                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              MAR 19 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

JAMES COLLINS,                                   No. 11-56297

              Petitioner - Appellant,            D.C. No. 2:08-cv-00847-GHK-
                                                 PJW
  v.

DOMINGO URIBE, Jr., Warden,                      MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                  George H. King, Chief District Judge, Presiding

                       Argued and Submitted March 4, 2014
                              Pasadena, California

Before: PAEZ, N.R. SMITH, and HURWITZ, Circuit Judges.

       We have jurisdiction under 28 U.S.C. §§ 1291 and 2253 to review the denial

of James Collins’s 28 U.S.C. § 2254 habeas petition. We review the district

court’s denial of the habeas petition de novo, Maciel v. Cate, 731 F.3d 928, 932

(9th Cir. 2013), and affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. The California Court of Appeal’s decision that due process did not

require severance of the charges against Collins was not “contrary to, or . . . an

unreasonable application of, clearly established Federal law.” 28 U.S.C.

§ 2254(d)(1). “[I]t cannot be said that a state court unreasonably applied clearly

established Federal law” when Supreme Court precedent “give[s] no clear answer

to the question presented.” Wright v. Van Patten, 552 U.S. 120, 126 (2008)

(internal quotation marks and alterations omitted). The Supreme Court has never

held that a trial court’s failure to provide separate trials on different charges

implicates a defendant’s right to due process. See Collins v. Runnels, 603 F.3d

1127, 1132 (9th Cir. 2010).

      Furthermore, to the extent that our case law has suggested that the failure to

sever may, in some instances, rise to the level of a due process violation, this is not

such an instance. The refusal to sever the separate offenses here did not “actually

render petitioner’s state trial fundamentally unfair and hence, violative of due

process.” Featherstone v. Estelle, 948 F.2d 1497, 1503 (9th Cir. 1991) (citation

omitted). The record supports the California Court of Appeal’s finding of no

prejudice, because neither crime was particularly inflammatory in comparison to

the other and the evidence on both counts was about equal in strength. Moreover,

“any prejudice was further limited through an instruction directing the jury to


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consider each count separately.” Davis v. Woodford, 384 F.3d 628, 639 (9th Cir.

2003). This instruction was all the more effective because “the evidence of each

crime is simple and distinct.” Id.

      2. Collins failed to argue that the admission of unreliable hearsay evidence

violated his right to due process until his reply brief. “Arguments raised for the

first time in petitioner’s reply brief are deemed waived.” Delgadillo v. Woodford,

527 F.3d 919, 930 n.4 (9th Cir. 2008).1

      The judgment of the district court is AFFIRMED.




      1
        Although Collins argued in his opening brief that the admission of
Hamilton’s statements violated the Confrontation Clause, he conceded that position
in his reply brief and at oral argument, because the statements are non-testimonial.
See Davis v. Washington, 547 U.S. 813, 824 (2006).

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