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UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Raul Varela,

Petitioner

-vsCharles L. Ryan, et al.,

Respondents.

CV-15-1971-PHX-JJT (JFM)

Report & Recommendation 

on Petition for Writ of Habeas Corpus

I. MATTER UNDER CONSIDERATION

Petitioner, presently incarcerated in the Arizona State Prison Complex at 

Florence, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 

2254 on October 1, 2015 (Doc. 1). On February 9, 2016 Respondents filed their 

Response (Doc. 13). Petitioner has not filed a Reply.

The Petitioner's Petition is now ripe for consideration. Accordingly, the 

undersigned makes the following proposed findings of fact, report, and recommendation 

pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules 

of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil 

Procedure. 

II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND

A. FACTUAL BACKGROUND

In disposing of Petitioner’s direct appeal, the Arizona Court of Appeals 

summarized the factual background as follows:

Varela and his wife, Tricia Varela, were tried together on 

multiple charges of child abuse stemming from their physical 

treatment of their recently-adopted daughter, E., when she refused 

to use the toilet. Specifically, in Count 3, the State alleged Varela

intentionally or knowingly endangered E.'s life in violation of 

Arizona Revised Statutes ("A.R.S.") section 13-3623(A) (2010) 

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because he did not seek medical care until two days after Tricia 

injured E. during a three-hour "power struggle" that involved 

physically restraining E. on the toilet and subsequently struggling 

with her in a closet and striking her with a shoe. In Count 6, the 

State charged Varela with intentional or knowing child abuse in 

violation of A.R.S. § 13-3623(B) based on previous instances where 

he bruised E. by forcibly restraining her on the toilet. 

Detectives JH and AY conducted an interview with Varela 

the day after E. was taken to the hospital ("the Interview"). At the 

time of the Interview, the detectives mistakenly believed E’s arm 

and leg were fractured. Detective JH later testified at trial this belief 

was incorrect and E. had no broken bones. Upon informing Varela 

of E’s broken limbs, Varela made incriminating statements. 

(Exhibit I, Mem. Dec. 7/15/14 at ¶¶ 2-3.) (Exhibits to the Answer, Doc. 13, are 

referenced herein as “Exhibit ___.”) 

Tricia explained to Detective JH that E. had issues going to the 

bathroom, and she and Varela would restrain E. on the toilet for up 

to an hour while "pushing her mid-section into her legs." E. would 

struggle and try to get away. During his Interview, Varela admitted 

that prior to E.’s struggle with Tricia, E.’s belly was distended and 

she had developed bruises from being restrained earlier in the week. 

He agreed that, generally, upon noticing a child's stomach is 

distended and hurting, a reasonable person would take the child to 

the doctor. He agreed E.’s fever, vomiting, and withholding stool 

and urine were all red flags indicating something was wrong. And 

he further admitted taking E. to the doctor was going to "raise some 

flags" based upon the bruising to her arms and legs, and he knew 

when he took E. to the hospital that CPS would be called.

(Id. at ¶ 9.)

Doctor Kirsch, a pediatrician who evaluates patients for potential 

child abuse, opined that E.’s abdominal injuries were caused by 

trauma, specifically, "significant pressure," "crush injury," and 

"squeezing." She further testified E. was "extremely critical ill" and 

had E. gone untreated "it is possible that she would have died."

(Id. at ¶ 11.)

B. PROCEEDINGS AT TRIAL

On June 24, 2009, Petitioner and his wife were indicted in Maricopa County 

Superior Court. Petitioner was charged with one count of Class 2 child abuse, and one 

count of Class 4 child abuse. (Exhibit A, Indictment.) 

Petitioner and his wife proceeded to trial on March 5, 2012. (Exhibit V, R.T. 

3/5/12.) However, the jury was unable to reach a verdict on any of the charges against 

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Petitioner. They found Petitioner’s wife guilty on one count, a lesser-included offense of 

reckless child abuse, and were unable to reach a verdict on the other three charges 

against her. (Exhibit HH, R.T. 3/29/12 at 10-11.) 

Petitioner and his wife again proceeded to trial on July 16, 2012 on the remaining 

charges. (Exhibit MM, R.T. 7/18/12.) The parties stipulated to add language to the 

instructions on the various charges to clarify the specific conduct associated with the 

charges. (Id. at 4-7.) With regard to Count 3, the parties stipulated and the court 

instructed the jury that the charge was based on the failure to seek medical care: 

Count 3 alleges that Raul Varela, on or about the 25th day of April 

of 2009 and the 27th day of April of 2009, under circumstances 

likely to produce death or serious physical injury, and while having 

the care or custody of [E.V.], a child under the age of 15 years of 

age, intentionally or knowingly caused or permitted [E.V.]'s person 

or health to be injured or [E.V.] to be placed in a situation where 

her person or health was endangered, to wit, failure to seek 

medical care.

(Exhibit MM, R.T. 7/18/12 at 23-24 (opening instructions) (emphasis added). See also

Exhibit WW, R.T. 8/9/12 at 51-52 (final instructions).) 

In light of Petitioner’s single claim, the undersigned’s recitation of the evidence 

will be limited to evidence concerning the allegations that his delay in seeking medical 

treatment amounted to endangerment under circumstances likely to cause death or 

serious physical injury. There was substantial evidence of varying degrees of physical

injury inflicted on the victim in the course of the reported struggle with the 4 year old 

victim. But of course those facts are relevant to this habeas case only to the extent that it 

is related to whether Petitioner’s delay in seeking medical care was endangerment under 

circumstances likely to cause death or serious physical injury. 

In the course of the trial, there was substantial testimony, most of it 

uncontroverted, about the injuries to the victim, and the resulting course of treatment, 

including the following.

Dr. Rosenberg, a pediatric critical care physician at Maricopa Medical Center

(MMC), was called by the prosecution. (Exhibit MM, R.T. 7/18/12 at 79-128.) He 

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testified that in conjunction with resident physicians in training, he provided initial care 

for the victim after her transfer from another hospital to the pediatric intensive care unit 

(PICU) of MMC on April 28, 2009 at 6:30 a.m.. (Id. at 86-88.) The victim came in with 

a history of bruising, constipation, encopresis (watery leakage around a large hard stool), 

and abnormal behavior. (Id. at 89.) They observed bruises of varying but unknown ages 

on her chest, breast, and extremities, and scabs on her extremities. (Id. at 90-94, 113-

114.) They also observed a distended abdomen, decreased bowel sounds, blood counts 

reflecting a possible infection of unknown origin, and dehydration. (Id. at 95-97.) The 

distended abdomen could have resulted from severe constipation, infection, or trauma, 

and the origin was initially unknown. (Id. at 108-109.) She was admitted to the hospital 

because of the dehydration, concerns of infection related to the distended abdomen and 

decreased bowel sounds, and the possibility of trauma. (Id. at 97-98.) He deemed the 

victim seriously ill, “not on death’s door, but she was sick enough she needed close 

monitoring.” (Id. at 99.) 

Dr. Rosenberg next treated the victim on May 13, 2009, after she had surgery to 

drain an abscess in her abdomen, which he related to bleeding in the abdomen, resulting 

from blunt trauma, which developed into a blod clot, which eventually became infected. 

(Id. at 101-103, 124.) He admitted that such bleeding does not always result in an 

abscess, and that the blood clot was not of itself life threatening, until it became infected. 

(Id. at 117-119.) The bleeding had not been initially discovered, and there was no sign at 

admission or on the initial CT scan of the abscess, although there was on later films. (Id.

at 110-111, 115, 124.) The abscess would have developed over time, and would have 

shown symptoms of swelling, redness, maybe even something like a big pimple, and 

usually hot and tender. (Id. at 122.) The infection could have been already present in her 

body, and would not have been life threatening but for the blood clot that became 

infected. (Id. at 125-126.) 

On May 13th, previously observed renal insufficiency had improved, and appeared 

related to dehydration. (Id. at 104, 119.) Over the next four days, she continued to 

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improve. (Id. at 105-106.) He opined that her condition was life-threatening because of 

the abscess that developed:

Q Now, with regard to [E.]'s, knowing what her condition 

eventually turned into, even while in the hospital, was her condition 

life-threatening? 

A Yes. 

Q Can you explain to us why? 

A When the abscess developed, she was at that point she was 

the sickest she had been because of some infection that was 

involved in the abscess, yes. 

Q And had that continued unchecked, what would have 

occurred with her? 

A She could have died.

(Id. at 106-107 (emphasis added).) 

Sergeant Hughes, an investigating officer, testified (Exhibit NN, R.T. 7/23/12 at 

14-59; Exhibit TT, R.T. 8/6/12 at 32-52; Exhibit UU, R.T. 8/7/12 at 18-72) that upon 

seeing the victim in the hospital within 24 hours of admission (Exhibit NN, R.T. 7/23/12 

at 23) that she had bruises in her ears, on her face, back, palms, arms, wrists, upper arms, 

insides and outsides of her thighs. (Id. at 32.) In addition there were scratches on her 

back. (Id.)

He testified that Petitioner and his wife had told him that on Saturday, April 25 

they had tried treating the victim, by giving her Epsom salt baths as a muscle relaxer and 

to reduce swelling, icing her bruises, putting lotion on her cuts and giving her Feverall 

suppositories. (Exhibit UU, R.T. 8/7/12 at 27, 39-40.) Petitioner told the detective that 

the victim had had a stomach ache and fever, and had at times shown improvement, but 

once she started to vomit green bile, they took her to the hospital. (Id. at 35-36.) 

