Martin Kipp v. Ron Davis ( 2020 )

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
RON DAVIS, Warden, California
State Prison at San Quentin,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
Andre Birotte, Jr., District Judge, Presiding
Argued and Submitted March 28, 2019
San Francisco, California
Filed August 19, 2020
Before: Richard A. Paez, Mary H. Murguia, and
Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Paez;
Dissent by Judge Nguyen
2 KIPP V. DAVIS
SUMMARY *
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
*
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
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.
COUNSEL
Celeste Bacchi (argued), Mark R. Drozdowski, and Jennifer
Hope Turner, Deputy Federal Public Defenders; Hilary
Potashner, Federal Public Defender; Office of the Federal
Public Defender, Los Angeles, California; for Petitioner-
Appellant.
Randall D. Einhorn (argued) and Ronald A. Jakob, Deputy
Attorneys General; Ronald S. Matthias, Senior Assistant
4 KIPP V. DAVIS
Attorney General; Gerald A. Engler, Chief Assistant
Attorney General; Xavier Becerra, Attorney General; Office
of the Attorney General, San Diego, California; for
Respondent-Appellee.
OPINION
PAEZ, Circuit Judge:
Martin James Kipp was tried in 1987 for the first degree
murder and attempted rape of Antaya Yvette Howard in
Orange County. Over Kipp’s objection, the trial court
allowed the prosecution to present evidence of an
unadjudicated murder and rape in Los Angeles County. The
prosecution relied on this “other acts evidence” to show the
identity of Howard’s killer and intent to commit rape and to
kill. After the guilt phase of the trial, the jury returned a
guilty verdict and, after the penalty phase, it returned a
verdict recommending death. The California Supreme Court
affirmed Kipp’s conviction and death sentence on direct
appeal. It subsequently denied his two state habeas petitions.
Kipp filed a federal habeas petition, asserting a number
of constitutional claims. The district court denied all the
claims but issued a certificate of appealability on Kipp’s
claim that the erroneous admission of the other acts evidence
violated his due process right to a fair trial. We have
jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a).
Because the state court made a crucial erroneous factual
determination in linking the two crimes and apparently failed
to consider the entire record, we conclude that 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). We also conclude that the
KIPP V. DAVIS 5
admission of the evidence constituted a due process violation
that prejudiced Kipp. We therefore reverse the district
court’s denial of Kipp’s habeas petition and remand with
instructions to issue a conditional writ of habeas corpus. 1
I.
A.
On January 4, 1984, nineteen-year-old Antaya Yvette
Howard was found dead in her orange Datsun car in
Huntington Beach, Orange County. She was estimated to
have been killed on or about December 30, 1983. We briefly
provide the facts of the night leading up to Howard’s murder
as presented at trial, drawing from the California Supreme
Court’s opinion on direct review, People v. Kipp, 956 P.2d
1169 (Cal. 1998), and the trial and state habeas records.
On the evening of December 29, 1983, after 10 p.m.,
Howard drove to a bar in Huntington Beach called the Bee
Hive. The defendant, Kipp, age 25 at the time, also went to
the Bee Hive that night. He was staying temporarily in the
apartment of his childhood friend, Kenton Wheeler, who lent
Kipp his sweater. The bartender at the Bee Hive recognized
1
Kipp raised five uncertified claims in his opening brief: (1) trial
court’s failure to dismiss a potential juror for bias; (2) ineffective
assistance of counsel during voir dire; (3) juror misconduct during guilt
phase deliberations; (4) cumulative error; and (5) ineffective assistance
of counsel during the penalty phase. Pursuant to Ninth Circuit Rule 22-
1(e), we construe this as a motion to expand the certificate of
appealability to include these claims. We ordered supplemental briefing
on those five issues. We grant the certificate of appealability as to all
five claims, but because we grant relief on Kipp’s due process claim, we
have no need to address the merits of those other claims at this time.
6 KIPP V. DAVIS
Howard and Kipp as previous customers, but she had not
seen them together before.
In the Bee Hive, Kipp sat at the bar next to Howard and
they started to talk and drink beer. At around 1:15 a.m., Kipp
and Howard left the bar together, returning at around
1:45 a.m. Both were showing the effects of alcohol or some
other intoxicating substance, but neither appeared extremely
high, and Kipp seemed less impaired than Howard. Kipp
and Howard each wanted another beer, but the bartender
refused to serve them because they had missed the last call
for drinks.
Kipp and Howard departed and were next seen at
Charlie’s Chili, an all-night restaurant in Newport Beach.
There, between 2 and 4 a.m., Kipp and Howard drank a
bottle of champagne in the company of a man with sandy
hair. Eventually, the sandy-haired man left by himself in his
own car. One witness, a restaurant customer, later testified
that Kipp and Howard left in Howard’s car, with Kipp
driving. Another witness, a restaurant employee, testified
that Kipp and Howard walked toward the beach after leaving
the restaurant. Howard did not return home that night and
was never seen alive again.
At around 7 a.m. on December 30, a woman noticed a
car parked in an alley behind her Huntington Beach house.
This car eventually proved to be Howard’s, after the same
woman notified the police a few days later because the car
emitted a strong odor. When Wheeler returned to his
apartment at 4:30 p.m. on December 30, he found Kipp in
the shower. The sweater Kipp had borrowed was soiled and
stained on the front and arms, and the room in which Kipp
had slept held a very strong and sour body odor. Kipp
immediately moved out and checked in at a hotel, where he
stayed only one night.
KIPP V. DAVIS 7
On January 6, 1984, Kipp turned himself in to the
Laguna Beach Police Department on traffic warrants. On
January 10, the Huntington Beach Police Department
interviewed Kipp and arrested him for the murder of
Howard. The Orange County Public Defender was
originally appointed to represent Kipp in the Howard case
but, due to a conflict of interest, the trial court substituted in
James Egar in April 1984.
Separately, on September 17, 1983, Tiffany Frizzell was
found dead in a motel room in Long Beach, Los Angeles
County. After being charged with the Howard homicide,
Kipp was also charged with the Frizzell homicide in Los
Angeles County. In August 1984, Egar was appointed to
represent Kipp in the Frizzell case as well.
Egar conducted the preliminary hearings in both cases
and applied for funding for investigation and to retain
experts. In late 1985, Egar learned that his paralegal was
having a romantic affair with his client Kipp. Egar
subsequently dismissed the paralegal, which led to a
breakdown in the attorney-client relationship and prompted
Egar to withdraw from representing Kipp in the Frizzell
case. In April 1986, Kipp requested that Egar be relieved as
counsel in the Howard case, which the trial court granted.
The court appointed Michael Horan to represent Kipp in the
Howard case. Separate counsel was appointed to represent
Kipp in the Frizzell case.
In the Howard case, Kipp was charged with first degree
murder (Count One), rape (Count Two), and attempted rape
(Count Three). The First Amended Information also alleged
the special circumstance that Kipp committed the murder
with the intent to kill while he was engaged in the rape or
attempted rape of Howard.
8 KIPP V. DAVIS
About a month prior to trial, the prosecutor moved to
admit evidence of the unadjudicated rape and murder of
Frizzell as “other acts evidence” under California Evidence
Code section 1101(b) to show the identity of Howard’s killer
and Kipp’s intent to commit rape and to kill. The prosecutor
argued that the Frizzell evidence avoided the ban on
presenting evidence of a criminal defendant’s character or
prior conduct because “the Howard murder bears the same
signature as the Frizzell murder” and was therefore
admissible under section 1101(b).
The defense vigorously opposed admission of the
Frizzell evidence, pointing out the differences between the
two crimes and arguing that there was no distinctive “calling
card.” At a hearing on the motions, the trial court noted that
“it’s a very close call” and a “tough question,” but ultimately
granted the prosecution’s motion to admit the evidence.
Kipp’s trial began in mid-July 1987. In its opening
statement, the prosecution discussed the Frizzell homicide,
asserting that the evidence from the Frizzell case “is
intended to show that the defendant killed [Antaya] Yvette
Howard. That he intended to rape her; and that he intended
to kill her. And that he did kill her.” The prosecution then
presented witnesses who testified to the facts leading up to
Howard’s disappearance and discovery, recounted above.
The prosecution also called further witnesses who
testified as to the following about the crime scene. 2
2
We grant Kipp’s motion requesting that we take judicial notice of
prosecution exhibits 2, 23, 31 and 71, which are photographs of Howard
before her death, Howard at the scene where her body was discovered,
the jeans that Howard was wearing at the time of her death, and the body
of Frizzell, respectively. These exhibits were admitted into evidence at
the Orange County trial. “[W]e ‘may take notice of proceedings in other
KIPP V. DAVIS 9
Howard’s body was found in her car in the hatchback area
containing some trash. There was a sack that contained beer
cans and a couple of straws, although no residue of narcotics
were detected inside of them. Her body was covered by a
blanket, on top of objects like hubcaps and other shoes. Her
blouse had been pulled back and was missing a button,
although the investigating officer at the scene reported
observing no “violence to the blouse.” Howard’s bra was
still clasped but was twisted and above her breasts. There
were no shoes on Howard’s feet. Her jeans and underwear
were around her ankles. There was mud and dirt on the
knees, the left side, and the back of the jeans, and also on the
upper left part of Howard’s body.
