Martin Kipp v. Ron Davis

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MARTIN JAMES KIPP, No. 16-99004
Petitioner-Appellant,
D.C. No.
v. 2:99-cv-04973-
AB
RONALD DAVIS, Warden, California
State Prison at San Quentin,
Respondent-Appellee. ORDER

Filed February 8, 2021

Before: Richard A. Paez, Mary H. Murguia, and
Jacqueline H. Nguyen, Circuit Judges.

Order;
Concurrence by Judge Paez;
Concurrence by Judge Miller;
Dissent by Judge Ikuta;
Dissent by Judge VanDyke;
Statement by Judge O’Scannlain
2 KIPP V. DAVIS

SUMMARY *

Habeas Corpus / Death Penalty

The panel filed an order denying rehearing en banc in a
case in which a judge of this court sua sponte requested a
vote on whether to hear the case en banc.

Concurring in the denial of rehearing en banc, Judge
Paez, joined by Judge Murguia, responded to Judge Ikuta’s
dissent which, he wrote, leaves the impression that the panel
majority was 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). He wrote that, as the California Attorney General
agrees, the case does not meet the standards for rehearing en
banc in Fed. R. App. P. 35(a).

Concurring in the denial of rehearing en banc, Judge
Miller, joined by Judges Graber, McKeown, Wardlaw,
W. Fletcher, Gould, Christen, and Hurwitz, wrote to note his
disagreement with the statement in Judge Ikuta’s dissent that
“[in] refusing to vacate and rehear this case en banc, we are
implicitly endorsing an approach which circumvents the
Supreme Court’s case law.”

Dissenting from the denial of rehearing en banc, Judge
Ikuta, joined by Judges Callahan, M. Smith, Nguyen,
Owens, Bennett, R. Nelson, Bade, Collins, Lee, Bress,
Hunsaker, Bumatay, and VanDyke, wrote that the panel

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 KIPP V. DAVIS 3

majority could not find a way to hold that the California
Supreme Court’s decision was an unreasonable application
of Supreme Court precedent, so it transmuted the state
court’s legal decision into a factual one, and then purported
to hold that the state court made an unreasonable
determination of facts. She wrote that in refusing to vacate
and rehear the case en banc, the court is implicitly endorsing
an approach which circumvents the Supreme Court’s case
law requiring strict adherence to the limitations in 28 U.S.C.
§ 2254(d).

Dissenting from the denial of rehearing en banc, Judge
VanDyke, joined by Judges Ikuta, Callahan, R. Nelson, and
Bumatay, wrote to note his disagreement with Judge Miller’s
concurrence. He wrote that this court needs to own its
systemic failure applying AEDPA.

Respecting the denial of rehearing en banc, Judge
O’Scannlain wrote that he agrees with the views expressed
by Judge Ikuta in her dissent.

COUNSEL

Cuauhtemoc Ortega, Federal Public Defender; Celeste
Bacchi and Mark R. Drozdowski, Deputy Federal Public
Defenders; Office of the Federal Public Defender, Los
Angeles, California; for Petitioner-Appellant.

Xavier Becerra, Attorney General; Lance E. Winters, Chief
Assistant Attorney General; James William Bilderback II,
Senior Assistant Attorney General; Holly D. Wilkens,
Supervising Deputy Attorney General; Randall D. Einhorn,
Deputy Attorney General; Office of the Attorney General,
San Diego, California; for Respondent-Appellee.
4 KIPP V. DAVIS

ORDER

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

1
Federal Rule of Appellate Procedure 35(a) states:

A majority of the circuit judges who are in regular
active service and who are not disqualified may order
that an appeal or other proceeding be heard or reheard
by the court of appeals en banc. An en banc hearing
or rehearing is not favored and ordinarily will not be
ordered unless:

(1) En banc consideration is necessary to secure
or maintain uniformity of the court’s
decisions; or
 KIPP V. DAVIS 5

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 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

(2) The proceeding involves a question of
exceptional importance.

Fed. R. App. P. 35(a).

2
Although expressing the view that the State would defend the state
court judgment if en banc review were granted, the California Attorney
General stated in supplemental briefing that:

This case does not fall squarely within the traditional
indicia for a grant of en banc review. Specifically, the
Court’s opinion is not in conflict with other precedent
of this Circuit, or precedent of another circuit. The
case also does not involve a question of law that is of
exceptional importance. Rather, the case involves the
application of settled legal standards to a set of facts.

And while this case . . . is certainly of great importance
to the parties and the victim’s family, the same panel
that reversed the judgment in this case affirmed the
denial of relief as to Kipp’s death judgment arising
from his Los Angeles County case. All of these
considerations informed the State’s decision not to
seek en banc review.

Davis Suppl. Br. 6, ECF No. 82.
6 KIPP V. DAVIS

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, 956 P.2d 1169, 1181–83 (Cal.
1998).