Petitioner and his wife told the detective that they had only had ten hours sleep in the

previous two days because they had been sitting up caring for the victim. (Id. at 70-71.) 

Petitioner’s wife told the detective that one of their sons had had the flu or a cold that 

Saturday. (Id. at 36.)

Dr. Bailey, a pediatric surgeon, testified (Exhibit NN, R.T. 7/23/12 at 61-90) that 

he was asked to consult regarding the victim on April 30, 2009, and to specifically 

address potential injury to the pancreas or duodenum (the portion of the small intestine 

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directly empting the stomach). (Id. at 71-72.) They conducted a CT scan of the 

abdomen and pelvis, including the area where the drains were eventually placed, which 

he reviewed with a pediatric radiologist. (Id. at 82.) They discovered no injury to the 

duodenum or pancreas. (Id. at 72, 83.) If the radiologist had seen other areas of concern 

on the CT scan, they would have brought it to his attention, but nothing was raised. (Id.

at 86.) He paid the most attention to the pancreas and duodenum, but would have 

addressed other glaring issues if they had been seen on the CT scan. (Id. at 88.) 

Following surgery by Dr. Cox and resident Dr. Hibbert on May 12th, he next saw 

the victim for post-operative care on May 18th. (Id. at 73-74.) His care was related to 

drains surgically implanted in the victim’s lower abdomen and flank, that had been 

placed to allow pus to drain from the infected area. (Id. at 74-75.) The infection had 

resolved by May 20th, and the drains were removed. (Id. at 78-79.) 

RN Giannini testified (Exhibit NN, R.T. 7/23/12 at 92-111) that she was working 

as a charge nurse at West Valley Hospital when the victim was admitted at or prior to 

23:45 in obvious pain, pale, and with an elevated pulse, bruising on her extremities and 

legs, and a reported history of diarrhea and vomiting for the prior day. (Id. at 94-98, 

102) The victim was given IV fluids and medication to sedate her. (Id. at 100-101.) She 

was eventually transferred, once medically stable although still critical, to MMC because 

there was no pediatric center at her hospital. (Id. at 103-107.)

Dr. Lal, a pediatric intensivist at MMC’s PICU, testified (Exhibit PP, R.T. 

7/25/12 at 4-46) that the victim was admitted on April 29, 2009 with complaints of 

vomiting, diarrhea, dehydration from the vomiting, bruising suspected as nonaccidental 

trauma, slight distention of the abdomen, and absent bowel sounds (Id. at 7-8, 31-32, 

45.) He next saw her on May 1, and sometime in between she had been given a 

transfusion because her hemoglobin was low, and antibiotics because they suspected 

infection in the abdomen and as a precaution. (Id. at 11-13, 25, 35.) A provider ordered 

a CT scan, but it showed nothing that made them change her treatment. (Id. at 35-37.) 

On May 2, he saw her and her abdomen was still distended with no bowel sounds, and he 

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gave her IV fluids and continued the antibiotics. They still had not diagnosed the cause 

(Id. at 14-15.) By May 3, her bowel sounds were slowly appearing, but she had 

widespread edema, as part of a systemic inflammatory response, which could have been 

from injuries, bacteria, a virus, or infection. (Id. at 15-16, 39.) It normally takes a 

systemic inflammatory response several days to show up. (Id. at 38.) She continued on 

antibiotics and was given IV nutrition. (Id. at 16-17.) On May 4, her bowel sounds were 

present, and she had developed some inflammation around her groin that had not been 

there in the previous week, and that he was concerned was an abscess. (Id. at 17-18, 26.) 

A surgery consult was obtained, but reported nothing requiring intervention. (Id. at 18, 

26.) On May 5 her bowel sounds were improving, but her kidney function was 

decreasing and her swelling continued, which he related to the antibiotics and the ongoing inflammatory response. (Id. at 18-19.) Overall, he believed she was more stable, 

and not as sick as when she was admitted. (Id. at 20.) On May 6, her fever and kidney 

function led him to request consultations from an infectious disease specialist and a 

kidney specialist, but all they offered was adjustments to the antibiotics. (Id. at 20-21.) 

On May 8 she was still improving a little. (Id. at 21.) At that time they did not know 

what was causing her symptoms other than a systemic inflammatory response, and they 

did not know what was causing that response. (Id. at 39.)

He next saw her on May 19, after she had undergone surgery to drain the abscess 

in her groin. They monitored her drains, continued the antibiotics and night time feeding 

tubes, and she had begun eating and was improved. On May 20 they discontinued the 

antibiotics, although pain medication had been continued throughout. (Id. at 21-22.) On 

May 21 she had sufficiently improved to be transferred to a regular floor where she 

remained for some time. (Id. at 23-24.) 

He denied knowing the causation for the hematoma. (Id. at 27.) The earlier 

symptoms (inflammatory response, vomiting, distended abdomen, no bowel sounds) 

could have resulted from a bacteria or virus. (Id. at 28.) The slight distension of the 

abdomen could have resulted from gas. (Id. at 33.) The abscess resulted from an 

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abdominal hematoma that got infected. (Id. at 43.) It takes several days for the blood to 

collect and get infected, and the hematoma would not necessarily get infected. (Id. at 

44.) 

Dr. Kirsch, a pediatrician and child abuse evaluator, testified (Exhibit PP, R.T. 

7/25/12 at 50-142) that she first examined the victim on April 30, 2009, and the victim 

was extremely irritable and uncomfortable, with a distended abdomen, tender to 

palpation, bruising on her back and extremities in locations suggesting nonaccidental 

trauma, scratches on her back, and swelling in her hands, arm and labia. (Id. at 56-59.) 

There was no bruising to the hands. (Id. at 103-104.) She also had an abnormal blood 

cell counts, raising concerns of cancer, and an elevated liver function test, raising 

concerns of trauma, infections or other liver problems, and a small amount of blood in 

her urine. (Id.at 61-63.) She had been admitted with a history of encopresis, 

gastrointestinal symptoms, constipation, bilious vomiting, dehydration and bruising to 

the abdomen. (Id at 64, 106.) She did not see any abdominal bruising on April 30th. (Id.

at 102.) The bruises she saw were not life-threatening. (Id. at 117.) Bilious vomiting 

can result from a block in the intestine. (Id. at 120.) Dehydration in a child for several 

days can be a serious concern. (Id. at 134.) 

The victim was not released on April 30th because she was not medically ready.

Q And when we are talking about the internal, the fluids that 

were given internally and the blood transfusion, if [E.V.] had not 

been in the hospital, what will likely have happened to her without 

those things?

A Well, she was critically ill so I will have to be very 

concerned about what· the outcome would have been for that what 

she had not received medical treatment, I think that it could have 

been quite serious. 

* * * 

Q BY MS. LOW: What was the possible outcome if she had 

not gotten the medical treatment? 

A I think that she could have potentially died. I think that 

was a risk. 

(Id. at 68-69 (emphasis added).)

The CT scan of the abdomen on May 1 (“April 31st”) did not show any intraabdominal injuries, but CT scans do not pick up everything, particularly more subtle 

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injuries such as a tear to an abdominal wall. (Id. at 75-78, 94, 113.) The hematologist 

eventually determined the low blood counts were from infections. (Id. at 76.)

When Dr. Kirsch’s colleague, Dr. Coffman examined the victim on May 5, the 

victim was developing signs of infection in her abdominal and groin area, suggesting an 

infection in her abdominal wall. This started to explain other symptoms (Id. at 80.) An 

ultrasound performed on May 4 had revealed fluid in her abdominal wall. (Id. at 81, 96.) 

The collection of fluid created an opportunity for infection. (Id. at 82.) The ultrasound 

did not show an abscess, just fluids, at that time, and the victim did not require 

immediate surgery at that time. (Id. at 111.) Surgery was only required when the 

infection worsened, and it was unclear whether the abdominal problem was going to 

resolve on its own. (Id at 111-112.) Still, she was quite ill prior to the abscess 

development, because of her anemia. (Id. at 112.)

The victim was next seen on May 15, after having had a surgical procedure to 

drain an abscess in her groin area. (Id. at 83-84.) The victim was experiencing 

improvements, which was expected from the drains and antibiotics. (Id. at 84-85.) The 

wall of the abscess makes it harder for medications to penetrate the affected area, 

requiring drainage. (Id. at 85.) She was not surprised that the infection developed after 

being in the hospital for some time because it takes time for an abscess to form. (Id. at 

85-86.) Thus the abscess could have resulted from the abdominal trauma on April 25, 

2009. (Id. at 86.) Hematomas (the collection of fluid) do not necessarily become 

infected and create abscesses. (Id. at 109, 116.) The expected symptoms from the 

trauma to her abdomen were pain, vomiting, decreased appetite, abdominal swelling. 

(Id. at 86-87.) She believed the abdominal distention was from the trauma. (Id. at 134.) 

The infectious disease doctor was of the opinion that the victim started out with a 

viral type of syndrome, which was compounded by the trauma. (Id. at 88, 97, 135.) 

Q Okay. And was the trauma that was suffered to her 

abdomen, was that -- do you believe that that was the only cause of 

the need for her to be in a hospital for about a month? 

