Dajuan Flemming v. Giselle Matteson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DAJUAN FLEMMING, No. 19-17038
Petitioner-Appellant,
D.C. No.
v. 3:17-cv-07358-WHA

GISELLE MATTESON, OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding

Argued and Submitted December 7, 2021
San Francisco, California

Filed March 4, 2022

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

Opinion by Judge VanDyke;
Concurrence by Judge Lucero;
Concurrence by Judge VanDyke

*
The Honorable Carlos F. Lucero, United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
2 FLEMMING V. MATTESON

SUMMARY **

Habeas Corpus

The panel affirmed the district court’s judgment denying
California state prisoner Dajuan Flemming’s habeas corpus
petition, in a case in which the district court concluded that
Flemming’s petition was timely but denied his claim on the
merits.

The panel found the petition untimely under the one-year
statute of limitations set forth in the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA).

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, which means that his subsequently filed federal
claims were timely only if his state habeas petitions were
themselves timely. The parties disputed whether
Flemming’s state habeas petitions were timely filed and thus
properly tolled the federal deadline.

A California superior court sua sponte held that the
habeas claims Flemming filed in that court were untimely,
while also concluding that the claims lack merit. After the
California Court of Appeal requested and obtained from the
government an “opposition to the petition,” that court denied
the petition in a one-line order stating that “[t]he petition for
a writ of habeas corpus is DENIED.” Flemming filed a
subsequent habeas petition with the California Supreme
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 FLEMMING V. MATTESON 3

Court, which, without requesting any response briefing from
the government, denied that petition with the same one-line
order language.

The parties disputed the implication of the California
Court of Appeal’s silence on timeliness. Relying on
Trigueros v. Adams, 658 F.3d 982 (9th Cir. 2011), which the
district court also relied on, Flemming argued that the
California Court of Appeal’s silence on timeliness triggers
an exception to the general “look through” rule under which
the California Court of Appeal’s one-line denial of
Flemming’s petition would presumptively be considered a
tacit affirmation of the superior court’s finding of
untimeliness. Reviewing the procedural history in that case,
Trigueros determined that the California Supreme Court’s
decision not to address timeliness meant that it rejected the
superior court’s holding of untimeliness. Declining to
extend Trigueros to new contexts, the panel explained that
there are at least two materially important distinctions
between this case and Trigueros, which justify following the
Supreme Court’s general “look through” presumption:
(1) Trigueros, which anchored much of its analysis on the
particular order practice of the California Supreme Court,
does not purport to address how other courts within the
California judiciary conduct their habeas orders practice;
and (2) the California Supreme Court in Trigueros ordered
“an informal response on the merits,” while the California
Court of Appeal here merely requested a general “opposition
to the petition,” and the government’s brief addressed both
timeliness and the merits. The panel followed Curiel v.
Miller, 830 F.3d 864 (9th Cir. 2016) (en banc), and Wilson
v. Sellers, 138 S. Ct. 1188 (2018), in deciding not to
affirmatively extend Trigueros to this case. The panel noted
that a recent California Supreme Court case explaining the
state habeas review system, Robinson v. Lewis, 469 P.3d 414
4 FLEMMING V. MATTESON

(2020), is consistent with this conclusion. The panel
concluded that the government’s failure to present these
arguments below does not prevent the panel from addressing
these matters in this appeal.

Tenth Circuit Judge Lucero concurred. He agreed with
the majority that this case is distinguishable from Trigueros,
and therefore concurred that Flemming’s petition was
untimely under AEDPA. He declined to join the sections of
the majority opinion discussing the three post-Trigueros
cases—Curiel, Wilson, and Robinson—which are
superfluous to the panel’s narrow holding distinguishing
Trigueros. Judge Lucero disagreed, moreover, with the
majority’s analysis regarding what these cases say about the
scope of the Trigueros rule as applied to this dispute.

In a separate concurrence joined by Judge Ikuta, Judge
VanDyke wrote to explain why Curiel, Wilson, and
Robinson do support the panel’s holding. Judge VanDyke
wrote that the point in citing these additional authorities is
not that any one of them alone mandates the conclusion; each
has some differences from the Trigueros decision
distinguished by the majority opinion, but each is
nonetheless helpful in confirming various aspects of the
majority’s analysis.

