United States District Court, E.D. Virginia, Alexandria Division
LEONIE M. BRINKEMA, District Judge.
Trudy Eliana Munoz Rueda, a Virginia inmate proceeding through counsel, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of her conviction by a jury in the Circuit Court for Fairfax County of felony child neglect and willful or negligent cruelty to a child. On August 18, 2014, respondent filed a Motion to Dismiss and Rule 5 Answer, along with a supporting brief. Petitioner has filed a response to the Motion to Dismiss, to which respondent has replied. Accordingly, this matter is now ripe for disposition. For the reasons that follow, respondent's Motion to Dismiss will be granted, and the petition will be dismissed with prejudice.
On July 20, 2009, petitioner was indicted in Fairfax County for child abuse or neglect, in violation of Va. Code § 40.1-103, and willful or negligent cruelty to a child, in violation of Va. Code § 18.2-271.1(A)). The circumstances that gave rise to her prosecution were described by the Court of Appeals of Virginia on direct appeal as follow:
[T]he evidence established that appellant had been operating a licensed in-home daycare center in the basement of her home since 2004. On March 16, 2009, Erin Whitmer began taking her infant son, N.W., to appellant's daycare. [FN] On the morning of April 20, 2009, Whitmer took N.W. to daycare at appellant's home. Later that day, EMS technician Luis Mata was dispatched to the daycare to assist N.W., who was choking. When Mata arrived, he immediately saw N.W. was unresponsive, having trouble breathing, and clear fluid was coming from his mouth. N.W. had seizures all the way to the hospital. Because the emergency medical technicians suspected N.W.'s injuries were caused by trauma, N.W. was treated as trauma patient. A CT scan of N.W.'s brain revealed an acute subdural hematoma (bleeding on the brain), deep brain injuries, injuries to the tissue of the brain itself, and a cortical venous thrombosis, all of which are often caused by trauma. N.W. remained in the hospital until May 9, 2009.
[FN: N.W. was born November 29, 2008. Prior to April 20, 2009, he was a healthy child.]
Appellant explained to police officers that N.W. was asleep and he awoke crying. Appellant prepared a bottle for N.W. and began feeding him. N.W.'s eyes rolled toward the back of his head and he went limp. Appellant picked up N.W. and tapped him on the back. She then began conducting CPR on N.W. When appellant was interrogated by social worker Joslyn Waldron, she stated she never shook N.W. During the interview, Waldron received a call from one of N.W.'s physicians, who maintained N.W.'s injuries were consistent with shaking. Waldron emphasized the importance of knowing the truth in order to properly treat N.W. Appellant stated she moved [N.W.] hard, ' and when asked what she meant, appellant stated she picked up N.W., shook him approximately three times with one hand under N.W.'s bottom and the other hand at the base of N.W.'s neck. After this, appellant said she fed N.W. his bottle, and he went limp after sucking on the bottle three to four times. [FN]
[FN: Although appellant asserts that the Spanish word used to describe shaking' can also mean to jiggle, ' Waldron testified appellant used the verb to shake' to describe her actions.]
Eight medical experts testified for the Commonwealth at trial. [FN] Several of those doctors explained that N.W. was a healthy child with no underlying medical problems, and the other doctors testified N.W.'s injuries were caused by [shaken baby syndrome ("SBS")]. Appellant testified at trial and denied she ever shook N.W. Three medical experts also testified on behalf of appellant.
[FN: Six of those experts were N.W.'s treating physicians.]
Following a jury trial, appellant was convicted of child abuse or neglect and willful or negligent cruelty or injury to a child.
Munoz Rueda v. Commonwealth, R. No. 0879-10-4 (Va. Ct. App. Dec. 27, 2010), slip op. at 2-3. Petitioner was sentenced to serve six years and six months in prison and to pay a fine of $12, 500 for the child abuse or neglect conviction, and to serve a consecutive sentence of four years for the conviction of willful or negligent cruelty or injury to a child.
On direct appeal, petitioner raised the following claims:
1. The trial court erred in finding the evidence was sufficient to convict where the Commonwealth's medical expert admitted that for a baby's brain to be subject to shaken baby syndrome (SBS') the child would have to be shaken sufficiently to generate a force of 50 to 500 times gravity, and the defense's biomechanical engineer testified that his testing had disclosed it was not possible for a woman like petitioner to subject a child to such force.