The autopsy surgeon testified that the cause of Howard’s
death was asphyxiation due to strangulation, with blunt force
injury to the head as a contributing factor. A criminalist
testified about tests conducted for signs of seminal fluid or
spermatozoa, which would indicate the possibility of sexual
intercourse or assault. No seminal fluid or spermatozoa was
detected; the criminalist stated that that could indicate either
no presence to begin with, or that it could have evaporated,
decomposed, and disappeared. A pathologist also examined
Howard’s genital and vaginal areas to look for evidence of
sexual assault, like tears, lacerations, deep bruising or any
other injuries, but found no evidence of trauma. He did not
find defensive wounds on Howard’s body, but testified there
courts, both within and without the federal judicial system, if those
proceedings have a direct relation to matters at issue.’” U.S. ex rel.
Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248
(9th Cir. 1992) (quoting St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d
1169, 1172 (10th Cir. 1979)).
10 KIPP V. DAVIS
could have been superficial trauma that could have been
“readily masked” by decomposition of the body.
The prosecution also introduced evidence of the Frizzell
homicide, which took up almost two days of the four-day
trial. Of the 32 witnesses who testified, 15 witnesses related
to the Frizzell case, including Frizzell’s mother. The court
instructed the jury that it could consider the Frizzell evidence
for the limited purpose of determining whether it tends to
show:
a characteristic method, plan, or scheme in
the commission of criminal acts similar to the
method, plan, or scheme used in the
commission of the offense in this case, which
would further tend to show the existence of
the intent . . . and special circumstance
alleged, or the identity of the person who
committed the crimes and special
circumstance.
To sum up, the court instructed that “the [Frizzell] offense is
admissible if it [warrants] an inference that if the defendant
committed another act, he committed the act charged.”
Frizzell’s mother testified that on September 15, 1983,
Frizzell flew from Seattle to Southern California where she
was supposed to start school at the Brooks Fashion College
in Long Beach two days later. Because the dorms had not
yet opened, Frizzell stayed at the Ramada Inn in Long
Beach. She spoke to Frizzell by phone on September 15 and
16. On September 17, an employee at the Ramada Inn found
Frizzell’s dead body on the bed in her rented room. Officers
testified to finding Frizzell’s semi-clad body laying on the
bed, under the bedspread, with a garment over her face. Her
bra was missing, and she was nude from the waist down.
KIPP V. DAVIS 11
The blanket, bedsheets, and pillows on the bed were
undisturbed, and there seemed to be no indication of a
struggle on the bed.
The prosecution’s witnesses also testified to the
following: Frizzell’s death was caused by ligature
strangulation, having been strangled by a belt that was
around her neck. Semen and sperm were found in Frizzell’s
vagina and external genital area. Kipp’s fingerprint was
found on a telephone in the room. A few days later, a canvas
bag containing clothing and other personal property
belonging to Frizzell was found in some bushes at a Long
Beach residence, and one of the objects in the bag, a book,
also bore Kipp’s fingerprints. The following month, Kipp
pawned a radio that had belonged to Frizzell.
After the prosecution rested, the defense moved under
California Penal Code section 1118 for the trial court to
order a judgment of acquittal based on insufficient evidence.
The court granted the motion in part and denied it in part.
The court dismissed Count Two after concluding there was
not enough evidence to show actual rape of Howard. The
court stated, however, that the photographs of Howard, the
position of her clothing, and the Frizzell evidence were
sufficient to sustain a verdict of attempted rape and the
special circumstance of murder during attempted rape.
In its case, the defense made no opening statement and
presented one witness, a toxicologist who testified to the
presence of cocaine or a cocaine metabolite in Howard’s
blood.
In closing statements, the prosecution referred to the
Frizzell evidence and Howard evidence interchangeably
throughout its argument. The prosecutor implied that Kipp
knew how to kill Howard because he had done it before,
12 KIPP V. DAVIS
through strangulation of Frizzell. He acknowledged that
there was not enough evidence of actual rape of Howard, but
pointed out that there was proof of rape in Frizzell’s case.
He also pointed out that even though there was no sign of
defensive wounds on Howard’s body, “you’ve got bruises
on Tiffany [Frizzell].” He concluded that the evidence of a
prior rape and murder “[wa]s about as strong evidence as
you’re ever going to get that [Kipp] intended to kill
[Howard].”
In its closing, the defense argued that there was little
evidence to support the charges without the Frizzell case,
pointing out “[t]he biggest piece of evidence he has, to be
honest with you, is that incident in Long Beach.”
The jury deliberated over three days, for a total of about
seven hours. On August 14, 1987, the jury returned a
verdict, finding Kipp guilty of first degree murder and
attempted rape and finding the attempted rape special
circumstance to be true.
The penalty phase began on August 19 and ended on
August 21. The jury deliberated over two days before
returning a verdict recommending death. On September 18,
1987, the trial court sentenced Kipp to death. 3
B.
Kipp appealed his conviction and sentence with new
counsel. The direct appeal included claims based on the
3
After the Orange County trial, Kipp was separately convicted and
sentenced to death for the rape, robbery, and murder of Frizzell in 1989
in Los Angeles County. People v. Kipp, 33 P.3d 450, 458 (Cal. 2001).
This case is the subject of an appeal before us, which we resolve in an
opinion concurrently published under Case No. 15-99020.
KIPP V. DAVIS 13
erroneous introduction of the Frizzell evidence at the guilt
phase of the trial, ineffective assistance of trial counsel
during voir dire, the trial court’s failure to sua sponte dismiss
a potential juror for cause, and cumulative error. In 1998,
the California Supreme Court affirmed Kipp’s convictions
and sentence in a reasoned opinion. Kipp, 956 P.2d at 1174.
The California Supreme Court also denied Kipp’s petition
for rehearing. In December 1996, Kipp filed a habeas
petition in the California Supreme Court while his direct
appeal was pending. In addition to his claims on direct
appeal, Kipp raised additional claims of juror misconduct
and ineffective assistance of counsel during the penalty
phase. The court summarily denied the habeas petition in
April 1999.
In April 2000, Kipp, now represented by the Federal
Public Defender, filed an “exhaustion” state habeas petition
in the California Supreme Court, raising all claims relevant
to this appeal, including more evidentiary support than was
previously available in his first habeas petition. The
California Supreme Court issued an order on February 19,
2003, stating without explanation: “Each claim is denied on
the merits for failure to state a prima facie case for relief.”
Kipp filed his initial federal petition in March 2000. The
district court stayed federal proceedings pending the state
exhaustion proceedings. Two days after the California
Supreme Court denied his second state habeas petition, Kipp
filed an amended petition.
In March 2005, Kipp filed a motion for evidentiary
hearing on certain claims. The district court granted an
evidentiary hearing on three ineffective assistance of counsel
claims related to the penalty phase, mental state defense, and
use of experts. In the same order, the district court denied
Kipp’s claims regarding the admission of the Frizzell
14 KIPP V. DAVIS
evidence, ineffective assistance of counsel during voir dire,
the trial court’s failure to excuse a potential juror for bias,
and juror misconduct. 4 The district court conducted an
evidentiary hearing from December 1 through December 4,
2009. Following the United State Supreme Court’s decision
in Cullen v. Pinholster, 563 U.S. 170 (2011), the district
court recognized that it was foreclosed from considering any
new evidence presented at the evidentiary hearing, and
denied all three remaining ineffective assistance of counsel
claims. In March 2016, the district court denied all other
remaining claims, including the claim of cumulative error.
Kipp timely appealed.
II.
We review de novo a district court’s decision to grant or
deny a writ of habeas corpus. Poyson v. Ryan, 879 F.3d 875,
887 (9th Cir. 2018) (citing Brown v. Ornoski, 503 F.3d 1006,
1010 (9th Cir. 2007)). We review the district court’s
findings of fact for clear error. Id.
Habeas petitions filed after April 24, 1996 arising out of
criminal proceedings in state court, as is the case here, are
governed by the Antiterrorism and Effective Death Penalty
Act (“AEDPA”). Id. Under AEDPA, if a claim was
“adjudicated on the merits in [s]tate court proceedings,” a
4
The district court applied no procedural bars to Kipp’s claims and
decided all claims on the merits. Because Kipp raised and briefed all the
claims presented to us on direct appeal or state post-conviction
proceedings, we conclude that he “‘fairly presented’ his federal claim[s]
to the highest state court” and has satisfied the exhaustion requirement.
Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (quoting Anderson
v. Harless, 459 U.S. 4, 6 (1982)).
