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Flemming v. Baughman

United States District Court, N.D. California

September 16, 2019

DAVID BAUGHMAN, Warden, Respondent.


          William Alsup, United States District Judge.


         Petitioner Dajuan Flemming is a state prisoner serving a sentence of life in custody for first degree murder. He seeks federal habeas corpus relief pursuant to 28 U.S.C. § 2254. For the reasons stated below, the petition is Denied.


         The following facts are taken from the California Court of Appeal opinion. On March 25, 2009, petitioner Dajuan Flemming was visiting his cousin Raul Toscano Jr.'s home in Oakland. That evening, unidentified persons drove by the home in a red Mustang and shot at petitioner and his friends, injuring petitioner's uncle, cousin, and one other person. When interviewed by police shortly after the shooting, petitioner refused to provide information about the shooter. Two days after the shooting, however, following the crimes in question, petitioner told police the shooter had been a passenger in a red two-door Ford Mustang with an undersized spare tire on the right rear side (Dkt. No. 13, Ex. 8 at 2-4).

         On March 27, 2009, petitioner and his friends Rico Cantres and Tyree or Raul Toscano Jr. drove around Oakland searching for the red Mustang. At the time, the car was being leased by Giovanna Warren. Around 3:00 p.m., Cantres spotted the Mustang outside Hoover Elementary School, where Warren and friend, Decontee Bility, had driven the car to pick up Warren's son. Petitioner told police that although he had a gun in his hand at the time, he did not want to fire at the school because there were children nearby. After picking up Warren's son, the two women drove westward down Brockhurst Street. At some point, Warren told Bility to retrieve her son's cell phone from him. While Bility was turned around, Cantres's truck intercepted the car. Petitioner fired about five to seven shots out the truck's open window from ten to twelve feet away. One of these shots passed through Bility's abdomen. Another struck the left side of Warren's head. Warren died that evening and Bility spent weeks at the hospital undergoing surgery. Following the shooting, petitioner jumped out of the car on a different street and dropped his cocked gun. Police arrested petitioner based on a description by a woman who had seen petitioner drop his gun (id. at 4).

         At 8:03 p.m. that day, a police officer took petitioner to a homicide interrogation room. At about 4:30 a.m. the next morning, Sergeants Todd Crutchfield and George Phillips interviewed petitioner and he confessed to the shooting during this interview. He stated he fired at the Mustang in hopes of forcing the Mustang to move and out of fear that someone in the Mustang would fire at them first. At 9:44 a.m. Deputy District Attorney Joni Leventis and Inspector Nina Garcia entered the room and began interviewing petitioner. Petitioner repeated much of what he said to the detectives, including his belief that he acted in self-defense. Petitioner called his mother and Shakiyla Black, the mother of his daughter, a few hours later. He told them, “They got me on camera. It is-it is-I mean, it is what it is mama” (id. at 5-6).

         In February 2010, an information was filed against petitioner in Alameda County Superior Court for the following: (1) first-degree murder with the special circumstance of discharging a firearm from a motor vehicle and (2) attempted premeditated murder. The information alleged further enhancements for personally and intentionally discharging a firearm and inflicting great bodily injury and personally using a firearm with respect to both counts. Trial commenced in October 2010. The jury found petitioner guilty on both counts. Petitioner was sentenced under count one to life without parole and a consecutive 25-year-to-life enhancement for the firearm clause under California Penal Code § 12022.53(d). Petitioner was further sentenced under count two for life with the possibility of parole and a consecutive 25-year-to-life enhancement for the firearm clause under § 12022.53(d) (id. at 7). The state appellate court affirmed the judgment in full. The California Supreme Court denied a petition for review without comment. The United States Supreme Court denied certiorari in October 2013 (Dkt. No. 13, Exs. 8, 10, 12, 13).

         In August 2014, petitioner filed his first state habeas petition with the California Court of Appeal. After denying the petition, the California Court of Appeal directed petitioner to first file with the state superior court, which the petitioner did in late August 2014. This petition was denied as untimely, and alternatively, on the merits. Petitioner subsequently filed the petition with the California Court of Appeal. It was denied without comment, and then with the Supreme Court of California which also denied it without comment (Dkt. No. 13, Exs. 15, 17, 19, 21).

         Petitioner then filed this federal habeas petition alleging the following claims: (1) ineffective assistance of counsel by failing to investigate an present evidence of petitioner's impaired mental functioning, (2) ineffective assistance of counsel by failing to investigate and present evidence that the homicide victim was part of a violent drug dealing crew that had attempted to kill petitioner, (3) the state court erred in admitting petitioner's initial statement to officers in violation of his Fifth Amendment and Fourteenth Amendment rights, (4) ineffective assistance of counsel by failing to competently supervise the law student who conducted a suppression hearing and failing to present evidence and raise meritorious arguments at the hearing, (5) petitioner did not knowingly and intelligently waive his Miranda rights when confessing because he believed the District Attorney was his own lawyer, (6) discriminatory excusal of a potential juror by the trial court, (7) ineffective assistance of counsel by failing to object to the excusal of the potential juror, (8) a Sixth Amendment violation of being denied conflict-free counsel, (9) prosecutorial misconduct, and (10) cumulative error (Dkt. No. 1).


         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254, applies to this action. Pursuant to AEDPA, federal courts may grant a writ of habeas corpus only if the state-court ruling “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “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).

