                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                                      PU BL ISH
                                                                     October 18, 2006
                   UNITED STATES CO URT O F APPEALS                Elisabeth A. Shumaker
                                                                       Clerk of Court
                                TENTH CIRCUIT



 DAVID P. STEV EN S,

       Petitioner-Appellant,

       v.                                                 No. 05-1250
 JOSEPH ORTIZ, Director, Colorado
 Department of Corrections; RICK
 SOARES, W arden; and JOHN SUTH ERS,
 Attorney General, State of Colorado,

       Respondents-Appellees.



                  Appeal from the United States District Court
                          for the District of Colorado
                      (D.C. No. 03-CV-00533-REB-BNB)


M adeline S. Cohen, Assistant Public Defender (Raymond P. M oore, Federal
Public D efender, with her on the briefs), Denver, Colorado, for Petitioner-
Appellant.

Laurie A. Booras, First Assistant Attorney General, Appellate Division, Criminal
Justice Section (John W . Suthers, A ttorney General, with her on the brief), State
of Colorado, Denver, Colorado, for Respondents-A ppellees.


Before H E N RY, A ND ER SO N, and M CCO NNELL, Circuit Judges.


H E N RY, Circuit Judge.


      John Sw iger stated in police custody that he shot and killed David Seiler
under the orders of the Petitioner-Appellant David P. Stevens. At M r. Stevens’s

state trial, M r. Swiger did not testify, but his statement was admitted into

evidence over M r. Stevens’s objection. A jury convicted M r. Stevens of first-

degree murder and other counts. On direct appeal, the C olorado Supreme Court

concluded that the admission of M r. Swiger’s confession did not violate M r.

Stevens’s rights under the Confrontation Clause. The federal district court denied

M r. Stevens’s petition for a writ of habeas corpus under 28 U.S.C. § 2254, and he

timely appeals. W e must decide here if the Colorado trial court violated M r.

Steven’s Sixth Amendment rights when it admitted the custodial confession of

M r. Sw iger, a non-testifying accomplice, that also inculpated M r. Stevens in a

murder-for-hire.

      W e conclude that the reasoning of the Colorado Supreme Court was

contrary to clearly established federal law, and the introduction of the accomplice

confession violated M r. Stevens’s rights under the Confrontation Clause. Further,

the Sixth Amendment error was not harmless. Exercising jurisdiction under 28

U.S.C. §§ 1291 and 2253(a) and (c), we reverse the district court’s denial of M r.

Stevens’s § 2254 petition and remand to the district court for entry of the writ.



                                 I. BACKGROUND

      W e briefly summarize the underlying facts and earlier court proceedings.

The Colorado Supreme Court described the pertinent facts in more detail. See

                                          -2-
Stevens v. People, 29 P.3d 305, 308-10 (Colo. 2001); id. at 319-22 (Bender, J.,

concurring in part and dissenting in part).



A.    M r. Seiler’s death and M r. Swiger’s statements

      On the evening of February 28, 1993, David Seiler w as shot and killed in

front of M r. Stevens’s house in Aurora, Colorado. Police initially investigated

M r. Stevens and M r. Swiger as suspects in the death but filed no charges. M r.

Sw iger had known M r. Seiler through M r. Stevens’s drug operations. Soon after

the murder, M r. Sw iger, his girlfriend (Bonnie Clontz), and a young woman who

was with M r. Seiler the night he was shot (Tina Parks) moved to Tennessee.

      Two years later, Aurora detectives learned that M r. Sw iger had been

bragging to friends in Tennessee about killing M r. Seiler. In January 1995,

Aurora Detectives Joe Petrucelli and Tony Rodriguez traveled to a Tennessee

county jail to speak with M r. Swiger about his involvement in M r. Seiler’s death.

The detectives informed M r. Swiger of his M iranda rights, and he agreed to

answer questions. Rec. doc. 12, ex. A, App. I, at 2 (“Swiger Tr.”). That

interrogation and subsequent written statement form the basis of this appeal.

      1.     Initial denial of involvement

      Early in the interview , M r. Swiger said that M r. Stevens asked him to

murder M r. Seiler to prevent M r. Seiler from testifying against M r. Stevens and

two associates in an upcoming trial. M r. Stevens offered to pay $5,000 then and

                                         -3-
$5,000 after the murder. W hen M r. Sw iger said he needed time to think about the

offer, M r. Stevens threatened to hurt his family and kill him.

      During the first two-thirds of the interview, M r. Sw iger repeatedly denied

killing M r. Seiler on February 28, 1993. M r. Sw iger told the Aurora detectives he

was at home that evening with his family and did not go to a party at M r.

Stevens’s house because he was watching his children. M r. Sw iger stated he had

only helped M r. Stevens to dispose of a .38 revolver that may have been involved

with the murder. W hen the detectives asked who shot M r. Seiler, M r. Sw iger

responded that “some guy by the name of M ike” had carried out the murder. Id.

at 29. Before M r. Sw iger gave more details about M ike, he asked the detectives

for assurances they would protect his family. M r. Sw iger later stated several

times that he was afraid M r. Stevens would kill his family and him if he spoke out

about M r. Stevens’s murder plot.