KIPP V. DAVIS 15
federal court may only grant habeas relief on either of two
grounds if the state court’s adjudication of the claim:
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of,
clearly established Federal law, as
determined by the Supreme Court of the
United States; or
(2) 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).
To determine whether section 2254(d) deference applies,
we must first identify the appropriate state court decision to
review. We look “to the last reasoned decision” that resolves
the claim at issue in order to determine whether that claim
was adjudicated on the merits. Ylst v. Nunnemaker, 501 U.S.
797, 804 (1991). A state court may decide a habeas claim
on the merits “unaccompanied by an explanation” of its
reasoning. Harrington v. Richter, 562 U.S. 86, 98 (2011).
This “Richter presumption” can be rebutted “in some limited
circumstances.” Johnson v. Williams, 568 U.S. 289, 301
(2013).
When the state’s highest court does not provide
reasoning for its decision, a federal habeas court may “‘look
through’ the unexplained decision to the last related state-
court decision that does provide a relevant rationale” and
“presume that the unexplained decision adopted the same
reasoning.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
Where no decision from the state court explains its
underlying reasoning, we must “engage in an independent
16 KIPP V. DAVIS
review of the record” to determine whether the state court’s
decision was “objectively unreasonable.” Murray v. Schriro
(“Murray II”), 882 F.3d 778, 802 (9th Cir. 2018) (quoting
Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013)). This
is not de novo review; rather, we must determine what
arguments could have supported the state court’s decision
and assess whether fairminded jurists could disagree
whether those arguments are unreasonable. Id.
For claims adjudicated on the merits in state court,
AEDPA sets a “difficult” standard to meet. Richter,
562 U.S. at 102. The first ground for AEDPA relief may
only be met by reference to holdings, rather than dicta, of the
Supreme Court published “as of the time of the relevant
state-court decision.” Carey v. Musladin, 549 U.S. 70, 74
(2006) (quoting Williams v. Taylor, 529 U.S. 362, 412
(2000)). An “unreasonable application” of clearly
established law must be “more than incorrect or erroneous”;
the state court’s application of Supreme Court precedent
must be “objectively unreasonable.” Lockyer v. Andrade,
538 U.S. 63, 75 (2003) (quoting Williams, 529 U.S. at 409–
10). “[S]o long as ‘fairminded jurists could disagree’ on the
correctness of the state court’s decision,” AEDPA precludes
federal habeas relief. Richter, 562 U.S. at 101 (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
The second ground for federal habeas relief may only be
met with reference to the evidence in the record before the
state court. Pinholster, 563 U.S. at 181–82. As long as
“‘[r]easonable minds reviewing the record might disagree’
about the finding in question,” AEDPA prevents federal
habeas relief. Brumfield v. Cain, 135 S. Ct. 2269, 2277
(2015) (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)).
“If the claim was not ‘adjudicated on the merits’ by the
state court, the review is to be de novo.” Amado v. Gonzalez,
KIPP V. DAVIS 17
758 F.3d 1119, 1130 (9th Cir. 2014) (quoting Pirtle v.
Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002)). Where a
state court has adjudicated a claim on the merits with a
written decision denying relief based on one element of the
claim and, therefore, does not reach the others, the federal
court gives section 2254(d) deference to the element on
which the state court ruled and reviews de novo the elements
on which the state court did not rule. See Rompilla v. Beard,
545 U.S. 374, 390 (2005).
III.
On appeal, Kipp raises five claims related to the guilt
phase of the trial and one related to the penalty phase. Here
we address only the merits of Kipp’s due process claim. 5
Kipp argues that his due process right to a fair trial was
violated by the introduction of extensive evidence
concerning the unadjudicated rape and murder of Frizzell to
prove Kipp’s intent and identity as the perpetrator of the
charged offenses involving Howard. According to Kipp, the
lack of distinctive similarities between the two offenses
made it impossible for the jury to draw a permissible
inference that the person who killed Frizzell was likely the
same person who killed Howard or was acting with the same
intent. Instead, the Frizzell evidence supported only an
impermissible inference of propensity: that Kipp likely
raped and killed Frizzell, and was thus the sort of person of
bad character who would also have raped and killed Howard.
Kipp argues that the erroneous admission of the Frizzell
evidence deprived him of his due process right to a fair trial
because it relieved the prosecution of its burden of proving
5
As noted above, supra at n.1, we have no need to reach the merits
of the other five, previously uncertified claims.
18 KIPP V. DAVIS
him guilty of Howard’s murder and attempted rape beyond
a reasonable doubt. He further argues that the error was
prejudicial because the case against him was entirely
circumstantial and the Frizzell evidence was highly
inflammatory.
We conclude that the California Supreme Court’s
decision to affirm admission of the Frizzell crime was based
on an unreasonable determination of the facts in light of the
evidence presented to the state court. The admission
violated Kipp’s due process right to a fair trial and
prejudiced him as to both charges and the special
circumstance. We therefore reverse the district court’s
denial of habeas relief and remand with instructions to issue
a conditional writ of habeas corpus.
A.
Before analyzing Kipp’s claim, we must first decide the
proper standard of review, which is rigorously contested by
the parties. Because we are obliged to apply the correct
standard, the issue of the proper standard by which to review
Kipp’s habeas claim is “non-waivable.” 6 Amado, 758 F.3d
at 1133 n.9. Kipp argues that de novo review should apply
because the California Supreme Court never ruled on the
merits of his due process claim. The Warden argues that the
California Supreme Court decided the claim on the merits in
its reasoned decision on direct appeal when it concluded that
the admission of the Frizzell evidence did not violate
California’s evidentiary rules.
6
The Warden’s assertion that Kipp waived the argument for de novo
review is therefore inapposite.
KIPP V. DAVIS 19
In its opinion on direct review, the California Supreme
Court did not explicitly address or acknowledge Kipp’s due
process claim. On the one hand, this is striking because
California Supreme Court decisions addressing similar
claims typically do address the due process claim separately
from the evidentiary claim. See, e.g., People v. Gordon,
792 P.2d 251, 260 n.2 (Cal. 1990). In Kipp’s case, however,
the state court only reviewed for abuse of discretion the trial
court’s decision to admit the evidence under California
Evidence Code sections 1101 and 352. 7 On the other hand,
we have interpreted the Supreme Court’s decisions in
Williams and Richter to create a strong presumption that the
state court’s extensive discussion of Kipp’s claim as an
evidentiary ruling under California state law was a ruling on
the federal constitutional claim as well. See Murray II,
882 F.3d at 810 (citing Williams, 568 U.S. at 298, 305;
Richter, 562 U.S. at 98–100).
In many ways, Kipp’s case is analogous to Williams. In
that case, the petitioner argued that the discharge of a certain
juror violated both the Sixth Amendment and the California
Penal Code. 568 U.S. at 295. Looking to the last reasoned
decision, we originally held that the California state court
either overlooked or disregarded the Sixth Amendment
claim because the state court extensively discussed the
propriety of the dismissal under California state law without
expressly acknowledging whether it was also deciding a
Sixth Amendment issue. Id. at 296–97. The Supreme Court
7
Section 1101 prohibits the admission of character or other acts
evidence to prove a defendant’s conduct on a specified occasion with
certain exceptions, including to prove intent or identity. CAL. EVID.
CODE § 1101(a)–(b). Section 352 requires the court to weigh the
probative value of proffered evidence against danger of undue prejudice,
confusion or misleading the jury. Id. § 352.
20 KIPP V. DAVIS
reversed our decision, explaining there are several reasons
why state courts may not discuss separately every single
claim: first, the line of state precedent could be viewed to
fully incorporate a related federal constitutional right;
second, the state court might consider a reference to the U.S.
Constitution or federal precedent as too “fleeting” to
sufficiently raise a federal claim; and third, the state court
may simply disregard the claim as too insubstantial to merit
discussion. Id. at 298–99. Pointing out how California state
law seemed to incorporate federal constitutional law
regarding juror impartiality, id. at 304–06, the Court
concluded that it was “exceedingly unlikely” that the state
court overlooked the petitioner’s federal claim and
remanded for us to apply AEDPA deference. Id. at 306.
Some of the factors discussed in Williams cut the other
way in Kipp’s case to support de novo review. First, Kipp’s
argument involved more than a “fleeting reference” to the
due process clause; on direct appeal, he fully briefed that
claim separately from the state evidentiary claim. Second,
the due process claim is neither insubstantial nor frivolous,
given the highly prejudicial nature of the Frizzell evidence.
Third, the California Supreme Court’s discussion of the
merits of the evidentiary claim does not refer to federal
precedent.