COUNSEL

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;
 FLEMMING V. MATTESON 5

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.

OPINION

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.
6 FLEMMING V. MATTESON

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

1
Earlier, the California Court of Appeal on direct review provided
the only reasoned state decision on the admissibility of Flemming’s
confessions.
 FLEMMING V. MATTESON 7

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 (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 (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 (2011) (citation and quotation marks
omitted).
8 FLEMMING V. MATTESON

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
(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
(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, 959 P.2d 311, 317
(1998); In re Sanders, 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 V. MATTESON 9

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
(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 (quotation
marks omitted).
10 FLEMMING V. MATTESON

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, 138 S. Ct. 1188, 1192 (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
the California state courts and held that the California
Supreme Court’s ruling, which only stated “[t]he petition for
writ of habeas corpus is denied,” operated as an implicit
rejection of the superior court’s prior holding of
untimeliness. Trigueros, 658 F.3d at 986. There, the
superior court had found the habeas petition untimely, and
Trigueros then petitioned the California Court of Appeal. Id.
That petition was denied by the California Court of Appeal
in a single sentence ruling without any reasoning or request
for further briefing, and Trigueros then petitioned the
California Supreme Court. Id. The California Supreme
Court ordered “an informal response on the merits” from the
government. Id. After briefing, the California Supreme
Court denied Trigueros’s petition in the single sentence
ruling quoted above, which did not address timeliness or the
merits of the petition. Id. When reviewing this procedural
 FLEMMING V. MATTESON 11

history, Trigueros determined that the California Supreme
Court’s decision not to address timeliness meant that it
rejected the superior court’s holding of untimeliness. Id.
at 990.

Trigueros reached this conclusion despite
acknowledging that the United States Supreme Court had
“instructed us that we are not to presume that a California
state court’s denial on the merits means that a petition was
timely.” Id. at 989. And where the “California Supreme
Court order . . . does not contain the words ‘on the merits,’”
Trigueros conceded that “it is even less likely the California
Supreme Court had considered the petition timely . . . .” Id.
at 990 (emphasis added) (citations omitted). But those
instructions notwithstanding, Trigueros relied on two
interdependent considerations present in that case to
conclude the California Supreme Court found the petition
timely. First, Trigueros cited to a footnote from a 1998
California Supreme Court opinion where the California
Supreme Court explained certain aspects of its orders
practice for addressing habeas petitions:

[W]hen respondent asserts that a particular
claim or subclaim should be barred . . .
[because it] is untimely, and when,
nevertheless, our order disposing of a habeas
corpus petition does not impose the proposed
bar or bars as to that claim or subclaim, this
signifies that we have considered
respondent’s assertion and have determined
that the claim or subclaim is not barred on the
cited ground or grounds.

Id. (quoting In re Robbins, 959 P.2d at 340 n.34).
12 FLEMMING V. MATTESON

Trigueros seemed to acknowledge that this footnote
alone was not enough to rebut the general “look through”
presumption established by the United States Supreme Court
when it stated “we do not presume that the California
Supreme Court’s order summarily denying Trigueros’s
petition automatically means that the Court considered and
found Trigueros’s petition timely.” Id. Despite this,
Trigueros went on to say that “[t]here are, however,
compelling factual circumstances in this case signaling that
the California Supreme Court did consider and reject the
State’s timeliness argument.” Id. The primary “compelling
factual circumstance[]” identified in Trigueros was that “the
California Supreme Court requested informal briefing on the
merits.” Id. Trigueros found the California Supreme
Court’s request for merits briefing both “highly significant”
and “very important.” Id. at 990, 991. After reviewing the
requested briefing, the California Supreme Court ultimately
denied the petition without addressing timeliness. Id. at 986.
Based on these conditions—the combination of an earlier
footnote from the Robbins case together with the California
Supreme Court asking for “merits briefing”—Trigueros
concluded “the California Supreme Court did not find a
timeliness procedural bar” and therefore this court reached
the merits of Trigueros’s federal habeas petition. Id. at 991.

B.

