Martin Kipp v. Ron Davis ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTIN JAMES KIPP, No. 15-99020
Petitioner-Appellant,
D.C. No.
v. 2:03-cv-08571-
PSG
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
Philip S. Gutierrez, 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 Nguyen
2 KIPP V. DAVIS
SUMMARY *
Habeas Corpus / Death Penalty
The panel affirmed the district court’s denial of Martin
James Kipp’s habeas corpus petition challenging his
conviction and death sentence for first-degree murder,
forcible rape, and robbery.
The district court granted a certificate of appealability for
two of Kipp’s claims: (1) that the admission of his
references to Satan in two letters violated his First
Amendment rights; and (2) that his counsel was ineffective
for failing to adequately litigate the admissibility of those
references. The panel expanded the COA as to two
additional claims: (1) that the jury’s use of the Bible during
deliberations violated Kipp’s right to a fair trial; and (2) that
Kipp’s counsel was ineffective by failing to adequately
investigate and present mitigating evidence during the
penalty phase.
Kipp contended that as in Dawson v. Delaware, 503 U.S
159 (1992), the evidence of his references to Satan was not
connected in any way to his crime, and thus its sole relevance
was to show that his beliefs were morally reprehensible,
thereby violating his First Amendment rights. The panel
affirmed the denial of relief on this claim because any
constitutional error was harmless at both the guilt and
penalty phases.
*
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
The panel reviewed Kipp’s ineffective-assistance-of-
counsel claims under AEDPA deference. The panel wrote
that because the admission of the Satan references could not
have had substantial and injurious effect or influence in
determining the jury’s verdict, Kipp cannot meet the higher
Strickland standard of prejudice. The panel therefore
affirmed the denial of habeas relief on Kipp’s claim that
counsel was ineffective by failing to competently litigate the
admissibility of the references to Satan. As to Kipp’s claim
that his trial counsel was ineffective during the penalty phase
by failing to adequately investigate and present mitigating
evidence regarding his life, the panel held that the state court
could have reasonably rejected the claim for failing to
adequately establish deficient performance, and could
reasonably have concluded that any deficiency in counsel’s
performance did not prejudice the result.
Applying AEDPA deference, the panel found it
unnecessary to decide whether the use of Bible verses during
jury deliberation constitutes misconduct because the state
court could have reasonably concluded that any error did not
prejudice the jury’s verdict.
COUNSEL
Celeste Bacchi (argued), Mark R. Drozdowski, and Jennifer
Hope Turner, Deputy 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; Holly D. Wilkens, Supervising Deputy
Attorney General; Julie L. Garland, Senior Assistant
Attorney General; Xavier Becerra, Attorney General; Office
4 KIPP V. DAVIS
of the Attorney General, San Diego, California; Respondent-
Appellee.
OPINION
NGUYEN, Circuit Judge:
Martin James Kipp was sentenced to death following his
conviction for the first-degree murder, forcible rape, and
robbery of 18-year-old Tiffany Frizzell in Long Beach,
California, in September 1983. 1 Kipp appeals the district
court’s denial of his petition for writ of habeas corpus. We
affirm.
I. BACKGROUND 2
A. The Guilt Phase
Tiffany Frizzell was an 18-year-old who had recently left
her home in Indianola, Washington to begin her college
studies at Brooks College. Because her dormitory had not
yet opened to students, she stayed nearby at a Ramada Inn
along the Pacific Coast Highway in Long Beach, California.
Frizzell’s body was discovered on the morning of
Saturday, September 17, 1983, by the housekeeping staff at
1
Kipp was also separately sentenced to death for the murder of
Antaya Yvette Howard in Orange County in December 1983. Kipp’s
federal habeas petition for that conviction and sentence is addressed in a
separate opinion (No. 16-99004).
2
These facts are taken largely from the California Supreme Court’s
opinion in Kipp’s direct appeal, People v. Kipp, 26 Cal. 4th 1100,
33 P.3d 450 (2001).
KIPP V. DAVIS 5
the Ramada. Her body was on the neatly made bed, on top
of the sheets and blanket but under the bedspread. She was
naked from the waist down, and a cloth belt had been pulled
tight around her neck. She was also wearing a blouse but no
bra, although a small hook (likely from her missing bra) was
found embedded in the skin of her back. There were no signs
of forced entry into the hotel room and no signs that a
struggle had occurred, but one of her fingernails was broken.
Frizzell’s purse, driver’s license, and around $130 in cash
were found in a dresser in the room. Kipp’s fingerprint was
found on the telephone in the room.
A criminalist found semen and sperm in Frizzell’s vagina
and on her external genital area, but not in her mouth or
rectal area. During her autopsy, the medical examiner
removed the belt from her neck and revealed a deep ligature
mark and scratches consistent with fingernails. There was
also bruising on her abdomen, thigh, and shoulder, as well
as a small abrasion on the back of her left hand, all of which
appeared to have occurred in the 48 hours before her death.
While there was no trauma to the external vaginal or anal
areas, there were indications of sexual intercourse. The
medical examiner found the cause of death to be
asphyxiation due to ligature strangulation.
Two days after her body was found, a gardener in Long
Beach found a bag in some bushes next to an alley, about a
half-mile from the Ramada Inn. The bag contained
Frizzell’s personal items, including a torn bra with a missing
fastener, and a book with Frizzell’s name inside the cover.
Frizzell’s mother identified the items as Frizzell’s, and both
Frizzell’s and Kipp’s fingerprints were found on the book.
About a month after her death, Kipp sold to a pawn shop in
Westminster a stereo and cassette player that Frizzell’s
mother identified at trial as belonging to Frizzell.
6 KIPP V. DAVIS
In addition to the above evidence, the prosecution also
introduced evidence to show consciousness of guilt.