Applying Murray’s interpretation of Williams and
Richter, we nonetheless conclude that Kipp cannot
overcome the strong presumption that the state court
adjudicated his federal claim. As we have noted before, “it
is ‘difficult to imagine’ the [state supreme court]
‘announcing an interpretation of’ [its state evidentiary rule]
‘that it believed to be less protective than’ the Fourteenth
Amendment, ‘as any such interpretation would provide no
guidance to state trial judges bound to follow both state and
KIPP V. DAVIS 21
federal law.’” Murray II, 882 F.3d at 810–11 (quoting
Williams, 568 U.S. at 305); see also Phillips v. Herndon,
730 F.3d 773, 775–77 (9th Cir. 2013) (holding that the state
court’s holding on California Evidence Code section 1230
regarding third-party confessions was at least as protective
as the federal standard).
Indeed, the relevant California evidentiary rule is nearly
identical to its federal counterpart. California Evidence
Code section 1101(b) provides:
Nothing in this section prohibits the
admission of evidence that a person
committed a crime, civil wrong, or other act
when relevant to prove some fact (such as
motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake
or accident, . . . ) other than his or her
disposition to commit such an act.
(emphasis added). For comparison, Federal Rule of
Evidence 404(b) states:
Evidence of a crime, wrong, or other act is
not admissible to prove a person’s character
in order to show that on a particular occasion
the person acted in accordance with the
character . . . [but t]his evidence may be
admissible for another purpose, such as
proving motive, opportunity, intent,
preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.
(emphasis added).
22 KIPP V. DAVIS
The Supreme Court found no due process violation
where other acts evidence was properly admitted under Rule
404(b) in Dowling v. United States, 493 U.S. 342, 353–54
(1990). Given the “overlapping nature” of Kipp’s due
process and evidentiary clams, “it is improbable that the state
court simply neglected the federal issue and failed to
adjudicate the constitutional claim.” Bell v. Uribe, 748 F.3d
857, 864 (9th Cir. 2014).
We therefore apply AEDPA’s section 2254(d) to Kipp’s
due process claim.
B.
Alternatively, applying AEDPA, Kipp argues that the
state court’s decision was based on an unreasonable
determination of the facts for purposes of section
2254(d)(2). 8 Assuming that the California Supreme Court’s
decision on the state evidentiary claim also addressed the
federal due process claim, the court concluded there was no
due process violation because the Frizzell and Howard
crimes “revealed a highly distinctive pattern” “to support a
rational inference of identity, common design or plan, or
intent.” Kipp, 956 P.2d at 1181–82. The state court reached
this conclusion by pointing out eight “shared characteristics”
8
Kipp does not argue for error under section 2254(d)(1) because
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. See Alberni v. McDaniel, 458 F.3d 860, 864, 866 (9th Cir.
2006). The Supreme Court has expressly reserved the question of
whether using evidence of a defendant’s past crimes to show that he has
a propensity for criminal activity could ever violate due process. Estelle
v. McGuires, 502 U.S. 72, 75 n.5 (1991).
KIPP V. DAVIS 23
between the two crimes: (1) the victims’ young age; 9 (2) the
victims’ gender; (3) strangulation; (4) the victims’ bodies
were carried to an enclosed area belonging to the victims;
(5) both bodies were covered with bedding (Howard with a
blanket and Frizzell with a bedspread); (6) garment was
found on the victims’ upper bodies while their breasts and
genital areas were unclothed; (7) the victims’ clothing was
not torn; and, (8) the victims’ legs had bruises. 10
Some of these characteristics are unfortunately generic
features of many rape-murders. Of the eight characteristics
identified by the state court, the one identified similarity that
appears unusually distinct—the fact that both victims had
their breasts exposed—is plainly contradicted by testimonial
and documentary evidence in the state record. At Kipp’s
trial, an officer testified that Frizzell’s body was found on an
undisturbed bed with a garment over her face and a
bedspread over the body. The prosecution submitted into
evidence a photograph of Frizzell’s body. The same officer
testified that the photograph depicted Frizzell’s body as
found after removing the bedspread and garment that was
over her face. In the photograph, Frizzell’s body is clothed
in a polo shirt and her breasts are unmistakably covered.
9
The state court identified both Howard and Frizzell as 19 years old,
but the record is inconclusive whether Frizzell was 18 or 19. The two
ages are close enough to generalize the two victims as young women,
and Kipp does not challenge this factual finding.
10
The Warden argues there were several additional similarities—
the fact that Kipp’s fingerprint was found at each crime scene, that both
victims had contusions, and that neither was acquainted with Kipp for a
significant period of time—but we may look only to the reasoning of the
California Supreme Court. See Wilson, 138 S. Ct. at 1193–94
(reaffirming the “look through” presumption to the last related state-
court decision and reviewing the rationale in that decision).
24 KIPP V. DAVIS
Hence, the state court was factually wrong to conclude that
both bodies were left in the unusual posture of having their
breasts exposed. 11
More importantly, the state court failed to mention any
of the differences between the two crimes, differences that
far outnumber the similarities. These include: (1) Howard
was African-American and Frizzell was white; (2) Howard’s
body was found in her car and Frizzell’s was found in her
motel room; (3) there was evidence of sexual intercourse on
Frizzell’s body and not on Howard’s; (4) Howard and Kipp
were seen together socially before her death whereas there
was no evidence that Kipp and Frizzell knew each other;
(5) property was stolen from Frizzell and nothing was taken
from Howard; (6) Frizzell was strangled by a belt (ligature
strangulation) whereas Howard’s death was caused by
manual strangulation; (7) there was evidence that Howard
was intoxicated at the time of her death but no such evidence
existed as to Frizzell; (8) Frizzell’s body had defensive
wounds and Howard’s did not; (9) Howard’s body and
clothes had dirt on them and Frizzell’s did not;
(10) Frizzell’s body was discovered with a garment pulled
11
Kipp argues that two other factual findings were erroneous,
pointing out that: (1) there was no evidence that Frizzell was killed
elsewhere and transported to her motel room; and (2) there was no
support that the perpetrator carefully staged the victims in similar poses
underneath bedding. There was, however, sufficient evidence such that
“‘[r]easonable minds reviewing the record might disagree’ about the
finding in question.” Brumfield, 135 S. Ct. at 2277 (quoting Wood,
558 U.S. at 301). First, an officer testified to seeing no struggle on the
bed where Frizzell was found. Fairminded jurists could disagree over
whether that means she was killed somewhere else in the room,
somewhere else in the hotel building, or somewhere outside the building.
Second, the state court thought it was significant that both victims were
found under bedding of some kind. It did not suggest that the bodies
were arranged in any particular way or “staged” as Kipp argues.
KIPP V. DAVIS 25
over her face and Howard’s body was not; (11) Frizzell’s bra
had been removed and taken by the killer, whereas Howard’s
bra was left on her body; and (12) there was evidence that
Howard suffered a head injury but Frizzell did not.
While we must give deference on federal habeas,
“deference does not imply abandonment or abdication of
judicial review.” Miller-El v. Cockrell, 537 U.S. 322, 340
(2003). As daunting as the standard is, a federal court can
disagree with a state court’s credibility or other factual
determination, as long as the court is guided by AEDPA. Id.
Following Miller-El, we identified different “flavors” of
challenges to state-court findings under section 2254(d)(2)’s
unreasonableness standard. 12 Taylor v. Maddox, 366 F.3d
992, 1000 (9th Cir. 2004), abrogated on other grounds by
Murray I, 745 F.3d at 999–1000. 13 This discussion in Taylor
12
The Warden argues that Kipp’s claim should be evaluated under
the more deferential standard set out under 28 U.S.C. § 2254(e)(1). The
Supreme Court has, however, explicitly “not yet ‘defined the precise
relationship between § 2254(d)(2) and § 2254(e)(1).’” Brumfield,
135 S. Ct. at 2282 (quoting Burt v. Titlow, 571 U.S. 12, 18 (2013)).
Therefore, we must follow our circuit’s precedent regarding the section
2254(d)(2) analysis. See Murray v. Schriro (“Murray I”), 745 F.3d 984,
1001 (9th Cir. 2014) (acknowledging confusion over whether section
2254(d)(2) or (e)(1) or both applies to AEDPA review of state-court
factual findings, and concluding that where petitioner’s challenges are
based entirely on the state record, it would apply section 2254(d)(2)).
13
In Murray I, we recognized that Pinholster foreclosed Taylor’s
suggestion that an extrinsic challenge, based on evidence presented for
the first time in federal court, may occur once the state court’s factual
findings survive any intrinsic challenge under section 2254(d)(2).
Murray I, 745 F.3d at 999–1000. Kipp does not present an extrinsic
challenge so Murray I’s abrogation of Taylor on this ground is irrelevant
here.
26 KIPP V. DAVIS
is crucial to understanding the unreasonableness of the state
court’s determination in Kipp’s case.