2. The trial court erred in allowing the Commonwealth's medical experts to state opinions on the ultimate issue of guilt.
3. The jury instruction explaining the willful act' element of abuse and neglect of a child was erroneous.
4. The jury instruction explaining the negligence' element of cruelty or injury to a child was erroneous.
A single judge of the Court of Appeals of Virginia rejected claims 1, 2 and 4 as listed above on the merits, and declined to address claim 3 on the ground that no contemporaneous objection was raised at trial to the "willful act" language in the challenged jury instruction and no clear miscarriage of justice occurred. Munoz Rueda v. Commonwealth, supra. A subsequent demand for a three judge panel review was declined on February 23, 2011. The Supreme Court of Virginia dismissed petitioner's petition for review as to assignment of error 3 and refused the petition as to the remaining assignment of error. Munoz Rueda v. Commonwealth, R. No. 110521 (Va. Sept. 21, 2011). Rehearing was denied on November 14, 2011.
On November 14, 2012, petitioner filed a petition for habeas corpus relief in the trial court, alleging that she received ineffective assistance from her trial counsel, James R. Kearney, Esquire ("Kearney") and Guillermo Uriarte, Esquire ("Uriarte") who failed:
1. to seek a continuance;
2. to review the medical records which would have revealed that the child (1) had an infection; (2) was likely dehydrated and had pre-existing head trauma; (3) had a family medical history which remained unexplored; (4) was diagnosed almost instantaneously with SBS; (5) was not examined for possible alternative causes for his symptoms.
3. to present evidence from lay witnesses regarding the child's illness;
4. to present adequate expert medical testimony from Dr. Patrick Barnes;
5. to present evidence to challenge Joslyn Waldron's testimony regarding petitioner's confession;
6. to attack the integrity of the treating physician's medical investigation into the cause of the child's brain injuries;
7. to present character evidence;
8. to secure a copy of the 911 call;
9. to file pretrial motions;
10. to object to jury instruction 6.
Petitioner also alleges that the Commonwealth violated her Fifth and Fourteenth Amendment rights by failing to turn over a copy of the 911 tape which was a Brady violation, and knowingly using false argument and testimony regarding the child's health. Lastly, petitioner argues that the cumulative effect of these errors undermines confidence in the outcome of petitioner's trial.
The circuit court conducted a hearing on the state habeas petition on May 23, 2013, Pet. App., 334-91, taking the matter under advisement. After reviewing "the pleadings of the case, the memoranda and exhibits presented and the arguments of counsel, " the hearing was reconvened on July 25, 2013, and findings of fact and conclusions of law were made on the record. Ultimately, respondent's motion to dismiss the petition for habeas corpus relief was granted, and a final order reflecting that decision and incorporating by reference the findings announced from the bench was entered on September 11, 2013. Pet. App. 392 et sea. The Supreme Court of Virginia refused Munoz Rueda's petition for appeal of that decision on March 11, 2014. Munoz Rueda v. Clarke, R. No. 131940 (Va. Mar. 11, 2014).
Petitioner timely filed the instant application for relief pursuant to § 2254 on June 9, 2014, in the United States District Court for the Western District of Virginia. By an Order dated June 11, 2014, the matter was transferred to this court as the district where the conviction was entered. For her federal petition, petitioner reiterates most of the claims raised in her application for a state writ of habeas corpus, albeit in a slightly different order. Specifically, petitioner argues that counsel was ineffective by:
1. Failing to present testimony from Dr. Patrick Barnes regarding the actual cause of N.W.'s symptoms.
2. Failing to request a fourth continuance.
3. Failing to review N.W.'s medical records.
4. Failing to challenge Joslyn Waldron's false report that Munoz had confessed to shaking N.W.
5. Failing to challenge the integrity of the treating physicians' medical investigation into the cause of N.W.'s symptoms.
6. Failing to present testimony from lay witnesses regarding N.W.'s illness.
7. Failing to call available character witnesses on ...