In an order issued today in Kipp v. Davis, the Ninth Circuit, by a vote of 15 to 14, denied en banc review of a panel ruling that granted a habeas petition filed by Martin Kipp.

The alignment of votes is very interesting: Two appointees of President Obama—Judge Jacqueline Nguyen and Judge John B. Owens—joined twelve appointees of Republican presidents in voting for en banc review. But Trump appointee Eric Miller continued his striking pattern of opposing en banc review, as he provided the decisive 15th vote against en banc review.

Kipp was convicted in 1987 of first-degree murder and attempted rape. On direct appeal, the California supreme court rejected Kipp’s argument that the admission of evidence that Kipp had previously raped and killed another woman violated state evidence rules and his federal due process rights. A Ninth Circuit panel, over Judge Nguyen’s dissent, granted Kipp’s federal habeas petition last August.

Here is the opening paragraph of Judge Sandra Ikuta’s opinion (citations omitted) on behalf of all 14 dissenters from the denial of rehearing en banc:

Will the Ninth Circuit ever learn from its past mistakes? The Supreme Court has repeatedly overruled our habeas decisions that reweigh evidence under a “de-novo-masquerading-as-deference approach.” And the Supreme Court has repeatedly directed us to give proper deference to state courts’ decisions under the Antiterrorism and Effective Death Penalty Act. Yet today we once again let stand an opinion making these same errors. The panel majority here could not find a way to hold that the California Supreme Court’s decision was an unreasonable application of Supreme Court precedent, so it transmuted the state court’s legal decision into a factual one, and then purported to hold that the state court made an unreasonable determination of the facts.

In his brief opinion concurring in the denial of rehearing en banc (joined by seven other judges), Judge Miller opines that the panel ruling, although erroneous, doesn’t meet the standard for en banc review:

No one disputes that the panel correctly stated the rules of deference prescribed in 28 U.S.C. § 2254(d). The only question is whether the panel erred in applying those rules to the decision of the California Supreme Court affirming Martin Kipp’s conviction. Although Judge Ikuta and Judge Nguyen have persuasively argued that it did, that case-specific error does not affect the “uniformity of the court’s decisions.”
As for “exceptional importance,” this case is undoubtedly of great importance to Kipp and to the family of his victim, Antaya Howard. But it is the State of California whose judgment of conviction has been set aside, and the State not only chose not to file a petition for rehearing en banc, it expressly declined to argue for rehearing even after we invited it to do so. Perhaps the California Attorney General [current HHS Secretary nominee Xavier Becerra] had good reasons for that choice, or perhaps not, but either way, the choice was his to make on behalf of the State. I see no reason for us to be more solicitous of the State’s interests than the State itself.

In reply to Miller (and to a separate concurrence by Judge Richard Paez, the author of the panel opinion), Ikuta writes:

The concurrences attach great significance to the California Attorney General’s decision not to petition for rehearing en banc. But California also disclosed the underlying reason for its disinterest: the Ninth Circuit has “affirmed the denial of relief as to Kipp’s death judgment arising from his Los Angeles County case.” Although California may reasonably decide not to put further resources into fighting the reversal of one death sentence when a second death sentence is already in place, a state’s practical considerations do not affect our responsibility to ensure that our cases follow the law and Supreme Court precedent.