A I think without the trauma, she will not have required a 

lengthy hospital stay. I can't say whether the viral syndrome would 

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have been enough on its own to might be require her to come to the 

emergency room for fluids or something of that sort, but I don't 

think that it should have required a lengthy stay.

Q Now, with regard to the abdominal trauma she has 

suffered, because that later became infected, will you have 

considered that life-threatening if she had not had medical 

treatment for it? 

A Yes. 

(Id. at 88-89.) Although the victim’s condition could have been life threatening if she 

had not received medical care (id. at 140), Dr. Kirsch could not say how quickly medical 

treatment would have been required.

Q Okay. Now, you testified that had this gone on untreated, 

she possibly would have died? 

A I think it is possible that she would have died. 

Q How soon, how much longer will it have to have gone 

untreated? 

THE WITNESS: I really can't speculate as to how long it 

will have taken.

(Id. at 100 (emphasis added).) 

Q When is a -- when does someone or rephrase. 

You mentioned that if [E.V.] had not gone to the 

hospital, and if she had not received medical treatment, she could 

have died?

A Yes. 

Q And that would have been because of the infection? 

A Well, she needed blood for one thing, she also was not 

able to take nutrition by mouth for days. Many days. And so when 

you are in that type of a situation, medical care is very necessary. 

She was also dehydrated, dehydration goes on, people can die from 

that as well.

(Id. at 121-122 (emphasis added).)

Q Now, you told defense that some abdominal hematomas 

can heal themselves and not all of them are life-threatening. In this 

particular case, did you feel like [E.V.]'s was life-threatening? 

A I think knowing now that it did become infected and did 

result in an abscess had she not gotten the treatment, I think that 

infection could have been extremely serious. I think that there were 

other things going on with [E.V.] that were very critical which she 

initially came in that led me to say that possibly she could have 

been in a life-threatening situation. 

Q Okay. And I want to make sure we clarify that because 

defense really asked you a lot about the individual symptoms that 

[E.V.] had. You know, whether bruises can be life threatening in 

and of themselves or whether you being called into an evaluate just 

a stomach ache will be usual, given the entire picture of [E.V.] when 

she first came into the hospital, if you had been the doctor who 

admitted her, will you have had serious concerns about her health? 

A Absolutely.

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Q If you had been in that position where you did not know 

immediately what was causing her various symptoms, would you 

have said, well, since we don't know, let's just check her out of the 

hospital? 

A Absolutely not. 

Q Why not? 

A Because she was extremely critically ill.

(Id. at 132-133 (emphasis added).) 

Dr. Chundhu, pediatrician at MMC, testified (Exhibit RR, R.T. 7/30/12 at 63-

112) that he first examined the victim on April 30, 2009. She was sick enough to be put 

in the pediatric ICU which is restricted to patients with potentially life-threatening 

injury due to the cost compared to the regular pediatric floor. (Id. at 104-105.) She had 

a systemic inflammatory response as show by an elevated heart rate, low blood pressure, 

low white blood cell count and hemoglobin and platelets, and fever. (Id. at 68, 103-104.) 

In addition she had a soft and tender abdomen, no bowel sounds, and bruises in the 

abdominal area. (Id. at 69, 85.) There was no medical explanation for the bruising. (Id.

at 102.) The low hemoglobin was indicative of blood loss. (Id. at 69-70.) Such loss can 

come from a bone fracture, liver or spleen laceration, motor vehicle crash, etc., but in the 

victim’s case appeared to be from the abdominal bruising. (Id. at 100-101, 107-108.) 

There was no place else the blood could have been going. (Id. at 107.) And, because of 

the reduced hemoglobin, the bleeding already had to have occurred, and had stopped 

because of the serial studies of hemoglobin. (Id. at 107, 109.)

He ordered an ultrasound and pediatric surgery consult. (Id. at 85.) She did not 

need surgery at the time because there was hope the antibiotics would resolve the 

infection. (Id. at 88-89, 92-93.) It would take as much as three to five days to determine 

if the antibiotics were not working, and if some improvement were shown, another 7 to 

10 days to know. (Id. at 109.) The victim initially showed some improvement in her 

renal function, blood pressure, etc. (Id. at 109-110.) 

Although they feared an abscess, smaller abscesses resolve on their own, even 

really small ones in the abdomen. (Id. at 98-100.) But, an abscess can also grow to 10 or 

20 times its initial size. (Id. at 105.0 It would take two to three days for infection to 

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form, but the hemoglobin and white blood cells would be reduced. (Id. at 90.) There 

was no infection in the groin at that time. (Id. at 92.) But an abdominal abscess was not 

really the initial concern, just the blood loss and injuries. (Id. at 111.)

The initial surgery consult and ultrasound were related to the abdominal trauma, 

which often results in injury to the duodenum or pancreas, which the ultrasound and 

surgery consult looked for. (Id. at 101-102.) No injuries were found there. (Id. at 102.) 

He next saw the victim on May 7, when her adrenal function had decreased 

indicating her kidneys were not functioning, an expected development from the systemic 

inflammatory response. (Id. at 71-72, 86.) The kidney failure is expected 3 to 5 days 

after the injuries, and takes 7 to 14 days to recover. (Id. at 72.) The planned response 

was to locate and remove the infection. (Id.) Her symptoms were being treated with 

fluids, antibiotics, oxygen, and plans to drain any puss. Her swelling was increased, and 

was the result of blood vessel joints leaking because of the infection. (Id. at 73.) In 

addition, she had developed cellulitis, an infection of the skin and subcutaneous tissue, 

resulting from the existing infection. (Id. at 74.) The infection was likely a staph or 

strep infection, either migrating from the skin, or being carried in the blood from the gut. 

(Id. at 94, 110-111.) Such infections take two to three days or less to develop, dependent 

upon the amount of bacteria, type of bacteria, and the strength of the patient’s immune 

system. (Id. at 95-96.) 

When he saw her on May 9, and she was stabilizing, with improved kidney 

function, able to be tube fed, but she was still seriously ill. (Id. at 75-76, 86.) However, 

she still had symptoms of heartrate, and infection in the groin. (Id. at 87.) On May 10, 

she continued to improve although she continued to have the infection in the right groin 

area. (Id. at 77.) 

On May 11, because she was not improving further from the antibiotics, he was 

concerned about a possible abscess, so he ordered a second ultrasound and surgical 

consult. (Id. at 81-82, 87-88, 93, 96-97.) An ultrasound showed blood in the muscles, 

which resulted in the accumulation of infection internally and cellulitis externally. (Id. at 

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78-79.) The blood resulted from trauma disrupting the muscle tissue and capillaries, 

allowing the blood to accumulate, which allowed the bacteria circulating in the blood to 

multiply, and form pus. (Id. at 79-81.) That resulted in the abscess, formed of dead 

tissue, which takes time for the body to reabsorb. (Id. at 91-92.) 

He next saw her on May 18, after she had a surgical drain of the abscess. 

Afterward, she was much improved with her heart rate lower, breathing more 

comfortable, and tolerating the tube feedings better and transitioning to eating regular 

food. (Id. at 82-83, 111.) He last saw her on May 20, and she continued to improve 

with removal of the oxygen, more food by mouth, and they began to plan transitioning 

her to the pediatric ward to continue feedings, assist with walking, etc. (Id. at 83-84.) 

Had the victim not received the treatment in the hospital and responded to the 

treatment, it would have been fatal. (Id. at 102-103.) Her symptoms were related to the 

abdominal issue. (Id. at 111-112.) 

Blessy Joseph, RN testified (Exhibit TT, R.T. 8/6/12 at 6-25) that she first saw 

the victim on April 28 at 8:00 a.m., upon being transferred from West Valley. She was 

confused, with slurred speech, a fever, bruises and scratches, a tense and tender 

abdomen, no bowel sounds, a high heart rate, and vomiting. (Id. at 10-11, 22.) By 10:00 

a.m. she was more appropriate, following commands, but her bowel was still tense and 

she was complaining of abdominal pain, so she was given pain medication. (Id. 11-12.) 

By noon she was more awake, with bowel sounds still absent. Because of the bruising, 

x-rays of her skeleton and abdomen were done, and a gastroenterologist was consulted. 

(Id. at 13-14, 23-24.) 

She next saw the victim on May 10. She was more cooperative and attentive, but 

still in pain, with a feeding tube in her left hand, tense abdomen with faint bowel sounds. 

In addition she had generalized swelling. (Id. at 14-15.) On May 11, she was still in 

pain with movement, her abdomen was firm and tender. She had good bowel sounds, 

but a blister of pus on her right groin. (Id. at 15.) A pediatric surgery consult was 

ordered, and an ultrasound. When they came for the ultrasound, and repositioned the 

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victim, the right abdomen abscess ruptured, oozing reddish, yellow pus. She gave the 

victim pain medication. (Id. at 16-17.) Later in the evening, the abdominal abscess was 

still draining, she complained of abdominal pain, and her abdomen was still firm and

tender. Surgery for a drain was scheduled for the next day. (Id. at 18.) 

On May 12, after returning from surgery, the victim was awake and appropriate, 

playful and watching movies, her abdomen still tender and firm, and a small drainage on 

the surgical dressing. (Id. at 19-20.) On May 18, she was more awake and alert.