3
Kipp was subsequently tried, convicted, and sentenced to death in
1989 in Los Angeles County Superior Court for the rape, robbery, and
murder of Frizzell. The California Supreme Court affirmed the judgment
on direct appeal. People v. Kipp, 33 P.3d 450, 458 (2001). Kipp’s
federal habeas petition was denied, and that denial was affirmed by the
same panel, on the same day that we filed the opinion in this case. See
Kipp v. Davis, 971 F.3d 866 (9th Cir. 2020).
 KIPP V. DAVIS 7

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 Shinn v. Kayer, 141 S. Ct. 517 (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
8 KIPP V. DAVIS

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

4
See also Brumfield v. Cain, 576 U.S. 305, 316–322 (2015)
(attributing in part the state court’s erroneous failure to hold an
evidentiary hearing to the fact that the court overlooked evidence in the
record); Burton v. Davis, 816 F.3d 1132, 1155–59 (9th Cir. 2016)
(finding the state court’s factual determination regarding a defendant’s
intent in asking to represent himself was not entitled to a presumption of
correctness because the court disregarded relevant evidence); Maxwell v.
Roe, 628 F.3d 486, 504–06 (9th Cir. 2010) (finding the state court’s
conclusion that a jailhouse informant testified truthfully at the
defendant’s trial was an unreasonable determination of facts because the
 KIPP V. DAVIS 9

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
(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, 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 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.

state court failed to consider evidence of the informant’s pattern of
perjury); Green v. LaMarque, 532 F.3d 1028, 1033 (9th Cir. 2008) (state
court’s finding that the prosecutor’s strike was not racially motivated
was unreasonable in light of the record before that court).
10 KIPP V. DAVIS

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. As succinctly stated by Judge Miller in his
concurrence, with which we agree, there is “no reason for us
to be more solicitous of the State’s interests than the State
itself.”

We are reminded that deference on federal habeas “does
not imply abandonment or abdication of judicial review,”
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). By
 KIPP V. DAVIS 11

distorting our opinion to argue that this case should be
reheard en banc, the dissent glosses over the admonition in
Federal Rule of Appellate Procedure Rule 35(a) that “an en
banc hearing or rehearing is not favored and ordinarily will
not be ordered unless” the standards are met. Here, despite
Judge Ikuta’s disagreement with our opinion, the standards
under Rule 35(a) were not met.

For these reasons, and for the reasons explained in the
majority opinion, we concur in the court’s decision to deny
rehearing this case en banc.

MILLER, Circuit Judge, with whom GRABER,
McKEOWN, WARDLAW, W. FLETCHER, GOULD,
CHRISTEN, and HURWITZ, Circuit Judges, join,
concurring in the denial of rehearing en banc:

I write to note my respectful disagreement with the
statement in Judge Ikuta’s dissenting opinion that “[i]n
refusing to vacate and rehear this case en banc, we are
implicitly endorsing an approach which circumvents the
Supreme Court’s case law.” Ikuta Dissent at 14. Our
decision not to rehear this case en banc endorses only the
proposition that the case does not meet the criteria for
rehearing en banc set out in Federal Rule of Appellate
Procedure 35. That rule reserves rehearing en banc for those
unusual cases in which rehearing is required “to secure or
maintain uniformity of the court’s decisions” or to resolve “a
question of exceptional importance.” Fed. R. App. P. 35(a).
A determination that a panel’s decision is wrong is not, by
itself, a sufficient reason to grant rehearing en banc.
Conversely, the denial of rehearing en banc does not mean
that a majority of the court has decided that the panel’s
decision is correct.
12 KIPP V. DAVIS

No one disputes that the panel correctly stated the rules
of deference prescribed in 28 U.S.C. § 2254(d). The only
question is whether the panel erred in applying those rules to
the decision of the California Supreme Court affirming
Martin Kipp’s conviction. Although Judge Ikuta and Judge
Nguyen have persuasively argued that it did, that case-
specific error does not affect the “uniformity of the court’s
decisions.”

As for “exceptional importance,” this case is
undoubtedly of great importance to Kipp and to the family
of his victim, Antaya Howard. But it is the State of
California whose judgment of conviction has been set aside,
and the State not only chose not to file a petition for
rehearing en banc, it expressly declined to argue for
rehearing even after we invited it to do so. Perhaps the
California Attorney General had good reasons for that
choice, or perhaps not, but either way, the choice was his to
make on behalf of the State. I see no reason for us to be more
solicitous of the State’s interests than the State itself.