Specifically, the jury heard that, after his arrest, Kipp twice
attempted to escape, once from an Orange County jail and
then from a Los Angeles County jail. The first attempt was
planned by Kipp’s then-wife, Linda Anne Kipp, with an
undercover investigator. Linda intended to have her son
climb into the air conditioning ducts and guide Kipp out
through a public restroom. Linda was arrested on April 18,
1987, after she paid $500 to the investigator to assist in the
planned escape. During the second attempt, Kipp was found
in the ceiling of his cell, where he had begun to escape
through a hole. Guards had to pull Kipp out by his legs and
subdue him.
The prosecution also introduced a handwritten letter
postmarked on September 15, 1987 (the “September 15
letter”) that Kipp wrote to his wife Linda, after she was
arrested and jailed for attempting to help him escape. In the
letter, Kipp mostly adulates Linda and their relationship, but
he also referred to the crimes for which he was being tried:
“I killed, raped, sodomized, beat, swore and laughed at those
fucking no good bitches! Yeah! It felt great, because neither
deserved to live anymore.” Kipp also twice referred to
Satan: “Well, ‘Satan’s’ licking both those bitch’s [sic] up
now and laughing. Just like I laughed at my trial the whole
time. . . . We are coming Home Satan!” During closing
argument, the prosecution successfully admitted the letter
into evidence and read aloud a portion of the letter.
The defense called no witnesses and presented no
exhibits at the guilt phase.
The jury found Kipp guilty of robbery, rape, and first-
degree murder. The jury also found true the special
circumstance allegation that the murder occurred in the
KIPP V. DAVIS 7
course of a rape. The jury was unable to reach a verdict on
a second special circumstance allegation that the murder
occurred during a robbery.
B. The Penalty Phase
1. Prosecution’s Case in Aggravation
The prosecution’s aggravation case included evidence of
Kipp’s extensive history of violence against women,
including the murder of another young woman, Antaya
Yvette Howard.
The jury first learned that three years before Frizzell’s
murder, Kipp had choked and raped June Martinez, whom
he had met at a bar in Long Beach. Kipp lured her to his
truck, turned on the stereo, and had her shut the door. As she
did so, Kipp drove off, hitting a car on his way out, and
stopped in a residential area. Martinez asked to be taken
back, but he refused, at which point she noticed that there
was no inside door handle on the passenger side. Kipp
pushed her into the back of the truck, which had been
covered with a windowless shell, and started to remove her
clothes. After she began to scream, he put his hand in her
mouth. Kipp began to strangle her when she bit him. He
finished removing her clothes and raped her. Her body had
gone limp and she was unable to breathe. Kipp demanded
that she orally copulate him, and she said she would if he
gave her some fresh air. As soon as he opened the door, she
ran out, flagged down a motorist, and reported the incident
to the police. Martinez had severe bruises on her neck and
wore a neck brace for two weeks after the attack. Kipp was
convicted of felony rape.
In November 1983, shortly after Frizzell’s murder, Kipp
had violently assaulted and threatened to kill his then-
8 KIPP V. DAVIS
girlfriend Loveda Newman. During an argument one
morning in the motel room where they had been staying,
Newman had refused to have sex with Kipp; he responded
by punching her in the head and choking her. She told him
she needed to go to the bathroom because she was going to
vomit. When she got to the bathroom, she locked the door
and climbed through the window, although Kipp kicked
down the door as she was escaping. Kipp was later arrested,
but Newman did not press charges because Kipp threatened
to kill her and her son if she did.
Finally, in December 1983, just three months after he
raped and murdered Frizzell, Kipp sexually assaulted and
murdered Antaya Yvette Howard. Howard, who was
19 years old, was seen drinking champagne with Kipp at a
restaurant in Newport Beach, California. A few days later,
a woman called the police because a foul odor was emitting
from a car that had been parked in an alleyway for several
days. The police arrived and found Howard’s badly
decomposed body covered by a blanket in the back of the
car. Her blouse was open and missing two buttons, and her
bra had been rolled up, exposing her breasts. Kipp’s
fingerprints were found on the window of the car’s front
doors, and on a beer can in the front passenger floorboard.
Howard died of asphyxiation due to strangulation, with
trauma to the head contributing to her death. Kipp denied
having known Howard but could not explain the presence of
his fingerprints.
In addition to evidence of Kipp’s violence, the jury heard
that he tried to escape through a hole in the ceiling of the Los
Angeles County jail in January 1988. Upon being detained,
he threatened to kill a sheriff’s sergeant. An officer testified
that Kipp “swore to me and his savior, Satan, [the sergeant]
would be killed in a very big way and a very humiliating
KIPP V. DAVIS 9
way. Humiliating to him and his family.” In the ceiling area,
investigators found sharpened objects that could be used as
tools or weapons.
The prosecution also presented expert testimony to
explain the term “dim mak,” which Kipp had used in the
September 15th letter to explain how he killed Howard. The
expert explained that the term “dim mak” literally means
“death touch,” referring to strikes at pressure points to cause
unconsciousness or death.
2. Defense’s Case in Mitigation
The defense presented a substantial mitigation case
during the penalty phase, including dozens of witnesses to
testify to Kipp’s difficult upbringing and expert testimony
regarding the history of the Blackfeet Tribe, of which Kipp
is a member. The defense also called a psychologist to
provide an expert opinion on how challenging aspects of his
life impacted his development.
The jury heard evidence of the Blackfeet Tribe’s bloody
history in the U.S. In the late 1700’s, the Tribe was a
nomadic people who hunted buffalo and lived in teepees.
After Americans began settling and taking over the fur trade,
disease and alcohol spread across the Tribe. Although their
territory was defined by treaty with the United States as of
1855, a gold rush in Montana resulted in invasions and
encroachments on their land. In response to Blackfeet
resistance, a group of soldiers massacred a peaceful
encampment of Blackfeet. Joe Kipp, a part-Native
American scout who assisted the soldiers during the attack,
tried to stop the attack after realizing at the last minute that
the group was peaceful. The tribe’s chief was killed in the
massacre, and Joe Kipp adopted one of the chief’s sons, who
10 KIPP V. DAVIS
would become the grandfather to John Kipp, Martin Kipp’s
adoptive father.