Tricia Varela, Petitioner’s wife, testified (Exhibit VV, R.T. 8/8/12 at 61-155; 

Exhibit WW, R.T. 8/9/12 at 3-28) that on Sunday, the day after the altercation with the 

victim, the family stopped for breakfast on the way to church, but the victim complained 

about her stomach hurting, so she and the victim returned home. The victim was 

feverish, was given a Feverall suppository, and initially responded but the fever returned. 

(Exhibit VV. R.T. 8/8/12 at 124-127, 145.) The victim began moving stiffly, and she 

gave the victim an Epsom salt bath, and noticed the bruising on the victim. (Id. at 128.) 

The following day, she was trying to feed the victim snacks and fluids, but she 

was vomiting a lot of it back up. When the victim started vomiting green substances 

Monday night she and Petitioner decided to take the victim to the hospital, which she 

did. (Id. at 140-141, 144-145; Exhibit WW at 11.) 

Verdicts and Sentence - The trial concluded as follows:

A jury found Varela guilty of the charged offenses. The court 

sentenced Varela to a mitigated sentence of twelve years' flat-time 

imprisonment for the conviction on Count 3, a class two felony, 

dangerous crime against children, and domestic violence offense. 

For the conviction on Count 6, a class four felony and domestic 

violence offense, the court imposed the presumptive term of twoand-a-half years in prison and ordered the sentences to run 

concurrently.

(Exhibit I, Mem. Dec. 7/15/14 at ¶ 4; Exhibit C, M.E. 8/14/12; Exhibit D, Sentence.) 

Consequently, Petitioner is serving an effective 12 years flat time sentence.

/ /

/ /

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C. PROCEEDINGS ON DIRECT APPEAL

Petitioner filed a direct appeal, arguing insufficient evidence to support the 

conviction on Count 3, error in admission of Petitioner’s statements to detectives, and 

prosecutorial misconduct. (Exhibit F, Opening Brief.) The Arizona Court of Appeals 

rejected each claim, and affirmed Petitioner’s conviction and sentences. (Exhibit I, 

Mem. Dec. 7/15/14.)

Petitioner sought review from the Arizona Court of Appeals on the insufficient

evidence claim. (Exhibit K, Pet. Rev.) The Arizona Supreme Court summarily denied 

review. (Exhibit M, Order 2/10/15.) 

On March 12, 2015, the Arizona Court of Appeal issued its Mandate (Exhibit J). 

D. PROCEEDINGS ON POST-CONVICTION RELIEF

Petitioner filed a Notice of Post-Conviction Relief on March 23, 2015 (Exhibit 

N). Counsel was appointed. (Exhibit O, M.E. 5/3/15.) Counsel eventually filed a 

Notice of Completion of Review (Exhibit P), evidencing an inability to find an issue for 

review. Petitioner was granted leave to file a pro per petition for post-conviction relief, 

and counsel was directed to remain in an advisory capacity. (Exhibit O, M.E. 8/6/15.) 

Petitioner did not timely do so, and on December 21, 2015, the matter was summarily 

dismissed. (Exhibit R, M.E. 12/21/15.)

Petitioner asserts in his Petition that he sought review by the Arizona Court of 

Appeals and the Arizona Supreme Court on his “First petition”, but denies seeking 

review on his “Second Petition.” (Doc. 1 at 5.) However, Petitioner does not identify 

his PCR Petition (id. at 3), and references the appellate decisions on direct appeal (id. at 

2-3). Respondents allege: “Petitioner did not appeal the dismissal of the PCR.” 

(Answer, Doc. 13 at 6.) “The allegations of a return to the writ of habeas corpus or of an 

answer to an order to show cause in a habeas corpus proceeding, if not traversed, shall be 

accepted as true except to the extent that the judge finds from the evidence that they are 

not true.” 28 U.S.C. § 2248. Petitioner has not filed a reply or otherwise traversed the 

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allegations in the Answer. Accordingly, the undersigned finds that Petitioner did not 

seek further review on his PCR petition.

E. PRESENT FEDERAL HABEAS PROCEEDINGS

Petition - Petitioner commenced the current case by filing his Petition for Writ of 

Habeas Corpus pursuant to 28 U.S.C. § 2254 on October 1, 2015 (Doc. 1). Petitioner’s 

Petition asserts a single ground for relief: “he was convicted based on a record lacking 

sufficient evidence to support a jury finding in count 3 that delaying medical treatment 

endangered the victim’s health.” (Petition, Doc. 1 at 6a.) 

Response – On February 9, 2016, Respondents filed their Response (“Answer”) 

(Doc. 13). Respondents argue that Ground 1 is without merit, and that the state court’s 

rejection of it must be sustained under the deferential standards of 28 U.S.C. § 2254..

Reply - On March 7, 2016, the Court granted Petitioners’ Motion for Extension of 

Time (Doc. 14), giving Petitioner through April 28, 2016 to reply in support of the 

Petition. Petitioner has not replied, and the time to do so has passed.

Supplement – On July 7, 2016, the Court directed Respondents to supplement the 

record to address various issues, including:

(1) the required elements of the offense for which Petitioner was 

convicted, including whether Petitioner’s conduct must have caused 

the likelihood of death or serious physical injury; (2) whether it was 

sufficient that Petitioner increased a pre-existing likelihood (as 

opposed to a mere pre-existing risk) of death or serious physical 

injury; (3) whether the likelihood of death or serious physical injury 

is to be assessed with and/or without consideration of available 

medical treatment; (4) the evidence which established the requisite 

likelihood (as opposed to possibility) of death or serious physical 

injury; and ([5]) the evidence which established that Petitioner’s 

conduct created or increased such likelihood.

(Order 7/7/1/6, Doc. 16 at 7.) 

On September 9, 2016, Respondents filed their Supplemental Answer (Doc. 20), 

arguing that: (1) the state court had reasonably applied federal law to the claim; (2) that 

due to the conduct of Petitioner and his wife, the victim experienced serious physical 

injuries, and the victim’s worsening condition showed a likelihood of death or serious 

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physical injury from the delay in treatment and that no causation of the likelihood of 

death or serious physical injury need be shown; (3) the victim’s worsening condition 

showed a likelihood of death or serious physical injury from the delay in treatment; and 

(4) that available medical treatment need not be considered.

Petitioner did not reply.

III. APPLICATION OF LAW TO FACTS

A. MERITS OF GROUND ONE – INSUFFICIENT EVIDENCE

1. Parties’ Arguments

In Ground One, Petitioner argues that there was insufficient evidence to support 

the conviction on Count 3 based on his failure to seek medical care. Petitioner argues 

that the prosecution “did not present any evidence that the victim suffered an increased 

risk of serious physical injury or death by not being taken to the hospital between April 

25, 2009 and April 27, 2009.” (Petition, Doc. 1 at 6b.) Petitioner argues:

None of the medical staff called by the state testified the victim’s 

tear and subsequent abscess would have been diagnosed and 

resolved sooner if medical care had been sought prior to be[ing] 

taken to the hospital on April 27, 2009.

(Id.)

Respondents argue the claim is without merit, and the Arizona Court of Appeals 

properly found so, particularly when applying the deference required under 28 U.S.C. § 

2254(d) and (e).

Petitioner does not reply.

2. Applicable Standards on Habeas Review

Standard Applicable on Habeas - While the purpose of a federal habeas 

proceeding is to search for violations of federal law, in the context of a prisoner “in 

custody pursuant to the judgment a State court,” 28 U.S.C. § 2254(d) and (e), not every 

error justifies relief. 

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Errors of Law - “[A] federal habeas court may not issue the writ simply because 

that court concludes in its independent judgment that the state-court decision applied [the 

law] incorrectly.” Woodford v. Visciotti, 537 U. S. 19, 24– 25 (2002) (per curiam). To 

justify habeas relief, a state court’s decision must be “contrary to, or an unreasonable 

application of, clearly established Federal law, as determined by the Supreme Court of 

the United States” before relief may be granted. 28 U.S.C. §2254(d)(1).

Errors of Fact - Federal courts are further authorized to grant habeas relief in 

cases where the state-court decision “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)(2). "Or, to put it conversely, a federal court may not second-guess a state court's 

fact-finding process unless, after review of the state-court record, it determines that the 

state court was not merely wrong, but actually unreasonable." Taylor v. Maddox, 366 

F.3d 992, 999 (9th Cir. 2004). 

Moreover, a state prisoner is not free to attempt to retry his case in the federal 

courts by presenting new evidence. There is a well-established presumption of 

correctness of state court findings of fact. This presumption has been codified at 28 

U.S.C. § 2254(e)(1), which states that "a determination of a factual issue made by a State 

court shall be presumed to be correct" and the petitioner has the burden of proof to rebut 

the presumption by "clear and convincing evidence." 

Applicable Decisions – In evaluating state court decisions, the federal habeas 

court looks through summary opinions to the last reasoned decision. Robinson v. 

Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). 

3. Insufficiency of the Evidence

The Due Process Clause of the Fourteenth Amendment protects a defendant 

against conviction “except upon proof beyond a reasonable doubt of every fact necessary 

to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 

(1970). “The Due Process Clause of the Fourteenth Amendment denies States the power 

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to deprive the accused of liberty unless the prosecution proves beyond a reasonable 

doubt every element of the charged offense.” Carella v. California, 491 U.S. 263, 265 

(1989) (citation omitted). 