IKUTA, Circuit Judge, with whom CALLAHAN, M.
SMITH, NGUYEN, OWENS, BENNETT, R. NELSON,
BADE, COLLINS, LEE, BRESS, HUNSAKER,
BUMATAY, and VANDYKE, Circuit Judges, join,
dissenting from the denial of rehearing en banc:

Will the Ninth Circuit ever learn from its past mistakes?
The Supreme Court has repeatedly overruled our habeas
decisions that reweigh evidence under a “de-novo-
masquerading-as-deference approach.” See Shinn v. Kayer,
 KIPP V. DAVIS 13

141 S. Ct. 517, 522 (2020) (per curiam) (citation omitted). 1
And the Supreme Court has repeatedly directed us to give
proper deference to state courts’ decisions under the
Antiterrorism and Effective Death Penalty Act (AEDPA),
28 U.S.C. § 2254(d). See, e.g., Ayala, 576 U.S. at 275–76;
Jackson, 562 U.S. at 598; Landrigan, 550 U.S. at 477; Rice,
546 U.S. at 337–42. Yet today we once again let stand an
opinion making these same errors. 2 The panel majority here
could not find a way to hold that the California Supreme
Court’s decision was an unreasonable application of
Supreme Court precedent, so it transmuted the state court’s
legal decision into a factual one, and then purported to hold
that the state court made an unreasonable determination of
the facts.

Just over ten years ago, the Supreme Court explained it
was crucially important for courts to “be vigilant and
independent in reviewing petitions for the writ” of habeas

1
See also Sexton v. Beaudreaux, 138 S. Ct. 2555, 2558, 2560–61
(2018) (per curiam); Kernan v. Cuero, 138 S. Ct. 4, 9 (2017) (per
curiam); Davis v. Ayala, 576 U.S. 257, 275–76 (2015); Lopez v. Smith,
574 U.S. 1, 8–9 (2014) (per curiam); Johnson v. Williams, 568 U.S. 289,
297, 306 (2013); Cavazos v. Smith, 565 U.S. 1, 8 (2011) (per curiam);
Felkner v. Jackson, 562 U.S. 594, 598 (2011) (per curiam); Premo v.
Moore, 562 U.S. 115, 123 (2011); Harrington v. Richter, 562 U.S. 86,
92 (2011); Knowles v. Mirzayance, 556 U.S. 111, 121 (2009); Uttecht v.
Brown, 551 U.S. 1, 22 (2007); Schriro v. Landrigan, 550 U.S. 465, 477
(2007); Rice v. Collins, 546 U.S. 333, 337–42 (2006); Woodford v.
Visciotti, 537 U.S. 19, 25 (2002) (per curiam).

2
Twenty-three judges acknowledge the flaws in the panel majority’s
opinion. Fourteen judges have joined or agree with this dissent, while
seven judges agree with Judge Miller that “Judge Ikuta and Judge
Nguyen have persuasively argued” that “the panel erred in applying
[§ 2254(d)] to the decision of the California Supreme Court affirming
Martin Kipp’s conviction.” Miller Concurrence at 12.
14 KIPP V. DAVIS

corpus because “confidence in the writ and the law it
vindicates [is] undermined[] if there is judicial disregard for
the sound and established principles that inform its proper
issuance.” Richter, 562 U.S. at 91–92. “That judicial
disregard,” the Court warned, was “inherent in the opinion
of the Court of Appeals for the Ninth Circuit” that was then
under review. Id. at 92. Ten years later, the Supreme Court
again held that the Ninth Circuit resolved a habeas case “in
a manner fundamentally inconsistent with AEDPA.” Kayer,
141 S. Ct. at 523. Our circuit’s repeated failure to abide by
Supreme Court direction raises “a question of exceptional
importance.” Fed. R. App. P. 35(a)(2). 3 In refusing to
vacate and rehear this case en banc, we are implicitly
endorsing an approach which circumvents the Supreme
Court’s case law requiring strict adherence to the limitations
in § 2254(d). I therefore dissent from the denial of the
petition to rehear this case en banc.

I

The factual background of this case is straightforward.
A jury convicted Martin Kipp of strangling Antaya Howard
to death in the course of an attempted rape. Kipp v. Davis,
971 F.3d 939, 943–47 (9th Cir. 2020). At trial, the court

3
The concurrences attach great significance to the California
Attorney General’s decision not to petition for rehearing en banc, Paez
Concurrence at 5, 10; Miller Concurrence at 12. But California also
disclosed the underlying reason for its disinterest: the Ninth Circuit has
“affirmed the denial of relief as to Kipp’s death judgment arising from
his Los Angeles County case.” Davis En Banc Br. at 6. Although
California may reasonably decide not to put further resources into
fighting the reversal of one death sentence when a second death sentence
is already in place, a state’s practical considerations do not affect our
responsibility to ensure that our cases follow the law and Supreme Court
precedent.
 KIPP V. DAVIS 15

admitted evidence that Kipp had raped and strangled to death
Tiffany Frizzell just three months before Howard’s murder.
Id. 4

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 both state evidence rules
and his federal due process rights. Specifically, Kipp
asserted that the Frizzell rape and murder were “not
sufficiently similar to the charged offense to support the
necessary inference that [he] committed both crimes and did
so with the same intent” as required under section 1101 of
the California Evidence Code. The California Supreme
Court issued a “careful, reasoned opinion,” affirming Kipp’s
conviction and sentence. Kipp, 971 F.3d at 962 (Nguyen, J.,
dissenting); People v. Kipp, 18 Cal. 4th 349. The court
rejected Kipp’s claim that the admission of the Frizzell
evidence violated state evidence rules. 5 People v. Kipp,
18 Cal. 4th at 369–72.