Trigueros is binding law and Ninth Circuit panels are
generally bound by precedent established by previous
panels. But that rule does not obligate us to affirmatively
extend Trigueros’s analysis to new contexts, including here.
There are at least two materially important distinctions
between this case and Trigueros, which justify following the
Supreme Court’s general “look through” presumption.
 FLEMMING V. MATTESON 13

First, Trigueros centers around a ruling from the
California Supreme Court, while the case at hand centers
around a ruling from the California Court of Appeal. This
distinction may not be critical in some circumstances, but it
was undeniably important in Trigueros. Trigueros anchored
much of its analysis on the particular order practice of the
California Supreme Court as described in Robbins. The
California Supreme Court Robbins opinion cited in
Trigueros explained that the California Supreme Court’s
orders practice for habeas petitions was specific to “our
order practice.” In re Robbins, 959 P.2d at 340 n.34
(emphasis added). That part of the opinion explains how the
California Supreme Court itself conducts its own order
practice for habeas petitions, but does not purport to address
how the other courts within the California judiciary—
including the intermediate California Court of Appeal—
conduct their habeas orders practice.

Second, the California Supreme Court in Trigueros
ordered “an informal response on the merits,” Trigueros,
658 F.3d at 986 (emphasis added), while the California
Court of Appeal here merely requested a general “opposition
to the petition.” This distinction is important. As mentioned
above, Trigueros gave great weight to the fact that the
California Supreme Court requested briefing on the merits.
See id. at 990–91.

Under Trigueros’s logic, by specifying that the response
be on the merits, the California Supreme Court implicitly
indicated that it was not planning to rely on the timeliness
bar to resolve the case. But here, the California Court of
Appeal did not limit its request for the government’s brief to
the merits, and the government predictably addressed both
the timeliness and merits of Flemming’s petition. To the
extent we can divine any intent from the California Court of
14 FLEMMING V. MATTESON

Appeal when it requested general opposition to the petition
instead of a response only on the merits, it seems that it likely
did this because it was, in fact, interested in the timeliness
arguments. Flemming himself points out that, up to this
point, no court had received briefing from the government
on timeliness. These facts show that the logic in Trigueros
about a court implicitly deeming a petition timely when it
requests focused briefing “on the merits” does not apply
here, since there are multiple reasons in this case to think the
California Court of Appeal was particularly interested in
timeliness. There is no reason to think the California Court
of Appeal was only interested in the merits.

C.

We are not the first panel to reach this conclusion. The
Ninth Circuit, sitting en banc, has already declined to extend
Trigueros’s holding about the California Supreme Court to
the California Court of Appeal. In Curiel v. Miller, 830 F.3d
864 (9th Cir. 2016) (en banc), we did not extend the
Trigueros presumption to a California Court of Appeal
habeas petition denial that offered no comment or
explanation. In Curiel, like here, a habeas petition was
denied by the superior court because it was both untimely
and lacked merit. Curiel, 830 F.3d at 867. The California
Court of Appeal denied the subsequent petition without
comment, and the California Supreme Court then denied the
petition in a summary disposition, but (unlike here or
Trigueros) also included citations to two cases. Id. The
question presented in Curiel was whether the California
Supreme Court’s citation to the two cases meant that that
court had issued the “last reasoned decision,” meaning the
superior court’s earlier decision was rendered irrelevant for
purposes of federal habeas review.
 FLEMMING V. MATTESON 15

We concluded that the California Supreme Court’s
citation to the cases did in fact mean the California Supreme
Court had issued the last reasoned decision on the timeliness
of Curiel’s state habeas petitions, and that its citation to those
“merits” precedents, without citing to any “timeliness”
precedents, indicated that it did not deny the state habeas
petition on timeliness grounds. While that part of Curiel is
not particularly pertinent to this case, what is relevant for our
purposes is how we characterized the California Court of
Appeal’s ruling. The California Court of Appeal in Curiel,
like here, denied the petition in a one-line summary order
that did not address timeliness (or anything else). And, also
like here, the superior court had found the petition untimely.
Against this procedural backdrop—the same procedural
backdrop in this case—we stated that “the California
Supreme Court overruled the prior untimeliness rulings of
the Superior Court and Court of Appeal.” Id. at 871 (9th Cir.
2016) (emphasis added). This court in Curiel thus
determined the meaning of the California Court of Appeal’s
silence on timeliness by applying the general “look through”
presumption, concluding that the California Court of
Appeal’s summary denial was a tacit affirmation of the
superior court’s finding of untimeliness.

