they found Angelica
laying on a sofa and Hernandez standing behind it.
Because Angelica was blue and had no pulse, the officers performed CPR
until medical personnel arrived. The baby was thereafter taken to the
hospital, where she was diagnosed with hypoxic eschemic encephalopathy.
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At trial, medical personnel described this condition as an injury to the brain
due to lack of oxygen, caused when her heart stopped and she stopped
breathing. The State also elicited testimony that eight-month-old children
typically do not stop breathing for no reason, nor do their hearts usually
stop for no reason. It would take a three to five minute deprivation of
oxygen to stop an infant’s heart. Medical personnel found no evidence of
any infarction or other medical reason that could have caused Angelica’s
condition.
Angelica also had a fractured clavicle and a severely fractured right arm
that had recently occurred. Medical experts opined that an eight-month-old
child could not have caused this type of fracture. Angelica also had
petechial hemorrhaging on her face. The presence of these hemorrhages
suggested that Angelica had been suffocated. Additionally, the brain injury
was consistent with suffocation, as was the fact that blood was present in
Angelica’s mouth. No other explanation was given for Angelica’s brain
injury.
Angelica never regained consciousness and died five days after her
admission to the hospital. The medical examiner opined that the arm
fracture was not a result of accidental trauma, but was an inflicted injury.
The cause of death was determined to be anoxic encephalopathy due to
smothering. The manner of death was ruled a homicide.

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At the time of the crime, Hernandez knew he had an outstanding arrest
warrant.
Therefore, he concealed his true identity and gave the
investigating officers the wrong name throughout their investigation. At
the request of Angelica’s mother, Grandmother misidentified Hernandez as
well. At the time of Hernandez’s arrest, approximately one year after
Angelica’s death, he provided several false names to investigating officers
and signed a false name to his fingerprint card.
Doc. 17-2 at 131-35 (citations omitted).

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After a transfer from juvenile court, Petitioner was charged in Maricopa County

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Superior Court with first degree murder, child abuse, forgery, and false reporting to a law

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enforcement agency. Id. at 2; Doc. 17 at 7. Several charges were dismissed by the trial

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court, and Petitioner went to trial on charges of first-degree murder and child abuse. Id.

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A jury found Petitioner guilty of one count of second degree murder, a dangerous crime

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against children in the first degree and a class one felony, as well as two counts of

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reckless child abuse, class three felonies. Doc. 17-2 at 7-9, 21. During sentencing, the

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trial judge considered several aggravating factors, including the brutality of the murder

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and the victim’s age. Id. at 22. The judge also considered Petitioner’s apparent history

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of abuse of the infant prior to the murder, continued involvement in criminal activity after

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the murder, disregard for terms of past releases, and a long juvenile criminal history,

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among other circumstances.

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maximum aggravated term, for the second degree murder.

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sentenced Petitioner to 7 years on each child abuse conviction, one to run consecutively

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to and the other to run concurrently with the second degree murder term. Id.

Id.

The judge sentenced Petitioner to 27 years, the
Id. at 23.

The judge

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Petitioner timely appealed. Id. at 30. He argued that the trial court erred by:

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(1) not granting Petitioner a judgment of acquittal; (2) admitting Petitioner’s outstanding

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warrants; (3) admitting Petitioner’s subsequent arrest on unrelated charges; and

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(4) admitting out of court statements of Janson Simms. Id. at 35. The Court of Appeals

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confirmed Petitioner’s conviction on December 24, 2001. Id. at 130. Petitioner alleges

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that he filed a petition for review with the Arizona Supreme Court, but presents no

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evidence of such a petition. Doc. 23 at 5.

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B.

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Through counsel, Petitioner filed three separate petitions for post-conviction relief

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(“PCR”) in the Superior Court. Doc. 23 at 5. No relief was granted. Petitioner’s first

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petition was filed on January 25, 2002. The trial court denied relief on March 5, 2003,

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and the Arizona Court of Appeals and Arizona Supreme Court denied Petitioner’s

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petition for review on March 24, 2004 and September 24, 2004, respectively. Petitioner

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filed the second petition on January 19, 2005.

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Petitioner’s motion for reconsideration. A petition for review to the Court of Appeals

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was denied on April 27, 2006, and Petitioner did not file a petition for review with the

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Supreme Court. Finally, on October 24, 2011, Petitioner filed his third PCR petition.