Accordingly, in the face of a sufficiency of the evidence claim, the habeas court 

must determine whether any rational trier of fact could have found proof of guilt beyond 

a reasonable doubt. Wright v. West, 505 U.S. 277, 290 (1992); Jackson v. Virginia, 443 

U.S. 307, 324 (1979). Under Jackson, on habeas, “the relevant question is whether, 

after viewing the evidence in the light most favorable to the prosecution, any rational 

trier of fact could have found the essential elements of the crime beyond a reasonable 

doubt.” Jackson, 443 U.S. at 319. In making this evaluation, the court must view the 

evidence in the light most favorable to the prosecution, and must presume the trier of fact 

resolved conflicting evidence in favor of the prosecution. Wright, 505 U.S. at 295-296; 

Jackson, 443 U.S. at 319, 326; Taylor v. Stainer, 31 F.3d 907, 908-09 (9th Cir. 1994). 

“Jackson leaves juries broad discretion in deciding what inferences to draw from 

the evidence presented at trial, requiring only that jurors ‘draw reasonable inferences 

from basic facts to ultimate facts.’” Coleman v. Johnson, 132 S. Ct. 2060, 2064 (2012). 

Thus, even where evidence is “almost entirely circumstantial and relatively weak,” it 

may be sufficient to support a conviction. Jones v. Wood, 207 F.3d 557, 563 (9th 

Cir.2000). Indeed, “[c]ircumstantial evidence and inferences drawn from it may be 

sufficient to sustain a conviction.” Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995)

(citations omitted).

On the other hand, a jury cannot manufacture gold from straw. “[A] ‘reasonable’

inference is one that is supported by a chain of logic, rather than...mere speculation 

dressed up in the guise of evidence.” Juan H. v. Allen, 408 F.3d 1262, 1277 (9th Cir. 

2005), amended, 04-15562, 2005 WL 1653617 (9th Cir. July 8, 2005). “Speculation and 

conjecture cannot take the place of reasonable inferences and evidence—whether direct 

or circumstantial.” Id. at 1279. 

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The [state court] is, of course, the final arbiter on questions of state 

law. It has wide latitude in defining and interpreting the elements of 

[ ] state crimes, and we are precluded on habeas review from 

reexamining its determinations of state law questions. But a state 

court is not free to define an element out of existence, or to ignore 

the element entirely when upholding a criminal conviction. Such a 

ruling is contrary to clearly established federal law, namely Jackson 

v. Virginia. Indeed, the quintessence of a Jackson claim—the very 

meaning of In re Winship—is that every element of a crime must be 

proven beyond a reasonable doubt.

Goldyn v. Hayes, 444 F.3d 1062, 1070 (9th Cir. 2006)

The application of these principles has been modified by the adoption of the 

AEDPA. Under the standard set forth in 28 U.S.C. § 2254(d), to overturn a state court 

conviction for insufficient evidence, the habeas court must not only determine for itself 

that no rational trier of fact could have convicted the petitioner, but also that an opposite 

conclusion by the state court was “contrary to, or an unreasonable application of, clearly 

established Federal law, as determined by the Supreme Court of the United States” or 

“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(e)(1) and (2). See Martinez v. 

Johnson, 255 F.3d 229 (5th Cir. 2001) (habeas court resolves limited question whether 

the state court’s decision to reject a sufficiency of the evidence claim was an objectively 

unreasonable application of the clearly established federal law”). Thus, the post-AEDPA 

habeas court now must not only be deferential to the fact-finder, but also deferential to 

the state court’s analysis of the fact-finder’s work. See Gomez v. Acevedo, 106 F.3d 192, 

198-99 (7th Cir. 1997) (vacated on other grounds, Gomez v. Detella, 522 U.S. 801 

(1997)). 

4. Criminal Violation of Endangerment

“Under Jackson, federal courts must look to state law for “the substantive 

elements of the criminal offense,” but the minimum amount of evidence that the Due 

Process Clause requires to prove the offense is purely a matter of federal law.” Coleman 

v. Johnson, 132 S. Ct. 2060, 2064 (2012).

Here, Petitioner was convicted on Count 3 for a Class 2 intentional or knowing 

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child abuse, in particular, endangerment,1in violation of Ariz. Rev. Stat. § 13-3623(A), 

(C), and (F).2 (Exhibit D, Sentence.) That statute provides in pertinent part:

A. Under circumstances likely to produce death or serious 

physical injury ...having the care or custody of a child... who 

causes or permits a child...to be placed in a situation where the 

person or health of the child ...is endangered is guilty of an offense 

as follows: 

1. If done intentionally or knowingly, the offense is a class 2 

felony and if the victim is under fifteen years of age it is punishable 

pursuant to § 13-705.

* * *

F. For purposes of this section:

5. “Serious physical injury” means physical injury that 

creates a reasonable risk of death or that causes serious or 

permanent disfigurement, serious impairment of health or loss or 

protracted impairment of the function of any bodily organ or limb.

Ariz. Rev. Stat. § 13-3623, eff. 1/1/2009. See 2008 Ariz. Legis. Serv. Ch. 301 (H.B. 

2207). This offense has three primary elements: (1) endangerment; (2) the relevant mens 

rea; and (3) the circumstances of a likelihood of death or serious physical injury

Endangerment - The actus reus of endangerment is placing a child at a risk of 

danger.

Actual Injury Not Required - No actual injury of any kind is required to establish 

endangerment. In State v. Nereim, the Arizona Court of Appeals sustained a conviction 

even though the child was reportedly “unharmed and unrattled” from having ridden with 

a drunk driver. 234 Ariz. 105, 110, ¶ 17, 317 P.3d 646, 651 (App. 2014) (addressing 

Ariz. Rev. Stat. § 13-3623(B) regarding endangerment with no likelihood of death or 

 

1

 “Within the first paragraph, the statute plainly provides three ways—or means—of 

committing child abuse. They include: (1) causing a child to suffer a physical injury; (2) 

having the care or custody of a child, causing or permitting the person or health of the 

child to be injured; and (3) having the care or custody of a child, causing or permitting 

the child to be placed in a situation where the person or health of the child is 

endangered.” State v. West, 238 Ariz. 482, 490, ¶ 21, 362 P.3d 1049, 1057 (App. 2015). 

Thus § 13-3623(A) also prohibits as child abuse: (1) causing physical injury; and (2) 

permitting injury to a child in one’s care or custody. 

2

The reference in the Sentence to Ariz. Rev. Stat. § 13-3623(C) seems to be surplusage. 

The subsection relates solely to allowing a child to enter or remain in a structure or 

vehicle with dangerous chemicals or drug making equipment. Previous versions of 

subsection C were the same as the present subsection B, and referenced endangerment 

without a likelihood of death or serious physical injury. See 2000 Ariz. Legis. Serv. Ch. 

50 (H.B. 2395).

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serious physical injury). Rather, the potential (i.e. “likely to produce”) of such injury is 

all that is required. State v. Payne, 233 Ariz. 484, 506-507, ¶ 75, 314 P.3d 1239, 1261-

1262 (2013) (“‘serious physical injury’ is used only to describe circumstances that must 

exist when the abuse occurs”). 

No Probability of Risk Required - Further, only some risk of the danger is 

required. The danger to which the child is exposed need not be one likely to occur, just a 

possible danger. “If the legislature had intended to prohibit probable harm rather than 

possible harm, it would have clearly said so.... Accordingly, we hold that the term 

‘endanger’ in section 13–3623 means to subject to potential harm.” State v. Mahaney, 

193 Ariz. 566, 568, ¶ 15, 975 P.2d 156, 158 (App. 1999) (addressing what is currently 

Ariz. Rev. Stat. § 13-3623(B)). 

More than Every Day Danger - The nature of the danger required is not extreme. 

At most, the Mahaney court conceded that its “definition of ‘endanger’ requires more 

than the ordinary danger to which children are exposed on a daily basis.”3 Id. at 569, n. 

4, 975 P.2d at 159, n. 4. 

Causation of Danger - However, the danger must result from the defendant’s 

actions; pre-existing danger from someone else’s actions does not suffice. For example, 

in the unpublished case State v. West, 2012 WL 723752 (App. Mar. 5, 2012),4the 

 

3 Arguably, this gives the Arizona statute a dizzying reach dependent upon what the jury 

might consider an ordinary danger. One has to wonder how out of common experience 

the risk must be. Would allowing a child to play tackle football be out of the ordinary? 

Snow skiing? Cattle roping? What about failing to vaccinate, or treat a cavity? Or, 

failing to brush their teeth? Or to brush at least once a day? Or at least twice a day? 

This is particularly surprising in the case of Class 2 offenses, where the likelihood of 

substantial physical injury need not be known or even knowable until after the fact. 

4 Respondents suggest this Court should not look to an unpublished decision to 

determine whether causation of the danger was required. (Supp. Ans., Doc. 20 at 16, n. 