That is the same situation presented in this case. Curiel,
an en banc case decided after Trigueros, declined to extend
the holding of Trigueros to the California Court of Appeal.
To be sure, the Curiel decision does not explicitly say why
we deemed the “silent” Court of Appeal’s decision as having
adopted the superior court’s untimeliness conclusion. But
there is no question that we did so—repeatedly. See
830 F.3d at 869 (“the contrary rulings by the Superior Court
and Court of Appeal”); id. at 870 (referencing “the lower
courts’ untimeliness determinations”). For all these reasons,
16 FLEMMING V. MATTESON

we follow our holding in Curiel in deciding not to
affirmatively extend Trigueros to this case.

D.

After our ruling in Trigueros, the Supreme Court has
continued to apply the general “look through” presumption,
including in a case with important similarities to this case.
The Supreme Court issued Wilson v. Sellers seven years after
Trigueros, but contra-Trigueros, applied the “look through”
presumption. 2

Wilson evaluated a Georgia state prisoner’s habeas
petition. After he was convicted and exhausted his direct
appeals, Wilson sought habeas relief in state court. Wilson,
138 S. Ct. at 1192. The Georgia Superior Court rejected his
ineffective assistance of counsel claim on the merits, and the
Georgia Supreme Court denied his application to appeal the
ruling “without any explanatory opinion.” Id. at 1193. As
the habeas petition progressed through the federal courts, a
debate arose over how the federal district court should
determine what grounds the state court relied upon in
denying the petition. Importantly, while the Wilson case was
proceeding through the federal courts, the Georgia Supreme
Court clarified that “its summary decisions should not be
read to adopt the lower court’s reasoning.” Id. at 1196
(referencing Redmon v. Johnson, 809 S.E.2d 468, 472
(2018)). This issue ultimately made its way to the United

2
We need not decide whether Wilson effectively overruled
Trigueros under the framework established in Miller v. Gammie,
335 F.3d 889, 900 (9th Cir. 2003) (en banc), since it is sufficient for
present purposes to conclude that Trigueros should not be extended to
the different circumstances presented in this case.
 FLEMMING V. MATTESON 17

States Supreme Court, and the Supreme Court reaffirmed the
general “look through” presumption from Ylst. Id. at 1192.

Relevant to this case are the arguments the Supreme
Court rejected to reaffirm the “look through” presumption.
The Court’s majority specifically rejected the argument “that
the Georgia Supreme Court’s recent [Redmon] decision . . .
rebuts the [“look through”] presumption in Georgia because
that court indicated its summary decisions should not be
read to adopt the lower court’s reasoning.” Id. at 1196
(emphasis added). Notwithstanding that the Georgia
Supreme Court had itself explained that its summary denials
should not be interpreted to adopt the lower court’s rationale,
according to the Wilson majority, “[t]his misses the point.”
Id.

This history and context demonstrates that the Supreme
Court, post-Trigueros, has specifically rejected the
argument that the general “look through” presumption is
rebutted by internal state procedures for a state supreme
court indicating that its summary, unreasoned orders do not
adopt the lower court’s rationale. 3 This court therefore
elects to follow the rationale laid forth in Wilson and apply
the “look through” presumption to the facts before us.

E.

A recent California Supreme Court case explaining the
state habeas review system is consistent with this
conclusion. In Robinson v. Lewis, decided nine years after
Trigueros, the California Supreme Court took the
3
The fact that the state appellate court received opposition briefing
on the merits from the government before summarily affirming the lower
court’s habeas denial does not distinguish Wilson either, since that is
precisely what happened in Wilson.
18 FLEMMING V. MATTESON

opportunity to further elaborate on its timeliness doctrine for
habeas petitions. The California Supreme Court explained:

The Ninth Circuit is uncertain how the
California courts treat the time gap between
the denial of a petition for a writ of habeas
corpus in a lower California court and the
filing of a new petition in a higher California
court raising the same claims for purposes of
determining whether a claim was timely
presented. Accordingly, it asked us to
explain how California law treats what we
will call “gap delay.”