      Despite M r. Sw iger’s denial of any involvement in the murder, the

detectives continued to ask him whether excessive drug and alcohol use that

evening could have prevented him from remembering that he had shot M r. Seiler.

M r. Sw iger repeatedly said he was drunk the night of the murder and for several

subsequent months. He also stated that he had used acid and cocaine on the day

before M r. Seiler’s murder. Detective Petrucelli asked M r. Swiger about how M r.

Stevens had pressured him to carry out the murder, and the detective encouraged

M r. Sw iger to explain his role to “get this off [his] chest.” Id. at 53. M r. Sw iger

                                           -4-
began to cry and responded multiple times that “I’m not sure.” Id.

      The detectives told M r. Sw iger they could not “make [him] any deals,” but

promised to keep M s. Clontz and their children safe. Id. at 54. M r. Sw iger asked

twice to speak with M s. Clontz, but the detectives refused his request. M r.

Sw iger insisted that she had nothing to do with the murder and sought assurance

from the detectives that she would not be prosecuted.

      2.     Later confession

      After the detectives said they would not prosecute M s. Clontz, M r. Sw iger

changed his story (at page 61 of the 73-page interview transcript) and described a

direct role in the murder. M r. Sw iger said he received a call on the night of the

murder to drive promptly to M r. Stevens’s house, where M r. Seiler would soon be

leaving. M r. Sw iger stated that he then directed M s. Clontz to go to the liquor

store and buy cigarettes, without informing her of any plan to shoot M r. Seiler.

M r. Swiger said he then drove to M r. Stevens’s house, parked in a nearby alley,

and got out of his car. W hen M r. Seiler walked out of the house, he fired twice

from a back gate near the house, and then “took off runnin’ [and] jumped back in

the M ustang” to return to his residence “before Bonnie [Clontz] got back.” Id. at

63. M r. Swiger stated that he shot at M r. Seiler but did not intend to kill him.

      M r. Swiger later responded that M r. Stevens had specifically directed M r.

Swiger to shoot Mr. Seiler. M r. Swiger also indicated that he knew he w as a

suspect in the Colorado murder when the interview began. The detectives had

                                          -5-
earlier told M r. Swiger that he was a suspect and that they had already

interviewed M s. Clontz. Finally, when asked if the detectives had offered any

promises or deals for his statement, M r. Sw iger said, “No, sir, jus’ that . . . if I

told the truth, my family’d be protected.” Id. at 72.

       After more than two hours of interrogation, M r. Sw iger wrote and signed a

statement that summarized his confession.



B.     Trial and direct appeal

       M r. Stevens and M r. Swiger w ere charged in connection with M r. Seiler’s

death and tried separately in Colorado court. Prior to M r. Stevens’s trial, M r.

Sw iger asserted his Fifth Amendment privilege against self-incrimination, and the

prosecution offered M r. Sw iger’s recorded and written statements. M r. Stevens

filed a motion in limine to exclude the statements. The state district court found

the statements against M r. Sw iger’s penal interest and admitted the accomplice

confession under Colo. R. Evid. 804(b)(3). 1



       1
           Rule 804(b) provides that ‘[t]he following are not excluded by the

hearsay rule if the declarant is unavailable as a witness:” . . .

       (3) A statement which was at the time of its making so far contrary to
       the declarant’s pecuniary or proprietary interest, or so far tended to
       subject him to civil or criminal liability, or to render invalid a claim by
       him against another, that a reasonable man in his position would not
       have made the statement unless he believed it to be true. A statement
                                                                           (continued...)

                                            -6-
      At trial, the prosecution introduced into evidence M r. Sw iger’s taped

statement–played in full to the jury–and the subsequent written confession. M r.

Sw iger’s custodial statement was the only direct evidence connecting M r. Stevens

to M r. Seiler’s death. After the jury deliberated for approximately 90 minutes, it

asked to hear parts of M r. Sw iger’s recorded statement. Shortly after hearing the

full taped statement again, the jury reached a verdict. It convicted M r. Stevens of

(1) first-degree murder after deliberation, in violation of Colo. Rev. Stat. § 18-3-

102; (2) conspiracy to commit first-degree murder, in violation of Colo. Rev. Stat.

§ 18-2-201; and (3) solicitation to commit first-degree murder, in violation of

Col. Rev. Stat. § 18-2-301. The district court sentenced M r. Stevens to life

imprisonment on the first-degree murder count, and to 24 years’ imprisonment

each on the conspiracy and solicitation counts. The court ordered the three

sentences to run concurrently, but consecutive to a life sentence that M r. Stevens

was already serving on an unrelated conviction.