After buffalo began to disappear from Blackfeet lands,
the Tribe suffered starvation and at least 600 died during the
winter of 1882–1883, leaving a small population of around
2,500. The Tribe’s reservation in Montana was reduced in
size, and the Bureau of Indian Affairs began to adopt harsh
regulations aimed at assimilating Native Americans into
White society. When the tribes were allowed to decide
whether to allow the sale of alcohol on their lands, the
Blackfeet opted to permit alcohol, exacerbating the
alcoholism that had developed among their members
returning from World War II. By the time of Kipp’s trial in
1989, 6,000 Blackfeet lived on the Montana reservation,
with an unemployment rate of 60 to 70 percent and an annual
family income of $5,000 per year (less than a third of the
statewide average of $18,000). Members who left the
reservations often experienced low esteem and lost the
support of their communities.
Kipp was born on the Blackfeet Reservation in 1958.
His birth mother, Mary Still Smoking, was a “nervous” and
“paranoid” alcoholic, who was “out drinking most of the
time.” Kipp first lived with his maternal grandmother,
where 12 to 14 children all shared a filthy, two-room house.
The children were neglected, and inebriation and fighting
were common in the house. A psychologist testified that
these conditions caused Kipp to view the world as an
insecure and threatening place and to develop distrust, fear
of people, and sensitivity to rejection or abandonment.
When Kipp was 23 months old, child welfare workers
removed him from the house and placed him with John and
Mildred (also known as Bobbie) Kipp, who were also
members of the Blackfeet Tribe. They lived on a family
KIPP V. DAVIS 11
ranch within the reservation that was isolated from the rest
of the community. John Kipp was a large and muscular man,
and a decorated United States Marine Corps serviceman
during World War II. John Kipp was a demanding
perfectionist who always wanted things done his way. When
Kipp arrived, he was small and malnourished, his head had
been shaved off because he had lice, and he had a skin
disease called impetigo. John Kipp at first was unwilling to
accept Kipp into his family, but, after six months, he began
to treat Kipp as his son. Kipp idolized his adoptive father
and tried to live up to his expectations. The psychologist
testified that Kipp was not given the freedom needed to
develop internal controls on his behavior. As a result, Kipp
had difficulty distinguishing his own wants and values from
John’s.
Still, up through his teenage years, Kipp was seen as
“friendly and well mannered,” and an honest, hard worker.
He attended high school in Montana on the Blackfeet
reservation, where he was viewed as gentle, shy with girls,
and a “warm, loving, and respectful young man.” He
competed in cross-country, and his coach described him as
being courteous, trustworthy, and an “all-around good kid to
coach.” John also trained Kipp in boxing.
In 1973, when Kipp was in a car with his uncle and 11-
year-old cousin Billy, the car crashed and Billy was killed.
John Kipp was fond of Billy and took the incident hard; he
felt responsible because he had sent them to get seed grain
when the accident occurred. John began to drink whiskey
excessively and suffered a stroke. John’s alcoholism also
led his family relationships to deteriorate. John physically
abused Bobbie and Kipp; he broke two of Bobbie’s fingers
when he slammed a door shut on her hand. He became
aggressive and rough, spent his time in bars, and started an
12 KIPP V. DAVIS
affair. Bobbie eventually moved away and divorced John,
who remarried.
The psychologist testified that Kipp’s sense of identity
was rooted in his relationship with John. John’s
deterioration was profoundly frightening to Kipp and
resurfaced his fears and insecurities. Kipp was in a constant
state of emotional turmoil and “lost heart,” leading him to
give up boxing. Kipp moved to his uncle’s house in
Spokane, Washington during his senior year of high school.
When he was 19, he received news that John had died. Kipp
left immediately and drove all night to the ranch. Following
John’s death, a dispute arose over the division of assets
between John’s family and John’s widow. Kipp was caught
in this conflict and unprepared to deal with it. Bobbie ended
up with nothing, and Kipp received $13,000.
Kipp enlisted in the United States Marine Corps, where
the discipline and high standards paralleled his relationship
with John. Although Kipp was considered an outstanding
recruit during boot camp, his performance plummeted when
he was assigned a desk job in Okinawa. Kipp developed an
attitude problem, stole some items, and spent time in the
brig. He also began to abuse alcohol, cocaine, and
methamphetamine. He was transferred to California, where
he raped June Martinez in June 1981. In the following
month, he left his military post without leave and returned to
the Blackfeet reservation in Montana. He began to date a
woman who testified that Kipp was a “gentleman” who was
“really good to her.”
Kipp was arrested for raping Martinez in August 1981.
While in custody awaiting trial, he was sexually assaulted by
other inmates. The experience was profoundly frightening
to Kipp, and he coped by hiding his weakness and
vulnerability. Still, Kipp adjusted well during his
KIPP V. DAVIS 13
incarceration, and Bobbie visited him during that time. But
when he was released in 1983, Kipp continued to lack
direction or identity, and he felt that he had no one with
whom he could discuss his problems. He continued to abuse
alcohol, cocaine, and methamphetamine. The defense
presented an expert psychopharmacologist who testified that
chronic use of these drugs can result in paranoia and is also
associated with violence and suicide.
By the time of the penalty phase of the trial, the defense
psychologist had interviewed Kipp five times between 1984
and 1989. Kipp had admitted to killing Frizzell and Howard,
and he expressed shame, sorrow, and regret for his actions.
Kipp explained to the psychologist that, when he wrote the
September 15th letter to his wife denying that he had any
remorse, he was upset and angry about what had happened
during his trial for the murder of Howard.
The defense called a number of additional witnesses—
Kipp’s family and friends—who expressed their love for
Kipp and urged the jury to spare his life. Another expert
witness testified about the California prison system and
described how individuals sentenced to life without parole
are confined in small modules, where they are constantly
surveilled and escape is virtually impossible. The expert
also testified that individuals sentenced to life terms tend to
be model prisoners, especially after the age of 40.
14 KIPP V. DAVIS
3. Prosecution’s Rebuttal
The prosecution introduced a letter from Kipp to his wife
from September 9, 1987 (the “September 9 letter”) 3, in
which he described his machinations for violence and rape
against the female deputies and the district attorneys and
their families. The letter had several references to Satan,
including that Satan had helped rejuvenate his energy to
carry out his intentions.