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This Petition claimed, among other things, that Petitioner had newly discovered evidence

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– a 2009 report and 2010 affidavit from Dr. Jonathan Arden concerning the victim’s

State Post-Conviction Proceedings.

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The trial court denied relief and

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injuries and Sudden Infant Death Syndrome (“SIDS”).

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third PCR petition, and, on December 3, 2013, the Arizona Court of Appeals denied

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review. The Arizona Supreme Court also denied review on July 25, 2014. Doc. 23 at 6-

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The trial court dismissed the

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C.

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Petitioner filed a habeas petition raising four grounds for relief: (1) Petitioner’s

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sentence was unconstitutionally enhanced because he was not allowed to present

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mitigating evidence and the judge incorrectly applied non-existent aggravating factors

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and first degree murder statutes during sentencing, even though the jury convicted

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Petitioner of second degree murder; (2) Petitioner received ineffective assistance of

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counsel during both his trial and appeal; (3) the prosecutor engaged in misconduct by

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using evidence gathered by Detective Armando Saldate, who has a history of perjury and

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falsifying evidence; and (4) there is newly discovered evidence of a medical examination

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by Dr. Jonathan Arden which shows that Petitioner is actually innocent. Doc. 7 at 6-9.

The Petitioner and the R&R.

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Judge Fine concluded that Petitioner’s claims were barred by the one-year statute

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of limitations under the Anti-Terrorism and Effective Death Penalty Act of 1996

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(“AEDPA”). Doc. 23. Additionally, Judge Fine concluded that equitable tolling should

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not be applied to Petitioner’s claims, and that he had not made a colorable claim of actual

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innocence. Id.

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D.

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In his written objections, Petitioner argues that (1) his claims are not barred by the

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statute of limitations; (2) he is entitled to equitable tolling if his claims are barred; and

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(3) he is actually innocent and should be granted an evidentiary hearing. Doc. 24. The

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Court reviews Petitioner’s objections de novo; the portions of the R&R to which he does

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not object will be adopted without further discussion. See Fed. R. Civ. P. 72(b); 28

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U.S.C. § 636(b)(1); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

Petitioner’s Objections.

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II.

Analysis.

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A.

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The AEDPA establishes a one-year statute of limitations for habeas petitions filed

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by state prisoners. 28 U.S.C. § 2244(d)(1). The limitation period generally begins to run

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when the state conviction becomes final “by the conclusion of direct review or the

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expiration of the time for seeking such review.” § 2244(d)(1)(A). Where applicable, the

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limitation period can begin later, on “the date on which the factual predicate of the claim

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or claims presented could have been discovered through the exercise of due diligence.”

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§ 2244(d)(1)(D).

Statute of Limitations.

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The limitations period is subject to both statutory and equitable tolling. Statutory

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tolling is available for “[t]he time during which a properly filed application for State post-

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conviction or other collateral review with respect to the pertinent judgment or claim is

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pending.” § 2244(d)(2).

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circumstances beyond a prisoner’s control ma[d]e it impossible to file a petition on time.”

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Roy v. Lampert, 465 F.3d 964, 968 (9th Cir. 2006). In addition, a petitioner is entitled to

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an equitable exception to the AEDPA’s statute of limitations if he makes “a credible

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showing of actual innocence.” McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013).

Equitable tolling is available where “extraordinary

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Petitioner argues that his petition is not time-barred because “an unlawful sentence

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constitutes fundamental error, that is not waived.” Doc. 24 at 1. Petitioner cites no

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precedent that would support an exception to the statute of limitations for claims of

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fundamental error, and the Court is aware of none.

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Nor does Petitioner appear to dispute that his federal habeas petition was filed

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more than one year after his conviction became final. Even if the Court assumes that

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Petitioner’s PCR petitions constitute “properly filed application[s] for State post-

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conviction” review, 28 U.S.C. § 2244(d)(1), the statute of limitations will only be tolled

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during the period that these applications were actually pending.

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Petitioner’s conviction became final on January 28, 2002, 35 days after the

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decision of the Arizona Court of Appeals. See Ariz. R. Crim. P. 31.19(a) (“Within 30

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days after the Court of Appeals issues its decision, any party may file a petition for

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review with the clerk of the Supreme Court”); State v. Rabun, 782 P.2d 737, 739 (1989)

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(holding that a 5-day extension should be applied when a notice is mailed to a party that

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is required to act). Petitioner’s first petition for PCR was timely filed on January 25,

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2002. Thus, the statute of limitations was tolled from that date until the Arizona Supreme

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Court denied review on September 23, 2004.

