Donna Lee v. Debra Jacquez , 406 F. App'x 148 ( 2010 )

FILED
NOT FOR PUBLICATION DEC 15 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONNA KAY LEE, No. 08-55919
Petitioner - Appellant, D.C. No. 2:01-cv-10751-PA-PLA
v.
MEMORANDUM*
DEBRA JACQUEZ, Acting Warden of
Central California Women’s Facility at
Chowchilla, California - Substituted for
Gwendolyn Mitchell,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted December 7, 2010
Pasadena, California
Before: TROTT and WARDLAW, Circuit Judges, and BREWSTER, Senior
District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Rudi M. Brewster, Senior United States District Judge
for the Southern District of California, sitting by designation.
Donna Kay Lee appeals the District Court’s denial of her petition for habeas
corpus. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm in
part, and reverse and remand in part.
The California Court of Appeal’s conclusion that Lee’s severance motion
was properly denied by the trial court was not objectively unreasonable. A failure
to sever does not rise to the level of a due process violation unless it creates a
serious risk of “compromis[ing] a specific trial right of one of the defendants,” or
of “prevent[ing] the jury from making a reliable judgment about guilt or
innocence.” Zafiro v. United States, 506 U.S. 534, 539 (1993). Lee has not shown
how the joint trial violated her due process rights: as the Court of Appeal reasoned,
“both defendants blamed unknown assailants for the murders and they both
claimed to have themselves been victims of those unknown assailants.” Nor does
Lee point to any specific trial rights that were violated as a result of the joint trial.
The California Court of Appeal’s determination that the trial court’s
exclusion of battered women’s syndrome evidence under California Evidence
Code § 352 did not violate Lee’s due process rights was not objectively
unreasonable. The exclusion of critical evidence may violate a defendant’s due
process rights if it deprives the defendant of “a fair opportunity to defend against a
state’s accusations.” Chambers v. Mississippi, 410 U.S. 284, 294 (1973). However,
as the Court clarified in Montana v. Egelhoff, 518 U.S. 37 (1996), this is a highly
case-specific inquiry, and the exclusion of relevant evidence does not
automatically rise to the level of a due process violation. Id. at 53. Although this
evidence may have been relevant to explain Lee’s memory loss and thus bolster
her credibility, Lee’s expert witness was permitted to testify about how prior
trauma could lead to the dissociation and memory loss that Lee suffered in the days
immediately following the stabbing; general evidence of the sexual relationship
between the co-defendants was admitted; trial counsel argued that Lee was a
battered woman in opening and closing arguments; and the evidence of Lee’s guilt
was overwhelming. Therefore, the Court of Appeal did not act objectively
unreasonably by concluding that Lee was not deprived of the opportunity to
present a defense.
The district court concluded that Grounds 5-11 in the Second Amended
Petition and Supplemental Grounds 1-4 were procedurally barred because the
California State Supreme Court dismissed them under In re Dixon, 41 Cal. 2d 756(1953). The district court relied on a report and recommendation that erroneously
concluded that the Ninth Circuit had found the Dixon rule to be an independent and
adequate state law ground. Nevertheless, the district court granted a certificate of
appealability on that very question.
On appeal, Lee presented evidence challenging the independence and
adequacy of In re Dixon at the time of Lee’s procedural default. We remand this
question to the district court to permit the Warden to submit evidence to the
contrary, and for consideration by the district court in the first instance. Bennett v.
Mueller, 322 F.3d 573, 586 (9th Cir. 2003). Each party shall bear its own costs.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.