      M r. Stevens appealed his conviction to the Colorado Court of A ppeals,

arguing that the admission of M r. Swiger’s custodial statement without cross-

examination violated his rights under the Confrontation Clause. The Colorado



      1
       (...continued)
      tending to expose the declarant to criminal liability and offered to
      exculpate the accused is not admissible unless corroborating
      circumstances clearly indicate the trustw orthiness of the statement.



                                         -7-
Court of Appeals affirmed. On appeal, the Colorado Supreme Court granted

certiorari and affirmed. Stevens, 29 P.3d at 308. The Colorado Supreme Court

concluded that M r. Sw iger’s statement did not fall within a firmly rooted hearsay

exception but nonetheless found the statement “admissible because it contained

sufficient guarantees of trustworthiness.” Id. Justice Bender, joined by Justice

M artinez, dissented from the majority’s conclusion that M r. Sw iger’s statement

bore sufficient indicia of reliability. See id. at 318-33 (Bender, J., concurring in

part and dissenting in part). The U nited States Supreme Court denied certiorari

on April 1, 2002.



C.    Federal habeas corpus proceedings

      M r. Stevens timely filed a 28 U.S.C. § 2254 habeas corpus petition, and the

federal district court appointed counsel for him. The district court examined the

factors that the Colorado Supreme Court had considered to find M r. Swiger’s

untested statement reliable. It rejected some of the Colorado court’s analysis,

concluding that the state court had ruled contrary to clearly established federal

law by considering both the voluntariness of M r. Sw iger’s statement and evidence

that corroborated the details of his confession. Based on this ruling, the district

court reviewed the Confrontation Clause issue de novo, no longer applying

deference under the Antiterrorism and Effective Death Penalty Act (“AEDPA”).

See Brown v. Uphoff, 381 F.3d 1219, 1225 (10th Cir. 2004), cert denied, 543 U.S.

                                          -8-
1079 (2005).

      On de novo review, the district court held that the admission of M r.

Swiger’s custodial statement without cross-examination did not violate M r.

Stevens’s rights under the Confrontation Clause. According to the district court,

the statement was (1) truly self-inculpatory, (2) detailed, (3) not offered in

exchange for leniency, (4) based upon M r. Sw iger’s personal knowledge of the

events, (5) not given in retaliation against M r. Stevens, and (6) given by a

declarant who was mentally and physically stable. These factors indicated that

the statement was sufficiently reliable.

      M r. Stevens timely appealed, and the district court granted a certificate of

appealability on whether the Colorado court’s admission of M r. Swiger’s

statement violated M r. Stevens’s Sixth Amendment rights.



                           II. STANDA RD O F REVIEW

      Under AEDPA , we may only grant M r. Stevens habeas relief if the

Colorado Supreme Court’s adjudication “resulted in a decision that was [1]

contrary to, or [2] involved an unreasonable application of, clearly established

federal law, as determined by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1).

      The first ground for relief under A EDPA, a decision that is “contrary to . . .

clearly established federal law,” id., is met if the state court (1) “applies a rule

                                           -9-
that contradicts the governing law set forth in [Supreme Court] cases” or (2)

“confronts a set of facts that are materially indistinguishable from a decision of

[the Supreme] Court and nevertheless arrives as a result different from [the

Court’s] precedent.” Williams v. Taylor, 529 U.S. 362, 406 (2000). A state

court’s decision is not contrary to clearly established federal law even if a state

court has no awareness of controlling Supreme Court precedent, “so long as

neither the reasoning nor the result of the state-court decision contradicts

[Supreme Court] precedent.” Early v. Packer, 537 U.S. 3, 8 (2002). W hen we

review a summary disposition by a state court, we focus on its result rather than

any reasoning. Saiz v. Ortiz, 392 F.3d 1166, 1176 (10th Cir. 2004), cert denied,

125 S. Ct. 2976 (2005); Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999).

      However, when applying AEDPA to fully reasoned opinions by state

courts, this circuit has not focused solely on the result “w here the state court’s

explicit reasoning contravenes Supreme Court precedent.” Brown, 381 F.3d at

1225 (emphasis added). In Brown, we concluded that a state court’s reasoning in

a Confrontation Clause challenge was contrary to clearly established federal law

because it had relied on factors “inappropriate for determining whether a

statement is trustworthy.” Id. W e did not apply AEDPA deference and instead

reviewed de novo–under the correct factors identified by Supreme Court

precedent–whether a constitutional violation occurred. Id.; see also Fulcher v.

M otley, 444 F.3d 791, 805-06 (6th Cir. 2006) (reviewing a Confrontation Clause

                                          -10-
challenge de novo after first holding that the state court’s multi-factor test

contravened Supreme Court precedent because it considered improper factors).