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Petitioner’s second PCR petition was timely and properly filed, this petition would also

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toll the statute of limitations from its date of filing – January 19, 2005 – until 35 days

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after the Arizona Court of Appeals denied review – May 31, 2006. Petitioner’s third

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PCR petition was filed on October 24, 2011, more than five years after the limitations

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period began to run after termination of the second petition.

Assuming without deciding that

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What is more, the third PCR petition was found to be precluded by the Arizona

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courts because it was successive and did not satisfy any of the exceptions to preclusion in

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Arizona Rule of Criminal Procedure 32.2(b). A state petition for PCR that is untimely or

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successive is not considered “properly filed” and thus cannot toll the statute of limitations

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for a federal habeas petition. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (“When a

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postconviction petition is untimely under state law, that is the end of the matter for

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purposes of § 2244(d)(2).”) (quotation marks omitted and alterations incorporated);

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Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005). Disregarding the third petition,

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more than 10 years passed between the termination of the second petition and filing of

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the federal habeas petition on July 7, 2015. Doc. 1.

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In short, the one-year limitations period clearly expired after Petitioner’s second
PCR petition was terminated.

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Petitioner also argues that, despite his exercise of due diligence, he was unaware

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before filing this habeas petition of several factual matters on which it is based. Doc. 24

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at 11, 18-19. Specifically, Petitioner asserts that he did not realize he had been given an

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illegal sentence because he did not know that the judge had incorrectly applied first-

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degree murder statutes during sentencing. Doc. 7 at 6. But Petitioner was present at his

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sentencing when the trial judge discussed the basis for the sentence. Doc. 17-2 at 12.

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Petitioner contends he was not provided with a transcript of his sentencing hearing

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(Doc. 24 at 8), but he does not identify any efforts he made to obtain those transcripts.

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What is more, Petitioner fails to identify the date or means through which he actually

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learned of his alleged improper sentencing. Petitioner has not shown that 28 U.S.C.

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§ 2244(d)(1)(D) governs the commencement of the limitations period for his unlawful

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sentencing claim. See Miller v. Parties, No. CV-16-01427-PHX-DGC (BSB), 2016 WL

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7104868, at *2 n.5 (D. Ariz. Oct. 6, 2016) (concluding “that § 2244(d)(1)(D) does not

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supply the starting date” for the statute of limitations when the factual basis on which the

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underlying claims were predicated “was available at the time of trial, through the exercise

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of due diligence,” and “Petitioner does not identify the date on which he read the

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transcripts that he alleges alerted him to his claims.”).

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Petitioner also alleges that, despite his due diligence, he did not learn of Detective

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Saldate’s history of perjury and presenting false evidence until “he saw the Milke v. Ryan

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case on tv[.]” Id. at 11. Judge Fine treated this as an argument for equitable tolling, but

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the Court finds it is more properly considered as an argument for a later commencement

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of the running of the statute of limitations. Petitioner again fails to identify the exact date

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on which he learned the facts about Saldate, but it is clear that Saldate’s history of perjury

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and presenting false evidence became public at least by March 14, 2013, when the Ninth

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Circuit issued its opinion in Milke v. Ryan, 711 F.3d 998, 1001 (9th Cir. 2013). The

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Tenth Circuit has found that, “for a prisoner, a case is discoverable by ‘due diligence’ on

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the date the opinion became accessible in the prison law library, not the date the opinion

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was issued.” Easterwood v. Champion, 213 F.3d 1321, 1323 (10th Cir. 2000). Because

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Plaintiff provides no evidence of when the prison library obtained a copy of Milke, the

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Court will assume it did so shortly after the opinion was issued in 2013. Petitioner did

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not bring his federal habeas claim until July 7, 2015, more than two years after the Ninth

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Circuit’s decision. Petitioner has not shown that he filed his habeas claim less than one

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year after “the date on which the factual predicate of the claim . . . could have been

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discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D).

