FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARTIN JAMES KIPP,

Petitioner-Appellant,

v.

RONALD DAVIS, Warden, California 

State Prison at San Quentin,

Respondent-Appellee.

No. 16-99004

D.C. No.

2:99-cv-04973-

AB

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 factfinding 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 casespecific 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-novomasquerading-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 “factfinding 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 endruns 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).