      The second ground for relief under AEDPA–a state court’s unreasonable

application of clearly established Supreme Court precedent–is met if the state

court “correctly identifies the governing legal rule but applies it unreasonably to

the facts of a particular prisoner’s case.” Id. at 407-08. “[A] federal habeas court

may not issue the writ simply because that court concludes in its independent

judgment that the relevant state-court decision applied clearly established federal

law erroneously or incorrectly. Rather, that application must also be

unreasonable.” Id. at 411.



                               III. AEDPA REVIEW

      First, we identify clearly established federal law “existing at the time the

defendant’s conviction became final.” W illiams, 529 U.S. at 381. Second, we

examine whether the Colorado Supreme Court ruled contrary to, or unreasonably

applied such law in its decision. 2



      2
       In Crawford v. Washington, 541 U.S. 36, 59 (2004), the Supreme Court
held that testimonial hearsay may be admitted against a defendant at trial “only
where the declarant is unavailable, and only where the defendant has a prior
opportunity to cross-examine.” Crawford does not affect our analysis. M r.
Stevens’s conviction became final on April 1, 2002, when the United States
Supreme Court denied certiorari with regard to the Colorado Supreme Court’s
decision on direct appeal. Crawford was decided on M arch 8, 2004, and we do
                                                                     (continued...)

                                         -11-
A.    C learly established federal law

      The Sixth Amendment of the United States Constitution guarantees an

individual accused of a criminal offense the right “to be confronted with the

witnesses against him.” U.S. C ONST . amend. VI. This right applies in both

federal and state prosecutions. Pointer v. Texas, 380 U.S. 400, 406 (1965). “The

combined effect of . . . confrontation–physical presence, oath, cross-examination,

and observation of demeanor by the trier of fact–serves the purposes of the

Confrontation Clause by ensuring that evidence admitted against an accused is

reliable and subject to the rigorous adversarial testing that is the norm of Anglo-

American criminal proceedings.” M aryland v. Craig, 497 U.S. 836, 846 (1990).

Accordingly, an out-of-court statement that falls within an exception to a hearsay

rule under a state’s evidentiary rules must nonetheless be excluded from a

defendant’s trial if its admission would deprive him of his constitutional right of

confrontation. See Dutton v. Evans, 400 U.S. 74, 80-82 (1970).

      Prior to Crawford, Supreme Court precedent addressing Confrontation

Clause rights held that a testimonial hearsay statement is admissible only if the

declarant is unavailable, and only if the statement (1) satisfies “a firmly rooted”

exception to the hearsay rule or (2) bears “particularized guarantees of




      2
       (...continued)
not apply the decision retroactively to cases on collateral review. Brown, 381
F.3d at 1225-27.

                                         -12-
trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66 (1980). This two-part

framew ork was “unpredictable,” Crawford, 541 U.S. at 63, in part because the

Court “decline[d] to endorse a mechanical test” for assessing trustworthiness,

Idaho v. Wright, 497 U.S. 805, 822 (1990). Nonetheless, pre-Crawford decisions

identify several factors that courts should (and should not) consider when

determining whether an accomplice’s statement is sufficiently reliable to be

admitted without cross-examination.

      The most relevant Supreme Court decision for our review is Lilly v.

Virginia, 527 U.S. 116 (1999). In that case, the petitioner Ben Lilly, his brother

M ark, and a friend were arrested for a two-day crime spree during which they

killed one victim. During police questioning, M ark admitted to certain crimes but

stated that Ben and their friend had stolen the guns and Ben had actually shot the

victim. Id. at 120-21. At Ben’s trial, M ark invoked his Fifth Amendment rights

and did not testify, but the district court admitted M ark’s statements that

described Ben as the mastermind and actual shooter. A jury later convicted Ben

of murder and other crimes. Ben appealed his conviction and argued that

admitting the confession of his brother, a non-testifying accomplice, violated his

Confrontation Clause rights. The Virginia Supreme Court affirmed the

statement’s admission.

      A plurality opinion by Justice Stevens, joined by Justices Souter, Ginsburg,

and Breyer, concluded that the admission of M ark’s custodial statement, untested

                                         -13-
by cross-examination, violated Ben’s rights under the Confrontation Clause. The

plurality first determined that the accomplice’s statement, shifting blame to a

criminal defendant, was not within a firmly rooted exception to the hearsay rule.

See id. at 133.

      The Lilly plurality then evaluated whether the statement bore sufficient

indicia of reliability to be admitted without cross-examination. The plurality

noted that “[i]t is highly unlikely that the presumptive unreliability that attaches

to accomplices’ confessions that shift or spread blame can be effectively rebutted

when . . . the government is involved in the statements’ production, and when the

statements describe past events and have not been subjected to adversarial

testing.” Id. at 137. Thus, admission of an accomplice’s confession violates a

defendant’s Sixth Amendment rights unless the truthfulness of the statement “is

so clear from the surrounding circumstances that the test for cross-examination

would be of marginal utility.” Id. at 136 (quoting Wright, 497 U.S. at 820).