4
At the guilt phase, the trial court excluded the evidence of Kipp’s
rape of another woman, June M., in Long Beach in 1981 because it
concluded that, once evidence of the Frizzell crimes was admitted,
evidence of the June M. incident would be cumulative. People v. Kipp,
18 Cal. 4th 349, 361, 372 n.1 (1998).

A different jury later convicted Kipp for the murder and rape of
Frizzell. Kipp v. Davis, 971 F.3d 866, 868 (9th Cir. 2020).

5
Although the California Supreme Court did not explicitly address
Kipp’s federal due process claim when resolving his challenge to the
admission of the Frizzell evidence, Kipp failed to overcome the “strong
presumption that the state court adjudicated his federal claim” on the
merits. Kipp, 971 F.3d at 950–51; see Williams, 568 U.S. at 293. When
evidence of other crimes is properly admitted under Rule 404(b) of the
Federal Rules of Evidence in a federal criminal proceeding, the
16 KIPP V. DAVIS

The California Supreme Court explained the framework
for determining the admissibility of evidence of uncharged
crimes under section 1101 of the California Evidence Code.
Section 1101 has been construed to mean that evidence “is
admissible to prove identity, common design or plan, or
intent only if the charged and uncharged crimes are
sufficiently similar to support a rational inference of identity,
common design or plan, or intent.” See People v. Kipp,
18 Cal. 4th at 369 (citing People v. Ewoldt, 7 Cal. 4th 380,
402–03 (1994)). For such evidence to be admissible to prove
identity, “the charged and uncharged offenses” must display
a “pattern and characteristics . . . so unusual and distinctive
as to be like a signature.” Id. at 370 (quoting Ewoldt, 7 Cal.
4th at 403). In determining whether there is such a pattern,
a court must consider the “degree of distinctiveness” of the
shared marks, and the “number of minimally distinctive
shared marks.” Id. (emphasis and citation omitted).

Applying this framework, the California Supreme Court
first acknowledged—but rejected—Kipp’s argument that the
Frizzell evidence “had little or no relevance on the issues of
identity and intent because the two killings were more
dissimilar than similar.” Id. at 369. To the contrary, the state
court listed the many similarities between the Frizzell rape
and murder and the Howard murder: (1) “the perpetrator
strangled a 19-year-old woman in one location, carried the
victim’s body to an enclosed area belonging to the victim
(Howard to her car, Frizzell to her motel room), and covered

admission does not violate the defendant’s due process rights. See
Dowling v. United States, 493 U.S. 342, 353–54 (1990). Because section
1101 of the California Evidence Code is nearly identical to its federal
counterpart, compare Cal. Evid. Code § 1101(b), with Fed. R. Evid.
404(b), the California Supreme Court’s decision that the trial court
properly admitted other crimes evidence is a decision that Kipp’s due
process rights were not violated. See Kipp, 971 F.3d at 950–51.
 KIPP V. DAVIS 17

the body with bedding (Howard with a blanket, Frizzell with
a bedspread)”; (2) “the bodies of both victims were found
with a garment on the upper body, while the breasts and
genital area were unclothed”; and (3) “in neither instance
had the victim’s clothing been torn, and that the bodies of
both victims had been bruised on the legs.” Id. at 370. Based
on these shared characteristics, the court concluded that
evidence of the Frizzell crimes was admissible to show that
Kipp had an intent to rape and kill Howard and “was acting
pursuant to a common plan or design to forcibly rape and to
kill the young women he had chosen as his victims.” Id.
at 371.

In reversing the district court’s denial of Kipp’s habeas
corpus petition, the panel majority, over Judge Nguyen’s
dissent, concluded that the California Supreme Court made
an objectively unreasonable determination of the facts in
deciding the admissibility of the Frizzell crime evidence. In
the panel majority’s view, the state court had “ignored
evidence that supported Kipp’s claim that the Frizzell and
Howard crimes were too dissimilar to support an inference
of connection by common identity or intent.” Kipp, 971 F.3d
at 955. The panel majority therefore felt free to review and
reweigh the evidence before the California Supreme Court
regarding the charged and uncharged offenses, and
determined that the “shared characteristics” between the
Frizzell and Howard crimes were “generic” and that there
were “differences that far outnumber the similarities.” Id.
at 952. Based on its own view of the evidence, the panel
majority held that the California Supreme Court’s failure to
conclude that the Frizzell crime was insufficiently similar to
the Howard crime necessarily involved ignoring evidence
and was therefore an unreasonable determination of the
facts. Id. at 955.
18 KIPP V. DAVIS

The panel majority also concluded that the California
Supreme Court “misstated the record” when it noted that
Frizzell’s breasts were unclothed. Id. at 954–55. According
to the majority, a photograph of Frizzell’s body showed that
her breasts were covered. Id. at 952. The panel majority
determined that such a misstatement of the record was
another “unreasonable determination of the facts” for
purposes of § 2254(d)(2). Id. at 954–55.

