FILED
NOT FOR PUBLICATION
OCT 24 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANSWA SHAMMAM, No. 15-56418
Petitioner-Appellant, D.C. No. 3:14-cv-01905- WQH-
NLS
v.
DANIEL PARAMO, Warden; KAMALA MEMORANDUM*
HARRIS,
Respondents-Appellees.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted September 1, 2016
Pasadena, California
Before: TASHIMA, WARDLAW, and BYBEE, Circuit Judges.
California state prisoner Franswa Shammam appeals from the district court’s
denial of his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C.
§ 2254. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
In 2008, Shammam was charged with the 1994 murder of David Binno.1
Shammam’s first trial ended in a mistrial because of a hung jury. Following a
second trial, a jury convicted Shammam of murder in the first degree. The trial
court sentenced him to a prison term of twenty-five years to life, plus a four-year
enhancement for use of a firearm.
During the course of the trial proceedings, Shammam thrice moved to
dismiss the charges against him on the ground that the fourteen-year delay between
the murder and his indictment violated his due process rights. The trial court
rejected the claim each time. Shammam raised the pre-indictment delay/due
process issue in his direct appeal. The California Court of Appeal affirmed his
conviction. He then filed this federal habeas petition based solely on the alleged
due process violation. The district court denied the petition. Shammam now
timely appeals.
We review de novo a district court’s denial of a petition for a writ of habeas
corpus. Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir. 2004). Under § 2254, we
review the “last reasoned decision” by a state court denying relief. Avila v.
1
In California, there is no statute of limitations for murder, which is
punishable by death or life imprisonment. Cal. Penal Code § 799.
2
Galaza, 297 F.3d 911, 918 (9th Cir. 2002). The last reasoned decision in
Shammam’s case is the decision of the California Court of Appeal.
The Antiterrorism and Effective Death Penalty Act, which governs this
proceeding, provides that we may grant the writ only if the state court decision: (1)
“was contrary to . . . clearly established Federal law, as determined by the Supreme
Court of the United States”; (2) “involved an unreasonable application of [] clearly
established Federal law, as determined by the Supreme Court of the United States”;
or (3) “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. Shammam first argues that the Court of Appeal’s decision was contrary
to federal law because the Court of Appeal took into account the seriousness of the
offense in assessing whether Shammam’s due process rights were violated, and no
Supreme Court decision instructs courts to consider such a factor.
A decision is contrary to clearly established federal law “if the state court
applies a rule different from the governing law set forth in [United States Supreme
Court] cases, or if it decides a case differently than [the United States Supreme
Court] ha[s] done on a set of materially indistinguishable facts.” Bell v. Cone, 535
U.S. 685, 694 (2002). The law governing the issue of whether a pre-indictment
delay violates due process is set forth in United States v. Lovasco, 431 U.S. 783
3
(1977). Lovasco reaffirmed that, although statutes of limitations “provide the
primary guarantee[] against bringing overly stale criminal charges[,] . . . the Due
Process Clause has a limited role to play in protecting against oppressive delay.”
Id. at 789 (internal quotation marks and citations omitted). Lovasco instructs
courts to “consider the reasons for the delay as well as the prejudice to the
accused” in light of “fundamental conceptions of justice” and “the community’s
sense of fair play and decency,” id. at 790 (internal quotation marks omitted), but
declined to set out the precise parameters of a universally applicable test for when
pre-indictment delay violates due process, id. at 796–97.
Here, the trial court weighed the justification for the delay against the
prejudice Shammam suffered, as Lovasco instructs, and concluded no due process
violation had occurred. The Court of Appeal reviewed and affirmed that result.
Although the trial court also considered the fact that homicide is a particularly
serious offense, the Court of Appeal explained that it understood the trial court to
rely on the seriousness of the crime only as “additional support” for the proposition
that no due process violation had occurred. The Court of Appeal’s decision, which
is the decision under review, does not rely on the seriousness of the offense in its
own analysis.