      The Lilly plurality identified certain factors improperly considered by the

Virginia Supreme Court that should have had little, if any, influence in an

analysis for “particularized guarantees of trustw orthiness.” For example, a

declarant’s awareness of his M iranda rights does not “render the circumstances

surrounding his statements significantly more trustworthy.” Lilly, 527 U.S. at

138. The Supreme Court had earlier concluded in Lee v. Illinois, 476 U.S. 530,

544 (1986) that the voluntariness of an accomplice’s confession “does not bear on

                                         -14-
the question of whether the confession was also free from any desire, motive, or

im pulse [the declarant] may have had either to mitigate the appearance of his ow n

culpability by spreading the blame or to overstate [the defendant’s] involvement

[in the crimes at issue].”

      In Lilly, the plurality also described how a court cannot rely on outside

evidence to validate a declarant’s unchallenged hearsay statement. “[The fact]

[t]hat other evidence at trial corroborated portions of [a declarant’s] statements is

irrelevant.” Lilly, 527 U.S. at 137; see also Wright, 497 U.S. at 822 (rejecting the

“contention that evidence corroborating the truth of a hearsay statement may

properly support a finding that the statement bears ‘particularized guarantees of

trustworthiness’”) (quoting Roberts, 448 U.S. at 66).

      The Lilly plurality addressed several other factors. It noted that a

declarant’s self-inculpatory statement is “suspect insofar as [he] inculpate[s] other

persons. That a person is making a broadly self-inculpatory confession does not

make more credible the confession’s non-self-inculpatory parts.” Lilly, 527 U.S.

at 139 (quoting Williamson v. United States, 512 U.S. 594, 599 (1994)). Further,

the plurality stated, “the absence of an express promise of leniency to [the

declarant] does not enhance his statements’ reliability to the level necessary for

their untested admission.” Id. Finally, the plurality expressed concern about an

officer’s use of leading questions during a custodial confession; a declarant in

that position has “a natural motive to attempt to exculpate himself as much as

                                         -15-
possible.” Id.

      Notably, the concurring opinions of Justices Scalia and Thomas also

concluded that the admission of the accomplice’s statement violated the

Confrontation Clause. Both Justices adopted a categorical approach. See id. at

143 (Scalia, J., concurring in part and concurring in the judgment) (referring to

the admission of M ark’s statement as a “paradigmatic Confrontation Clause

violation”); id. at 143-44 (Thomas, J., concurring in part and concurring in the

judgment).

      W e reject the state’s argument that the holdings of the four-Justice Lilly

plurality are not clearly established federal law . Under § 2254(d)(1), the “clearly

established” phrase “refers to the holdings, as opposed to the dicta of [the

Supreme] Court’s decisions as of the time of the relevant state-court decision.”

W illiam s, 529 U.S. at 412. In Lilly, the categorical rule outlined by Justices

Scalia and Thomas reads the requirements of the C onfrontation Clause more

broadly than the plurality. W e take into account these concurrences and

characterize the narrower standards set forth in Justice Stevens’s plurality opinion

as the “holding”–and therefore clearly established federal law. See Marks v.

United States, 430 U.S. 188, 193 (1977). This treatment is consistent with other

circuits that have applied Lilly’s plurality opinion under A EDPA. See Fulcher v.

M otley, 444 F.3d 791, 800 n.4 (6th Cir. 2006); M urillo v. Frank, 402 F.3d 786,

791 (7th Cir. 2005); Forn v. Hornung, 343 F.3d 990, 995 n.4 (9th Cir. 2003)

                                          -16-
(citation omitted) (holding that “Lilly is ‘clearly established federal law’ for

purposes of A EDPA”).



B.    AEDPA review of the Colorado court’s decision

      Based on several factors, the C olorado Supreme Court concluded that M r.

Sw iger’s statement to detectives in Tennessee had sufficient guarantees of

trustw orthiness to be admissible without cross-examination. Stevens, 29 P.3d at

314-18. M r. Stevens challenges the state court’s reliance on four of these factors

as supporting reliability: that (1) the statement was genuinely self-inculpatory;

(2) independent evidence corroborated it, (3) the statement was voluntary; and (4)

the detectives did not promise leniency to M r. Swiger.

      1.     Self-inculpatory nature of M r. Swiger’s statement

      M r. Stevens first argues that the Colorado Supreme Court ruled contrary to

Supreme Court precedent when it stated that “the most important determination as

to its trustworthiness is whether the statement at issue is genuinely self-

inculpatory or whether it shifts the blame from the confessor to the defendant.”

Stevens, 29 P.3d at 314. The state court found M r. Sw iger’s statement was

“genuinely self-inculpatory” because he “did not minimize his involvement in the

murder nor did he shift the responsibility for committing the murder to the

defendant.” Id. at 315.

