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Lee v. Jacquez

United States Court of Appeals, Ninth Circuit

June 9, 2015

DONNA KAY LEE, Petitioner-Appellant,
v.
DEBRA JACQUEZ, Respondent-Appellee

Argued and Submitted, Pasadena, California November 17, 2014.

Page 1125

Appeal from the United States District Court for the Central District of California. D.C. No. 2:01-cv-10751-PA-PLA. Percy Anderson, District Judge, Presiding.

SUMMARY[*]

Habeas Corpus

The panel reversed the district court's denial of California state prisoner Donna Kay Lee's habeas corpus petition challenging her first-degree murder convictions and remanding for the district court to consider Lee's claims on the merits.

The district court found that Ex parte Dixon, 41 Cal.2d 756, 264 P.2d 513 (Cal. 1953), which prohibits California state courts from considering habeas claims that should have been raised on direct appeal but were omitted, is an adequate and independent state law procedural rule that bars federal review of Lee's claims.

Assuming without deciding that Dixon is an independent state law rule, the panel held that the state has failed to meet its burden of demonstrating the Dixon bar's adequacy at the time of Lee's procedural default. The panel wrote that where the state endorsed a statistical analysis to demonstrate a rule's adequacy, and the panel is left only with evidence that the Dixon bar was applied to between seven and twenty-one percent of all habeas cases filed in the months surrounding Lee's default, the state failed to meet its burden of proving that the Dixon bar was adequate.

Marta VanLandingham (argued), Deputy Federal Public Defender; and Sean Kennedy, Federal Public Defender, Los Angeles, California, for Petitioner-Appellant.

Robert M. Snider (argued), Deputy Attorney General; Dane R. Gillette, Chief Assistant Attorney General; Lance E. Winters, Senior Assistant Attorney General; Kenneth C. Byrne, Supervising Deputy Attorney General; and Kamala D. Harris, Attorney General of California, Los Angeles, California, for Respondent-Appellee.

Before: Mary M. Schroeder, Harry Pregerson, and Jacqueline H. Nguyen, Circuit Judges. Opinion by Judge Nguyen.

OPINION

Page 1126

Jacqueline H. Nguyen, Circuit Judge:

Donna Kay Lee is serving two life sentences without the possibility of parole in a California state prison for first degree murder. After the California Court of Appeal affirmed her conviction on direct appeal, Lee filed various habeas petitions in state courts. All of her claims were denied, some on the merits and others as procedurally barred. This appeal concerns eleven claims that the California Supreme Court found to be procedurally barred under the Dixon rule, which prohibits California state courts from considering habeas claims that should have been raised on direct appeal but were omitted. Ex parte Dixon, 41 Cal.2d 756, 264 P.2d 513 (Cal. 1953). On federal habeas review, the district court found that Dixon is an adequate and independent state law procedural rule that bars federal review of Lee's claims. However, even assuming, without deciding, that Dixon is an independent state law rule, the state has failed to meet its burden of demonstrating the Dixon bar's adequacy at the time of Lee's procedural default. Thus, we reverse and remand for the district court to consider her claims on the merits.

BACKGROUND

On March 23, 1998, Lee was convicted of two counts of first degree murder in Los Angeles County Superior Court. She was sentenced to two life sentences without the possibility of parole, plus an additional two years for the use of a knife. Lee appealed her conviction on June 10, 1999, raising four claims.[1] Her appeal was denied on the merits on August 28, 2000. The California Supreme Court affirmed on December 13, 2000.

Proceeding pro se, Lee filed a habeas petition in federal court, raising fourteen claims. After the government moved to dismiss the petition as largely unexhausted, Lee moved to withdraw her petition without prejudice to allow her to exhaust her claims in state court. The district court held her motion in abeyance, and ordered Lee to either submit a First Amended Petition, limited to her exhausted claims, or move for voluntary dismissal

Page 1127

to pursue her claims in state court. In response, Lee submitted a First Amended Petition, and also moved to stay the proceedings while she exhausted her other claims in state court. The district court granted a stay, and Lee returned to state court to seek habeas relief, raising eleven claims.

After Lee's habeas petitions in both the California Superior Court and the Court of Appeal were denied,[2] she filed a habeas petition with the California Supreme Court, raising eleven claims from her original federal petition and a new claim regarding an alleged improper exclusion of female jurors. The Court denied her petition with citations to In re Waltreus, 62 Cal.2d 218, 42 Cal.Rptr. 9, 397 P.2d ...


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