II

Kipp’s conclusion that the California Supreme Court
made an objectively unreasonable determination of the facts
in deciding the admissibility of the Frizzell crime evidence
is contrary to the text of § 2254(d) and to Supreme Court
precedent.

A

Under § 2254(d)(2), we may not grant a habeas petition
unless the claim adjudicated on the merits in state court
“resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d)(2).

The Supreme Court has explained that a state court’s
factual determination is “unreasonable” only when it is
“objectively unreasonable.” Miller-El v. Cockrell, 537 U.S.
322, 340 (2003). “[A] state-court factual determination is
not unreasonable merely because the federal habeas court
would have reached a different conclusion in the first
instance.” Wood v. Allen, 558 U.S. 290, 301 (2010).
“[E]ven if ‘[r]easonable minds reviewing the record might
disagree’ about the finding in question, ‘on habeas review
that does not suffice to supersede the trial court’s . . .
determination.’” Id. (quoting Collins, 546 U.S. at 341–42).
 KIPP V. DAVIS 19

Further, the text of § 2254(d)(2) requires that the state
court’s decision must be “based on” that unreasonable
determination of the facts. The state court’s unreasonable
factual determination must have been “defective in some
material way.” Taylor v. Maddox, 366 F.3d 992, 1000 (9th
Cir. 2004), abrogation on other grounds recognized by
Murray v. Schriro, 745 F.3d 984, 999–1000 (9th Cir. 2014).
A misapprehension of the record, for instance, must “go[] to
a material factual issue that is central to petitioner’s claim.”
Id. at 1001 (emphases added). Only then can the
“misapprehension . . . fatally undermine the fact-finding
process” such that the requirement under § 2254(d)(2) is
satisfied. Id.; cf. Green v. White, 232 F.3d 671, 676 (9th Cir.
2000) (highlighting that the state appellate court’s decision
to affirm the denial of a new trial was “based on” the
unreasonable determination that the juror did not
deliberately lie).

The majority held that the California Supreme Court’s
decision here was based on two unreasonable determinations
of the facts under § 2254(d)(2). Kipp, 971 F.3d at 954–55.
Both these rulings are meritless.

1

First, the panel majority’s determination that the
California Supreme Court ignored evidence or that its “fact-
finding process itself was defective,” id. at 955, is contrary
to the record and belied by the court’s opinion. Rather than
ignore dissimilarities, as the panel majority claimed, the
California Supreme Court expressly acknowledged Kipp’s
argument that the Frizzell evidence “had little or no
relevance on the issues of identity and intent because the two
killings were more dissimilar than similar.” People v. Kipp,
18 Cal. 4th at 369 (emphasis added).
20 KIPP V. DAVIS

The panel majority put great weight on the California
Supreme Court’s decision not to enumerate the
dissimilarities between the Howard and Frizzell crimes.
Kipp, 971 F.3d at 955. But a state court’s decision not to
delve into an argument in detail does not mean that the court
has “simply overlooked” it. 6 Williams, 568 U.S. at 298–301
(explaining that “busy state courts” do not have an obligation
“to discuss separately every single claim to which a
defendant makes even a passing reference”). As Judge
Nguyen points out, the characterization that the state court
“ignored evidence” by not expressly enumerating the
differences between the two crimes is “a grossly unfair
reading of the state court decision.” Kipp, 971 F.3d at 963
(Nguyen, J., dissenting). The California Supreme Court’s
determination of the facts is not objectively unreasonable
under § 2254(d)(2).

The panel majority claimed that the California Supreme
Court’s failure to discuss the dissimilarities “stands in
contrast” to other California Supreme Court cases on the
same issue, and it cited two cases to support this argument,
People v. Rogers, 57 Cal. 4th 296 (2013), and People v.
Foster, 50 Cal. 4th 1301 (2010). Kipp, 971 F.3d at 955.
Neither case supports Kipp’s contention. In both these cases,
the California Supreme Court cited and followed the