      In Lilly, only three Justices believed “a genuinely self-inculpatory

                                         -17-
statement [in custody] that also inculpates a codefendant” might satisfy a firmly

rooted hearsay exception. 527 U.S. at 146 (Rehnquist, C.J., concurring in the

judgment). Instead, the Lilly plurality (along w ith Justices Scalia and Thomas)

expressly rejected Chief Justice Rehnquist’s concurrence. A majority of the

Court thus held that an accomplice’s custodial confession inculpating a

defendant–no matter how much the statement incriminates the declarant–does not

fall w ithin a firmly rooted exception to the hearsay rule. Id. at 134 and n.5.

Importantly, Lilly also concluded that portions of a statement exposing a declarant

to criminal liability added no reliability to the non-self-inculpatory parts of the

statement that inculpate a co-defendant. Id. at 138-39 (“[A]s we have explained,

such statements [against penal interest] are suspect insofar as they inculpate other

persons.”); accord Williamson, 512 U.S. at 599-600; Lee, 476 U.S. at 545.

      Accordingly, we conclude that the Colorado court erred not only by

assigning relevance to w hether a statement is genuinely self-inculpatory, but also

by elevating that irrelevant factor to the forefront in its reliability determination.

The Colorado Supreme Court’s reasoning was therefore contrary to clearly

established federal law.

      2.     Corroborating evidence

      M r. Stevens next maintains that the C olorado Supreme Court ruled contrary

to Lilly and Wright by relying on the existence of evidence corroborating M r.

Sw iger’s statement to support its reliability. In Wright, the Supreme Court held

                                          -18-
that hearsay evidence admitted against a criminal defendant “must possess indicia

of reliability by virtue of its inherent trustworthiness, not by reference to other

evidence at trial.” 497 U.S. at 822. In Lilly, the Court reiterated the principle:

“[t]hat other evidence at trial corroborated portions of M ark’s statement is

irrelevant.” 527 U.S. at 137. Corroboration of portions of an accomplice’s

confession by other trial evidence creates “a very real danger that a jury will rely

on partial corroboration to infer the trustworthiness of the entire statement.”

Wright, 497 U.S. at 824.

      Here, the Colorado court “[e]xamin[ed] the record” and “[found] that

Swiger provided many details concerning the murder and the defendant’s

participation that could be independently confirmed.” Stevens, 29 P.3d at 317.

“Swiger displayed a depth of knowledge about the relationship between the

defendant and the victim that gives credibility to his claim that the defendant

planned the crime.” Id. The state court considered how M r. Sw iger’s interview

detailed the shooting at M r. Stevens’s house, the disposal of the gun with M r.

Stevens’s assistance, M r. Stevens’s motive for killing M r. Seiler, and M r.

Stevens’s rationale for believing that M r. Swiger w ould carry out the murder. Id.

      The federal district court concluded the state court had ruled contrary to

Wright by relying on details in M r. Sw iger’s statement that other trial evidence

could corroborate:

      Swiger’s statements concerning Steven[s’s] motive for killing Seiler,

                                          -19-
      how Seiler had been kidnaped and beaten by Stevens, how Stevens had
      helped to dispose of the murder weapon, and Swiger’s position and
      actions at the time of the shooting all may have been supported by
      corroborative evidence. In this context, the fact that Sw iger provided
      these details should not be considered as indicating that Swiger’s
      statement was reliable.
Rec. vol. I, doc. 31, at 22. W e agree that the Colorado court’s reasoning was

contrary to federal law because it “bootstrap[ped] on the trustworthiness of other

evidence at trial,” Wright, 497 U.S. at 823, when it considered independent

evidence to corroborate details of M r. Swiger’s statements. See Fulcher, 444

F.3d at 805 (concluding that a state court contravened federal law when it relied

on additional testimony and evidence from the crime scene to corroborate the

accomplice’s statement).

      3.     Voluntariness

      M r. Stevens also maintains that the Colorado Supreme Court erred in its

trustworthiness evaluation by considering the voluntariness of M r. Swiger’s

statements. The state court held that “[a]lthough police investigators did use

some leading questions in the interview, Sw iger was not coerced and no improper

tactics w ere used. From the record there is no reason to believe that Sw iger’s

statement was anything but voluntary.” Stevens, 29 P.3d at 316; see id.

(“W hatever caused Swiger to start talking about the murder in the first place came

from within himself and was not the result of government action.”).

      The Supreme Court has instructed courts not to consider the voluntariness

of a declarant’s statement when assessing its particularized guarantees of

                                         -20-
trustw orthiness. Lee, 476 U.S. at 544-45. Neither the apparent voluntariness nor

prior M iranda warnings have any “bearing on the likelihood of truthfulness of

[the declarant’s] statements.” Lilly, 527 U.S. at 138. Further, this circuit has

held that “reliance on [voluntariness] is inappropriate for determining whether a

statement is trustworthy,” and we have concluded that a state court decision

relying on the voluntariness of a declarant’s statement was contrary to Supreme

Court precedent. Brown, 381 F.3d at 1225. Because it considered the

voluntariness of M r. Sw iger’s statement to support the statement’s reliability, the

Colorado Supreme Court’s reasoning in this case is similarly contrary to clearly

established federal law.