The jury deliberated for about three days and returned a
death verdict. The trial court denied Kipp’s motion for a new
trial and imposed a death sentence.
C. Post-Trial Proceedings
On automatic direct appeal, the California Supreme
Court affirmed Kipp’s conviction and sentence in a reasoned
opinion, issued on November 1, 2001. People v. Kipp,
26 Cal. 4th 1100, 33 P.3d 450 (2001). The U.S. Supreme
Court denied certiorari. Kipp v. California, 537 U.S. 846
(2002).
Kipp filed his first state habeas petition on December 4,
2000, which the California Supreme Court summarily
denied on November 12, 2003. He filed a second state
habeas petition on November 5, 2004, and three days later
filed a habeas petition in federal court, which the district
court stayed pending the state court’s disposition. On
June 28, 2006, the California Supreme Court issued another
summary denial. He filed an amended federal habeas
petition and moved for an evidentiary hearing. The district
3
Throughout the record, this letter is variously referred to as the
September 7 or September 9 letter. We refer to the letter as the
September 9 letter for consistency.
KIPP V. DAVIS 15
court denied the evidentiary hearing and denied Kipp’s
petition. The court granted a certificate of appealability
(“COA”) as to two of Kipp’s claims. Kipp timely appealed.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 2253, and we
review de novo the district court’s denial of habeas relief.
Godoy v. Spearman, 861 F.3d 956, 961–62 (9th Cir. 2017)
(en banc). Kipp’s federal habeas petition is subject to the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) because it was filed after April 24, 1996. See
White v. Ryan, 895 F.3d 641, 665 (9th Cir. 2018). Under
AEDPA, we may not grant relief on any claim adjudicated
by the state court on the merits unless the decision was
“contrary to, or involved an unreasonable application of,
clearly established Federal law,” 28 U.S.C. § 2254(d)(1), or
“based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding,” id.
§ 2254(d)(2). Where a state court summarily denies a claim
without reasoning, we must “determine what arguments or
theories supported or . . . could have supported[] the state
court’s decision[.]” Harrington v. Richter, 562 U.S. 86, 102
(2011). Relief is warranted when the state’s adjudication
was “so lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Id. at 103.
The district court granted a COA for two of Kipp’s
claims: (1) that the admission of Kipp’s references to Satan
in two letters violated his First Amendment rights, 4 and
4
The district court did not grant a COA for another reference to
Satan during the penalty phase. A deputy testified that Kipp swore “to
[the deputy] and his savior, Satan,” that he would kill a sergeant “in a
16 KIPP V. DAVIS
(2) that his counsel was ineffective for failing to adequately
litigate the admissibility of those references. We treat
Kipp’s opening brief, which addresses several uncertified
issues, as an application to expand the COA, see Fed. R.
App. P. 22(b)(2) and Ninth Cir. R. 22-1(e), and grant the
application as to two additional claims: (1) that the jury’s use
of the Bible during deliberations violated his right to a fair
trial and (2) that Kipp’s counsel was ineffective by failing to
adequately investigate and present mitigating evidence
during the penalty phase. See 28 U.S.C. § 2253(c)(2). We
decline to grant a COA as to the remaining claims.
III. Discussion
A. First Amendment Claim
Kipp argues that the state’s admission of his references
to “Satan” violated his First Amendment rights, as set forth
by the Supreme Court in Dawson v. Delaware, 503 U.S. 159
(1992). Because we find that any constitutional error was
harmless, we affirm the district court’s denial of habeas
relief on this claim.
1.
Kipp’s First Amendment claim encompasses both the
guilt and penalty phase. During the guilt phase closing
argument, the prosecutor referred to the September 15 letter
that Kipp wrote to his then-wife as a “significant piece of
circumstantial evidence,” and he read an excerpt to the jury:
very big way.” Because “the admissibility of this brief reference to Satan
is not preserved for [state] appellate review[,]” Kipp, 26 Cal. 4th at 1135,
he is procedurally barred from raising it here, and we decline to grant a
COA.
KIPP V. DAVIS 17
Page 7 reads in part: “I killed, raped,
sodomized, beat, swore, and laughed at those
fucking no-good bitches. Yeah, it felt great,
because neither deserved to live anymore. . . .
The other little tramp played it off as a
college sweetheart. Hell, she was anything
but that, and a loose fuck to boot. Well,
Satan’s licking both those bitches up now and
laughing.”
The prosecutor then argued:
Ladies and gentlemen, that constitutes an
admission, a rather chilling admission. Part
of that statement that I just read to you alludes
to an act that the defendant may or may not
have committed elsewhere. . . . [Y]ou can
accept that as an admission, a chilling
admission of what occurred in Room 162, the
Ramada Inn, on September 17, 1983.
The next day, after adjourning for the evening, the
prosecutor resumed his argument by referencing the “rather
indelible impression of the looks in [the jury’s] eyes as [he]
read that letter.” He apologized for reading the “distressing”
language from the letter but reminded the jury that it was
Kipp’s “unpleasant” language, not his own. A redacted copy
of the letter was ultimately admitted into evidence,
containing one additional reference: “In our next world we
will celebrate and be on top, first in line to persecute and
execute those would be heaven goers! (We are coming
Home Satan!)”
During the penalty phase, the prosecutor again used the
September 15 letter to cross-examine the defense expert.
18 KIPP V. DAVIS
The court also admitted the September 9 letter over the
objection of Kipp’s counsel, allowing certain portions to be
redacted but leaving intact the Satan references. In his
sentencing closing argument, the prosecutor said that he
would not recite the September 15 letter again “because the
language was rough, to say the least,” but argued that it
undermined Kipp’s claims of remorse. He then read a
portion of the September 9 letter to the jury:
“I’d rape and sodomize every woman bitch
deputy and gouge their eyes out. But I would
let them live as invalids. Yeah, Satan will
lick them all up in a tredge [sic] of horror.
