Flemming v. Matteson

• Decision Date: 04 March 2022
• Docket Number: No. 19-17038,19-17038
• Parties: Dajuan FLEMMING, Petitioner-Appellant, v. Giselle MATTESON, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

26 F.4th 1136

Dajuan FLEMMING, Petitioner-Appellant,

v.Giselle MATTESON, Respondent-Appellee.

No. 19-17038

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 7, 2021 San Francisco, California

Filed March 4, 2022

Jessica S. Heim (argued) and Meghan Natenson, Vinson & Elkins LLP, San Francisco, California, for Petitioner-Appellant.

David M. Baskind (argued), Deputy Attorney General; Peggy S. Ruffra, Supervising Deputy Attorney General; Jeffrey M. Laurence, Senior Assistant Attorney General; Lance E. Winters, Chief Assistant Attorney General; Rob Bonta, Attorney General; Office of the Attorney General, San Francisco, California, for Respondent-Appellee.

Before: Carlos F. Lucero,^** Sandra S. Ikuta, and Lawrence VanDyke, Circuit Judges.

Concurrence by Judge Lucero;

Concurrence by Judge VanDyke

VANDYKE, Circuit Judge:

Dajuan Flemming, a state prisoner, appeals the district court's denial of his petition for writ of habeas corpus. Because we find his petition untimely under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), we affirm the district court's judgment denying Flemming's petition.

I. BACKGROUND

In March of 2009, petitioner Dajuan Flemming visited his cousin in Oakland, California. One evening during his visit, a red Ford Mustang drove by the cousin's house and the car's occupants opened fire, causing multiple injuries to Flemming's friends and family. Flemming refused to provide any identifying information to the investigating police, although it was later revealed that he saw the Mustang as it drove by. Two days later, Flemming and two friends saw the same Mustang outside an elementary school. The driver of the car, Giovanna Warren, together with one of her female friends, was picking up Warren's child at the school. As Warren drove away, Flemming and his two friends pursued the Mustang in their truck. The truck intercepted the Mustang, and Flemming fired a gun multiple times, killing Warren and hospitalizing Warren's friend. Flemming fled the scene and was quickly arrested based on the statement of a witness who had seen him drop a gun.

Flemming was taken into an interrogation room around 8 p.m., where he was held for the night. At approximately 4:30 a.m. the next morning, two police officers interviewed Flemming and he confessed to the shooting. A few hours later, Flemming repeated much of his confession to a deputy district attorney. Flemming was Mirandized before each interrogation.

His case proceeded to a jury trial, and Flemming was found guilty of first-degree murder with special circumstances, as well as attempted premeditated murder. Flemming was sentenced to life without the possibility of parole. Flemming appealed his conviction through the California state court system. The California Supreme Court denied review and the United States Supreme Court denied certiorari in October of 2013.

Flemming then began the process of petitioning for habeas relief, first through the California state courts. On habeas review, the California superior court provided the only reasoned state decision of Flemming's ineffective assistance of counsel claims.¹ The California courts denied Flemming's claims on all counts, with the California appellate courts summarily denying his state habeas claims in one-line orders that offered no rationale for the denial.

Flemming then sought federal habeas relief. The district court concluded that Flemming's petition was timely, but denied his claim on the merits and denied a certificate of appealability. Flemming sought a certificate of appealability from our court, which our court granted on the three claims currently before this panel.

II. ANALYSIS

We review the district court's denial of habeas relief de novo. Demetrulias v. Davis , 14 F.4th 898, 905 (9th Cir. 2021). We also review de novo whether the habeas petition is timely and qualifies for tolling. Rudin v. Myles , 781 F.3d 1043, 1053 (9th Cir. 2015).

Flemming's habeas petition was filed after 1996, so it is governed by AEDPA. Under this "highly deferential standard," Lindh v. Murphy , 521 U.S. 320, 334 n.7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), "we must defer to a state's court decision on any claim that was adjudicated on the merits unless the decision was: (1) ‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States’; or (2) ‘based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’ " Demetrulias , 14 F.4th at 905 (citing 28 U.S.C. § 2254(d) ).