7.) Rule 111 of the Arizona Supreme Court generally precludes reliance upon 

unpublished decisions as precedent. However, courts in the Ninth Circuit have long 

recognized that such state prohibitions do not govern the Federal Courts in their efforts 

to ascertain the law of the state in the absence of published decisions, and such decisions 

supported by reasoned analysis may be deemed persuasive. See e.g. McSherry v. Block, 

880 F.2d 1049, 1053, n.2 (9th Cir. 1989) (diversity case); United States v. Boyce, 38 F. 

Supp. 3d 1135, 1159, n. 85 (C.D. Cal. 2014), appeal dismissed (Nov. 13, 2014) (tax 

case); Prison Legal News v. Lehman, 397 F.3d 692, 701 (9th Cir. 2005) (civil rights 

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prosecution charged a husband and wife as a result of the death of a foster child from 

blows to the head. The child had been in the separate care of each foster parent in the 

timeframe when the injuries occurred, and the prosecution failed to present evidence as 

to which had inflicted the blows. The state also asserted charges of endangerment based 

on a purported delay in seeking medical treatment, arising out of a series of phone calls 

between the foster parents during the fifty minutes prior to the mother calling 911. The 

court found insufficient evidence to support the contention. “When the state alleges that 

a caretaker has endangered a child by failing to obtain prompt medical treatment for the 

child's injuries, the state must prove the delay increased the child's risk of harm.” Id. at 

*7. 

Here, the state's medical experts addressed only the nature of 

Emily's injuries and the cause of her death. Apart from one 

physician's generalized testimony that any delay in seeking 

treatment for these types of head injuries is “terrible” and lowers the 

likelihood of survival, the state presented no evidence regarding the 

treatment Emily would have received had she been examined 

earlier, nor what effect, if any, a delay would have had on her 

prognosis. Thus, in addition to the lack of substantial evidence that 

Randall endangered Emily through delay in seeking medical 

attention, the state presented no evidence any such delay 

endangered Emily by increasing her risk of harm. Accordingly, the 

trial court correctly determined there was insufficient evidence to 

support Randall's conviction under the third means of violating § 

13–3623.

Id.

Mens Rea – Section 13-3623(A) encompasses three different levels of mens rea, 

(intentional/knowing, reckless, and negligent) with different levels of penalty assigned to 

each.5 Petitioner was convicted of the most serious, § 13-3623(A)(1), which requires 

that the defendant intentionally or knowingly endanger the child.

The requisite mens rea is directed to the defendant’s state of mind with regard to 

 

case). Although, Ariz. Rev. Stat. § 12-1861 permits the Arizona Supreme Court to 

respond to certified questions from United States District Courts, Respondents proffer no 

argument why a contrary result from the Arizona Supreme Court should be expected on 

whether endangerment requires causation. 

5 Where there is a likelihood of death or serious physical injury, child abuse is a Class 3 

felony when committed recklessly, and a Class 4 felony when committed with criminal 

negligence. Ariz. Rev. Stat. § 13-3623(A)(2) and (3).

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the danger to the child. See e.g. State v. Fernane, 185 Ariz. 222, 224, 914 P.2d 1314, 

1316 (App. 1995), corrected (Nov. 1, 1995) (“appellant knew K.F. would be in danger if 

left”). Thus, it is not sufficient that Petitioner intentionally undertook the act. Rather, he 

must have known or intended that the act would result in the possibility of harm to the 

child. 

However, the requisite mens rea does not apply to the required circumstances 

(“likely to produce death or serious physical injury”), and thus the defendant need not 

have known that the risk of was one of death or serious physical injury. State v. Payne, 

233 Ariz. 484, 506, ¶ 70, 314 P.3d 1239, 1261 (2013) (citing appellate court decisions 

from 1995 and 1991). Rather knowledge of a risk of any physical harm or harm to the 

health of the child was sufficient.

Likelihood of Death or Serious Injury - Ariz. Rev. Stat. § 13-3623 establishes 

two different offenses, dependent upon whether the circumstances made death or serious 

physical injury a likely result of the action. Such circumstances are required for a 

conviction under § 13-3623(A) under which Petitioner was convicted. 

Death or Serious Physical Injury – The probable risk must be of death or serious 

physical injury. “Serious physical injury” is defined as “physical injury which creates a 

reasonable risk of death, or which causes serious or permanent disfigurement, or serious 

impairment of health or loss or protracted impairment of the function of any bodily organ 

or limb.” A.R.S. § 13–3623(A)(3) (1989). See State v. Johnson, 181 Ariz. 346, 350, 890 

P.2d 641, 645 (App. 1995). 

Probability Required - “The statute...calls for circumstances ‘likely’ to cause 

death or serious physical injury, not merely the possibility that they will.” State v. 

Greene, 168 Ariz. 104, 108, 811 P.2d 356, 360 (App. 1991). “Likely” has been 

interpreted literally and means “probable” as compared to “possible.” State v. Johnson, 

181 Ariz. 346, 350, 890 P.2d 641, 645 (App. 1995). 

Causation Required - Moreover, such circumstances may not simply exist, but 

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must exist as a result of the endangering conduct.6 See Greene, 168 Ariz. at 107, 811 

P.2d at 359 (“In this case, there was no medical testimony nor any other expert testimony 

as to the likelihood that any of the children might suffer serious physical injury or death 

because of the conditions in the home.”); and State v. Lopez, 2015 WL 8160786, at *5 

(App. Dec. 7, 2015) (“circumstances here objectively demonstrated that death or serious 

physical injury was likely to result from the defendant's conduct”).

In the Court’s Order for supplementation, the Court directed Respondents to 

address, inter alia, “(1) the required elements of the offense for which Petitioner was 

convicted, including whether Petitioner’s conduct must have caused the likelihood of 

death or serious physical injury.” (Order 7/7/16 at 7.) Respondents argue in their 

Supplemental Response that no causation is required, “it is simply sufficient to show” 

that the endangerment occurred under such circumstances. (Supp. Ans., Doc. 20 at 15-

16.) 

Respondents cite no authority, other than the language of the statute to support 

their contention. Respondents do take exception with the Court having cited an 

unpublished Arizona decision, State v. West, 2012 WL 723752 (App. Mar. 5, 2012). 

(Supp. Ans., Doc. 20 at 16, n. 7.) However, that case was cited in the Court’s Order for 

the same purpose it is cited herein: to establish the requisite causation in the risk of the 

basic offense of endangerment, not with regard to causation of the heightened risk of 

death or serious physical injury. (See Order 7/7/16, Doc. 16 at 3; and supra at 21 

(Causation of Danger).) Respondents do not address Greene and Lopez relied upon 

herein, even though these were the same cases cited by the Court in seeking argument on 

this point. (See Order 7/7/16, Doc. 16 at 5.) 

Even if this Court were left to write on a blank slate, the requirement of causation 

would have to be found in the Arizona statute. A cardinal principle in construing statues 

 

6

If causation were not required, then arguably every abuse would qualify under 13-

3623(A). This is so because the circumstances are always that (absent supernatural 

intervention) death is so likely (even certain) to result eventually, from some cause.

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is to avoid rendering provisions a nullity. “Each word, phrase, and sentence must be 

given meaning so that no part will be void, inert, redundant, or trivial.” City of Phoenix 

v. Yates, 69 Ariz. 68, 72, 208 P.2d 1147, 1149 (1949). All humans exist under 

circumstances likely (if not certain) to produce death. “[I]n this world nothing can be 

said to be certain, except death and taxes.” Benjamin Franklin, The Writings of Benjamin 

Franklin, Vol. X, 69 (McMillan 1907) (available online at https://archive.org/details/ 

writingsofbenjam10franuoft, last accessed 7/5/16). Thus, without a requirement of some 

causative or similar relationship, there would be no real distinction between § 13-

3623(A) and (B), and all child endangerment would qualify under 13-2623(A). Only 

if a causative factor is read into the statute does the reference to circumstances likely to 

result in death have any meaning. 

In addressing Petitioner’s claim, the Arizona Court of Appeals recognized his 

argument that “no evidence presented indicated the delay in seeking medical care of E. 

‘increased the potential for death or serious physical injury.’” (Exhibit I, Mem. Dec. 

7/15/14 at ¶ 5.) The court did not reject the contention that such causation was a 

required element. Its recitation of the burden of proof simply restated the bare statutory 

language that the endangerment be “‘[u]nder circumstances likely to produce death or 

serious physical injury.’” (Id. at ¶ 8.) As discussed hereinafter, the court ultimately 

concluded that causation existed when it found “Varela delayed seeking medical care for 

E. until her injuries became life-threatening.” (Id. at ¶ 12.) In other words, the court 

found that Petitioner’s endangering delay (at least partially) caused the life-threatening 

circumstance.

Consequently, the undersigned concludes that a causal link between the actions 

constituting endangerment and the risk of death or serious physical injury must be 

shown.

Necessity of Considering Medical Treatment – Respondents argue, without citing 

authority, that jurors were not required to consider available medical treatment in 

concluding whether the endangerment occurred “[u]nder circumstances likely to produce 

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death or serious physical injury.” Ariz. Rev. Stat. § 13-3623(A). (See Supp. Ans., Doc. 

20 at 17-18.) However, nothing in the statute limits the circumstances to be considered 

in determining whether death or serious physical injury is likely. Thus, if medical 

treatment is available to the victim, and that treatment can remove the likelihood of death 

or serious physical injury, there would be no reason to conclude that the circumstances 

are such that death or serious physical injury is likely to occur.7 

Summary - Thus, to establish a Class 2 endangerment offense under Ariz. Rev. 