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The Court also agrees with Judge Fine’s conclusion that Detective Saldate’s role

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in Petitioner’s conviction was minimal. Detective Saldate’s only involvement in the case

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was arresting and fingerprinting Petitioner during a traffic stop more than a year after the

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victim’s death. Doc. 23 at 13. Although Detective Saldate testified at trial concerning

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this arrest, he does not appear to have testified concerning the underlying actions for

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which Petitioner was ultimately convicted. Id. (citing Doc. 17-1 at 172-78).1

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B.

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A petitioner is entitled to equitable tolling of the statute of limitations if he

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establishes “(1) that he has been pursuing his rights diligently, and (2) that some

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extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418

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(2005).

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Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005). “[T]he threshold

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necessary to trigger equitable tolling under AEDPA is very high, lest the exceptions

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swallow the rule.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (alterations

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incorporated).

Equitable Tolling.

The burden to show that equitable tolling applies lies with the petitioner.

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Petitioner argues that his limited access to the prison law library, the law library’s

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limited case law, and his ignorance of the law and procedural rules constitute

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“extraordinary circumstances.” Doc. 24 at 10, 13-15. The Court does not agree. A pro

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se petitioner’s ignorance of the law is not an extraordinary circumstance. Rasberry v.

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Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); Ballesteros v. Schriro, No. CV-06-675-

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PHX-EHC (MEA), 2007 WL 666927, at *5 (D. Ariz. Feb. 26, 2007). Nor do ordinary

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prison limitations on access to legal materials constitute exceptional circumstances.

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Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009); Miller v. Marr, 141 F.3d 976, 978

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(10th Cir. 1998). Petitioner has not met his high burden of showing that equitable tolling

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is warranted in this case.

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Detective Saldate appears to be mistakenly referred to as Detective Salgante in the
transcript from Petitioner’s trial. Doc. 17-1 at 20-28, 172-178.
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C.

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The ADEPA’s statute of limitations does not apply to habeas petitions that make

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“a credible showing of actual innocence.” McQuiggin, 133 S. Ct. at 1931. The petitioner

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must show that, if the new evidence had been presented at trial, “it is more likely than not

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that no reasonable juror would have convicted the petitioner.” Id. at 1933 (citing Schlup

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v. Delo, 513 U.S. 298, 325 (1995)) (internal formatting omitted). To make such a

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showing, a petitioner must present “new reliable evidence – whether it be exculpatory

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scientific evidence, trustworthy eyewitness accounts, or critical physical evidence – that

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was not presented at trial.” Schlup, 513 U.S. at 324. Examples include “exculpatory

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scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.” Id.

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The Court is not bound by rules of admissibility and may consider the probative value of

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relevant evidence that was wrongfully excluded, illegally admitted, or unavailable. Id. at

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327-28.

Actual Innocence and Evidentiary Hearing.

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A habeas petitioner “should receive an evidentiary hearing when he makes a good-

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faith allegation that would, if true, entitle him to equitable tolling.” Roy, 465 F.3d at 969.

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The Ninth Circuit has not specifically “articulat[ed] a legal standard regarding when an

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evidentiary hearing on a gateway Schlup claim is required.” Stewart v. Cate, 757 F.3d

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929, 941 n.12 (9th Cir. 2014). It is clear, however, that conclusory allegations do not

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suffice. As Schlup explained, habeas courts are entitled to consider the “credibility of the

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affiants” and “probable reliability of [new] evidence” in deciding whether to hold an

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evidentiary hearing. 513 U.S. at 325. Implicit in this formulation is an understanding

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that the petitioner’s allegations regarding the existence of new evidence must be plausible

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and substantiated by some sort of evidentiary submission.

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Petitioner argues that he has shown actual innocence on four grounds relating to
alleged newly discovered medical evidence:
(1) there is a history of “SIDS” in the family history[;]

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(2) the state failed to disclose the fact that the collar bone injury to the
victim was five days old.
Making the grandmother’s statements
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questionable regarding the child “climbing all over the furniture” on the
day in question[;]

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(3) the injury would cause the victim to be in so much pain there would be
no way the child would cry sporadically but cry with any movement of her
arm[; and]
(4) as the medical report by Dr. Arden shows the injury to the right arm
could have come when the I.V. was placed in the child’s arm during
emergency treatment.

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Doc. 24 at 12. Petitioner also requests that the Court grant him an evidentiary hearing

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“just to find out the extent of the Constitutional Violation of his Due Process rights.” Id.

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at 11-12.

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The fact that Petitioner has a family history of “SIDS” is not new evidence.