In Taylor, we explained first that the state court might
have neglected to make a finding of fact when it should have
done so. Id. Second, the state court might make factual
findings under a misapprehension as to the correct legal
standard. Id. at 1001. “[W]here the state court’s legal error
infects the fact-finding process, the resulting factual
determination will be unreasonable.” Id. Third, the fact-
finding process itself might be defective. Id. For instance,
the state court might have made “evidentiary findings
without holding a hearing” to give the petitioner “an
opportunity to present evidence.” Id. Alternatively, the state
court might “plainly misapprehend or misstate the record in
making [its] findings.” Id. Lastly, the state-court fact-
finding process may be “undermined where the state court
has before it, yet apparently ignores, evidence that supports
petitioner’s claim.” Id. In other words, “[f]ailure to consider
key aspects of the record is a defect in the fact-finding
process.” Id. at 1008 (citing Miller-El, 537 U.S. at 346).
Taylor grappled with this last kind of defect in the state-
court fact-finding process: failure to consider and weigh
relevant evidence that was properly presented to the state
courts. Id. at 1001. We acknowledged that the state court
need not address “every jot and tittle of proof suggested to
them.” Id. Rather, to fatally undermine the fact-finding
process, “the overlooked and ignored evidence must be
highly probative and central to petitioner’s claim.” Id. We
explained how consideration of all relevant evidence
legitimizes the fact-finding process:
In instructing jurors about their fact-finding
function, we normally advise them to
consider the entire record, not individual
KIPP V. DAVIS 27
pieces of evidence standing alone. This
reflects the philosophy of our common-law
fact-finding process, namely, that the various
pieces of evidence and testimony in the
record must be considered in light of all the
others.
...
What goes for juries goes no less for judges.
In making findings, a judge must
acknowledge significant portions of the
record, particularly where they are
inconsistent with the judge’s findings. The
process of explaining and reconciling
seemingly inconsistent parts of the record
lays bare the judicial thinking process,
enabling a reviewing court to judge the
rationality of the fact-finder’s reasoning. On
occasion, an effort to explain what turns out
to be unexplainable will cause the finder of
fact to change his mind. By contrast, failure
to take into account and reconcile key parts
of the record casts doubt on the process by
which the finding was reached, and hence on
the correctness of the finding.
Id. at 1007–08 (internal citations omitted). The state court
in Taylor “never considered or even acknowledged” the
existence of a crucial piece of testimony that corroborated
the defendant’s account of what occurred during his
interrogation. Id. at 1005–06. Therefore, we concluded that
the state court’s finding that the defendant’s confession was
lawfully and voluntarily obtained was objectively
unreasonable. Id. at 1008.
28 KIPP V. DAVIS
Applying Taylor, we recently held that a 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 about his request being made in good faith. See
Burton v. Davis, 816 F.3d 1132, 1155–59 (9th Cir. 2016).
We have also held that a state court’s conclusion that a
jailhouse informant testified truthfully at the defendant’s
trial was an unreasonable determination of facts because the
state court arbitrarily cabined off—and thereby failed to
consider—evidence of the informant’s pattern of perjury.
See Maxwell v. Roe, 628 F.3d 486, 504–05 (9th Cir. 2010).
In Brumfield, the Supreme Court also attributed the state
court’s erroneous failure to hold an evidentiary hearing on
petitioner’s intellectual disability, in part, to the fact that the
court overlooked evidence in the record about issues with the
petitioner’s adaptive functioning. 135 S. Ct. at 2279–82.
In Kipp’s case, we conclude that the state court’s
determination that there was a “highly distinctive pattern”
between the Howard and Frizzell crimes was unreasonable
in two ways. First, it misstated the record in making the
finding about the state of Frizzell’s body as being unusually
similar to Howard’s with regard to their breasts being
exposed. Contrary to the state court’s description of the
evidence, Frizzell’s body was clothed and her breasts were
covered. This misapprehension involves an issue that is
central to Kipp’s claim and thus undermines the
reasonableness of the court’s determination regarding the
similarity of the crimes. See Taylor, 366 F.3d at 1001.
Second, and more importantly, the state court apparently
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 V. DAVIS 29
The state court solely mentioned the similarities between the
two crimes, without any acknowledgment of the differences.
This stands in contrast to other cases in which the California
Supreme Court weighed the number and type of similarities
against the differences. See, e.g., People v. Foster, 242 P.3d
105, 130–32 (Cal. 2010) (considering the prosecution’s
summary of the similarities between three robberies and
assaults, and the defense’s arguments against their
admission); People v. Rogers, 304 P.3d 124, 144–46 (Cal.
2013) (weighing prosecution and defendant’s arguments
over the finding of similarity between three murders at
issue).
In light of this factual record, we are satisfied that any
appellate court would find it difficult to conclude that the
similarities between the Howard and Frizzell crimes are
highly unique, unless it completely disregards the
differences as the California Supreme Court did here. Cf.
Gulbrandson v. Ryan, 738 F.3d 976, 987 (9th Cir. 2013)
(“[A] state court’s fact-finding process is unreasonable
under § 2254(d)(2) only if we are ‘satisfied that any
appellate court to whom the defect is pointed out would be
unreasonable in holding that the state court’s fact-finding
process was adequate.’” (quoting Taylor, 366 F.3d at 1000)).
As was the situation in Taylor, the state court here
completely failed to acknowledge evidence relevant to
Kipp’s claim regarding the numerous dissimilarities
between the Howard and Frizzell crimes. We therefore
conclude that the state court’s fact-finding process itself was
defective and renders the resulting finding that there was a
highly distinctive pattern to justify admission of the Frizzell
evidence unreasonable under section 2254(d)(2). See
Taylor, 366 F.3d at 1008.
30 KIPP V. DAVIS
C.
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), AEDPA deference no longer
applies. Maxwell, 628 F.3d at 506. We therefore proceed to
resolve Kipp’s due process claim without the deference
AEDPA otherwise requires. Id. 14
“A federal habeas court [] cannot review questions of
state evidence law.” Henry v. Kernan, 197 F.3d 1021, 1031
(9th Cir. 1999). “[W]e may consider only whether the
petitioner’s conviction violated constitutional norms.” Id.
(citing Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir.
1991)). The general test is “whether the admission of
evidence rendered the trial so fundamentally unfair as to
violate due process.” Larson v. Palateer, 515 F.3d 1057,
1066 (9th Cir. 2008) (quoting Windham v. Merkle, 163 F.3d
1092, 1103 (9th Cir. 1998)).
We have articulated a more detailed test, holding that:
[T]he admission of other crimes evidence
violate[s] due process where: (1) the balance
of the prosecution’s case against the
defendant was “solely circumstantial;”
(2) the other crimes evidence . . . was similar
to the [crime] for which [the defendant] was
14
We readily dismiss the Warden’s argument that relief is barred by
the retroactivity doctrine of Teague v. Lane, 489 U.S. 288 (1989). Kipp’s
claim about the inherent unfairness of admitting the Frizzell evidence is
based on longstanding principles of due process and the right to a fair
trial in which the prosecution must prove beyond a reasonable doubt
every fact necessary to establish each element of the crimes charged. See
In re Winship, 397 U.S. 358, 361–64 (1970).
KIPP V. DAVIS 31
on trial; (3) the prosecutor relied on the other
crimes evidence at several points during the
trial; and (4) the other crimes evidence was
“emotionally charged.”
Garceau v. Woodford, 275 F.3d 769, 775 (9th Cir. 2001),
rev’d on other grounds, 538 U.S. 202 (2003) (quoting
McKinney v. Rees, 993 F.2d 1378, 1381–82, 1385–86 (9th
Cir. 1993)). 15
In McKinney, we held that the admission of evidence of
the petitioner’s fascination with and use of knives to convict
him for the stabbing of his mother violated his due process
right to a fair trial. 993 F.2d at 1386. We reached this
conclusion after determining that the other acts evidence was
largely irrelevant because they only proved that the
petitioner owned knives at various points in time, but not on
the night of the murder in question. Id. at 1382–83. Hence,
the evidence was relevant only as character evidence—to
show propensity to act as someone who was fascinated with
knives and led a “commando lifestyle.” Id. at 1385; see also
Alcala v. Woodford, 334 F.3d 862, 886–88 (9th Cir. 2003)
(holding there was a due process violation where defendant
was charged with murder and the prosecution admitted into
evidence that police had seized from defendant’s home two
unused sets of kitchen knives made by same company that
made the murder weapon); Garceau, 275 F.3d at 775–76
(holding there was due process violation where defendant
15
On appeal, the Supreme Court held that we should not have
applied de novo review because the petitioner’s habeas petition was filed
after AEDPA’s effective date and therefore subject to AEDPA’s
requirements. Garceau, 538 U.S. at 210. Garceau is still relevant,
however, for its discussion of McKinney, which is the controlling case
over Kipp’s due process claim.
32 KIPP V. DAVIS
was charged with double homicide and the prosecution
introduced evidence that he had been convicted of murdering
a different person several months after the double homicide,
and the trial court’s instruction to the jury expressly invited
them to draw the inference of criminal propensity).
Conversely, we have found no due process violation
where there were permissible inferences that the jury could
draw from the challenged evidence. See, e.g., Boyde v.
