                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 16a0292n.06

                                           No. 15-3260
                                                                                       FILED
                          UNITED STATES COURT OF APPEALS                         Jun 02, 2016
                               FOR THE SIXTH CIRCUIT                         DEBORAH S. HUNT, Clerk


DONOVAN SIMPSON,                                 )
                                                 )
        Petitioner-Appellee,                     )          ON APPEAL FROM THE
                                                 )          UNITED STATES DISTRICT
v.                                               )          COURT FOR THE SOUTHERN
                                                 )          DISTRICT OF OHIO
WARDEN, WARREN CORRECTIONAL                      )
INSTITUTION,                                     )
                                                                    OPINION
                                                 )
        Respondent-Appellant.                    )
                                                 )


Before: DAUGHTREY, MOORE, and GRIFFIN, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. In Simpson v. Jackson, 615 F.3d 421 (6th

Cir. 2010), cert. granted, judgment vacated sub nom. Sheets v. Simpson, 132 S. Ct. 1632 (2012),

this court granted in part Donovan Simpson’s 28 U.S.C. § 2254 petition, holding that three

statements Simpson gave to law-enforcement officials investigating a deadly arson were

obtained in violation of Miranda.       Simpson gave two of those statements while he was

incarcerated for an unrelated offense; he gave the third statement in a police station while out on

a recognizance bond. Because the original panel determined that the trial court’s admission of

those three statements was not harmless error, it vacated Simpson’s convictions for the three

most serious crimes of which he was found guilty: aggravated murder, murder, and attempted

murder. The Warden sought certiorari.
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       In 2012, the Supreme Court decided Howes v. Fields, 132 S. Ct. 1181 (2012), reversing

this court’s habeas grant to a prisoner who claimed that his jailhouse confession was obtained in

violation of Miranda. Shortly thereafter, the Supreme Court granted the Warden’s petition for

certiorari in Simpson’s case, vacated the Simpson panel’s judgment, and remanded Simpson’s

case for reconsideration in light of Howes. After we then remanded to the district court for

reconsideration, the district court determined that Howes did not affect the outcome of Simpson’s

case, and issued a partial habeas grant consistent with the 2010 panel’s opinion. For the reasons

set forth below, we AFFIRM.

                               I. FACTS AND PROCEDURE

A. Facts

       1. The fire at 151 South Wheatland Avenue.

       On October 27, 1997, 151 South Wheatland Avenue in Columbus, Ohio caught fire. R.

78-1 (7/23/02 Ohio Ct. App. Op. ¶ 2) (Page ID #808). Six people were inside the house: Aleta

Bell; three of Bell’s children—Shenequa (five years old), Elijah (three years old), and Myesha

(five months); and two men, Terrance Hall and Gary Williams. Hall woke up to the sound of

crashing glass; the fire spread quickly. Bell, Myesha, Hall, and Williams escaped, but Elijah was

seriously injured, and Shenequa died from her injuries.       The Columbus Fire Department

determined that the fire started when someone threw a Molotov cocktail through the home’s

living-room window. Id. ¶¶ 5–7 (Page ID #810–11).




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       2. Simpson makes four statements to law enforcement in April and June 2000.

       Columbus Police Department Detective Edward Kallay, Jr. led the investigation into the

151 South Wheatland fire. Id. ¶ 8 (Page ID #811). In January 2000, informant Adiyat Diggs

told Kallay that Simpson “might have information” about the crime. Id.; R. 79-1 (Trial Tr.

(Kallay) at 105:24–106:7) (Page ID #1236–37). Kallay and other law-enforcement officers

interviewed Simpson on four dates: April 24, April 27, June 16, and June 20, 2000.

              a. Simpson’s April 24, 2000 statement.

       Kallay and Federal Special Agent Dan Ozbolt interviewed Simpson at the Southeastern

Correctional Center in Lancaster, Ohio, where Simpson was then incarcerated. R. 78-1 (7/23/02

Ohio Ct. App. Op. ¶ 8) (Page ID #811); R. 79-1 (Trial Tr. (Kallay) at 107:7–14) (Page ID

#1238). Guards took Simpson from the prison’s general population and brought him to a

conference room in the prison warden’s office. Simpson, 615 F.3d at 426–27. Kallay and Ozbolt

recorded the interrogation. R. 78-1 (7/23/02 Ohio Ct. App. Op. ¶ 8) (Page ID #811).

