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Yslas v. Adams

United States District Court, E.D. California

May 5, 2017

LOUIS YSLAS, Petitioner,
DERRAL G. ADAMS, Warden, Respondent.



         Petitioner is currently serving a determinate sentence of 12 years for his conviction of felony child abuse resulting in great bodily injury. Petitioner has filed the instant habeas action claiming trial court errors, ineffective assistance of counsel and due to a claimed lack of sufficient evidence to sustain the guilty verdict. As discussed below, the Court finds the claims to be without merit; therefore, the petition will be DENIED.


         Petitioner was convicted in the Kern County Superior Court on June 5, 2012, of felony child abuse resulting in great bodily injury (Cal. Penal Code §§ 273a(a), 12022.7(d)). People v. Yslas, No. F065132, 2014 WL 4923991, at *1 (Cal.Ct.App. 2014). He appealed to the California Court of Appeal, Fifth Appellate District (“Fifth DCA”), which affirmed the judgment on October 1, 2014. Id. Petitioner filed a petition for review in the California Supreme Court, and the petition was summarily denied on December 10, 2014. (See Answer, Ex. B.)

         On December 1, 2015, Petitioner filed the instant petition for writ of habeas corpus in this Court. (Doc. No. 1). Respondent filed an answer on April 12, 2016. (Doc. No. 12). Petitioner filed a traverse to Respondent's answer on June 28, 2016. (Doc. No. 15.) The parties have consented to the jurisdiction of the Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. Nos. 8, 19.)


         The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision[1]:

Leticia [N.2] Yslas and defendant took their 10-month-old child Nicholas to Ridgecrest Regional Hospital on April 2, 2010. [N.3] Doctors there determined Nicholas was suffering from severe brain swelling and seizures and had to be transported by helicopter to Loma Linda University Children's Hospital. Nicholas underwent extensive treatment for his injuries, including surgery whereby a portion of his skull was removed to allow his brain to swell outside of the cranium. As a result of his injury, Nicholas has profound brain damage. He suffers from cerebral palsy, no longer has the ability to crawl, walk, or swallow, is legally blind, and must be fed through a feeding tube.
[N.2] To avoid confusion we will refer to Leticia Yslas by her first name. No disrespect is intended.
[N.3] All further references to dates are to 2010 unless otherwise indicated.
The central issue at trial was the cause of Nicholas's injuries. The prosecution's theory was that defendant was the cause of the injuries, through some sort of rapid acceleration/deceleration force, such as shaking. The defense argued Nicholas was suffering from bacterial meningitis, which caused his brain to swell, resulting in the injuries.