      4.     Absence of a promise of leniency

      Finally, M r. Stevens argues that the state court ruled contrary to Lilly when

it relied on the absence of a promise of leniency to M r. Swiger to support its

finding that the statement was sufficiently reliable. The Colorado Supreme Court

appeared to consider the absence of any express promise of leniency to M r.

Sw iger: “The police officers interviewing Sw iger expressly informed him on

several occasions that he would not receive any deals in exchange for his

statement. Furthermore, Sw iger did not inquire as to any possible benefit he

would receive for cooperating with the investigating officers and making his

confession.” Stevens, 29 P.3d at 316 (footnote and internal citation omitted).

      “[T]he absence of an express promise of leniency to [a declarant] does not

                                         -21-
enhance his statements’ reliability to the level necessary for their untested

admission.” Lilly, 527 U.S. at 139. “The police need not tell a person who is in

custody that his statements may gain him leniency in order for the suspect to

surmise that speaking up, and particularly placing blame on his cohorts, may

inure to his advantage.” Id. In Brown, we interpreted Lilly to mean that “the

absence of an offer of leniency” was not a “relevant indici[um] of reliability.”

381 F.3d at 1227 n.6. In the instant case, the state court did not treat the absence

of any offers of leniency as dispositive, but it apparently considered the factor

when it assessed M r. Sw iger’s statement for reliability. Because Lilly established

that the absence of an offer of leniency does not enhance the reliability of the

declarant’s statement, here too the state court’s reasoning was contrary to

Supreme Court precedent.

      5.     Conclusion

      In sum, the Colorado Supreme Court’s reasoning was contrary to Supreme

Court precedent because it considered the “genuinely self-inculpatory” nature of

M r. Swiger’s statement as the most important factor in the reliability assessment,

Stevens, 29 P.3d at 31, and because it also considered other trial evidence, the

voluntary nature of the statement, and the absence of a promise of leniency.

Accordingly, the state court “applie[d] a rule that contradicts the governing law

set forth in [Supreme Court] cases,” Williams, 529 U.S. at 405, and AED PA

deference does not apply. See Brown, 381 F.3d at 1225.

                                         -22-
                             IV. DE NO VO REVIEW

       Having concluded that the Colorado court’s calculus improperly relied on

factors condemned by Supreme Court precedent, we must now review de novo the

admission of M r. Swiger’s statements without cross-examination. See Fulcher,

444 F.3d at 806; Brown, 381 F.3d at 1225. W e consider (1) the text of M r.

Sw iger’s two-and-a-half hour interview and accompanying written confession,

and (2) the setting of the confession— who was present, where and when it was

made, and other circumstances that may have affected M r. Swiger’s responses.

See Lilly, 527 U.S. at 139. “[W ]e presume the factual findings of the state court

and the federal district court are correct unless clearly erroneous.” Brown, 381

F.3d at 1227 (internal quotation marks omitted).

      W e are confident that the cumulative impact of several factors related to

M r. Swiger’s custodial confession precludes a finding of sufficient reliability.

First, and perhaps most importantly, M r. Sw iger provided his confession to police

detectives during a custodial interrogation. W e recognize that M r. Sw iger was

not in custody for the Colorado murder; he was in a Tennessee jail on an

unrelated charge. Nonetheless, M r. Sw iger still had reason to believe he was

being investigated for M r. Seiler’s death. See, e.g., Sw iger Tr. at 71 (“I’d already

got word ‘w ay y’all w ere comin’ here, that y’all had a tape.”).

      Courts have long recognized that an accomplice’s confession in police

custody “is presumptively unreliable as to the passages detailing the defendant’s

                                         -23-
conduct or culpability because those passages may well be the product of the

codefendant’s desire to shift or spread blame, curry favor, avenge himself, or

divert attention to another.” Lee, 476 U.S. at 545. In Lilly, Chief Justice

Rehnquist noted the Supreme Court’s “unbroken line of cases in which custodial

confessions laying blame on a codefendant have been found to violate the

Confrontation Clause.” 527 U.S. at 147 (Rehnquist, C.J., concurring in the

judgment) (internal quotation marks omitted). This case fits within that category.

Cf. United States v. Franklin, 415 F.3d 537, 548 (6th Cir. 2005) (affirming the

district court’s admission of an accomplice’s self-inculpatory hearsay statement,

made “not to investigators but to his close friend,” that equally inculpated the

defendant); United States v. M anfre, 368 F.3d 832, 842 (8th Cir. 2004) (affirming

the district court’s admission of an untested hearsay statement made “casually to

an intimate confidante in a setting that does not raise the same concern as Lilly”).