Brown, 404 F.3d 1159, 1172–73 (9th Cir. 2005) (holding
there was no due process violation in trial for robbery,
kidnapping, and murder of a 7-Eleven store clerk where the
court admitted evidence that the defendant had robbed the
same 7-Eleven store and kidnapped the on-duty clerk
because it showed a modus operandi); Correll v. Stewart,
137 F.3d 1404, 1416–17 (9th Cir. 1998) (same in trial for
murder where court admitted testimony about defendant’s
possession of marijuana that had been stolen from the
victim’s home, proving essential elements of opportunity
and identity); Jeffries v. Blodgett, 5 F.3d 1180, 1193 (9th Cir.
1993) (same in trial for two homicides by shooting where
court admitted evidence that defendant had certain rifles,
bullets, and handguns because one of the rifles and bullets
had been stolen from the victims, and the pistols could have
been the murder weapon or weapons); Jammal, 926 F.2d at
919–21 (same where court admitted evidence that defendant
had $135,000 in the trunk of his car when he was arrested on
charges of drug possession because it allowed for inference
that it was the same car where a witness previously identified
$47,000 in cash and drugs).
The California Supreme Court affirmed the admission of
the Frizzell evidence based on its conclusion that there was
a “highly distinctive pattern” between the two crimes that
would lead to the permissible inference that the same person
KIPP V. DAVIS 33
committed both crimes with the same intent. According to
the state court, this “highly distinctive pattern” involved the
strangling of a young woman whose body was moved from
one place to another, covered with bedding, and left with
inferences of sexual assault, bruising on both legs, and
genital area unclothed. While tragic, the fact pattern that
linked the Frizzell and Howard crimes does not spell out a
specific “signature” or modus operandi that courts have
recognized. See Loughrin v. United States, 573 U.S. 351,
353 (2014) (trial court admitted evidence of “modus
operandi” of defendant going to a local Target, posing as the
accountholder, presenting an altered check of amounts up to
$250 to purchase merchandise, and then returning to the
store to return the goods for cash); United States v. Gonzalez,
533 F.3d 1057, 1063–64 (9th Cir. 2008) (same where
defendant was on trial for assaulting three women and
prosecution introduced testimony from two other women
establishing modus operandi that entailed “being a police
officer armed with a badge and a gun” who consistently
approached his victims in the same manner, would establish
a conversation with the victims about their families or
personal relationships, would command the victims to “sit,
squat, stand, or undress,” and would then release them
without arrest or citation); Boyde, 404 F.3d at 1172–73
(same involving modus operandi of robbing the same 7-
Eleven and kidnapping the on-duty clerk); Ewoldt, 867 P.2d
at 764–66 (discussing cases).
Without this level of unusual commonality between the
Howard and Frizzell crimes, we conclude that there is no
highly distinctive pattern that would justify an inference of
the same intent or perpetrator behind both crimes. Rather,
there is a high risk that a juror would have assumed that if
Kipp committed the Frizzell homicide, he had the propensity
to commit the Howard homicide as well. Cf. McKinney,
34 KIPP V. DAVIS
993 F.2d at 1383; Alcala, 334 F.3d at 887; Garceau,
275 F.3d at 775.
The lack of permissible inferences alone does not
constitute a violation of due process necessitating a new trial.
We must consider the strength of the prosecution’s case
against Kipp, the extent to which the other crimes evidence
was similar to the crime for which Kipp was on trial, the
extent to which the prosecution relied on the other crimes
evidence during trial, and whether the other crimes evidence
was emotionally charged. See Garceau, 275 F.3d at 775;
McKinney, 993 F.2d at 1384–86.
Absent the Frizzell evidence, the case against Kipp for
Howard’s attempted rape and special circumstance of intent
to kill during attempted rape was circumstantial. The trial
court recognized this in dismissing the rape charge against
Kipp at the close of the prosecution’s case. Based solely on
the evidence presented about the Howard crime, the jury
could have at most inferred that Kipp was with Howard the
night in question, and they might have had sex. Whether it
was consensual and whether Kipp intended to kill her while
raping her, however, is not easily deduced from the Howard
evidence alone. The prosecution expressly relied on the
Frizzell evidence to prove the necessary intent to rape and
intent to murder while attempting to rape, and articulated this
reliance in its motion to admit the Frizzell evidence and at
trial.
Moreover, like in Garceau, where the defendant was
charged with a double homicide and the trial court admitted
evidence of his prior conviction for another murder, the
impermissible propensity inference here was strong because
the Frizzell and Howard crimes both involved rape and
murder. Even worse than in Garceau, Kipp had not been
convicted of the Frizzell crime. Contra 275 F.3d at 773.
KIPP V. DAVIS 35
Yet, the jury was exposed to extensive evidence of both
crimes, such that Kipp appeared to be on trial for a double
rape-homicide, without the means of defending himself
against the Frizzell charges.
The prosecutor not only relied on the Frizzell evidence
at several points during the trial—that evidence constituted
nearly half of the entire trial. The prosecution also
highlighted the Frizzell evidence throughout its opening
remarks, emphasizing that evidence about Frizzell’s killing
was presented to show that Kipp intended to rape Howard
and intended to kill her while raping her. During the
prosecution’s closing argument, the Frizzell evidence was
discussed no fewer than twelve times, including remarks
such as:
• “This is a personal case. This involved something
horrible to each one of these young ladies.”
• “[Howard] didn’t want it. [Kipp] tried to force it on
her. He tried to force it on Tiffany Frizzell. We have
evidence that he did force it on her. We have semen
in her vagina.”
• “[H]ere you have the force and violence. I mean,
you’ve got bruises on Tiffany [Frizzell]. You’ve got
evidence of manual strangulation as well ligature
strangulation. You look at that photograph of that
little girl. That belt was tightened. I mean it was
tight. She had no chance. Antaya Yvette Howard
had no chance.”
Last, it is self-evident that the Frizzell evidence was
“emotionally charged.” McKinney, 993 F.2d at 1385. Not
only did Frizzell’s mother testify, but also the jury was
exposed to two days of testimony about the details of
36 KIPP V. DAVIS
Frizzell’s crime scene and photographs of her dead body.
These two days focused on Frizzell’s killing tapped into
every parent’s worst nightmare of her young child leaving
home and immediately encountering violence and death at
the hands of a stranger.
We therefore conclude that the trial court’s admission of
the Frizzell evidence deprived Kipp of a fundamentally fair
trial in violation of his due process rights.
D.
On federal habeas review, we may grant relief for a
federal constitutional error only if the petitioner can establish
that the error resulted in “actual prejudice.” Davis v. Ayala,
135 S. Ct. 2187, 2197 (2015) (quoting Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993)). “Under this test,
relief is proper only if the federal court has ‘grave doubt
about whether a trial error of federal law had substantial and
injurious effect or influence in determining the jury’s
verdict.’” Id. at 2197–98 (quoting O’Neal v. McAninch,
513 U.S. 432, 436 (1995)). “There must be more than a
‘reasonable possibility’ that the error was harmful.” Id. at
2198 (quoting Brecht, 507 U.S. at 637).
We have little trouble in concluding that Kipp was
prejudiced as to the first degree murder and attempted rape
charges, as well as the special circumstance finding. 16 Kipp
16
The dissent’s suggestion that the Frizzell evidence prejudiced
Kipp on the attempted rape charge and special circumstance finding but
not the first degree murder charge is untenable. The prosecution asked
the jury to find Kipp guilty of first degree murder on two theories—
premeditated murder and felony murder. The verdict form did not
distinguish between these two theories, and there is thus no way to know
whether the jury relied on a premeditated murder theory in finding Kipp
KIPP V. DAVIS 37
was, effectively, on trial for the rape-murders of two young
women but could only defend himself against one. This was
underscored throughout the trial, from the prosecution’s
opening to closing statements. Without the Frizzell
evidence, the prosecution’s case was entirely circumstantial.
At most, the prosecution could show that Kipp was the last
person seen with Howard, that Kipp’s fingerprints were
found inside of Howard’s car, and that, in speaking with the
police, Kipp denied knowing Howard despite having spent
the evening together. The prosecution moved to admit the
Frizzell evidence precisely because it was “highly relevant
on the issue of [Kipp]’s intent at the time of the killing of
Antaya Howard.” In other words, the prosecution needed
the Frizzell evidence to show Kipp’s intent to rape and intent
to kill during attempted rape.
We are also not blind to the optics of the trial: Howard
was a young African-American woman who was estranged
from her family and was seen socializing with Kipp
throughout the night of the crime; conversely, Frizzell was a
young white woman, new to town, on the eve of beginning
college, when she suddenly lost touch with her mother and
was found dead. Los Angeles County separately prosecuted
Kipp for the Frizzell murder. It appears significant to us that
the prosecution here nonetheless relied so extensively on the
guilty. Regardless, the Frizzell evidence was critical under either theory.