         Prosecution Case

Dr. Katherine Ferguson, Nicholas's pediatrician, testified she had seen the child routinely before his injury. Nicholas was previously diagnosed with Down syndrome but appeared to be high functioning. Dr. Ferguson last examined Nicholas on March 31, two days before his admission to the hospital. At that time he received various vaccinations, including the pneumococcal vaccine, which prevents meningitis and pneumonia. Nicholas did not appear to have any sort of infections, including meningitis.
On the morning of April 2, Leticia was home with defendant, Nicholas, and her two-year-old son Louis Jr. Other than being a little more fussy than usual due to the immunizations he had received two days earlier, Nicholas was acting normally that morning. That afternoon, Leticia left the child at home with defendant and Louis Jr. while she went shopping. She returned about two hours later. She recalled making a phone call to defendant to check on the children while she was out, but she did not attempt to speak to Nicholas on the phone. When she returned, Nicholas was lying on defendant's chest with a blanket covering him and appeared to be sleeping.
Within minutes of Leticia's return home, defendant took Nicholas to his room and put him in his crib for a nap. Defendant then ordered a pizza and the two watched a movie. An hour later, Leticia heard Nicholas making noises in his room. She was going to get him but did not because defendant told her to let him sleep. Sometime later, she again heard Nicholas making noises and went to get him.
Upon entering Nicholas's room, Leticia noticed he was lying on his stomach. When she rolled him over, she saw he was shaking, his head was pulled in, and he was stiff. Additionally, she noticed yellow foamy matter on his bedding. She immediately screamed for defendant to call 911. Defendant told her he would not pay for an ambulance and it would also be faster to just drive to the hospital. They arrived at the Ridgecrest hospital where Nicholas was examined and subsequently airlifted to a hospital in Loma Linda. Upon his arrival there, he was in critical condition.
Leticia drove to Loma Linda while defendant slept. After arriving, the couple checked into the Ronald McDonald House but were asked to leave on the evening of April 3d because Nicholas's injuries were determined to have resulted from child abuse. Additionally, the couple was informed by medical staff at the hospital that his injuries were a result of forced trauma. Defendant was present when this information was relayed.
The following morning, April 4, Leticia and defendant went back to the hospital and spoke to Nicholas's nurse. Leticia overheard defendant asking odd questions. Nicholas's nurse testified defendant asked her questions related to causation of the injury. She thought this was odd as most parents ask about their child's condition or prospects of recovery. Defendant did not ask those types of questions.
That afternoon, Leticia and defendant left the hospital to get something to eat. After lunch, defendant dropped off Leticia at the hospital and said he was going back to the motel to sleep. Defendant never returned to the hospital. That afternoon, Deputy Sheriff Caroline Stallings responded to the hospital to detain defendant. Defendant was not at the hospital when she arrived, nor was he at any nearby lunch locations or at his motel.
Nicholas remained in the hospital until some time after June 1. While at the hospital, he had a craniotomy to remove part of his skull. After being discharged, Nicholas was transferred to a nursing home for medically fragile children. He remained there for five months and then went back to the hospital to have a cranioplasty to reattach the portion of his skull. That occurred on November 12.
At the time of trial, Nicholas was two and a half years old and living with his mother. She described his condition as poor; he suffers from cerebral palsy, he has a gastric feeding tube due to his inability to swallow, he has a seizure disorder and muscle spasms, he is legally blind, and he can neither crawl nor walk.
Detective Ryan Sloan with the Ridgecrest Police Department was assigned to investigate child abuse relating to Nicholas. He was initially unsuccessful in locating defendant. On April 5, Sloan began following Christopher Avery, a close friend of defendant. Sloan followed Avery, who was driving a rental car, from Ridgecrest to Las Vegas, Nevada. Avery drove to a home where defendant was located and arrested.
After defendant's arrest, Sloan interviewed him. Defendant told the officer he and his wife had initially considered putting Nicholas up for adoption but decided against it. He claimed his wife continued to bring up the idea even after they had decided against it. On the day in question, Leticia went shopping and when she returned defendant had Nicholas lying on his chest. He put Nicholas in his crib shortly after Leticia returned. The two watched a movie and Leticia went to wake the child after about an hour, but defendant convinced her to let him sleep. When Leticia ultimately checked on Nicholas, it appeared he was having a stroke. Defendant immediately drove the family to the hospital. Over the next few days it became clear in the way the doctors, staff, and his wife were acting that defendant was going to be accused of harming Nicholas. Defendant decided to leave because he feared being jailed.
Regarding Nicholas's injuries, defendant denied ever harming him. He stated there was a minor incident where Nicholas fell and bumped his head while Leticia was out, but that was the only incident. Nicholas had been sitting up with defendant when Leticia called. Upon hearing his mother's voice, Nicholas got excited, lunged for the phone, and fell forward hitting his forehead. He cried for a short time while defendant soothed him, and then he fell asleep on defendant's chest. When asked what he thought had happened to Nicholas, defendant stated, “You know I asked my wife [if] she hit him on anything. If she dropped him or anything on accident and she said, ‘No.' So, alls... I don't have enough information, man. I have no idea man. I have no idea what happened to my son.”