They better not ever give[] me the
opportunity to escape, because I’ll associate
myself with a terrorist group and really go on
a spree. I’d kill every DA and his family,
deputies, men and women alike, and I’d
gouge every one of their . . . fucking eyes out.
After I got to 400 to 500 killings of this type,
I’d also incorporate some ninja-type murders
by poison. Yeah, I don’t believe in God
anymore, because their [sic] isn’t one who
has ever helped me. But Satan has helped me
rejuvenate my energy in a working manner.
Don’t ever underestimate my intentions,
babe, that’s all I can say.”
He argued:
. . . When you consider these two letters with
the language the defendant used in
conjunction with that one 1988 escape
attempt, you have a pretty consistent notion
KIPP V. DAVIS 19
of what is going on in the defendant’s mind
with regard to remorse.
The prosecutor concluded, “This defendant, this real Martin
Kipp, has murder in his heart, has Satan [in] his soul. And
he had the life’s blood of Tiffany Frizzell and Antaya
Howard on his hands.”
The defense attempted to contextualize the letters by
urging that Kipp had lost all hope, explaining that when Kipp
wrote, “Yeah, I don’t believe in God anymore because there
isn’t one who has ever helped me,” it exemplified how he
was “a man who is down as low as you can go.”
2.
The Supreme Court in Dawson v. Delaware held that the
admission of a defendant’s beliefs and associations at
sentencing violates the First Amendment where it has “no
relevance to the sentencing proceeding.” 503 U.S. at 166.
In Dawson, the prosecution introduced evidence at
sentencing of the petitioner’s affiliation with the Aryan
Brotherhood, as well as evidence suggesting his belief in
Satan. Id. at 162. To supplement the Aryan Brotherhood
evidence, the parties agreed to a stipulation that read: “The
Aryan Brotherhood refers to a white racist prison gang that
began in the 1960’s in California in response to other gangs
of racial minorities. Separate gangs calling themselves the
Aryan Brotherhood now exist in many state prisons
including Delaware.” Id.
The Court held that the evidence was inadmissible
because it “was not tied in any way to the murder,”
especially where “the prosecution did not prove that the
Aryan Brotherhood had committed [or endorsed] any
unlawful or violent acts” such that it would be relevant to
20 KIPP V. DAVIS
any aggravating circumstance. Id. at 166. In so holding, the
Court rejected application of a “principle of broad rebuttal”
in this case that would allow introduction of the evidence
solely because Dawson put his character at issue in
mitigation. Id. at 167–68. “[B]ecause the evidence proved
nothing more than Dawson’s abstract beliefs,” and because
it “was employed simply because the jury would find these
beliefs morally reprehensible,” its introduction violated
Dawson’s constitutional rights. Id. at 167.
Kipp contends that, as in Dawson, the evidence of his
references to Satan was not connected in any way to his
crime, and thus its sole relevance was to show that his beliefs
were morally reprehensible. As such, he argues, the
admission of the evidence violated his First Amendment
rights and his conviction must be reversed.
As a preliminary matter, the parties disagree as to the
standard of review that we must apply. Kipp contends that
our review must be de novo because the state court either
unreasonably applied Dawson, see 28 U.S.C. § 2254(d)(1),
or unreasonably determined the facts by assuming that a
belief in Satan represents an “abhorrent value system” that
is unsupported by evidence in the record, see id.
§ 2254(d)(2). The state, on the other hand, argues that
AEDPA deference applies. We need not resolve this issue
because we find that, even on de novo review, Kipp’s claim
fails. We affirm the denial of habeas relief because, even
assuming that the state’s admission of Kipp’s references to
Satan violated his First Amendment rights, the error did not
have a “substantial and injurious effect or influence in
KIPP V. DAVIS 21
determining the jury’s verdict.” Brecht v. Abrahamson,
507 U.S. 619, 638 (1993). 5
During the guilt phase, the Satan references were brief
and minor. The prosecutor read aloud a brief portion of
Kipp’s September 15th letter that included “Well, Satan’s
licking both those bitches up now and laughing.” The
prosecutor later reminded the jury of “the rather indelible
impression of the looks in your eyes as I read that letter.”
But there is no indication that the jury’s reaction was to the
brief mention of Satan rather than to the contents of the
letter, which included Kipp’s gruesome and deeply
disturbing descriptions of violence. Moreover, while
discussing how distressing the language was, the prosecutor
focused on the crime rather than any religious implication of
the Satan references: “[M]urder is an unpleasant thing by it’s
very nature. . . . There’s nothing pretty about it.” In the
totality of the prosecutor’s lengthy closing, the references to
Satan comprised a relatively short section that went to
Kipp’s consciousness of guilt.
On the other hand, the evidence supporting Kipp’s
conviction was overwhelming. Kipp’s fingerprints were
found on a telephone in the room where Frizzell’s body was
discovered and on a book owned by her that was later
discovered. Kipp, 26 Cal. 4th at 1110–11. Kipp also pawned
5
We reject Kipp’s contention that a Dawson violation is “structural”
and thus not subject to harmless error review. Kipp cites no supporting
authority, and we are unpersuaded that this type of constitutional
violation satisfies the rationales for a structural error discussed by the
Supreme Court in Weaver v. Massachusetts, 137 S. Ct. 1899, 1907
(2017) (quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991))
(explaining that “the defining feature of a structural error is that it
‘affect[s] the framework within which the trial proceeds,’ rather than
being ‘simply an error in the trial process itself’”).
22 KIPP V. DAVIS
a personal stereo and a cassette player that Frizzell’s mother
identified as her daughter’s. Id. at 1111. Finally, the
prosecutor had Kipp’s own admissions in the September
15th letter that detailed how he “killed, raped, sodomized,
beat, swore and laughed at” the victims. Id. The defense
called no witnesses and offered no exhibits during the guilt-
phase trial. Kipp, 26 Cal. 4th at 1112. Accordingly, the two
references to Satan introduced during the guilt phase are
wholly inadequate to show a “substantial and injurious
effect” on the jury’s guilty verdict.