Robinson v. Lewis, 469 P.3d 414, 416 (2020). The
California Supreme Court explained that the Ninth Circuit
had erroneously “assumed that a habeas corpus petition filed
in a higher court constitutes a challenge to the lower court’s
denial of the previous petition. In fact, it is a new petition
invoking the higher court’s original jurisdiction.” Id. at 419.
This means a “Court of Appeal that considers a new petition
does not directly review the superior court’s ruling but
makes its own ruling.” Id. at 420.

The now-clarified structure of habeas petitions within
the California state system only confirms that Trigueros’s
assumption—published well before Robinson—is not
applicable here. The California Supreme Court addressed
the Ninth Circuit’s confusion about its habeas practice by
offering further clarification in Robinson. As explained in
Robinson, the California Supreme Court has clarified that
each habeas petition filed in a state court is a new petition
invoking that court’s original jurisdiction, and is not related
to any habeas petition previously pending before a lower
state court. Id. at 419. Therefore, it is unreasonable to
 FLEMMING V. MATTESON 19

interpret the California Court of Appeal’s summary denial of
a new habeas petition after requesting an opposition brief as
implicitly rejecting—much less overruling—a trial court’s
prior ruling on the timeliness of an entirely separate habeas
petition. We take notice of that clarification, which further
validates our ruling that Flemming’s petition was untimely.

F.

Flemming argues in his reply brief that the government
waived the argument that Trigueros is inapplicable to the
facts of this case by not raising it in the district court, though
Flemming concedes that the government did argue that
Trigueros is flawed and inconsistent with Wilson. 4 While
not the norm, circuit precedent authorizes this court to reach
issues not presented by the parties below but raised on
appeal. See, e.g., Brown v. Rawson-Neal Psychiatric Hosp.,
840 F.3d 1146, 1148 (9th Cir. 2016); see also Bolker v.
Comm’r of Internal Revenue, 760 F.2d 1039, 1042 (9th Cir.
1985) (“As a general rule, we will not consider an issue
raised for the first time on appeal . . . although we have the
power to do so . . . .”).

Bolker offers reasons why a court could choose to
address issues not properly raised below, including “when
the issue presented is purely one of law and either does not
depend on the factual record developed below, or the
pertinent record has been fully developed.” Bolker, 760 F.2d
at 1042. This exception applies to the issues raised here.
The legal significance of a reviewing court calling for a brief
4
The government did argue that Trigueros is distinguishable
because of the “briefing on the merits” versus “opposition to the petition”
line of reasoning in its answering brief before our court. It did not raise
that issue in the district court, however, and instead conceded that
“Trigueros is controlling . . . .”
20 FLEMMING V. MATTESON

on the merits versus a general opposition to the petition for
purposes of the “look through” presumption is a legal
question that can be fully resolved with the record as
currently developed. The same holds true for the potentially
relevant distinction between the California Supreme Court
and the California Court of Appeal for purposes of applying
Trigueros, as well as the significance and applicability of the
Supreme Court’s Wilson case. The scope and breadth of
Trigueros is a legal question, and one readily decided within
the current record. For these reasons, we conclude that the
government’s failure to present these arguments below does
not prevent us from addressing these matters in this appeal.

III. CONCLUSION

Flemming’s petition was untimely for the reasons stated
herein. The district court’s judgment denying the petition is
therefore AFFIRMED.

LUCERO, Circuit Judge, concurring:

I agree with the majority that this case is distinguishable
from Trigueros v. Adams, 658 F.3d 983 (9th Cir. 2011), and
therefore concur that Dajuan Flemming’s federal habeas
petition was untimely under the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA). In particular, the
California Court of Appeal’s request for general briefing in
this case does not—unlike the merits briefing request in
Trigueros—constitute “strong evidence” of an intent to
reject the lower court’s procedural determination and deny
the petition solely on the merits. Ylst v. Nunnemaker,
501 U.S. 797, 804 (1991). I thus agree with the majority’s
dispositive conclusion in section II.B that Trigueros does not
control this case and, as a result, we must apply the look-
 FLEMMING V. MATTESON 21

through presumption to the Court of Appeal’s summary
dismissal. That should end the matter.