4
But even if it did, as Shammam contends, Shammam has cited no clearly
established United States Supreme Court precedent holding such consideration was
improper. Indeed, because the Lovasco Court “could not determine in the abstract
the circumstances in which preaccusation delay would require dismissing
prosecutions,” it declined to limit the due process inquiry and left “to the lower
courts, in the first instance, the task of applying the settled principles of due
process that we have discussed to the particular circumstances of individual cases.”
Id. at 797. Consideration of the seriousness of the offense would not be contrary to
Lovasco.
2. Shammam next argues that because the record contains no evidence that
police were actively investigating Binno’s murder between 1996 and 2008, the
Court of Appeal’s conclusion that the pre-indictment delay was justified by a
continuing investigation was based on an unreasonable determination of the facts.
A court makes an unreasonable determination of the facts if it “plainly
misapprehend[s] or misstate[s] the record in making [its] findings.” Milke v. Ryan,
711 F.3d 998, 1008 (9th Cir. 2013) (internal quotation marks omitted). Contrary to
Shammam’s characterization of the factual underpinnings of the state court
decisions, the Court of Appeal did not rely on a finding that the investigation into
Binno’s murder was consistently active over the course of the pre-indictment
5
period. Instead, the Court of Appeal “[a]ssum[ed] arguendo” that “no significant
investigative activity occurred after 1996,” but, nonetheless, concluded that the
delay was justified. The justification was the state’s “good faith decision to not
prosecute,” and instead keep the investigation open, because it lacked probable
cause to charge Shammam. Shammam does not challenge that finding; therefore,
he has not shown an unreasonable determination of the facts.
3. Lastly, Shammam argues that the Court of Appeal unreasonably applied
Lovasco’s balancing test because the investigation provided only minimal
justification for the delay and the delay prejudiced him in various ways. To warrant
granting the writ, it is not enough for this court to “conclude[] in its independent
judgment that the relevant state-court decision applied clearly established federal
law erroneously or incorrectly.” Bell, 535 U.S. at 694 (internal quotation marks and
citations omitted). The state court’s application of the law must be “objectively
unreasonable.” Id.
Here, the trial court found that the government’s justification for the delay
was the open investigation into Binno’s murder, and that Shammam suffered “some
prejudice,” the “sole basis” of which was that “memories of both civilian and law
6
enforcement witnesses [had] faded due to the lapse of time.”2 The trial court
concluded that such circumstances did not amount to a due process violation, and
the Court of Appeal affirmed that determination. This was not an objectively
unreasonable application of Lovasco, which holds that an investigation justifies a
pre-indictment delay even if some prejudice to the defendant results. 431 U.S. at
796 (“[T]o prosecute a defendant following investigative delay does not deprive
him of due process, even if his defense might have been somewhat prejudiced by
the lapse of time.”).
Shammam contends that an investigation must be active in order to outweigh
prejudice to the defendant. There is no clearly established Supreme Court authority
so holding. Lovasco suggests that a defendant may show the state acted “to gain [a]
tactical advantage over the accused” – conduct that is akin to bad faith – to render
investigative delay unjustified. See id. at 795 (internal quotation marks omitted).
Here, the Court of Appeal concluded that Shammam had not “carried his burden on
appeal to show that there is insufficient evidence to support the [trial] court’s
2
To the extent Shammam makes other claims of prejudice, such as lost
opportunity to impeach prosecution witnesses, he has not shown the trial court
“plainly misapprehend[ed] or misstate[d] the record,” Milke, 711 F.3d at 1008, in
finding he failed to prove those claims.
7
finding that the investigation was, instead, negligently conducted, intentionally
delayed, or otherwise unjustifiably delayed.”
Requiring a defendant to show more than a period of investigative inactivity
comports with Lovasco’s teaching that it is appropriate for a prosecutor to wait to
seek an “indictment[] until he is completely satisfied that he . . . will be able
promptly to establish guilt beyond a reasonable doubt.” 431 U.S. at 795 (holding
the “Due Process Clause does not require” courts to “[p]enaliz[e] prosecutors who
defer action” because they lack evidence to prove guilt). A prosecutor who has not
sought an indictment for this reason may also reasonably choose to devote less
attention to a case as time passes and fewer leads arise. Standing alone, this does
not amount to bad faith and does not constitute a violation of the defendant’s due
process rights.
AFFIRMED.
8