971 F.3d 866
9th Cir.2020Background
- Martin James Kipp was convicted of first-degree murder, rape, and robbery for the 1983 killing of Tiffany Frizzell and sentenced to death; physical and forensic evidence included semen, Kipp’s fingerprints in the victim’s room and on a book, and the victim’s belongings later found and partially pawned by Kipp.
- Prosecution introduced two inmate/prison letters written by Kipp (referred to as the September 15 and September 9 letters) containing graphic admissions of violence and multiple references to "Satan;" the letters were used at both the guilt and penalty phases.
- Additional aggravating evidence: Kipp’s prior felony rape of June Martinez, the subsequent murder of Antaya Howard, violent assaults on other women, attempted jail escapes, and threats to kill deputies and prosecutors.
- Defense presented an extensive mitigation case in the penalty phase: social-historical testimony about the Blackfeet Tribe, childhood neglect and family dysfunction, substance abuse, mental-health experts, and about twenty-one lay witnesses—though defense called no witnesses at the guilt phase.
- Procedural posture: California Supreme Court affirmed conviction and death sentence; U.S. Supreme Court denied certiorari; state habeas petitions denied; district court denied federal habeas relief; Ninth Circuit granted and/or expanded COA on limited claims and affirmed denial of habeas relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of "Satan" references (First Amendment / Dawson) | Admission of Kipp’s Satan references at sentencing violated First Amendment because they were unrelated to crime and only showed reprehensible beliefs | Even if Dawson error, references were minor compared to overwhelming evidence and thus harmless | Harmless error; no reversible First Amendment violation under Brecht |
| IAC re: litigating Satan references (trial counsel) | Counsel filed only evidentiary objections, not constitutional ones; this constituted deficient performance causing prejudice | Dawson was unsettled at trial; even if deficiency, any error was not prejudicial given overwhelming evidence | No Strickland relief; prejudice not shown under doubly deferential AEDPA/Strickland review |
| IAC re: mitigation investigation (penalty phase) | Counsel delayed/failed adequately to investigate; additional prenatal, abuse, and drug-history evidence would have been found and was materially mitigating | Substantial mitigation was presented; much of the proffered new evidence would have been cumulative or contradicted trial testimony; no reasonable probability of different result | State court could reasonably deny relief; no Strickland prejudice shown under AEDPA |
| Juror misconduct — Bible in deliberations (extraneous evidence) | Juror read Bible passages advocating both for and against capital punishment; this was an extraneous influence and presumptively prejudicial | Passages cited cut both ways; jury instructed to follow law; overwhelming aggravating evidence made any influence harmless | Any misconduct was harmless given instructions, conflicting scriptural passages, and overwhelming aggravation |
Key Cases Cited
- Dawson v. Delaware, 503 U.S. 159 (confining Dawson error to evidence unrelated to crime and used to show reprehensible beliefs)
- Brecht v. Abrahamson, 507 U.S. 619 (harmless-error standard for federal habeas review)
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard: deficient performance + prejudice)
- Harrington v. Richter, 562 U.S. 86 (AEDPA review of state-court summary denials)
- Mattox v. United States, 146 U.S. 140 (framework for extraneous contacts and prejudice presumption)
- Remmer v. United States, 347 U.S. 227 (state burden to prove juror-contact harmlessness)
- Fields v. Brown, 503 F.3d 755 (9th Cir. en banc on juror misconduct and harmlessness where Bible passages used)
- Godoy v. Spearman, 861 F.3d 956 (9th Cir. discussing Mattox-Remmer framework)