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Petitioner’s nephew (a blood relative) died of SIDS in 1988, a fact known to Petitioner

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long before his trial.

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convince the Court that “it is more likely than not that no reasonable juror would have

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convicted the petitioner” had the juror considered this history. McQuiggin, 133 S. Ct. at

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1933 (citation omitted). The trial included evidence not only of serious fractures to the

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clavicle and right arm, but also of petechial hemorrhaging consistent with suffocation,

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brain injuries consistent with suffocation, blood in the child’s mouth, and Petitioner’s

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unwillingness to call 911.

Additionally, Petitioner’s family history is not sufficient to

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Petitioner asserts that he was unaware that the victim’s collar bone injury was five

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days old at the time of the underlying incident, a fact that he appears to argue undermines

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the credibility of the Grandmother’s testimony. But Petitioner does not point to anything

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in the record to support this fact or whether it was presented to the jury at his original

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trial.2 And even if this evidence regarding the Grandmother’s credibility is considered,

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The report of Dr. Arden states that characteristics of the collar bone injury suggest it
was 1-2 weeks old when Angelica died. Doc. 7-2 at 41. As noted above, the child died
five days after her injuries. In addition, it is not clear if the same conclusion was reached
by other medical professionals who examined the victim or the victim’s medical file.
Further, Dr. Arden’s report does not opine on the effect such an injury would have on the
victim, but simply notes that it “cannot be used as evidence to support the conclusion that
she was asphyxiated or smothered on [the day in question].” Id.
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the Court does not find it more likely than not that no reasonable juror would have

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convicted Petitioner. As noted above, there was substantial evidence consistent with

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suffocation of the child.

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Finally, Petitioner relies on Dr. Arden’s 2009 report as newly discovered evidence

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of his actual innocence. As noted by Judge Fine, this report was considered by the

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Arizona Court of Appeals on collateral review in 2012. According to that court:

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Even if this claim was not precluded, the court finds the defendant failed to
establish this evidence, if presented at trial, would have changed the
outcome. At trial, the State presented evidence the baby appeared fine
when she visited with her great-grandparents the week before October 21,
1996. The grandmother, with whom the defendant and baby resided,
testified that the baby acted fine on the morning of October 21, 1996.
When the grandmother left for work at 9:30 a.m. that day, the baby was in
the apartment with the defendant. At approximately noon that day, the
grandmother called the defendant and heard the baby crying in the
background. At 12:30 p.m. that day, police were called to the apartment
complex, they saw Simms. He told the officers he had no information
about a crying baby. Simms later saw the defendant take the baby to the
bedroom. Later, the defendant told him the baby had stopped breathing.
Simms ran to the baby, thinking she was choking, placed her over his
shoulder and applied pressure to her back. She spit up mucous and blood.
Simms told the defendant to call 911. When the defendant did not do so,
Simms went to get the officers he had seen earlier to help with the baby. . . .
The opinions of Dr. Arden do not address all the facts presented at trial. In
addition, Dr. Arden’s report acknowledges that smothering is one
mechanism that could cause anoxic encephalopathy, the cause of the baby’s
death.
Doc. 17-4 at 5-6.
The Court agrees with these observations. Dr. Arden’s report concedes that the
victim’s injuries and eventual death could have been caused by smothering, but argues
that there is insufficient evidence to show that they necessarily must have been caused by
smothering. Doc. 7-2 at 36-43. As a result, the report concludes that her “death should
have been certified as undetermined.” Id. at 43. The report appears to be based on the
same medical evidence available to the parties at trial. Id. A County Chief Medical
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Examiner presented contrary testimony, concluding that the victim’s injuries were in fact

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caused by smothering. Doc 17-1 at 190.

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that, had it been considered at trial, the outcome would have been different. McQuiggin,

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133 S. Ct. at 1933 (citation omitted). Because Petitioner has not made a colorable claim

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of actual innocence, the Court need not reach his underlying claims and will not grant his

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request for an evidentiary hearing.

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IT IS ORDERED:

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1.

Magistrate Judge Deborah M. Fine’s R&R (Doc. 23) is accepted.

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2.

The Amended Petition for writ of habeas corpus (Doc. 7) is denied with

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The report does lead the Court to conclude

prejudice.

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3.

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Dated this 30th day of January, 2017.

The Clerk of the Court is directed to terminate this action.

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