United States District Court, D. Arizona
G. Campbell, United States District Judge.
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
Arizona Court of Appeals provided the following summary of
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
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
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).
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.
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.
State Post-Conviction Proceedings.
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