This exacting standard demands the petitioner show that "the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter , 562 U.S. 86, 103, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). Federal habeas relief is not "a means of error correction," but rather is used only to "guard against extreme malfunctions in the state criminal justice systems ...."

Greene v. Fisher , 565 U.S. 34, 38, 132 S.Ct. 38, 181 L.Ed.2d 336 (2011) (citation and quotation marks omitted).

A.

Flemming raises numerous arguments regarding the merits of his habeas petition, but we must first decide whether his petition was timely. When Congress enacted AEDPA, it included a one-year statute of limitations for filing a federal habeas petition challenging a state-court conviction in order to "encourag[e] prompt filings in federal court in order to protect the federal system from being forced to hear stale claims." Carey v. Saffold , 536 U.S. 214, 226, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002) ; see also 28 U.S.C. § 2244(d)(1). Flemming's conviction became final on October 21, 2013, meaning his deadline to file a habeas petition was October 21, 2014, unless this deadline was tolled by a "properly filed" state habeas petition. See Pace v. DiGuglielmo , 544 U.S. 408, 417, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). Flemming initially sought state habeas relief in August of 2014, but his claims were pending in the California state courts until December 2017—well after AEDPA's one-year requirement. This means his subsequently filed federal claims were timely only if his state habeas petitions were themselves timely. The parties dispute whether Flemming's state habeas petitions were timely filed and thus properly tolled the federal deadline.

Answering this question requires diving into the procedural history in this case. Flemming filed a habeas petition in the California superior court and merely asserted that his petition was timely, even though California law clearly places the burden of proof on the petitioner to prove timeliness. See, e.g., In re Robbins , 18 Cal.4th 770, 77 Cal.Rptr.2d 153, 959 P.2d 311, 317 (1998) ; In re Sanders , 21 Cal.4th 697, 87 Cal.Rptr.2d 899, 981 P.2d 1038, 1043 (1999). The government did not challenge the timeliness of Flemming's petition, but the superior court sua sponte held his habeas claims were untimely, while also concluding that the claims lack merit.

Flemming then filed a petition with the California Court of Appeal, this time arguing at length that his state habeas petition was both timely and meritorious. The California Court of Appeal responded by requesting an "opposition to the petition." The request for an opposition brief did not specify any particular issue(s) the court was interested in (e.g., "on the merits" or "on timeliness"), and in its opposition the government presented argument on all the relevant issues—i.e., that Flemming's petition was both untimely and without merit.

The California Court of Appeal ultimately denied Flemming's petition in a one-line order simply stating that "[t]he petition for a writ of habeas corpus is DENIED." Flemming filed a subsequent habeas petition with the California Supreme Court, which also denied it with the same one-line order language ("[t]he petition for writ of habeas corpus is denied,") without requesting any response briefing from the government.

The parties dispute the implication of the California Court of Appeal's silence on timeliness. The government argues that the general presumption, that "[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground," governs here. See Ylst v. Nunnemaker , 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). This would mean the California Court of Appeal's one-line denial of Flemming's petition should be considered a tacit affirmation of the superior court's finding of untimeliness. And "[w]hen a postconviction petition is untimely under state law, that [is] the end of the matter for purposes of § 2244(d)(2)."

Pace , 544 U.S. at 414, 125 S.Ct. 1807 (quotation marks omitted).

But the "look through" presumption, like all presumptions, can be rebutted. The Supreme Court recently explained that the "look through" presumption can be rebutted by "showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court's decision, such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed." Wilson v. Sellers , ––– U.S. ––––, 138 S. Ct. 1188, 1192, 200 L.Ed.2d 530 (2018). Flemming argues that the California Court of Appeal's silence on timeliness triggers this exception to the general rule. Pointing to the California Court of Appeal's silence as the sole basis for rebutting the "look through" presumption may seem like an underwhelming argument, but Flemming relies heavily on Trigueros v. Adams , 658 F.3d 983 (9th Cir. 2011) as supporting his claim, which the district court also relied on when it concluded that Flemming's petition was timely.

Trigueros evaluated a series of habeas petitions filed in...