6
This is especially true where, as here, the dissimilarities between
the Howard and Frizzell crimes were not a key consideration in applying
section 1101 of the California Evidence Code. Because California law
directs courts to focus on the similarities in determining the admission
of uncharged crimes evidence, see Ewoldt, 7 Cal. 4th at 393, 402, the
California Supreme Court reasonably focused on assessing the
similarities to reach its conclusion. Although Judge Paez’s concurrence
faults the California Supreme Court for not spending more time
discussing the dissimilarities between the two killings, Paez Concurrence
at 9, it had no reason to do so as a matter of California law.
 KIPP V. DAVIS 21

framework set out in People v. Kipp and Ewoldt as the
correct governing law regarding admission of uncharged
crimes evidence. Rogers, 57 Cal. 4th at 326; Foster, 50 Cal.
4th at 1328. Dispelling the defendant’s argument is not part
of that framework. See Ewoldt, 7 Cal. 4th at 393–403. And
only after upholding the admission of the evidence did
Rogers and Foster go on to discuss the dissimilarities
between the prior crimes and the charged crime. Rogers,
57 Cal. 4th at 327 (concluding that the trial court did not err
in admitting the other crime evidence immediately after
listing the numerous common features between the
murders); Foster, 50 Cal. 4th at 1329 (beginning its analysis
by noting the similarity between the prior crimes and the
charged offenses, and concluding that the shared features
supported the inference of a common plan).

2

The panel majority’s second example of the California
Supreme Court’s unreasonable determination of the facts is
even flimsier. In the course of detailing the numerous
similarities between the Frizzell and Howard crimes, the
California Supreme Court stated that “the bodies of both
victims were found with a garment on the upper body, while
the breasts and genital area were unclothed.” People v. Kipp,
18 Cal. 4th at 370. This statement, the majority concluded,
means that the court’s decision was “based on an
unreasonable determination of the facts” under § 2254(d)(2),
given a photograph in the record showing Frizzell’s breasts
were covered when she was found. Kipp, 971 F.3d at 946,
952–55.

The California Supreme Court’s statement on this point
is literally true: Frizzell’s bra was removed and Howard’s
bra was twisted above her breasts. Regardless, in the context
of the court’s consideration of whether the Frizzell and
22 KIPP V. DAVIS

Howard crimes were sufficiently similar, this single point is
immaterial. Under § 2254(d)(2), the challenged state court’s
decision must be “based on” the “unreasonable
determination of the facts.” § 2254(d)(2). Accordingly, as
set forth in Taylor, only when the unreasonable
determination of the facts goes to “a material factual issue
that is central to petitioner’s claim,” can it “fatally
undermine the fact-finding process.” 366 F.3d at 1001
(emphasis added). Judge Nguyen correctly concluded that
this “single detail” about Frizzell’s breasts being unclothed
“does not defeat the state court’s overarching conclusion
about the parallels between the crimes.” Kipp, 971 F.3d
at 963 n.2 (Nguyen, J., dissenting).

The precedents cited by the panel majority offer no
support for its conclusion that an immaterial factual error by
the state court could relieve it of AEDPA deference. In both
Maxwell v. Roe and Brumfield v. Cain, the unreasonable
factual determination at issue was the lynchpin of the
challenged decision. Maxwell, 628 F.3d 486, 499–501, 505
(9th Cir. 2010); Brumfield, 576 U.S. 305, 322 (2015). In
Maxwell, a state habeas court unreasonably determined that
a jailhouse informant had testified credibly at the
defendant’s trial, and this unreasonable determination was
critical because a defendant is entitled to relief where “false
evidence brought about [his] conviction.” 628 F.3d at 499–
501, 505. Similarly, in Brumfield, the state court’s
unreasonable factual determination that the defendant was
not subaverage in intelligence and did not have an
impairment in adaptive skills was critical because it deprived
the defendant of a hearing to which he was entitled under the
Eighth Amendment. 576 U.S. at 321–22. 7 By contrast, the

7
Judge Paez’s additional citations to Burton v. Davis, 816 F.3d
1132, 1155–59 (9th Cir. 2016), and Green v. LaMarque, 532 F.3d 1028,
 KIPP V. DAVIS 23

California Supreme Court’s determination that Frizzell’s
breasts were unclothed was only one among numerous
“shared characteristics” that the court considered before
concluding that the Frizzell and Howard crimes were
“sufficiently similar to support a rational inference of
identity, common design or plan, or intent.” People v. Kipp,
18 Cal. 4th at 369–70 (citing Ewoldt, 7 Cal. 4th at 402–403).
The California Supreme Court’s characterization of the
record on a single point, even if assumed inaccurate, did not
“fatally undermine the fact-finding process,” Taylor,
366 F.3d at 1001. The court carefully detailed the other
shared characteristics presented in the record. People v.
Kipp, 18 Cal. 4th at 371–72. Contrary to the panel majority’s
conclusion, such a misstatement by the state court does not
satisfy the requirement under § 2254(d)(2).

