                                                                              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                           NOT FOR PUBLICATION                                DEC 15 2010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.