         Medical Testimony

Dr. Mark Massi, a forensic pediatrician at Loma Linda University, specializes in determining whether children are abused. Patients are referred to him by other doctors who suspect abuse. Dr. Massi reviewed all of Nicholas's medical records, communicated with Nicholas's primary care team, and personally examined the child. After reviewing all of the information, Dr. Massi concluded Nicholas had a traumatic brain injury and rib fractures. Nicholas received injuries resulting from a rapid acceleration/deceleration event, which is consistent with shaken baby syndrome or abusive head trauma. There are three characteristics of this type of trauma: brain injury, subdural hemorrhage, and retinal bleeding. Each of these conditions was present in Nicholas. Nicholas suffered a subdural hematoma, retinal hemorrhage in both eyes, and injury to the frontal, parietal, and occipital lobes of his brain. The doctor also noted Nicholas had evidence of a possible healing rib fracture, which would also be indicative of abuse.
In Dr. Massi's opinion, the number one cause of a subdural hematoma is trauma. While an infection of the brain, such as encephalitis or bacterial meningitis, could cause a subdural hematoma, it is unlikely without the presence of an abscess. Nicholas did not have an abscess. Likewise, the type of retinal hemorrhaging present in the child, which occurred in multiple layers of both retinas, indicated a traumatic cause for the bleeding rather than an underlying medical condition. While bacterial meningitis can also cause retinal hemorrhage, the bleeding tends to be in a pattern different from that present in Nicholas. Rather, the hemorrhaging in the child's retinas was consistent with a rapid acceleration/deceleration occurrence.
Furthermore, a rapid acceleration/deceleration event causes a diffuse brain injury as opposed to an injury focused on a certain area. Nicholas's injury affected multiple areas of the brain, indicating it was consistent with acceleration/deceleration. In a situation where the brain is deprived of oxygen-for example, through the formation of a blood clot-then the entire brain will show damage. Here, Nicholas had widespread injury to his brain, indicating a result of acceleration/deceleration. The most severe damage extended from the right frontal lobe to the left parietal lobe. Nicholas's medical records indicated he had a clotting disorder, which increased his risk of forming blood clots. However, Dr. Massi noted the child suffered from a subdural hematoma meaning he was having bleeding, not clotting, in the brain. Furthermore, examination of Nicholas's arteries in his brain did not reveal any sign of a blood clot.
Due to his injury, Nicholas had to have a craniectomy, a procedure where part of the skull is removed to allow the brain to swell and attempt to heal.
X-rays taken on April 3 and repeated on April 28 showed evidence of fractures to Nicholas's left sixth and seventh rib. Doctors did not notice the rib fractures in the earlier X-ray, but upon reexamination they concluded it contained a possible fracture. It is not uncommon for a hairline fracture to be initially difficult to detect, which is why X-rays are later repeated. If there is a fracture, there will be evidence of the healing process in later X-rays. It takes four to six weeks for the healing process. The type of rib fractures suffered by Nicholas usually result from squeezing or compressing the ribs in a front to back motion.
Medical records from when Nicholas was initially brought to the Ridgecrest hospital stated he had no overt signs of infection. Nicholas had an elevated white blood-cell count as well as elevated C-reactive protein and glucose levels, all of which could indicate an infection but were also not uncommon for trauma or inflammation. Various laboratory tests done to determine whether the child ever had an infection of the brain were negative. The tests were performed after antibiotics had been administered, however, the tests showed no indication of bacteria, including bacteria killed from the medication.
There were no obvious signs of trauma to Nicholas's head such as bruising or abrasions. In Dr. Massi's opinion, Nicholas's injuries-including the subdural hemorrhaging, the retinal hemorrhaging, brain injury, and fractured ribs- indicated he suffered nonaccidental trauma. The doctor could not say precisely how the injuries occurred, but they were consistent with a rapid acceleration/deceleration such as violent shaking. Dr. Massi conceded there are a small minority of doctors who do not believe in the concept of shaken baby syndrome.
Nicholas's injuries left him severely brain damaged. Brain tissue does not regenerate and it is unlikely any lost function due to the injury will return after the injury. As a result of his injuries, Nicholas was legally blind, could not swallow, had to be fed through a feeding tube, could not crawl or walk, and suffered from cerebral palsy and seizures.

