Gimenez v. Ochoa, No. 14-55681 [May 9, 2016]
In a second petition, the court decides whether Gimenez’s claims are barred as successive. The second petition alleged that 1) his counsel rendered ineffective assistance; 2) he was convicted based on false expert testimony (shaken baby syndrome “SBS”); and 3) his due process rights were violated when he was convicted based on flawed scientific evidence even though he was innocent. The first claim, ineffective assistance of counsel in the use of experts was the same as the previous petition, under the “substantial similarity rule,” and was, therefore, dismissed. This was true even though in his second petition presented additional documents supporting his argument. As to the due process claim the court found that he didn’t demonstrate “constitutional error” from the introduction of false testimony, finding the new testimony was “simply a difference of opinion – not false testimony. As to his actual innocence claim the district court found that “a conviction based on the most up-to-date knowledge in the past transforms to a violation of due process when that knowledge is modified in ensuing years.” The Ninth cautioned that “courts have long considered arguments that the introduction of faulty evidence violates a petitioner’s due process right to a fundamentally fair trial – even if that evidence does not specifically qualify as ‘false testimony. . . . Nothing compels a different rule for a challenge brought in a successive petition to expert testimony about discredited forensic principles or other junk science. Indeed, recognizing such a claim is essential in an age where forensics that were once considered unassailable are subject to serious doubt.” [with a long citation to instances of junk science examples.] In Gimenez’s case he failed to show that permitting the prosecution’s experts to testify based on a triad-only theory of SBS was “so extremely unfair that it violated fundamental conceptions of justice.” Finding the literature presented did not so a repudiation but a vigorous debate about SBS’s validity within the scientific community. It also denied his freestanding actual innocence claim because he could not establish he was “probably innocent” because his new evidence would have bolstered his claim at trial it doesn’t that probable innocence. The court invites Gimenez to make a further petition as future forensic science continues to evolve.