Kipp v. Davis, No. 16-99004

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation986 F.3d 1281 (Mem)
Docket NumberNo. 16-99004
Parties Martin James KIPP, Petitioner-Appellant, v. Ronald DAVIS, Warden, California State Prison at San Quentin, Respondent-Appellee.
Decision Date08 February 2021

986 F.3d 1281 (Mem)

Martin James KIPP, Petitioner-Appellant,
Ronald DAVIS, Warden, California State Prison at San Quentin, Respondent-Appellee.

No. 16-99004

United States Court of Appeals, Ninth Circuit.

Filed February 8, 2021

986 F.3d 1282


A judge of this court sua sponte requested a vote on whether to rehear this case en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. Fed. R. App. P. 35. Rehearing en banc is DENIED .

Attached are Judge Paez's and Judge Miller's concurrences to and Judge Ikuta's and Judge VanDyke's dissents from the denial of rehearing en banc, and Judge O'Scannlain’s separate statement.

PAEZ, Circuit Judge, concurring in the denial of rehearing en banc, joined by MURGUIA, Circuit Judge.

As an appellate court, we decide cases in three-judge panels. Rehearing a case en banc is the exception, limited to those cases that meet the standards for rehearing en banc under Federal Rule of Appellate Procedure 35(a).1 Despite Judge Ikuta's protestations to the contrary, this case does not meet those exacting standards. We are not alone in that assessment: the California Attorney General, the state's chief law enforcement officer, agrees.2

Judge Ikuta's dissent is a misguided attack on the majority's opinion. It leaves the impression that the panel majority was

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determined to reverse the district court's denial of habeas relief, irrespective of the limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), on the scope of our habeas review. Nothing could be further from the truth. We are confident in our opinion's analysis, but in light of Judge Ikuta's serious charges, we respond briefly here to her dissent.

1. Contextual background . Martin James Kipp was charged with two different capital homicides in two different counties. The first murder, of Tiffany Frizzell, occurred in Los Angeles County on September 17, 1983. The second murder, of Antaya Yvette Howard, occurred in Orange County on December 30, 1983. The second homicide is the one that gives rise to this case. At the time of trial for the Howard murder, the case at issue here, Kipp had been charged—but not yet tried—in the first murder, that of Frizzell. The two homicides were prosecuted separately.3 At trial for the Howard murder, the court admitted evidence that Kipp had raped and murdered Frizzell three months before Howard's murder, as other-act evidence tending to show identity and intent. Kipp v. Davis , 971 F.3d 939, 943–46 (9th Cir. 2020).

In his direct appeal to the California Supreme Court, Kipp argued that the trial court's admission of evidence of Frizzell's rape and murder violated state evidence rules and his federal due process rights. The California Supreme Court rejected Kipp's claims and affirmed his conviction and sentence. People v. Kipp , 18 Cal.4th 349, 75 Cal.Rptr.2d 716, 956 P.2d 1169, 1181–83 (1998).

We reversed the district court's denial of Kipp's 28 U.S.C. § 2254 habeas corpus petition challenging his conviction and death sentence for the murder and attempted rape of Howard. Kipp , 971 F.3d at 960. AEDPA governed our review of Kipp's habeas claims. Under AEDPA, if a claim was "adjudicated on the merits in [s]tate court proceedings," a federal court may grant habeas relief if the state court's adjudication of the claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the [s]tate court proceeding." 28 U.S.C. § 2254(d)(2). We concluded that the state court made an unreasonable determination of the facts regarding the similarity of the other-act evidence and that admission of that evidence violated Kipp's due process right to a fair trial. Kipp , 971 F.3d at 955, 958.

To the extent Judge Ikuta complains that we disapproved of the state court's legal conclusion, as opposed to its fact-finding process, we disagree. As we explained in the majority opinion, the California Supreme Court unreasonably determined that the facts of the Frizzell murder were as similar to the Howard murder as to be like signature crimes, rendering the facts admissible to support an inference of connection by common identity or intent. Id. at 952–55.