To find Kipp guilty of felony murder, the jury necessarily had to find
Kipp guilty of attempted rape, a verdict the dissent implicitly
acknowledges would have been affected by the Frizzell evidence. As to
the premeditated murder theory, the prosecution’s closing argument
inexorably linked this theory to the attempted rape. Citing the Frizzell
evidence, the prosecution argued that Kipp needed little time to
premeditate the murder because he “had that experience before” when
he murdered and raped Frizzell.
38 KIPP V. DAVIS
inflammatory details of the killing of a more conventionally
“sympathetic” victim to prove its case for another victim.
Moreover, we find it compelling that the jury spent a few
days in deliberations before returning a verdict. See United
States v. Velarde-Gomez, 269 F.3d 1023, 1036 (9th Cir.
2001) (en banc) (“Longer jury deliberations ‘weigh against
a finding of harmless error because lengthy deliberations
suggest a difficult case.’” (quoting United States v.
Varoudakis, 233 F.3d 113, 126 (1st Cir. 2000))). Defense
counsel had argued at the motion in limine hearing that the
Frizzell evidence “is so actually prejudicial, that the case will
be all over for Mr. Kipp if it comes in [at trial].” Yet, even
after hearing the Howard and Frizzell evidence over four
days, the jury deliberated for three days before returning a
verdict, indicating that Kipp’s case was close. See Thomas
v. Chappell, 678 F.3d 1086, 1103 (9th Cir. 2012) (noting that
“the jury’s assessment of the case strongly suggest[ed] that
the case was close” where “[t]he jury deliberated for almost
five full days, even though it heard argument and evidence
for only about six days”).
“Because of the lack of a ‘weighty’ case against [Kipp],
and pervasiveness of the erroneously admitted evidence
throughout the trial, we think it ‘highly probable that the
error had substantial and injurious effect or influence in
determining the jury’s verdict.’” McKinney, 993 F.2d at
1386 (quoting Kotteakos v. United States, 328 U.S. 750, 776
(1946)). We therefore reverse the district court’s denial of
habeas relief as to his convictions and the special
circumstance finding.
IV.
It is an axiomatic principle that a criminal charge must
be proven beyond a reasonable doubt. In re Winship,
KIPP V. DAVIS 39
397 U.S. at 362. Relatedly, drawing propensity inferences
from other acts evidence is impermissible under a
historically grounded rule of Anglo-American
jurisprudence. See McKinney, 993 F.2d at 1380, 1384; see
also Boyd v. United States, 142 U.S. 450, 458 (1892)
(finding that admission of prior crimes committed by
defendants so prejudiced their trial as to require reversal). A
defendant’s right to due process is violated when courts
admit other crimes evidence where there were no
permissible inferences that could be drawn from the
evidence, in other words, no inference other than conduct in
conformity therewith. See Garceau, 275 F.3d at 774.
In order to have properly admitted the unadjudicated
Frizzell crime evidence at the Howard trial, the state court
was required to have found a “pattern and characteristics of
the crimes [to] be so unusual and distinctive as to be like a
signature.” Ewoldt, 867 P.2d at 770 (quoting 1 McCormick
on Evid. (4th ed. 1992) § 190, at 801–03). The state court
reached that conclusion—but only after disregarding all the
dissimilarities between the two crimes. Because the state
court made a crucial factual error and failed to consider the
entire state record, we conclude that its decision was based
on an unreasonable determination of the facts and hold that
Kipp’s due process right to a fair trial was violated.
We therefore reverse the district court’s denial of habeas
relief as to the due process claim and remand with
instructions to issue a conditional writ of habeas corpus.
REVERSED and REMANDED with instructions.
40 KIPP V. DAVIS
NGUYEN, Circuit Judge, dissenting:
A jury convicted petitioner Martin James Kipp of
strangling to death nineteen-year-old Antaya Howard in the
course of an attempted rape on December 30, 1983. Kipp
left Howard’s body in her car, which was found abandoned
in an alleyway in Huntington Beach, California. He was the
last person seen with Howard in the hours before her death,
and his fingerprints were found on two windows and a beer
can inside her car. When confronted by the police, Kipp
repeatedly lied about his whereabouts and denied ever
meeting Howard or seeing her car.
At trial, the court admitted evidence that, just three
months earlier, in the nearby city of Long Beach, California,
Kipp had raped and strangled to death nineteen-year-old
Tiffany Frizzell, leaving his fingerprints on a telephone in
her motel room. 1
The California Supreme Court carefully considered and
rejected Kipp’s challenge to the admission of the Frizzell
evidence. People v. Kipp, 956 P.2d 1169 (Cal. 1998). In a
reasoned opinion, California’s highest court cited to
numerous similarities between the two murders and
concluded that “the charged and uncharged offenses display
a pattern so unusual and distinctive as to support an inference
that the same person committed both.” Id. at 1182. The state
court acknowledged the danger of prejudice to Kipp but
concluded that “prejudice of this sort is inherent whenever
other crimes evidence is admitted, and the risk of such
1
A different jury later convicted him for the murder and rape of
Frizzell.
KIPP V. DAVIS 41
prejudice was not unusually grave here.” Id. at 1183
(internal citation omitted).
The Antiterrorism and Effective Death Penalty Act
(“AEDPA”) “demands that state-court decisions be given
the benefit of the doubt.” Woodford v. Visciotti, 537 U.S.
19, 24 (2002) (per curiam). The majority, however,
circumvents AEDPA deference and concludes that the
California Supreme Court made an “unreasonable
determination of the facts” in “linking the two crimes and
apparently fail[ing] to consider the entire record.” Then,
reviewing de novo, the majority reverses Kipp’s convictions
and death sentence. I respectfully dissent.
First, there is no support for the majority’s assumption
that the state court failed to consider material evidence
favorable to the defense. To the contrary, the California
Supreme Court summarized the very argument that the
majority contends the state court ignored. Kipp, 956 P.2d at
1181. While reasonable jurists may disagree about the
admissibility of the Frizzell evidence, under AEDPA’s
deferential review, we are simply not entitled to second-
guess the decision of the California Supreme Court.
Second, even if the California Supreme Court’s
determination of the facts was unreasonable, the majority
wrongly concludes that Kipp suffered actual prejudice. The
evidence that Kipp murdered Howard was compelling, even
setting aside the Frizzell evidence—Kipp was with Howard
three hours or less before her death; his fingerprints were
found in Howard’s car, along with her body; his clothes from
that night were soiled, and he carried a strong stench; he
abruptly moved out of his friend’s apartment where he had
been staying prior to Howard’s death; and in a recorded
interview, he repeatedly lied to the police that he was in
Oregon until December 31 (placing himself outside of
42 KIPP V. DAVIS
California on the date of Howard’s murder), denied ever
seeing, much less wearing, the sweater that he had borrowed
the night of the murder, denied ever meeting Howard or
seeing her car, and failed to explain the presence of his
fingerprints in her car. In short, Kipp concocted an elaborate
false narrative that distanced him from every detail that
would have incriminated him.
I.
A.
Howard lived with her parents in Huntington Beach,
California. The night before her murder, she left home after
10:00 p.m. and drove in her orange Datsun car to a local bar,
the Bee Hive. Kipp sat next to Howard, and the two talked
and drank together. They briefly left around 1:15 a.m. and
returned later, but the bartender refused to serve them
because it was nearing closing time. Kipp and Howard left
again and went to Charlie’s Chili in nearby Newport Beach.
Around 4:00 a.m., they left Charlie’s Chili together in
Howard’s car, with Kipp in the driver’s seat. Howard was
never seen alive again.
As of 6:00 a.m. that morning, Kipp still had not returned
to his friend’s apartment. Kipp’s whereabouts were never
accounted for.
At 7:00 a.m., Howard’s car was spotted in an alley in
Huntington Beach. Her body was found inside days later
when a neighbor noticed a strong odor emitting from the car.
She had been strangled to death, suffering a blunt force
injury to the head and several bodily abrasions as well.
Howard was mostly unclothed, with her blouse pulled back
and her bra twisted above her breasts. Her jeans and panties
KIPP V. DAVIS 43
were around her ankles. Her clothes and torso were muddied
as though her body had been moved.
At 4:30 p.m. on the day of her death, Kipp’s friend came
back to his apartment and found Kipp in the shower. The
sweater Kipp had borrowed from his roommate and worn the
night before was soiled and stained on the front and arms,
and the room where Kipp slept had a strong and sour odor.
Kipp immediately moved out of the apartment into a hotel
room, where he stayed only one night.
Kipp’s fingerprints were later found inside Howard’s car
on the left and right windows as well as on a beer can on the
floor.