         Defense case

Defendant testified he lived in Ridgecrest with his wife and two children at the time of Nicholas's injury. He had a form of arthritis affecting his entire body that made it difficult to use his hands. On the day in question, defendant was home alone with his two children while his wife was out doing some shopping. Louis Jr. was napping and Nicholas sat in a jumper chair while defendant was painting a screen door. After he finished painting, defendant played with Nicholas. At one point he received a call from his wife. When he put the phone on speaker, Nicholas reached out to grab the phone and fell over, hitting his head. He cried for a short time but appeared fine, and defendant held him until Nicholas fell asleep.
Leticia arrived home about 15 to 20 minutes later and defendant was still holding Nicholas, getting him to sleep for his nap. While Nicholas was asleep, defendant put him in his crib. Defendant watched a movie with his wife and ordered pizza. Leticia noticed Nicholas had been asleep longer than usual and wanted to check on him, but defendant convinced her to let him sleep. After the movie was over, Leticia checked on Nicholas and began screaming. Defendant ran in and saw the child's arm was stiff and his head was limp. He picked up Nicholas and put him in the carrier to take him to the hospital. Leticia told defendant to call 911 but defendant said he would take them to the hospital because it was so close. While Nicholas was being attended to at the hospital, defendant left to drop off his other son and then returned. Later that night, a police officer arrived and interviewed defendant and his wife separately; defendant told the officer what had happened that day.
Defendant and his wife were informed Nicholas would be airlifted to a hospital in Loma Linda. They decided to drive down there as well. Before they left, officers asked if they could go to defendant's home to take photographs, and defendant agreed. Defendant took a shower while his wife gathered their belongings to take with them to Loma Linda. They arrived at Loma Linda late that night and were up most of the night receiving updates from the doctors. In the morning they checked into the Ronald McDonald House but were asked to leave later that day because the doctors suspected child abuse. Subsequently, defendant felt the staff at the hospital was treating him differently. Defendant checked into a motel with his wife for the night. However, defendant did not get any sleep as the hospital called him every hour to get consent to administer medications.
Defendant woke his wife about 5:00 a.m. the following morning because he had to get some sleep. At this point it was April 4. Leticia came back to the motel about 10:00 a.m. and woke defendant by slamming the door and asking what he did to their son. They went back to the hospital and a social worker wanted to speak with defendant. He said he had “nothing to say to her.” Defendant wrote down a series of questions for the doctor because he did not know what had happened to his son. Then he and his wife went to get lunch and he told his wife he was leaving. He took his wife to the bank, got her some money, and dropped her off at the hospital.
Defendant started driving home but Leticia called and put on the social worker, who was rude to him. Thinking the police would be waiting for him at home, defendant decided to go to a friend's house in Las Vegas. Defendant contacted Avery and asked him to bring him clothes and money. Avery also told defendant his grandmother would contact an attorney for him. The next day defendant had contact with an attorney who said he would check into the situation for him. Later that night Avery arrived, followed shortly thereafter by the police who arrested defendant. At the time defendant was arrested, he was not aware there was a warrant out for his arrest. The attorney had told him there were no pending charges. Defendant denied doing anything to injure Nicholas.
Defendant admitted he never called the hospital to get information on his son's condition after he fled. Rather, he claimed he got information regarding Nicholas's condition through other sources.
Dr. Steven Gabaeff is a clinical forensic medicine physician. Clinical forensic medicine is the practice of analyzing medical findings as they relate to law. Dr. Gabaeff is familiar with shaken baby syndrome and believes the theory has been disproved. He does not believe a human can shake a baby with enough force to cause severe injuries. Additionally, two of the three characteristics of shaken baby syndrome are subdural hematoma and retinal hemorrhaging, which can have numerous causes.
After reviewing Nicholas's medical records, Dr. Gabaeff opined the child had meningitis when he was seen at the hospital on April 2 and that he had been suffering from it for a few days prior. He believed Nicholas's laboratory results were consistent with infection. He opined the negative test on Nicholas's spinal fluid was useless as the test was taken after the child had received five days of very high-dose antibiotics. He also noted the doctors at both the Ridgecrest and Loma Linda hospitals were treating Nicholas for meningitis.
Due to Nicholas's clotting disorder, he was at a higher risk of developing a blood clot. Furthermore, Dr. Gabaeff believed Nicholas had formed a blood clot in his head that deprived his brain of oxygen, causing massive parts of his brain to die. The way the child's brain tissue died was inconsistent with an occurrence of acceleration/deceleration but consistent with the brain not receiving blood flow due to a blood clot. Dr. Gabaeff believed there was a test that could have been utilized to establish the presence or absence of a blood clot, however, the doctors never performed the test. Moreover, Nicholas showed no sign of any neck injury, which in his mind ruled out any type of shaking injury.
Dr. Gabaeff noted intracranial pressure can cause retinal hemorrhaging, so Nicholas's brain swelling could have caused his hemorrhaging. According to Dr. Gabaeff, the first X-ray to note a rib fracture was taken about 30 days after Nicholas was taken to the hospital. He opined the initial X-rays were normal, and the report noting a rib fracture in the first X-ray was an addendum made after the subsequent X-rays were taken. Thus, he concluded the initial finding of no fracture was more accurate.
Dr. Gabaeff admitted he misinterpreted a test as being consistent with a clot when the report actually stated there was normal blood flow. He also discounted the evidence of the rib fracture because it had occurred six to eight weeks prior. Therefore, he did not find it relevant. Dr. Gabaeff admitted meningitis does not cause rib fractures. He also noted he had never examined Nicholas.
John Tello is an attorney who was retained by defendant in April of 2010. He spoke to defendant on April 5 and, after an inquiry, informed him there were no current charges pending against him. He also had not located any outstanding warrants for defendant's arrest and relayed this information to defendant.