1033 (9th Cir. 2008), Paez Concurrence at 8 n.4, provide no support.
Applying a pre-AEDPA standard, Burton held that where a state court
entirely declined to consider the facts material to a defendant’s Faretta
claim, there was “no relevant state court finding to which deference was
due under 28 U.S.C. § 2254(d).” 816 F.3d at 1158–59 (quoting Chacon
v. Wood, 36 F.3d 1459, 1465 (9th Cir. 1994), superseded by statute on
other grounds as stated in Morris v. Woodford, 229 F.3d 775, 779 (9th
Cir. 2000)). By contrast, the California Supreme Court considered
Kipp’s evidentiary claim and the evidence supporting it. People v. Kipp,
18 Cal. 4th at 369–72. Similarly, Green held that where the state court
“never fulfilled its affirmative duty” under Batson to determine whether
the prosecutor’s motive for striking a juror was purposeful racial
discrimination, the court’s decision that the strike was not racially
motivated “was based on an unreasonable determination of the facts.”
532 F.3d at 1030–31 (quoting Lewis v. Lewis, 321 F.3d 824, 832 (9th
Cir. 2003)). Here, the California Supreme Court properly addressed the
relevant question under state law; the panel majority just disagreed with
its conclusion.
24 KIPP V. DAVIS

B

While the panel majority purported to hold that the state
court made an unreasonable finding of fact under
§ 2254(d)(2), it actually disapproved the state court’s legal
conclusion on de novo review.

Under AEDPA, when we review “a state court
conclusion on a mixed issue involving questions both of fact
and law,” we “must first separate the legal conclusions from
the factual determinations that underlie it.” Lambert v.
Blodgett, 393 F.3d 943, 977–78 (9th Cir. 2004). We must
give the fact-finding “the full deference of §§ 2254(d)(2) and
(e)(1),” while reviewing “the state court’s conclusion as to
the ultimate legal issue . . . per § 2254(d)(1).” Id. at 978.

The panel majority failed to separate its factual
determination (whether the California Supreme Court was
objectively unreasonable in finding similarities between the
Howard and Frizzell crimes) from the “ultimate legal issue”
(whether the California Supreme Court erred in holding that
evidence of the Frizzell offense was admissible under
section 1101 of the California Evidence Code). Instead,
having reweighed the evidence to determine that the
similarities between the Frizzell and Howard crimes were
“generic,” and that the differences “far outnumber the
similarities,” the panel majority concluded that the state
court made a legal error in ruling that the Frizzell evidence
met the standard necessary for admission under section 1101
of the California Evidence Code. Kipp, 971 F.3d at 952.

This is simply de novo review of the state court’s
application of the law to the facts masquerading as AEDPA
deference to the state court’s determination of the facts. See
Kayer, 141 S. Ct. at 524–25 (chastising this Court for
reweighing de novo Kayer’s “relatively weak” aggravator
 KIPP V. DAVIS 25

and considerably weighty mitigating evidence). The panel
majority simply stepped into the shoes of the California
Supreme Court and determined that the Frizzell evidence
was not admissible under section 1101, because the panel
majority found that the dissimilarities between the prior
offense and the offense at trial outweighed the similarities.
But it is not our place to grade the California Supreme
Court’s application of law to facts on habeas review; “[w]e
are not a state supreme court of errors; we do not review
questions of state evidence law.” Jammal v. Van de Kamp,
926 F.2d 918, 919 (9th Cir. 1991). Under AEDPA, we must
defer to the state court’s conclusions of law and fact unless
they are objectively unreasonable. By wrongly framing its
ruling as a review of the state court’s factual determination
under § 2254(d)(2), the panel majority made an end run
around the limitations of § 2254(d)(1). It is clear why such
an end run was necessary: as the panel majority recognized,
there is “no clearly established law that addresses whether
the admission of a defendant’s criminal history or prior bad
acts would violate due process.” Kipp, 971 F.3d at 951 n.8.

III

The panel majority in Kipp “‘substituted its own
judgment for that of the state court’ instead of applying
deferential review.” Kayer, 141 S. Ct. at 524 (quoting
Visciotti, 537 U.S. at 25). “In other words, [the panel
majority] appears ‘to have treated the unreasonableness
question as a test of its confidence in the result it would reach
under de novo review.’” Id. at 523 (quoting Richter,
562 U.S. at 102). As the Supreme Court stated in an
analogous context, “[h]ere it is not apparent how the Court
of Appeals’ analysis would have been any different without
AEDPA.” Richter, 562 U.S. at 101. We have already been
chastised by the Supreme Court for disguising our
26 KIPP V. DAVIS

disagreement with a state court’s legal conclusion as a ruling
on the state court’s factual determinations. Smith, 574 U.S.
at 8 (“Although the [majority] claimed its disagreement with
the state court was factual in nature, in reality its grant of
relief was based on a legal conclusion . . . governed by
§ 2254(d)(1), not one of fact governed by § 2254(d)(2).”).
The panel majority’s approach of disguising a disagreement
with a state court’s legal conclusion as a determination that
the state court engaged in unreasonable fact-finding provides
the roadmap for a wholesale evasion of the strictures of
AEDPA. Having sworn to uphold the law, we must
recognize this latest circumvention of the binding authority
of the Supreme Court as a question of exceptional
importance. I therefore respectfully dissent from the denial
of rehearing en banc.

