Kipp v. Davis, No. 16-99004 (9th Cir. 2020)
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The Ninth Circuit reversed the district court's denial of petitioner's habeas corpus petition challenging his California conviction and death sentence for first degree murder and attempted rape. Over petitioner's objection, the trial court allowed the prosecution to present evidence of an unadjudicated murder and rape in Los Angeles County. The prosecution then relied on this "other acts evidence" to show the identity of the victim's killer and intent to commit rape and to kill.
The panel held that the state court made a crucial erroneous factual determination in linking the two crimes and apparently failed to consider the entire record. Therefore, the California Supreme Court's decision finding no due process violation was based on an unreasonable determination of the facts under 28 U.S.C. 2254(d)(2). The panel also held that the admission of the evidence constituted a due process violation that prejudiced petitioner. Accordingly, the panel remanded with instructions to issue a conditional writ of habeas corpus.
Court Description: Habeas Corpus / Death Penalty. The panel reversed the district court’s denial of Martin James Kipp’s habeas corpus petition challenging his California conviction and death sentence for the first degree murder and attempted rape of Antaya Yvette Howard in Orange County, in a case in which Kipp claimed that the trial court violated his due process right to a fair trial by erroneously admitting “other acts evidence” of the unadjudicated murder and rape of Tiffany Frizzell in Los Angeles County. Concluding that Kipp could not overcome the strong presumption that the state court adjudicated his due process claim, the panel rejected Kipp’s argument that de novo review should apply, and instead applied AEDPA’s section 2254(d). The panel concluded that the state court’s determination that there was a “highly distinctive pattern” between the Howard and Frizzell crimes was an unreasonable determination of facts under AEDPA section 2254(d)(2) in two ways: (1) the state court misstated the record in making a finding about the state of Frizzell’s body as being unusually similar to Howard’s with regard to their breasts being exposed, a misapprehension that is central to Kipp’s claim; and, more importantly, (2) the state court apparently ignored evidence that supported Kipp’s claim that the Frizzell and Howard crimes were too dissimilar to KIPP V. DAVIS 3 support an inference of connection by common identity or intent. Because the state court’s denial of Kipp’s due process claim was based on an unreasonable determination of the facts under section 2254(d)(2), the panel proceeded to resolve the due process claim without the deference AEDPA otherwise requires. The panel concluded that the trial court’s admission of the Frizzell evidence deprived Kipp of a fundamentally fair trial in violation of his due process rights; and that Kipp was prejudiced as to the first degree murder and attempted rape charges, as well as the special circumstance finding. The panel remanded with instructions to issue a conditional writ of habeas corpus. Dissenting, Judge Nguyen wrote that there is no support for the majority’s assumption that the state court failed to consider material evidence favorable to the defense; and even if the California Supreme Court’s determination of the facts was unreasonable, the majority wrongly concludes that Kipp suffered actual prejudice.
The court issued a subsequent related opinion or order on February 8, 2021.
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