Yslas, 2014 WL 4923991, at *1-6.


         A. Jurisdiction

         Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged conviction arises out of the Kern County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d).

         On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997) (holding the AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

         B. Legal Standard of Review

         A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless the petitioner can show that the state court's adjudication of his claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 412-413.

         A state court decision is “contrary to” clearly established federal law “if it applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, or “if it confronts a set of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a different result.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405-406).

         In Harrington v. Richter, 562 U.S. 86, 101 (2011), the U.S. Supreme Court explained that an “unreasonable application” of federal law is an objective test that turns on “whether it is possible that fairminded jurists could disagree” that the state court decision meets the standards set forth in the AEDPA. The Supreme Court has “said time and again that ‘an unreasonable application of federal law is different from an incorrect application of federal law.'” Cullen v. Pinholster, 563 U.S. 170, 203 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fairminded disagreement.” Harrington, 562 U.S. at 103.

         The second prong pertains to state court decisions based on factual findings. Davis v. Woodford, 384 F.3d 628, 637 (9th Cir. 2003) (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)). Under § 2254(d)(2), a federal court may grant habeas relief if a state court's adjudication of the petitioner's claims “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Wiggins v. Smith, 539 U.S. 510, 520 (2003); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997). A state court's factual finding is unreasonable when it is “so clearly incorrect that it would not be debatable among reasonable jurists.” Jeffries, 114 F.3d at 1500; see Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004), cert.denied, Maddox v. Taylor, 543 U.S. 1038 (2004).

         To determine whether habeas relief is available under § 2254(d), the federal court looks to the last reasoned state court decision as the basis of the state court's decision. See Ylst v. Nunnemaker, 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). “[A]lthough we independently review the record, we still defer to the state court's ultimate decisions.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

         The prejudicial impact of any constitutional error is assessed by asking whether the error had “a substantial and injurious effect or influence in determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007) (holding that the Brecht standard ...

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