      Second, as Justice Bender’s dissent explained, M r. Swiger consistently

described M r. Stevens as the planner of the murder who also gave him the murder

weapon and helped him to dispose of it. W hile M r. Sw iger eventually confessed

to shooting the victim, he sought to minimize his role in several ways: (1) by

repeatedly telling detectives that he was drunk on the evening of the murder and

had taken drugs the previous day; (2) by claiming before his confession that he

only helped M r. Stevens to dispose of a gun; (3) by stating after the confession

that he had to carry out the murder because M r. Stevens would otherwise kill his

                                         -24-
family and him; and (4) by saying that he tried to shoot the victim without killing

him. 3 Stevens, 29 P.3d at 328 (Bender, J., dissenting).

      Third, while the detectives did not expressly offer a “deal” or leniency to

M r. Sw iger for his confession, the detectives implied to M r. Sw iger, and he

appeared to believe, that his girlfriend would not be prosecuted and his family

would be getting protection as a result of the statement. W hen the detectives

asked M r. Swiger to confirm that they had not offered any deals for his statement,

M r. Sw iger stated “No, sir, jus’ that . . . if I told the truth, my family’d be

protected.” Swiger Tr. at 72.

      Fourth, M r. Sw iger exculpated himself (and inculpated M r. Stevens and

“M ike”) during the first two-thirds of the statement. These portions of the

statement were certainly not declarations against M r. Swiger’s penal interest. W e

agree with the state court that the level of detail in M r. Sw iger’s statement may be

a factor in support of reliability, but we also recognize that some of his detailed

responses w ere flatly false. For example, M r. Swiger claimed that M s. Clontz

went to a liquor store on the night of the murder, but such stores in Colorado

would have been closed on a Sunday evening. See C OLO . S TAT . § 12-47-

901(5)(b)(II). Before his confession, M r. Swiger also described in some detail




      3
        M r. Sw iger’s efforts to shift or spread responsibility for the murder
apparently were effective to some degree. In his separate trial, he was acquitted
of first-degree murder.

                                           -25-
that “M ike” from Oklahoma had shot the victim.

      Fifth, detectives routinely asked leading questions during M r. Swiger’s

custodial interrogation. At one point soon before the confession, Detective

Petrucelli asked M r. Swiger a 500-word “question” reminding him how (a) a

“tough Dreamer, not the family Dreamer” may have “come[] out and go[ne] and

commit[ed] the murder,” (b) he needed to be honest w ith his family and himself

about the murder so that he could get help; and (c) “[his] past is bitin’ [him] right

in the butt” because “people tell on people.” Swiger Tr. at 58-59. At the end of

the “question,” the detective said that M r. Stevens and his two associates “should

not get away with any of this what they made you do.” Id. at 59. “They

shouldn’t,” M r. Swiger responded. Id.; see Lee, 476 U.S. at 544 (concluding that

a statement against penal interest was unreliable in part because it was unsworn,

“given in response to questions of police who . . . knew what they were looking

for,” and not subjected to cross-examination).

      In sum, we cannot conclude that the reliability of M r. Swiger’s statement is

so apparent from the record that cross-examination at M r. Stevens’s trial w ould

have been only of “marginal utility,” Wright, 497 U.S. at 820. Both parties agree

that M r. Sw iger’s untested custodial statement does not fall within a firmly rooted

exception to the hearsay rule. W e now hold that the statement does not bear

particularized guarantees of trustworthiness to rebut the presumption of

unreliability. Therefore, the statement’s admission at M r. Stevens’s trial violated

                                         -26-
his Sixth Amendment rights to confront the witnesses against him. 4



D.    Review for harmlessness

      M r. Stevens is not entitled to habeas relief unless the Confrontation Clause

error arising from the Colorado court’s admission of M r. Sw iger’s untested

statement “had a substantial and injurious effect or influence in determining the

jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal

quotation marks omitted). However, we need not determine whether this error

“resulted in actual prejudice,” id. at 637, because the State concedes that, if we

conclude there was Sixth Amendment error, such error w ould not be harmless.

W e appreciate the State’s professional and responsible acknowledgment that the

accomplice confession provided the only direct evidence of M r. Stevens’s

involvement in the murder.



                                V . C ON CLU SIO N

      Accordingly, we REVERSE the district court’s denial of M r. Stevens’s 28



      4
         Although we do not apply the Supreme Court’s decision in Crawford
here, see Brown, 381 F.3d at 1225-27, we note that the Court’s reasoning in that
case also supports M r. Stevens’s Confrontation Clause claim. In particular, the
Crawford Court observed that several lower courts had applied the two-part
Roberts test “to admit core testimonial statements that the Confrontation Clause
plainly meant to exclude.” 541 U.S. at 63. Crawford included the Colorado
Supreme Court’s Stevens opinion in a seemingly disapproving string citation of
cases that had admitted “custodial confessions implicating the accused.” Id.

                                        -27-
U.S.C. § 2254 petition for habeas relief, and we REM AND to the district court for

entry of the writ.




                                       -28-