VANDYKE, Circuit Judge, with whom IKUTA,
CALLAHAN, R. NELSON, and BUMATAY, Circuit
Judges, join, dissenting from denial of rehearing en banc:

I write to note my respectful disagreement with Judge
Miller’s concurrence in denial of rehearing en banc. Judge
Ikuta and the thirteen judges who joined her dissent—one
shy of a majority of active judges on our court—obviously
disagree with Judge Miller’s view that this case does not
meet the criteria for en banc review. No doubt their
individual reasons for reaching that conclusion vary. But
presumably one reason is precisely what Judge Ikuta points
out in the first paragraph of her dissent: that our court has
over and over repeated the same error of purporting to defer
while not really being deferential when reviewing state court
criminal convictions under AEDPA.

Long before Judge Ikuta said so in this case, a wide range
of judges on our court have made precisely the same
 KIPP V. DAVIS 27

observation—again and again. See, e.g., Ford v. Peery,
976 F.3d 1032, 1051 n.4 (9th Cir. 2020) (R. Nelson, J.,
dissenting) (“Our court has struggled to correctly apply
AEDPA’s highly deferential standard. Despite the Supreme
Court’s repeated admonitions, the majority repeats our
court’s sadly regular error.” (citations omitted)); Andrews v.
Davis, 944 F.3d 1092, 1130–31 (9th Cir. 2019) (en banc)
(N.R. Smith, J., joined by Rawlinson and Owens, JJ.,
concurring in part and dissenting in part) (“When will my
colleagues quit ignoring the Supreme Court’s repeated
reminders to us that ‘[t]he role of a federal habeas court is to
“guard against extreme malfunctions in the state criminal
justice systems?”’” (citation omitted)); Hall v. Haws,
861 F.3d 977, 994 (9th Cir. 2017) (Callahan, J., dissenting)
(“In finding a due process violation warranting habeas relief,
the majority brushes aside the AEDPA standards and the
Supreme Court’s repeated instructions that we must defer to
reasonable state court decisions.”); Tarango v. McDaniel,
837 F.3d 936, 953 (9th Cir. 2016) (Rawlinson, J., dissenting)
(“In the last ten years, the United States Supreme Court has
repeatedly rebuked this Circuit for attempting to make end-
runs around the formidable obstacles to review contained in
the AEDPA. . . . Despite our recurring acknowledgment of
this demanding standard, the Supreme Court has constantly
chastised us for failing to take our professed
acknowledgment to heart.”); Doody v. Ryan, 649 F.3d 986,
1029 (9th Cir. 2011) (en banc) (Tallman, J., joined by Rymer
and Kleinfeld, JJ., dissenting) (“The Supreme Court has
repeatedly told us to adhere to the highly deferential standard
of review of state court judgments that [AEDPA] requires
. . . . The majority will not yield to the shot across our bow
fired by the Supreme Court . . . [and] steams defiantly ahead,
far from the rest of the fleet.”); see also Anderson v. Neven,
974 F.3d 1119, 1137 (9th Cir. 2020) (VanDyke, J.,
dissenting from denial of rehearing en banc) (“This court
28 KIPP V. DAVIS

menaces federalism when it cavalierly vacates state court
convictions that aren’t even close calls under AEDPA. This
case is a particularly glaring example of that. The Supreme
Court has provided us ‘many rebukes’ for such behavior.
Because this deeply flawed decision presented an easy
opportunity to fix our most egregious habeas overreaching,
and we failed to do so, I respectfully dissent.” (internal
citation omitted)).

To err is human, as are judges, so the occasional flub
applying AEDPA is to be expected and thus deemed
unworthy of en banc review for the reasons given by Judge
Miller. But at some point—and we are well past that point—
our court needs to own its systemic failure applying AEDPA.
We need to recognize our regular and improper interference
with state criminal justice systems is, cumulatively, “a
question of exceptional importance,” and do something
about it. Taking this case en banc would have been a good
place to start.

O’SCANNLAIN, * Circuit Judge, respecting the denial of
rehearing en banc:

I agree with the views expressed by Judge Ikuta in her
dissent from the denial of rehearing en banc.

*
As a judge of this court in senior status, I no longer have the power
to vote on calls for rehearing cases en banc or formally to join a dissent
from failure to rehear en banc. See 28 U.S.C. § 46(c); Fed. R. App. P.
35(a). Following our court’s general orders, however, I may participate
in discussions of en banc proceedings. See Ninth Circuit General Order
5.5(a).