Kipp waived his Miranda rights and was interviewed at
length by the investigating detectives. In that recorded
interview, Kipp said he had been in Oregon and arrived in
Southern California around December 31, thereby placing
himself out-of-state when Howard was murdered. Kipp then
detailed his movements in the days following his arrival but
conspicuously left out any mention of the Bee Hive or the
Charlie’s Chili, locations where he had been seen with
Howard. When shown a picture of Howard, Kipp denied
ever meeting her. When shown a picture of Howard’s car,
Kipp said that he was absolutely positive that he had never
seen it or been around it, and that he had no idea how his
fingerprints ended up inside her car. Throughout the
interview, Kipp repeatedly insisted that he does not know
any black people in Huntington Beach, and that he is only
interested in white girls. (Howard was African-American).
Kipp denied ever seeing or wearing the sweater that his
roommate said he had borrowed and worn the night of
Howard’s death. Kipp admitted that he had been to Charlie’s
Chili but said that he was last there in October or November
with his girlfriend. When the detectives finally confronted
44 KIPP V. DAVIS
Kipp with the evidence against him, namely, his fingerprints
in Howard’s car and witnesses who saw them together, Kipp
became nervous and upset. The detective who testified at
trial described Kipp’s reaction as follows: “Heavy breathing,
[Kipp] looked away—look[ed] away from us, looked away
from the table, very quick movements. His whole demeanor
changed at that point. It changed so dramatically that I
thought it important to get it documented.”
B.
Just three months before Howard’s murder, Kipp had
raped and killed another young woman named Tiffany
Frizzell. Frizzell’s body was found in a motel room in Long
Beach, not far from the Huntington Beach area where
Howard was killed. Kipp’s fingerprints were found on a
telephone in Frizzell’s motel room. Like Howard, Frizzell
was strangled to death. Like Howard, she also suffered
bruising to her legs. Like Howard, she was killed in one
location and then moved to another. Like Howard, her body
was found in an enclosed area, covered by bedding. And
like Howard, she was found with a garment on her upper
body but an unclothed genital area, and her clothes were
untorn.
C.
Kipp challenged his convictions and death sentence on
numerous grounds. In a careful, reasoned opinion, the
California Supreme Court affirmed. As to Kipp’s claim that
the trial court erred in admitting the Frizzell evidence, the
California Supreme Court began its analysis by summing up
the prosecution’s argument in favor of admission as well as
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.” Kipp, 956 P.2d
KIPP V. DAVIS 45
at 1181. After reviewing the state evidentiary rule that
applies, California Evidence Code section 1101(b), the
Court focused its analysis on the “common features that
revealed a highly distinctive pattern” between the two
crimes, including the age and gender of the victims; the fact
that the victims were killed in one location and then moved
to another; the abandonment of each of their bodies in an
enclosed location belonging to the victim; and the condition
of the victims’ bodies when they were found. Id. at 1181–
82. The California Supreme Court then “conclude[d] that
the trial court did not abuse its discretion when it ruled that
the charged and uncharged offenses display a pattern so
unusual and distinctive as to support an inference that the
same person committed both.” Id. at 1182. It further
explained that “[a] lesser degree of similarity is required . . .
on the issue of common design or plan . . . [or] the issue of
intent,” and that the common features of the two crimes
readily met those burdens. Id.
The Court then discussed the trial court’s weighing of the
evidence’s probative value versus the danger of undue
prejudice to the defendant. Id. at 1182–83. It acknowledged
a danger of prejudice to Kipp, but found that “prejudice of
this sort is inherent whenever other crimes evidence is
admitted, and the risk of such prejudice was not unusually
grave here.” Id. at 1183 (internal citation omitted). The
Court emphasized that “[t]he Frizzell crimes were not
significantly more inflammatory than the Howard crimes,
the evidence that defendant committed both crimes was
compelling, and the jury was correctly instructed on the
purposes for which it might consider the evidence of the
Frizzell crimes.” Id.
46 KIPP V. DAVIS
II.
A.
The majority concludes that the California Supreme
Court must have “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,” because the Court did not expressly
discuss the differences between the two crimes. That’s a
grossly unfair reading of the state court decision.
The California Supreme Court had a straightforward task
on this issue, that is, to evaluate whether the similarities
outweighed the dissimilarities between the two crimes. Both
sides presented arguments, which the Court explicitly
acknowledged. Before analyzing the merits, the Court
specifically summed up Kipp’s position “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. The Court then discussed the
similarities between the crimes, explaining that “[i]n both
instances, 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 the body with bedding (Howard
with a blanket, Frizzell with a bedspread).” Id. The Court
“note[d] also that the bodies of both victims were found with
a garment on the upper body, while the breasts 2 and genital
area were unclothed, that in neither instance had the victim’s
2
The state court did make one factual error in stating that Frizzell
was found with her breasts exposed. This single detail does not defeat
the state court’s overarching conclusion about the parallels between the
crimes.
KIPP V. DAVIS 47
clothing been torn, and that the bodies of both victims had
been bruised on the legs.” Id. at 1182. The Court concluded
that, “[v]iewing the evidence in the light most favorable to
the trial court’s ruling, the charged and uncharged offenses
displayed common features that revealed a highly distinctive
pattern.” Id. at 1181.
Particularly because the parties’ competing arguments
were straightforward and squarely presented, and given the
numerous other challenges raised by Kipp that the state court
had to address in a single opinion, I don’t read much into the
Court’s choice to focus its written decision on the
similarities between the crimes. There’s no basis for
concluding, as the majority does, that the state court simply
“ignored” Kipp’s reliance on the dissimilarities between the
two crimes when Kipp’s argument was explicitly
acknowledged and considered.
The Supreme Court has repeatedly admonished our
circuit that a state court decision is not “unreasonable” under
AEDPA just because we would have reached a different
outcome. See Harrington v. Richter, 562 U.S. 86, 101–02
(2011). At trial, the defense vigorously argued against
admitting the Frizzell evidence. The trial court carefully
weighed the evidence, noting that “it’s a very close call” and
a “tough question.” The record shows that the California
Supreme Court also weighed and considered the same
defense arguments. Although “fairminded jurists could
disagree on the correctness of the state court’s decision,”
under AEDPA’s “highly deferential” standard, the state
court’s decision must stand. Id. at 101, 105 (internal
quotation marks and citations omitted).
48 KIPP V. DAVIS
B.
Even if the state court made an unreasonable
determination of the facts, Kipp was not actually prejudiced,
at least as to his conviction for first degree murder. 3, 4 The
majority focuses on the circumstantial nature of the evidence
against Kipp but completely discounts the strength of that
evidence. Setting aside any reference to Frizzell, the
prosecution’s case was compelling that Kipp murdered
Howard and did so with the requisite intent. As noted, Kipp
and Howard were drinking together the night of Howard’s
death, and they left together in her car at most three hours
before she was killed—Kipp was seen driving Howard away
from Charlie’s Chili restaurant at 4:00 a.m., and her car was
seen abandoned just three hours later at 7:00 a.m. Kipp’s
fingerprints were found in multiple locations inside
Howard’s car.
Later that same afternoon, when Kipp returned to the
apartment where he was lodging, he was found showering.
His garments were soiled and stained, and his room carried
a strong and sour odor. And he immediately moved out of
the apartment.
3
The evidence as to the attempted rape conviction and special
circumstance finding is much weaker because apart from Howard’s state
of undress, there was no physical evidence of sexual intercourse on
Howard’s body due to decomposition.
4
The majority suggests that the jury could have found Kipp guilty
of first degree murder based solely on a theory of felony murder, which
would entwine his murder conviction with the proof of rape. However,
the evidence of premeditated murder far outweighed that of rape, and, on
this record, it strains credulity to contend that a felony murder theory
alone drove the jury’s verdict on the murder charge.
KIPP V. DAVIS 49
Adding to his consciousness of guilt, Kipp repeatedly
lied during an interview with the police: he denied ever
knowing Howard despite having spent the night with her; he
repeatedly insisted that he didn’t know a single black person
in Huntington Beach; he could not explain the presence of
his fingerprints in Howard’s car and denied ever seeing that
car before; he placed himself in Oregon until the day after
Howard was killed; he denied being at Charlie’s Chili,
except some months earlier with his girlfriend; and he denied
borrowing his roommate’s sweater and wearing it the night
he met Howard. Kipp’s demeanor changed dramatically
when he was confronted with the inculpatory evidence
against him, and he became nervous and upset, refusing to
look at the detectives. This collection of evidence strongly
supported Kipp’s guilt, and there was no plausible
alternative theory for Howard’s killing.
The circumstances of the crime also strongly supported
specific intent to kill. Howard died by strangulation with
blunt force trauma to her head, and she had abrasions and
bruises on her face and body. Howard’s body was then
abandoned in the back of her car, hidden from sight by a
blanket. These facts clearly evince malice—again, setting
aside any evidence from the Frizzell case.
In sum, because I cannot conclude that there is “more
than a reasonable possibility” that any error was harmful,
Davis v. Ayala, 576 U.S. 257, 268 (2015) (internal quotation
marks and citation omitted), I would affirm Kipp’s
conviction for the first degree murder of Howard even if the
majority were right to doubt the substance of the California
Supreme Court’s decision.
I therefore respectfully dissent.