         1. Timeliness.

         AEDPA imposes a statute of limitations on petitions for writ of habeas corpus filed by state prisoners. Ordinarily, petitions filed by prisoners challenging non-capital state convictions or sentences must be filed within one year of the date on which the judgment became final after the conclusion of direct review or the time passed for seeking direct review. 28 U.S.C. § 2244(d)(1). Petitioner's conviction became final on the day the Supreme Court denied his petition for writ of certiorari on October 21, 2013. The instant action was not filed until December 28, 2017. Thus absent any tolling, the action would be untimely.

         The statute of limitations is statutorily tolled while a “properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). Our court of appeals held in Trigueros v. Adams that when an appellate court issues an unreasoned denial request after asking for informal briefing on the merits despite a lower court's denial of a petition on the merits and untimeliness, the appellate court has impliedly overruled the lower court's timeliness decision. 658 F.3d 983, 991 (9th Cir. 2011). So too here. The California Superior Court denied the petition as untimely and on the merits. Petitioner then appealed. The California Court of Appeal asked for briefing, but ultimately denied the petition without any comment. Petitioner appealed again and the California Supreme Court denied the petition without an explanation.

         Respondent concedes that Trigueros is controlling but argues it was wrongly decided, and rather asks this Court to look to Ylst v. Nunnemaker where the Supreme Court held that where there has been one reasoned judgment rejecting a federal claim for habeas relief, later unexplained orders upholding the same judgment should be presumed to rest on the same grounds as the reasoned judgment. 501 U.S. 797, 803 (1991). Respondent contends that because the superior court here sua sponte determined the petition was untimely, it is more likely the California Court of Appeal called for informal briefing because it wanted to make an informed decision with input from both parties, not because it had already rejected the lower court's ruling on timeliness.

         Respondent's argument is taken, but Trigueros is nonetheless controlling. The appellate court in Ylst did not ask for further briefing as the Trigueros court or the California Court of Appeals did here. Furthermore, Wilson v. Sellers states that the “look-through” presumption in Ylst can be rebutted on the basis of convincing alternative arguments for affirmance made to the State's highest court or equivalent evidence presented in its briefing. 138 S.Ct. 1188, 1192 (2018). It would be unreasonable to assume that the California Court of Appeal asked for further briefing only to affirm the lower court's sua sponte decision on untimeliness without an explanation, especially because the briefing presented was petitioner's first instance of addressing timeliness. The petition for writ of habeas corpus here will thus be reviewed on the merits.

         2. Voluntariness of Confession.

         Involuntary confessions in state criminal cases are inadmissible under the Fourteenth Amendment. Blackburn v. Alabama, 361 U.S. 199, 207 (1960). The voluntariness of a confession is evaluated by reviewing both the police conduct in extracting the statements and the effect of that conduct on the suspect. Miller v. Fenton, 474 U.S. 104, 116 (1985). Furthermore, the Fifth Amendment requires that a person subjected to custodial interrogation be advised that “he has the right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney.” Miranda v. Arizona, 384 U.S. 436, 444 (1966). Once properly advised of his rights, an accused may waive them voluntarily, knowingly and intelligently. Id. at 475

         In determining the voluntariness of a confession, “the test is whether, considering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect's will was overborne.” United States v. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988) (citing Haynes v. Washington, 373 U.S. 503, 513-14 (1963)). The erroneous admission of a coerced confession is subject to harmless error analysis. Fulminante v. Arizona, 499 U.S. 279, 306-12 (1991). In other words, habeas relief is appropriate only if the coerced confession had a “substantial and injurious effect or influence in determining the jury's verdict.” Pope v. Zenon, 69 F.3d 1018, 1025 (9th Cir. 1995).

         Petitioner here contends that his initial statement to the officers in the Oakland Police Department confessing that he fired six or seven shots at the Mustang was made involuntarily under coercive circumstances, and that the California Court of Appeal was unreasonable finding otherwise. First, petitioner cites to his interview circumstances, specifically that he was held in custody overnight for approximately twelve hours prior to his confession with minimal sleep and no food and water. Second, petitioner cites to instances during his interrogation in which the police allegedly made statements such as that he would be seen as a “monster” by the prosecutor if he didn't confess, that refusal to admit his guilt during the interview was “not gonna work very well for you, ” and that he was “taking a situation that's not as bad as it could be and making it as bad as it could be” (Dkt. No. 1, Appendix, Ex. 142, at 4334, 4337, 4343, 4341). Third, petitioner points to his personal characteristics - that he was an uneducated, trauma-exposed, 18-year-old.

         This order finds the California Court of Appeal reasonably found petitioner's statement voluntary. First, petitioner was offered food, drink, and the bathroom upon his arrest, which he turned down. He was told that if he changed his mind, he could knock on the door and let the officers know otherwise. He did not. He was in custody for those twelve hours without food and drink by choice. Furthermore, when a detective first entered the room to interview petitioner, he was asleep. That petitioner had difficulty or was uncomfortable sleeping prior to the interview does not make his statement involuntary.

         Second, officers did not make any coercive statements that rendered petitioner's confession involuntary. Generally, coercive statements involve threats or false promises of leniency. Williams v. Woodford,384 F.3d 567, 595 (9th Cir. 2004). Although some of the officers' statements may have been deceptive in terms of mitigating the potential consequences of committing the crime, there is no indication in the passages cited by petitioner or anywhere in the record that shows the officers actually threatened petitioner or implicitly promised leniency. Rather, the statements indicate police told petitioner that denying guilt could worsen the situation, which is a common interview technique, and does not demonstrate a subject's incriminating answers ...

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