Accordingly, I decline to join sections II.C-E of the
majority opinion discussing three post-Trigueros cases:
Curiel v. Miller, 830 F.3d 864 (9th Cir. 2016); Wilson v.
Sellers, 138 S. Ct. 1188 (2018); and Robinson v. Lewis,
469 P.3d 414 (Cal. 2020). These cases are superfluous to
our narrow holding distinguishing Trigueros. Moreover, I
disagree with the majority’s analysis regarding what these
cases say about the scope of the Trigueros rule as applied to
this dispute.

First, the majority is incorrect to claim that Curiel
“already declined to extend Trigueros’s holding” to
summary dismissals by the California Court of Appeal. (Op.
at 14.) The majority hinges this assertion on a few passing
statements in Curiel that assumed the Court of Appeal’s
unreasoned denial of a habeas petition adopted the lower
court’s untimeliness holding. From these statements, the
majority concludes that Curiel presents “the same
procedural backdrop” as this case, and it therefore opts to
“follow” Curiel by not applying Trigueros to the Court of
Appeal’s summary denial. (Op. at 15–16.) But this case
plainly does not present the “same procedural backdrop” as
Curiel. That is because the Court of Appeal in Curiel never
requested a response to the habeas petition prior to its
summary denial, nor did the state submit one. See Case
Docket, In re Freddy Curiel, No. G042312 (Cal. Ct. App.
Aug. 6, 2009).

Conversely, the Court of Appeal in this case—like the
California Supreme Court in Trigueros—did request
briefing. This request was essential to Trigueros’ holding.
See Trigueros, 658 F.3d at 990–91. Without such a request,
there were no “compelling factual circumstances” in Curiel
22 FLEMMING V. MATTESON

signaling that the Court of Appeal had rejected the lower
court’s timeliness holding. Id. at 990. In other words, there
was no reason to consider whether the Trigueros rule applied
to the Court of Appeal’s summary denial in Curiel, and no
indication this court did so. Curiel thus says nothing about
the application of Trigueros to summary dismissals by the
Court of Appeal. My colleagues’ assertions to the contrary
are unpersuasive.

The majority opinion’s analysis of Wilson is similarly
inapt. While Wilson discussed the relevance of internal state
court guidance for the purposes of applying the look-through
presumption, see 138 S. Ct. at 1196, there is no such
guidance from the California Courts of Appeal in this case. 1
Rather, the district court below held that Trigueros
controlled based solely on the Court of Appeal’s briefing
request. Thus, the passages of Wilson discussed by the
majority bear no relation to our holding that Trigueros does
not control this case.

Finally, I disagree that Robinson has “clarified” the
structure of California’s habeas practice in a manner relevant
to this appeal. (Op. at 18.) Robinson held that a delay of
120 days or less between the denial of a California habeas
petition and the filing of a new petition with a higher state
court will not constitute a “substantial delay” sufficient to
render that petition untimely. Robinson, 469 P.3d at 424.
While the majority emphasizes a passage from Robinson
stating that a California habeas court “does not directly
review the [lower] court’s ruling but makes its own ruling,”
id. at 420, this statement is consistent with this circuit’s

1
Though the California Supreme Court has provided guidance on
how its summary habeas denials should be interpreted, see Trigueros,
658 F.3d at 989-90, the California Courts of Appeal have not.
 FLEMMING V. MATTESON 23

treatment of California’s habeas system. See, e.g., Campbell
v. Henry, 614 F.3d 1056, 1060–61 (9th Cir. 2010)
(acknowledging that “in formal terms the Court of Appeal
had before it a new original petition and not an appeal,”
while also holding that the Court of Appeal’s decision that a
claim was timely necessarily meant “that claim was timely
when it was before the lower court”).

