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Hernandez v. Ryan

United States District Court, D. Arizona

January 30, 2017

Danny Hernandez, Petitioner,
v.
Charles L Ryan, et al., Respondents.

          ORDER

          David G. Campbell, United States District Judge.

         Petitioner Danny Hernandez filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on July 7, 2015. Doc. 1. Petitioner then filed an amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on August 11, 2015. Doc. 7. The Court referred the petition to Magistrate Judge Deborah M. Fine. Doc. 3. On November 30, 2016, Judge Fine issued a report and recommendation that the Court dismiss the petition as untimely (“R&R”). Doc. 23. Petitioner filed pro se objections to the R&R. Doc. 24. For the reasons set forth below, the Court will overrule his objections and adopt Judge Fine's recommendation.

         I. Background.

         A. Petitioner's Conviction.

         The Arizona Court of Appeals provided the following summary of Petitioner's 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 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.
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.
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.
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).

         After a transfer from juvenile court, Petitioner was charged in Maricopa County Superior Court with first degree murder, child abuse, forgery, and false reporting to a law enforcement agency. Id. at 2; Doc. 17 at 7. Several charges were dismissed by the trial court, and Petitioner went to trial on charges of first-degree murder and child abuse. Id. A jury found Petitioner guilty of one count of second degree murder, a dangerous crime against children in the first degree and a class one felony, as well as two counts of reckless child abuse, class three felonies. Doc. 17-2 at 7-9, 21. During sentencing, the trial judge considered several aggravating factors, including the brutality of the murder and the victim's age. Id. at 22. The judge also considered Petitioner's apparent history of abuse of the infant prior to the murder, continued involvement in criminal activity after the murder, disregard for terms of past releases, and a long juvenile criminal history, among other circumstances. Id. The judge sentenced Petitioner to 27 years, the maximum aggravated term, for the second degree murder. Id. at 23. The judge sentenced Petitioner to 7 years on each child abuse conviction, one to run consecutively to and the other to run concurrently with the second degree murder term. Id.

         Petitioner timely appealed. Id. at 30. He argued that the trial court erred by: (1) not granting Petitioner a judgment of acquittal; (2) admitting Petitioner's outstanding warrants; (3) admitting Petitioner's subsequent arrest on unrelated charges; and (4) admitting out of court statements of Janson Simms. Id. at 35. The Court of Appeals confirmed Petitioner's conviction on December 24, 2001. Id. at 130. Petitioner alleges that he filed a petition for review with the Arizona Supreme Court, but presents no evidence of such a petition. Doc. 23 at 5.

         B. State Post-Conviction Proceedings.

         Through counsel, Petitioner filed three separate petitions for post-conviction relief (“PCR”) in the Superior Court. Doc. 23 at 5. No relief was granted. Petitioner's first petition was filed on January 25, 2002. The trial court denied relief on March 5, 2003, and the Arizona Court of Appeals and Arizona Supreme Court denied Petitioner's petition for review on March 24, 2004 and September 24, 2004, respectively. Petitioner filed the second petition on January 19, 2005. The trial court denied relief and Petitioner's motion for reconsideration. A petition for review to the Court of Appeals was denied on April 27, 2006, and Petitioner did not file a petition for review with the Supreme Court. Finally, on October 24, 2011, Petitioner filed his third PCR petition. This Petition claimed, among other things, that Petitioner had newly discovered evidence - a 2009 report and 2010 affidavit from Dr. Jonathan Arden concerning the victim's ...


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