Stat. § 13-3623(A)(2), the prosecution was required to show: (1) that the defendant 

endangered a child by: (a) undertaking an action that exposed a child to some possible, 

non-ordinary danger, and (b) did so having knowledge (or intent) of such exposure, and 

(2) regardless of any lack of knowledge of the defendant, the actual danger caused by the 

endangerment rose to probable death or serious physical injury. 

5. State Court Decision

Petitioner raised his claim of insufficient evidence on direct appeal. Counsel 

argued that “no evidence was presented that the delay in taking E.V. to the hospital 

increased the potential for death or serious physical injury.” (Exhibit F, Opening Brief at 

19.) Counsel argued:

In the instant case, the state did not present any evidence that 

E.V. suffered an increased risk of serious physical injury or death by 

not being taken to the hospital between April 25, 2009 and April 27, 

2009. None of the five doctors or two nurses called by the state 

testified that E.V.'s abscess would have been diagnosed and 

resolved sooner if she had been taken to the hospital two days 

earlier. To the contrary, much of the medical evidence described the 

 

7 A contrary conclusion arguably would extend the broad statute even further, allowing 

convictions of the heightened offense under § 13-3623(A) even where the injury 

sustained would pose no risk of death or serious physical injury with available medical 

care. The dirt bike racing child whose broken leg was easily mendable without 

permanent injury, but who would remain disfigured without such care, (or the 

malnourished child who would be removed from danger with a few meals of good 

nutrition) could find their parent facing the kind of sentence imposed on Petitioner. 

While the Arizona legislature would presumably be free to adopt such a statute, there 

seems no reason to assume they did so when there is no language in the statute to create 

the inference they did.

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lengthy process of laboratory tests, CAT scans, and ultrasounds that 

were required to diagnose the abscess over a period of days. Dr. D.R 

stated there was no evidence of an abscess in E.V.’s abdomen when 

she was admitted to the hospital. (RT, 07/18112 at 110.) Dr. S.L. 

also testified that at the time of E.V. 's admission, he did not know 

why she was ill. (RT, 07/25/12 at 11.) The abdominal tear in of 

itself did not put E.V. at risk of death. (RT, 07/18/12at118-19.) Dr. 

S.L. testified that it would take days for a hematoma due to the 

abdominal tear to develop an infection and he could not say exactly 

what the time frame would be. (RT, 07/25/12 at 44.) Dr. K.C. was 

more specific, stating that two to three days was the shortest 

possible time frame for infection to develop. (RT, 07/30/12 at 81, 

90.) 

No evidence was presented that E.V. might not have needed 

surgery at all if her treatment began on April 25. Nor was any 

evidence presented that E.V.'s symptoms on April 25 through April 

27 were severe enough that treatment would have begun on those 

days, even if medical treatment had been sought. Therefore, no 

evidence was presented that E.V. suffered a greater risk of death or 

serious physical injury by being brought to a hospital on April 28, 

2009.

(Id. at 20-21.) 

Although Petitioner presented this claim to the Arizona Supreme Court, the last 

reasoned decision on the claim was that of the Arizona Court of Appeals on direct 

appeal. The Arizona Court of Appeals rejected the claim, describing the applicable 

standard as follows:

The sufficiency of evidence is a question of law which we 

review de novo. Our review is limited to whether substantial 

evidence exists to support the verdict. Substantial evidence "is such 

proof that reasonable persons could accept as adequate and 

sufficient to support a conclusion of defendant's guilt beyond a 

reasonable doubt." 

Further, when addressing a sufficiency of the evidence 

argument, "[w]e construe the evidence in the light most favorable to 

sustaining the verdict, and resolve all reasonable inferences against 

the defendant." We will reverse only if there is a complete absence 

of probative facts to support the conviction. We will not weigh the 

evidence as that is the function of the jury. "The finder-of-fact, not 

the appellate court, weighs the evidence and determines the 

credibility of witnesses." No distinction exists between 

circumstantial and direct evidence. 

(Exhibit I, Mem. Dec. 7/15/14 at ¶¶ 6-7 (citations to state authorities omitted).) 

The court described the prosecution’s burden of proof as follows:

To sustain a conviction on Count 3, the State had to prove beyond a 

reasonable doubt that, "[u]nder circumstances likely to produce 

death or serious physical injury," Varela's intentional or knowing 

failure to seek medical care for E. for two days after her power 

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struggle with Tricia endangered E.'s "person or health." See A.R.S. 

§ 13-3623(A).

(Id. at ¶ 8.) 

The court cast Petitioner’s argument as follows:

In challenging the sufficiency of the evidence, Varela contends no 

evidence was presented at trial showing he possessed the necessary 

mens rea to constitute a violation of A.R.S. § 13-3623(A), and he 

asserts no evidence presented indicated the delay in seeking medical 

care of E. "increased the potential for death or serious physical 

injury."

(Id. at ¶ 5.) This casting focused on the mens rea, and on the circumstantial condition, 

i.e. that Petitioner’s conduct resulted in circumstances likely to cause death or serious 

physical injury. It is only the latter argument that Petitioner raises in his habeas Petition.

The court eventually reached several conclusions. The first addressed the 

existence of the required circumstances, but avoided the causal link between Petitioner’s 

conduct and the risk of death or serious physical injury:

There is evidence in the record to support the assertion Varela 

intentionally or knowingly withheld medical care for E. for two 

days under circumstances likely to kill or seriously injure her.

(Id. at ¶ 8.) 

The second conclusion addressed the causal issue, albeit only implicitly:

Based upon Varela's admissions during the Interview, in addition to 

the foregoing trial testimony, the jury could reasonably conclude 

Varela delayed seeking medical care for E. until her injuries became 

life-threatening because he feared her bruising would lead to 

allegations of child abuse.

(Id. at ¶ 12.) 

The third conclusion simply avoided the circumstantial condition, and focused on 

the endangerment and mens rea:

The evidence therefore supports the jury's determination Varela 

intentionally or knowingly withheld medical care for E. thereby 

endangering her health.

(Id. at ¶ 12.) 

Thus, it was only the second conclusion that directly addressed Petitioner’s 

present claim, that there was insufficient evidence of a causal link between Petitioner’s

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conduct and the likelihood of death or serious physical injury. Or, in the court’s words, 

“Varela delayed seeking medical care for E. until her injuries became life-threatening.”

The evidence the court cited to support the second conclusion consisted of

Petitioner’s admissions during the interview, and the following:

¶ 9 Tricia explained to Detective JH that E. had issues going 

to the bathroom, and she and Varela would restrain E. on the toilet 

for up to an hour while "pushing her mid-section into her legs." E. 

would struggle and try to get away. During his Interview, Varela 

admitted that prior to E.’s struggle with Tricia, E.’s belly was 

distended and she had developed bruises from being restrained 

earlier in the week. He agreed that, generally, upon noticing a 

child's stomach is distended and hurting, a reasonable person would 

take the child to the doctor. He agreed E.’s fever, vomiting, and 

withholding stool and urine were all red flags indicating something 

was wrong. And he further admitted taking E. to the doctor was 

going to "raise some flags" based upon the bruising to her arms and 

legs, and he knew when he took E. to the hospital that CPS would 

be called. 

¶ 10 Moreover, the trial evidence revealed that when E. 

arrived at the hospital she was bruised, crying, whimpering, pale, 

and not moving. Because the hospital did not have the appropriate 

facilities, staff personnel determined E.’s critical condition required 

she be transferred to the Maricopa Medical Center's pediatric 

intensive care unit. There, doctors determined E.'s abdomen was 

bruised and distended with decreased bowel sounds, her white cell 

count indicated possible infection, and there were signs she was 

dehydrated. The abdominal bruising was particularly concerning 

because the lack of bones in that area of the body make accidental 

bruising difficult. This bruising, in addition to E.’s other symptoms, 

indicated possible trauma and child abuse. In addition, internal 

bleeding was later found in the muscle layers of E.’s abdomen, 

which resulted in an internal abscess that had to be surgically 

drained to resolve any infection. E.’s treating physician agreed her 

condition was life-threatening, and E. remained in the pediatric 

intensive care unit for approximately one month. 

¶ 11 Doctor Kirsch, a pediatrician who evaluates patients for 

potential child abuse, opined that E.’s abdominal injuries were 

caused by trauma, specifically, "significant pressure," "crush 

injury," and "squeezing." She further testified E. was "extremely 

critical ill" and had E. gone untreated "it is possible that she would 

have died."

(Exhibit I, Mem. Dec. 7/15/14 at ¶¶ 9-11.) 

6. Application to Facts

a. Propriety of State Court’s Fact Finding 

Petitioner points to no error in the state court’s finding of the historical facts, 

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merely the conclusion reached on the basis of those facts. Having reviewed the evidence 

admitted at trial, the undersigned finds the recitation of the facts by the Arizona Court of 

Appeals to be a reasonable determination of the facts, at least insofar as the Court stated 

them. 

b. Propriety of State Court’s Legal Standard 

Petitioner points to no error in the state court’s enunciation of the governing rule. 

Although framed in terms of Arizona state law, the Arizona court plainly relied upon a 

standard requiring evidence sufficient for reasonable jurors to find the defendant guilty 

beyond a reasonable doubt. That is the standard required under Jackson.

Petitioner points to no indistinguishable Supreme Court case reaching a contrary 

result.