The penalty phase likewise involved an insurmountable
sum of aggravating evidence. Kipp argues that the centrality
of the statements in the closing arguments both highlights
their importance and exacerbated their impact. Certainly,
the penalty phase presents a closer question than the guilt
phase. The September 9th letter was introduced for the first
time during closing argument and the prosecutor used the
letters to argue that “this real Martin Kipp, has murder in his
heart, [and] has Satan in his soul.” The jury specifically
requested to see the September 15th letter during the penalty
phase deliberations. And the trial court did not take steps to
ameliorate any impermissible inferences that the jurors
might have drawn from the Satan references. See, e.g.,
United States v. Fell, 531 F.3d 197, 230–31 (2d Cir. 2008)
(finding no prejudice where the trial judge gave a jury
instruction to ignore the defendant’s religious beliefs and
required each juror to certify on the special verdict form that
they had followed that instruction).
Yet, on the other hand, the aggravating circumstances
were overwhelming, and the prosecutor’s methodical
recounting of Kipp’s continuous history of violence was
particularly devastating. The prosecutor recalled the in-
court testimony of Martinez, who had survived after Kipp
KIPP V. DAVIS 23
kidnapped, raped, and choked her in 1981. Martinez
testified that Kipp had strangled her “to the point that her
body began to go limp, her eyes started to roll back in her
head, and she had one remaining thought which was ‘Dear
God, please don’t let me die like this.’” The prosecution’s
narrative continued with Kipp’s violent assault and
attempted rape of Newman in 1983, whom Kipp had also
choked, but who managed to escape through police
intervention. The prosecutor reminded the jury that
Newman was afraid to press charges because Kipp had
threatened to kill her and her son. The prosecutor then
described Kipp’s brutal murder of Howard, merely three
months after he killed Frizzell, and reminded the jury of a
photograph showing her decomposing body in the car. He
also described the violent way in which Kipp beat Howard
before strangling her to death. Finally, the prosecutor
described Kipp’s attempted escapes from jail, and Kipp’s
assertion that they were lucky he was caught because he was
out to kill. The letters themselves, separate and apart from
the Satan references, paint a picture of a killer who not only
showed no remorse, but who threatened to commit other
depraved acts of violence and torture in the future. In short,
the references to Satan are too minor in light of the other
evidence to have “had substantial and injurious effect or
influence in determining the jury’s verdict.” See Brecht,
507 U.S. at 638. We thus affirm the district court’s denial of
habeas relief for this claim.
B. Ineffective Assistance of Counsel
Kipp argues that his Sixth Amendment right to counsel
was violated because his counsel performed deficiently in a
way that prejudiced him. See Strickland v. Washington,
466 U.S. 668, 687 (1984). Because the state court
adjudicated his ineffective assistance of counsel (“IAC”)
24 KIPP V. DAVIS
claim “on the merits for failure to state a prima facie case,”
we review under AEDPA deference. See 28 U.S.C.
§ 2254(d). Our examination of counsel’s performance
“must be highly deferential,” Strickland, 466 U.S. at 689,
and, when conducted through AEDPA’s lens, our review is
“doubly deferential,” Cheney v. Washington, 614 F.3d 987,
995 (9th Cir. 2010) (quoting Yarborough v. Gentry, 540 U.S.
1, 5–6 (2003) (per curiam)). Because the state issued
summary denials as to Kipp’s IAC claims, we must first
“determine what arguments or theories supported or . . .
could have supported[] the state court’s decision,” and then
“ask whether it is possible fairminded jurists could disagree
that those arguments or theories are inconsistent with the
holding in a prior decision of this Court.” Richter, 562 U.S.
at 102.
1.
Kipp contends that his trial counsel “failed to
competently litigate the admissibility of Kipp’s oral and
written references to Satan.” Specifically, Kipp argues that
counsel erred by objecting to the admission of the references
to Satan on evidentiary rather than constitutional grounds.
But because Dawson had not yet been decided, it is
questionable whether any objection on constitutional
grounds would have been successful. See Strickland,
466 U.S. at 688 (holding that deficient performance means
that “counsel’s representation fell below an objective
standard of reasonableness” as measured by “prevailing
professional norms”). Regardless, we need not decide
whether counsel’s performance was deficient because any
error was clearly harmless. As we explained above, the
admission of the Satan references could not have “had
substantial and injurious effect or influence in determining
the jury’s verdict.” See Brecht, 507 U.S. at 638.
KIPP V. DAVIS 25
Accordingly, Kipp cannot meet the higher Strickland
standard of prejudice, requiring a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” 466 U.S. at 694; see
Kyles v. Whitley, 514 U.S. 419, 435–36 (1995) (explaining
that the Strickland test for prejudice imposes a “higher
burden” on the defendant than the Brecht standard). We
therefore affirm denial of habeas relief on this claim.
2.
Kipp also alleges that his trial counsel was ineffective
during the penalty phase by failing to adequately investigate
and present mitigating evidence regarding his life. He
argues that a more thorough investigation would have
uncovered “critical information about Kipp’s history of
prenatal exposure to alcohol, neglect as an infant, severe
physical and emotional abuse and exposure to domestic
violence . . . and escalating reliance on drugs and alcohol.”
We affirm the district court’s denial of this claim because the
California Supreme Court could have reasonably found that
trial counsel’s performance was neither deficient nor
prejudicial to Kipp’s case. See Strickland, 466 U.S. at 687.
As for deficiency, Kipp argues that trial counsel failed to
timely conduct a mitigation investigation, which led to the
defense missing important witnesses and to inadequate
preparation of the witnesses that were put on the stand.
Kipp’s original counsel James Egar declared a conflict on
January 15, 1986. Thereafter, when John Yzurdiaga and
Jeffrey Brodey were appointed to take over, they inherited
an incomplete investigation and considered Laurie Poore,
the original mitigation investigation specialist, to be “in
charge” of the mitigation investigation. However, they did
not contact Poore until almost three years after Egar had
been removed and after jury selection had already begun.
