Flemming v. Kernan

Background

Dajuan Flemming was convicted in California state court of first-degree murder and attempted premeditated murder after a 2009 shooting in Oakland. The jury found him guilty, and the state court imposed life sentences and firearm enhancements. The California Court of Appeal affirmed the judgment, the California Supreme Court denied review, and the United States Supreme Court denied certiorari.

Flemming later filed state post-conviction petitions and then sought federal relief under 28 U.S.C. § 2254. His federal petition raised ten groups of claims: ineffective assistance of counsel concerning his mental history, the victim’s alleged criminal background, and a suppression hearing; admission of statements allegedly violating the Fifth and Fourteenth Amendments; an allegedly invalid Miranda waiver; discriminatory excusal of a potential juror; counsel’s failure to object to that excusal; denial of conflict-free counsel; prosecutorial misconduct; and cumulative error.

Timeliness

The federal court found that the petition would ordinarily have been untimely because Flemming’s conviction became final on October 21, 2013, while this federal action was filed on December 28, 2017. The court held, however, that the filing deadline was paused during the relevant state proceedings. It followed controlling Ninth Circuit precedent because the California Court of Appeal had requested briefing before denying Flemming’s state petition without explanation. The court therefore reviewed the federal claims on their merits.

Confession and Miranda waiver

The court denied Flemming’s challenge to the voluntariness of his confession. It concluded that the California Court of Appeal reasonably found that Flemming’s statement was voluntary under the circumstances. The court noted that Flemming had been offered food, drink, and use of a bathroom but declined them; that he was asleep when a detective first entered the interview room; and that the officers’ statements did not amount to threats or promises of leniency.

The court also denied Flemming’s claim concerning his later interview with a deputy district attorney. Flemming argued that he believed the deputy district attorney was his own lawyer and therefore did not knowingly and voluntarily waive his Miranda rights. The court found that he had not clearly asked for a lawyer and that the total circumstances did not necessarily show an invalid waiver. It further held that, even if the waiver had been invalid, the claim failed because the statements did not cause prejudice in light of the other evidence, including his earlier statements, videotapes, and inconsistent accounts.

Ineffective assistance of counsel

The court applied the two-part test for ineffective assistance of counsel: the defendant must show that counsel’s performance fell below reasonable professional standards and that the deficiency probably affected the result. Applying the especially deferential federal review required for a state-court judgment, the court denied each ineffective-assistance claim.

The court held that counsel was not deficient in investigating Flemming’s mental history because counsel discussed his social history and hired a psychological expert. It also held that Flemming had not shown prejudice because the evidence that he pursued the victims and shot at them was substantial.

The court denied the claim concerning the victim’s and her family’s alleged involvement in a violent drug-dealing enterprise. Even assuming counsel should have investigated further, the court held that the evidence would not probably have changed the result because Flemming pursued the victims and did not know who was driving the Mustang when he fired.

The court also denied the claims concerning the suppression hearing. Although Flemming argued that counsel and a supervised law student failed to present evidence about his delayed access to a telephone, the court stated that the delay violated a California statutory telephone right but not due process. It further held that the alleged failures did not prejudice Flemming because the evidence supporting the confession’s voluntariness was substantial. The court reached the same conclusion concerning alleged failures to impeach a police sergeant and to present evidence about Flemming’s trauma and mental history.

Conflict-free counsel

The Alameda County Public Defender’s Office had previously represented victim Giovanna Warren and a witness, Sylvia Warren. Flemming argued that this created a conflict that affected his lawyer’s investigation, cross-examination, and presentation of evidence. The court did not decide whether an actual conflict existed because this was not a case involving counsel’s representation of multiple codefendants. It held that Flemming had not shown prejudice and denied the claim.

Prosecutorial misconduct

The court denied Flemming’s prosecutorial-misconduct claims. It held that alleged nondisclosure of the Warren family’s criminal history was not material because that information would not probably have changed the result. The court also held that speculation about testimony concerning the Mustang, the victim’s finances or weapons, and the victim’s purse did not establish that prosecutors knowingly failed to correct false testimony or that Flemming was prejudiced.

Jury selection and cumulative error

A trial judge excused a potential juror after commenting on her identification as a neopagan and her odor. The court held that the California Court of Appeal reasonably concluded that Flemming forfeited the federal claim by failing to object and that the state contemporaneous-objection rule independently supported the decision. The federal court also found no evidence that the juror was excused because of a protected characteristic rather than odor. It denied both the jury-excusal claim and the related ineffective-assistance claim because Flemming had not shown that an objection would probably have changed the verdict.

The court denied the cumulative-error claim because Flemming had not shown any substantial error whose combined effects could have prejudiced him. It also denied the request for an evidentiary hearing, finding that the existing record was sufficiently developed.

Disposition

Judge William Alsup denied the petition for federal habeas relief under 28 U.S.C. § 2254. The order states that the individual claims, the cumulative-error claim, and the request for an evidentiary hearing were denied, and that judgment would be entered separately.