Accordingly, Petitioner fails to show that the state court decision was contrary to 

Supreme Court law.

c. Propriety of State Court’s Application of Law to Facts 

Petitioner points to no particular error in the state court’s application of the law to 

the facts, apart from the general contention that the evidence failed to support the 

conclusion that there was sufficient evidence to convict on Count 3.

Having reviewed the courts’ application, the undersigned concludes that the state 

court failed to identify any evidence to support a likelihood of death or serious physical 

injury, or the causal link between Petitioner’s conduct in delaying treatment and the risk 

of death or serious physical injury. 

In evaluating Petitioner’s claim, it is important to recall that Petitioner was 

convicted under Count 3 of intentionally or knowingly endangering the victim by failing 

to seek medical treatment for the child in the two days that elapsed between the injury 

and when the victim was taken to the hospital. Petitioner’s contention is that there was 

insufficient evidence to show the third element of the offence, i.e. that the circumstances 

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were that a likelihood of death or substantial injury would result from his conduct of 

delaying treatment. In particular, Petitioner argues that the prosecution “did not present 

any evidence that the victim suffered an increased risk of serious physical injury or death 

by not being taken to the hospital between April 25, 2009 and April 27, 2009.” (Petition, 

Doc. 1 at 6b.) 

Here, the prosecution was required to show the third element of the offense, i.e. 

that “circumstances likely to produce death or serious physical injury” resulted from 

Petitioner’s conduct, or at least that the likelihood of such results was increased by 

Petitioner’s conduct in delaying treatment. It was not sufficient to simply show that 

some risk of some harm was increased by the delay in treatment. Rather, there must 

have been evidence that the delay created or increased a likelihood of death or serious 

physical injury. Without such evidence, Petitioner could have been reasonably found 

guilty of the Class 4 felony under § 13-3623(B)(1) (for which a likelihood of the 

increased harm is not required), but not of the Class 2 felony for which he was convicted. 

Counsel correctly argued on direct appeal that there was no direct, medical 

evidence that Petitioner’s delay caused the requisite life-threatening circumstances, 

particularly with regard to the abscess, which had not yet formed until after the victim’s 

admission to the hospital. Indeed, the whole issue was avoided by the prosecution. 

Moreover, the medical testimony was not even that in light of the medical 

treatment being supplied, death or serious physical injury was “likely,” i.e. probable. Dr. 

Rosenberg merely opined that the victim “could have died.” (Exhibit MM, R.T. 7/18/12 

at 106-107.) Dr. Kirsch offered only that the “possible outcome” was that the victim 

“could have potentially died...that was a risk” (Exhibit PP, R.T. 7/25/12 at 68-69), death 

was threatened (id. at 88-89), “possible” (id. at 100), “could have died” or “people can 

die” (id. at 121-122), “could have been in a life threatening situation” (id. at 132-133). 

Moreover, the premise of Dr. Kirsch’s opinion was not in light of the medical treatment 

made available, but “if she had not received medical treatment” (id. at 69), “if she had 

not had medical treatment for it” (id. at 88-89), if it had “gone on untreated” (id. at 100), 

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“if she had not received medical treatment” (id. at 121-122), “had she not gotten the 

treatment” (id. at 132-133). Dr. Chundhu was more affirmative, stating that the 

condition “will have been fatal,” but that was only if the “patient hadn’t responded,” and 

thus was based on the presumption that either treatment was never provided, or that he 

victim’s body hadn’t responded to treatment, with whatever potential there might have 

been for that to occur. (Exhibit RR, R.T. 7/30/12 at 102.) The remainder of the providers 

proffered no opinion on the point, including Dr. Bailey (Exhibit NN, R.T. 7/23/12 at 61-

90), RN Giannini (Exhibit NN, R.T. 7/23/12 at 92-111), Dr. Lal (Exhibit PP, R.T. 

7/25/12 at 4-46), and RN Joseph (Exhibit TT, R.T. 8/6/12 at 6-25). 

If that were all the evidence for the jury to consider, this Court would have to 

conclude that the Arizona Court of Appeals’ decision that the offense had been 

sufficiently proven would have been an unreasonable application of federal law. 

However, a jury is not limited to direct evidence, but may make reasonable inferences 

from circumstantial evidence. 

As concluded by the Arizona Court of Appeals, the extent of the victim’s injuries, 

the progress of the victim’s health from the altercation on Saturday until she was taken to 

the hospital, and her physical condition upon admission and progression thereafter, were 

evidence from which a jury could make a reasonable inference that Petitioner’s delay 

increased the risk of death or serious physical injury to or beyond the point of being a 

probability. The evidence showed that by the time of admission, the victim displayed 

wide spread bruising, was showing symptoms of the systemic inflammatory response

(e.g. fever), was in substantial pain, had a distended abdomen (which later came to be 

recognized as caused by the abdominal tear and bleeding), dehydration, decreased blood 

counts indicating loss of blood and bacterial infection, was vomiting bile, and was 

dehydrated. 

And, despite the fact that most providers only deemed death a possibility, the jury 

could come to their own conclusion and reasonably infer that it was instead a probability.

The trier of fact “need not be bound by expert medical testimony at all if other probative 

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evidence points to a different result.” United States v. Glover, 596 F.2d 857, 865 (9th 

Cir. 1979). See Mims v. United States, 375 F.2d 135, 144 (5th Cir. 1967) (detailing 

considerations that can justify a jury in ignoring expert testimony). This is especially so 

because there was no testimony indicating that the possibility was necessarily less than a 

probability.

Moreover, the jury could reasonably infer that had Petitioner sought medical 

treatment sooner, the various treatments which could have been and ultimately were 

provided upon the victim’s admission to the hospital, e.g. hydration, antibiotics, etc., 

could have increased the victim’s ability to fight off the infection and thwart the life 

threatening abscess thereby reducing the probability of death or serious physical injury, 

rather than progressing as she did.8

Moreover, even if this Court harbored some doubt whether the other evidence was 

sufficient to establish the causation under Jackson, the undersigned cannot say that a 

decision of the Arizona Court of Appeals to the contrary would have been unreasonable. 

Accordingly, Petitioner’s sole ground for relief is without merit and must be 

denied. 

IV. CERTIFICATE OF APPEALABILITY

Ruling Required - Rule 11(a), Rules Governing Section 2254 Cases, requires 

that in habeas cases the “district court must issue or deny a certificate of appealability 

when it enters a final order adverse to the applicant.” Such certificates are required in 

cases concerning detention arising “out of process issued by a State court”, or in a 

proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 

U.S.C. § 2253(c)(1). 

 

8 Respondents also point to a variety of other evidence to show such causation, including 

Petitioner’s knowledge of the injuries to the victim, decision to delay treatment, and fear 

of an investigation. (Supp. Ans., Doc. 20 at 16-17.) While perhaps relevant to the mens 

rea necessary to establish the basic endangerment, such facts do nothing to establish 

causation of a likelihood of death or serious physical injury. 

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Here, the Petition is brought pursuant to 28 U.S.C. § 2254, and challenges

detention pursuant to a State court judgment. The recommendations if accepted will 

result in Petitioner’s Petition being resolved adversely to Petitioner. Accordingly, a 

decision on a certificate of appealability is required. 

Applicable Standards - The standard for issuing a certificate of appealability 

(“COA”) is whether the applicant has “made a substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the 

constitutional claims on the merits, the showing required to satisfy § 2253(c) is 

straightforward: The petitioner must demonstrate that reasonable jurists would find the 

district court’s assessment of the constitutional claims debatable or wrong.” Slack v. 

McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas petition 

on procedural grounds without reaching the prisoner’s underlying constitutional claim, a 

COA should issue when the prisoner shows, at least, that jurists of reason would find it 

debatable whether the petition states a valid claim of the denial of a constitutional right 

and that jurists of reason would find it debatable whether the district court was correct in 

its procedural ruling.” Id.

Standard Not Met - Assuming the recommendations herein are followed in the 

district court’s judgment, that decision will be on the merits. Under the reasoning set 

forth herein, jurists of reason would not find the district court’s assessment of the 

constitutional claims debatable or wrong. 

Accordingly, to the extent that the Court adopts this Report & Recommendation 

as to the Petition, a certificate of appealability should be denied.

V. RECOMMENDATION

IT IS THEREFORE RECOMMENDED that the Petitioner's Petition for Writ 

of Habeas Corpus, filed October 1, 2015 (Doc. 1) be DENIED.

IT IS FURTHER RECOMMENDED that, to the extent the foregoing findings 

and recommendations are adopted in the District Court’s order, a Certificate of 

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Appealability be DENIED.

VI. EFFECT OF RECOMMENDATION

This recommendation is not an order that is immediately appealable to the Ninth 

Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules 

of Appellate Procedure, should not be filed until entry of the district court's judgment. 

However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties 

shall have fourteen (14) days from the date of service of a copy of this recommendation 

within which to file specific written objections with the Court. See also Rule 8(b), Rules 

Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days 

within which to file a response to the objections. Failure to timely file objections to any 

findings or recommendations of the Magistrate Judge will be considered a waiver of a 

party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 

328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's 

right to appellate review of the findings of fact in an order or judgment entered pursuant 

to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-

47 (9th Cir. 2007). 

Dated: November 15, 2016

15-1971r RR 16 06 23 on HC.docx

James F. Metcalf

United States Magistrate Judge

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