26 KIPP V. DAVIS
Poore stated in a declaration that she was “greatly disturbed”
that counsel had waited so long to contact her, and that “it
became apparent . . . that no one had done any work on the
penalty phase investigation” since they were appointed as
counsel. Similarly, the social historian, Craig Haney, who
had interviewed potential witnesses in 1985 and 1986, did
not resume work until after the attorneys contacted him in
1988. Thus, Kipp argues, counsel’s “neglect of the
mitigation investigation until Kipp’s trial had begun” was
deficient performance.
Kipp’s framing of this delay, however, paints an
incomplete picture of the totality of the mitigation
investigation and evidence that was presented to the jury at
the penalty phase. As an initial matter, Kipp had a hand in
creating the “conflict” that arose with Egar by becoming
romantically involved with Egar’s paralegal and
necessitating a transition midstream to Yzurdiaga and
Brodey. 6 Thereafter, while the new attorneys waited a long
time to begin the penalty phase, Poore acknowledged that a
significant amount of work and investigation had already
been conducted. Egar had previously “directed the penalty
phase investigation and took an active role supervising” the
investigators. The new attorneys had Egar’s files and were
in frequent contact with him during their preparation.
This case thus presents facts far different from the cases
cited by Kipp. For example, in Williams v. Taylor, 529 U.S.
362, 395 (2000), the Court found that counsel’s performance
6
As Poore explains it, she began to catch on that a paralegal on the
case “had become romantically involved” with Kipp, in part because the
paralegal began to dress “like what she thought Native Americans looked
like.” Egar fired the paralegal over the improper relationship, and Kipp
may have been persuaded by the paralegal to replace Egar.
KIPP V. DAVIS 27
was deficient where preparation for sentencing did not begin
at all until a week beforehand. In In re Lucas, the California
Supreme Court held that counsel was deficient because they
entirely failed to follow-up with witnesses that had
suggested alternative theories of mitigation. 33 Cal. 4th 682,
725 (2004). By contrast, here, the asserted “delay” did not
impede counsel from presenting a substantial case in
mitigation at the penalty phase. Poore was able to
reestablish contact with her witnesses, to persuade twenty-
one lay witnesses to travel to California and testify, and
(despite some friction with the new attorneys) “conduct[] the
[in-person] interviews with all of the remaining witnesses as
[she] had planned.”
Kipp cites Bemore v. Chappell, 788 F.3d 1151 (9th Cir.
2015), to argue that counsel may still be deficient even if a
substantial case in mitigation was presented at trial. In
Bemore, we held that counsel was deficient despite having
presented over forty witnesses at trial. However, counsel
had been aware of a potential mental impairment theory
suggested by a forensic psychologist but had “truncated” the
inquiry and “put his report in the back of a drawer.” Id.
at 1171–72. By contrast, and as discussed in more detail
below, the allegedly overlooked evidence in this case was
largely duplicative of theories of mitigation that were in fact
presented at trial, detailing the drug and alcohol use, poverty,
and abuse rampant in Kipp’s childhood into his adulthood.
Counsel here did not completely overlook a new, different
theory of mitigation. Accordingly, the state court could have
reasonably rejected Kipp’s IAC claim for failing to
adequately establish deficient performance.
Additionally, the California Supreme Court could have
reasonably concluded that any deficiency in counsel’s
performance did not prejudice the result. To determine
28 KIPP V. DAVIS
whether the failure to investigate and present mitigating
evidence prejudiced the defendant, “it is essential to
compare the evidence that actually was presented to the jury
with the evidence that might have been presented had
counsel acted differently.” Bonin v. Calderon, 59 F.3d 815,
834 (9th Cir. 1995). “The standards created by Strickland
and § 2254(d) are both ‘highly deferential,’ and when the
two apply in tandem, review is ‘doubly’ so.” Richter,
562 U.S. at 105 (internal citations omitted).
Here, the defense put forth a substantial case in
mitigation that focused on the tragic circumstances of Kipp’s
personal history. Kipp’s proffered “new” evidence is not
meaningfully different in kind, but rather in detail, and we
hold that any deficiency did not “undermine[] the reliability
of the result.” See Strickland, 466 U.S. at 693.
First, Kipp points to witnesses who could have more
clearly demonstrated that his biological mother, Mary Still
Smoking, drank alcohol while pregnant with him. This
evidence is not meaningfully different from the extensive
evidence of her drinking and alcoholism that was in fact
presented.
Second, Kipp argues that the attorneys failed to
accurately paint a picture of his childhood abuse. Contrary
to the testimony presented at trial that John did not
physically abuse Kipp as a child, Kipp notes that witnesses
could have detailed specific instances of abuse during his
childhood. However, Mildred, John’s wife, denied that John
hit Kipp, and her new declaration only acknowledges that he
“switched from beating [her] to beating” Kipp before he
started high school. At the very least, the additional
evidence from extended family and friends would have
contradicted the testimony of Mildred herself at trial. And,
as the district court noted, the jury did in fact hear about
KIPP V. DAVIS 29
several incidents of disturbing and violent physical abuse by
John, such as when he “choked [Petitioner] into
unconsciousness for ten to twenty seconds,” or when, two
days later, he caused Kipp “occipital head trauma because
John hit Petitioner’s head against a nail on a wall.”
Kipp also argues that the attorneys could have presented
much more detailed evidence regarding his drug and alcohol
abuse during his teenage years and escalating through his
military service. This testimony would have merely
duplicated the ample testimony that was already presented
regarding Kipp’s extensive drug and alcohol abuse.
Moreover, as the state argues, not all juries would view this
detailed evidence of drug and alcohol abuse to be mitigating.
In sum, the evidence that Kipp puts forth on habeas
review largely duplicates the evidence that was in fact
presented at trial, while any new information does too little
to counteract the considerable case in aggravation. Because
“fairminded jurists could disagree” whether the addition of
this information would have a “reasonable probability” of
changing the outcome, the district court properly denied this
claim under AEDPA deference. See Richter, 562 U.S. at
102; Strickland, 466 U.S. at 695.