2. Judge Ikuta's dissent. The dissent accuses the majority of stepping into the shoes of the California Supreme Court and substituting our own judgment for that of the state court instead of applying AEDPA's deferential review. We are accused of making the same mistake that the Supreme Court corrected in

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Shinn v. Kayer , ––– U.S. ––––, 141 S. Ct. 517, ––– L.Ed.2d –––– (2020) and using § 2254(d)(2) to substitute our judgment for that of the California Supreme Court. That is not what we did. Kayer and this case are not the same. An honest read of the majority opinion is enough to see that Judge Ikuta's argument misses the mark.

The critical issue that we addressed in this case was whether the state supreme court made an unreasonable determination of the facts. In disagreeing with the majority opinion, Judge Ikuta fundamentally mischaracterizes our analysis, asserting that we re-weighed the evidence. This distortion of the majority opinion ignores our holding in Taylor v. Maddox that a "[f]ailure to consider key aspects of the record is a defect in the fact-finding process." 366 F.3d 992, 1008 (9th Cir. 2004).

While a federal court may not second-guess a state court's fact-finding process if it determines that the state court was merely wrong, Taylor explains that habeas relief may be warranted in those rare cases where the state court's fact-finding process was actually unreasonable. See id. at 999. An unreasonable determination of facts exists where, among other circumstances, the state court made its determinations according to a flawed process—for example, under an incorrect legal standard, where necessary findings were not made at all, or where the state court failed to consider and weigh relevant evidence that was properly presented to it. See id. at 999–1001.4 It is well-settled that when a state court overlooks highly probative evidence central to a petitioner's claim, its fact-finding process is fatally undermined and the resulting factual determination is unreasonable under § 2254(d)(2). Id. at 1001.

In the majority opinion, we concluded that the state court made its determination according to a flawed fact-finding process. Contrary to Judge Ikuta's characterization, the evidence of the dissimilarities between the Frizzell and Howard homicides that was before the state court was not made merely in "passing reference," and did not relieve the "busy state court[ ]" of its obligation to discuss Kipp's claims. Cf. Johnson v. Williams , 568 U.S. 289, 298–301, 133 S.Ct. 1088, 185 L.Ed.2d 105 (2013). Nor did the state court "expressly acknowledge[ ]" the facts in the record. See Taylor , 366 F.3d at 1005. The sum total of the state court's consideration of dissimilarities between the Howard and Frizzell crimes was: "the defense argued that the evidence had little or no relevance on the issues of identity and intent because the two killings were more dissimilar than similar." Kipp , 75 Cal.Rptr.2d 716, 956 P.2d at 1181.

This single, cursory statement summarizing the general thrust of Kipp's argument fails to demonstrate that the California Supreme Court "expressly acknowledged" the evidence of the dissimilarities in the record. The law respects

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substance over form. While a state court need not address "every jot and tittle of proof suggested to them," it must not ignore evidence that is "highly probative and central to petitioner's claim." Taylor , 366 F.3d at 1001.

We recognized that AEDPA applied to Kipp's due process claim and we carefully adhered to the § 2254(d) standard in our analysis. By failing to consider relevant evidence that was properly presented to it when making its determination, the California Supreme Court's determination of facts relating to admission of the Frizzell other-acts evidence was unreasonable and AEDPA deference was not due under § 2254(d)(2). See id. at 999. A fair reading of our opinion shows that we applied the correct analytical framework under § 2254(d)(2). See Kipp , 971 F.3d at 948–59. The predicate factual determinations that the California Supreme Court made were unreasonable in light of all the evidence. As we explained, the error in the resulting legal conclusion rose to the level of a due process violation. Id. at 955–58. With the admission of the Frizzell evidence, Kipp was effectively on trial for two crimes.

3. En banc standards. We cannot lose sight of the standards for what constitutes an appropriate case for rehearing en banc. This case is not one of them—it involves the application of settled legal standards to a set of facts. As recognized by the California Attorney General, who expressly declined to argue for rehearing even after we invited it to do so, this case does not present a "question of exceptional importance" meriting en banc consideration. Fed. R. App. P. 35(a)(2). The majority opinion is not in conflict with other precedent of this Circuit, or the precedent of another....

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