Moreover, the United States Supreme Court has said that
while California’s habeas system “does not require,
technically speaking, appellate review of a lower court
determination,” we nonetheless must treat it “as similar to
other States” for AEDPA purposes because “its ‘original
writ’ system functions like the ‘appeal’ systems of those
other States.” Carey v. Saffold, 536 U.S. 214, 221, 225
(2002) (emphasis in original); see also Curiel, 830 F.3d
at 870 n.3 (“[I]t is well settled that California’s original writ
system is sufficiently analogous to appellate review systems
in other states, such that a higher state court may overturn a
lower court’s ruling on a particular issue.”). 2 I therefore
cannot agree with the majority’s insinuation that Robinson
has altered our understanding of California’s habeas practice

2
The majority quotes language from Robinson stating that the Ninth
Circuit had wrongly “assumed that a habeas corpus petition filed in a
higher court constitutes a challenge to the lower court’s denial of the
previous petition.” (Op. at 18 (quoting Robinson, 469 P.3d at 419).)
However, that passage was in reference to the phrasing of the question
certified by the Ninth Circuit to the California Supreme Court. See
Robinson, 469 P.3d at 417, 419. As discussed above, this circuit has
consistently recognized the formal differences of California’s “original
writ” system, while also holding that system must be treated functionally
the same as an appellate system under AEDPA. See, e.g., Curiel,
830 F.3d at 870 n.3.
24 FLEMMING V. MATTESON

or has any bearing on the application of Trigueros to this
case.

I reiterate that our holding today is a narrow one. The
factual circumstances sufficient in Trigueros to rebut the
look-through presumption are not present in this case. I
would stop there. Because the majority fails to do so—and
because its dicta is unconvincing—I cannot join its opinion
in full.

VANDYKE, Circuit Judge, with whom IKUTA, Circuit
Judge, joins, concurring:

Judge Lucero has penned a short concurrence explaining
that, in his view, Curiel v. Miller, 830 F.3d 864 (9th Cir.
2016) (en banc), Wilson v. Sellers, 138 S. Ct. 1188 (2018),
and Robinson v. Lewis, 469 P.3d 414 (Cal. 2020), are
“superfluous” to the court’s holding today. I write to briefly
explain why these cases do in fact support our holding. To
be clear, the point in citing these additional authorities is not
that any one of them alone mandates our conclusion. Each
of these cases of course has some differences from the
Trigueros decision distinguished by the majority opinion,
but each is nonetheless helpful in confirming various aspects
of our analysis.

First, Judge Lucero rightly notes that the Trigueros state
court requested briefing on the merits, while the Curiel state
court did not request any briefing. But our case falls
somewhere in between, as the California Court of Appeal
here requested only a general “opposition to the petition,”
without any reference to the “merits” as in Trigueros.
Moreover, even the distinction emphasized by Judge Lucero
 FLEMMING V. MATTESON 25

supports our conclusion that the state court’s request for
briefing (including both the request itself, and type
requested) was a critical underpinning of the result in
Trigueros. Put simply, if—as Judge Lucero posits—Curiel
refused to apply Trigueros to the California Court of
Appeal’s summary decision in that case because of briefing
differences between those two cases, that supports our
reliance here on briefing differences between this case and
Trigueros.

Second, Judge Lucero argues that our reliance on the
Supreme Court’s Wilson recent decision is “inapt” because,
unlike with the Georgia Supreme Court, there is no internal
guidance from the California Court of Appeal. No judge
disputes this, but Flemming explicitly argued that the
California Supreme Court’s presumption should extend to
the California Court of Appeal. Therefore, Wilson supports
that, even if the California Supreme Court’s internal
guidance extended to the California Court of Appeal, it
would still not be enough to rebut the general “look through”
presumption and require extending Trigueros to this case.

Finally, Judge Lucero argues that Robinson has not
“altered” our understanding of California’s habeas review
system and is therefore irrelevant to our application of
Trigueros here. But Robinson is helpful because in
reemphasizing that each higher California state court
addresses a new habeas petition and makes its own ruling,
see Robinson, 469 P.3d at 420, it reinforces the oddity of
treating a request for briefing by a later court as indicating
anything about timeliness.

Again, the point of citing these post-Trigueros cases is
not to say they necessarily independently compel the
conclusion reached by the majority opinion, but rather to say
that each case, in different ways, adds support to the ultimate
26 FLEMMING V. MATTESON

conclusion that Trigueros should not be extended to the case
before us.