C. Juror Misconduct During the Penalty Phase
Kipp alleges that one of the jurors brought a Bible into
the jury room and discussed various passages with the other
jurors during the penalty phase deliberations. Kipp relies on
30 KIPP V. DAVIS
the declaration 7 of juror Algertha Rivers, who stated, in
relevant part:
I recall that during penalty phase
deliberations a female juror with dark,
shoulder-length hair brought in a Bible and
read it to us. She talked about several verses
in the Bible, which she told us would help us
in making a decision. The jurors talked about
standing in judgment of another human
being. There was also discussion of the
verses which state, ‘an eye for an eye’ and
‘judge not lest ye be judged.’ A little over half
of the jurors had a religious background and
strong religious beliefs.
Kipp argues that injecting Bible verses into the jury room
constitutes juror misconduct because the jury improperly
considered “extraneous evidence,” and that the state failed
to show the misconduct was harmless. Because the state
court denied this claim “on the merits for failure to state a
prima facie case for relief,” AEDPA deference applies to our
review of this issue.
The Mattox-Remmer framework set forth by the
Supreme Court governs juror misconduct claims involving
consideration of extraneous evidence during deliberations:
At step one, the court asks whether the
contact was “possibly prejudicial,” meaning
7
We agree with Kipp that the declaration is admissible under Rule
606(b) of the Federal Rules of Evidence, which permits juror testimony
about the consideration of extraneous evidence during deliberations but
not about the effect of such evidence on the verdict.
KIPP V. DAVIS 31
it had a “tendency” to be “injurious to the
defendant.” If so, the contact is “deemed
presumptively prejudicial” and the court
proceeds to step two, where the “burden rests
heavily upon the [state] to establish” the
contact was, in fact, “harmless.”
Godoy, 861 F.3d at 959 (quoting Mattox v. United States,
146 U.S. 140, 150 (1892); Remmer v. United States,
347 U.S. 227, 229 (1954)). This two-step analysis
recognizes “the practical impossibility of shielding jurors
from all contact with the outside world, and also that not all
such contacts risk influencing the verdict.” Id. at 967.
Kipp relies on cases that have applied the Mattox
presumption of prejudice at the second step of the inquiry,
but those cases involve extraneous influences that were
wholly different in kind. For example, in Godoy, a juror had
“‘kept continuous communication’ with the ‘judge friend’
‘about the case’ and passed the judge’s responses on to the
rest of the jury.” Id. at 958. The other cases he cites involve
extraneous influences that are also easily distinguishable
from the Bible verses here. See, e.g., Parker v. Gladden,
385 U.S. 363, 364 (1966) (per curiam) (bailiff’s statement to
jurors); Turner v. Louisiana, 379 U.S. 466, 468–70 (1965)
(government witnesses interacting with jurors); Remmer,
347 U.S. at 228–30 (efforts to bribe juror); Mattox, 146 U.S.
at 150–53 (exposure to newspaper article).
Whether the introduction of the Bible is an
impermissible contact—the first step of the Mattox-Remmer
framework—is still an open question, at least in our circuit.
And circuits that have addressed this question are split.
Compare Oliver v. Quarterman, 541 F.3d 329, 339–40 (5th
Cir. 2008) (citing the Eleventh, First, and Sixth Circuits as
32 KIPP V. DAVIS
support that “[m]ost circuits have ruled that when a Bible
itself enters the jury room, the jury has been exposed to an
external influence”) with Robinson v. Polk, 438 F.3d 350,
363–64 (4th Cir. 2006) (holding that the Bible is
distinguishable from other types of external influences
because “reading the Bible is analogous to the situation
where a juror quotes the Bible from memory, which
assuredly would not be considered an improper influence”).
Our circuit has previously opted to resolve juror misconduct
claims involving use of the Bible on prejudice grounds. See,
e.g., Fields v. Brown, 503 F.3d 755, 781 (9th Cir. 2007) (en
banc); Crittenden v. Ayers, 624 F.3d 943, 973 (9th Cir.
2010). Here, we again find it unnecessary to decide the
question of whether use of Bible verses during deliberation
constitutes misconduct because the state court could have
reasonably concluded that any error did not prejudice the
jury’s verdict.
To prevail on his claim in federal habeas review, Kipp
acknowledges that any juror misconduct must have had a
“substantial and injurious effect on the verdict.” See Fields,
503 F.3d at 781; Sassounian v. Roe, 230 F.3d 1097, 1108
(9th Cir. 2000). Applying this standard, we have previously
found harmless error in other cases with even more troubling
use of Bible passages. In Crittenden, the court rejected a
misconduct claim based on a juror’s introduction of the
passage “[w]ho so sheddeth man’s blood by man shall his
blood be shed.” 624 F.3d at 973. In Fields, the juror cited
the same passage, as well as “He that smiteth a man, so that
he dies, shall surely be put to death.” 503 F.3d at 777, n.15.
The Fields court found no prejudice, in part, because there
were Biblical verses in support as well as against imposition
of the death penalty. Id. at 781. Here, the same logic applies:
the verses mentioned in Rivers’s declaration included both
“an eye for an eye” and “judge not lest ye be judged,” verses
KIPP V. DAVIS 33
tending to support opposing views. And, in Fields, “[m]ore
importantly, the jury was instructed to base its decision on
the facts and the law as stated by the judge, regardless of
whether a juror agreed with it. We presume that jurors
follow the instructions.” Fields, 503 F.3d at 781–82. The
jury received similar instructions here.
Moreover, the jury’s sentence of death was supported by
overwhelming aggravation evidence. As discussed above,
the evidence of the extent of Kipp’s violence against women
was devastating, including raping and choking Martinez,
violently assaulting and threatening to kill Newman, and
brutally raping and killing Frizzell and Howard. Kipp twice
tried to escape from jail, showed an utter lack of remorse,
and threatened to commit violent atrocities again in the
future. Weighing the overwhelming weight of this
aggravating evidence against the purported juror
misconduct, we conclude that any misconduct was harmless.
AFFIRMED.