       Kallay and Ozbolt did not Mirandize Simpson on April 24. Id. ¶ 4 (Page ID #809). They

“accused Simpson of being with” Daryl Kelly—whom the officers considered a suspect—“at the

time of the incident.” Simpson, 615 F.3d at 427; R. 79-1 (Trial Tr. (Kallay) at 109:3–7) (Page ID

#1240). However, nothing Simpson told Kallay and Ozbolt on April 24 led them to consider

Simpson a suspect. R. 79-1 (Trial Tr. (Kallay) at 109:11–16) (Page ID #1240).

       Simpson told Kallay and Ozbolt that he met up with Kelly the day before and the day of

the fire. R. 78-1 (7/23/02 Ohio Ct. App. Op. ¶ 9) (Page ID #811–12). The day before the fire,



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Simpson drove Kelly to a bar, where Kelly met with a woman named Leah Smith. Id. A few

months before the fire, Smith got into a dispute with Bell, broke into Bell’s half of the building,

and was ultimately convicted of burglary. Id. ¶ 9 n.1 (Page ID #812–813). Simpson didn’t enter

the bar that night; when Kelly and Smith exited, Simpson overheard Smith “tell Kelly to ‘take

care of this for [her].’” Id. ¶ 9 (Page ID #812).

       Simpson recounted that the next day (the day of the fire), Kelly called Simpson and asked

for another ride. Id.; R. 79-1 (Trial Tr. (Kallay) at 109:22–110:1) (Page ID #1240–41). Simpson

told Kallay and Ozbolt that he smelled gasoline on Kelly when he picked him up. R. 78-1

(7/23/02 Ohio Ct. App. Op. ¶ 9) (Page ID #812).

       Simpson’s April 24 interview lasted just under an hour. Id. ¶ 24 (Page ID #818). During

the interview, Kallay and Ozbalt told Simpson that they could get him released from prison if he

cooperated with them. R. 79-1 (Trial Tr. (Kallay) at 136:11–24) (Page ID #1267). Simpson had

four to six months left on his sentence, and had a release application pending before the Licking

County Common Pleas Court. Id. at 135:21–136:1 (Page ID #1266–67); R. 79-12 (Trial Tr.

(Kallay) at 28:8–12) (Page ID #3510). Simpson had also just fathered a child. R. 79-1 (Trial Tr.

(Kallay) at 136:2–10) (Page ID #1267). The officers promised Simpson that they would secure

his release from prison if he helped them with the arson investigation. Id. at 136:25–137:6 (Page

ID #1267–68).




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               b. Simpson’s April 27, 2000 statement.

       Kallay and Ozbolt returned to the Southeastern Correctional Center to interview Simpson

on April 27. R. 78-1 (7/23/02 Ohio Ct. App. Op. ¶ 10) (Page ID #812). Simpson was then in the

infirmary.   Simpson, 615 F.3d at 427. Once again, Kallay and Ozbolt did not Mirandize

Simpson. R. 78-1 (7/23/02 Ohio Ct. App. Op. ¶ 4) (Page ID #809). During this interview—

which lasted about half an hour—Simpson reiterated what he had told Kallay and Ozbolt on

April 24: that Smith and Kelly were involved in setting the fire at 151 South Wheatland. Id.

¶¶ 9, 24 (Page ID #812, 818); R. 79-1 (Trial Tr. (Kallay) at 117:4–6) (Page ID #1248).

       Kallay and Ozbolt followed through on their April 24 promise. The officers obtained a

recognizance bond for Simpson, and Simpson was released from prison on probation. R. 79-12

(Trial Tr. (Kallay) at 29:3–30:11) (Page ID #3511–12). In exchange, Simpson agreed to help the

officers with their investigation. R. 78-1 (7/23/02 Ohio Ct. App. Op. ¶ 10) (Page ID #812).

               c. Simpson’s June 16, 2000 statement.

       Simpson did not cooperate with the arson investigation. R. 79-12 (Trial Tr. (Kallay) at

32:12–21) (Page ID #3514). Kallay arrested Simpson on June 16 for violating the terms of his

probation, and subsequently brought Simpson to a Columbus police station for a videotaped

interview. R. 78-1 (7/23/02 Ohio Ct. App. Op. ¶¶ 10–11) (Page ID #812).

       Ozbolt gave Simpson a “Miranda rights waiver form,” which Simpson signed. Id. ¶ 4

(Page ID #810); R. 79-1 (Trial Tr. (Kallay) at 141:23–142:7) (Page ID #1272–73). Kallay told

Simpson that because he had failed to report on his recognizance bond, he could be charged with



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a felony. R. 79-11 (Trial Tr. (6/16/00 Recording) 42:11–21) (Page ID #3180). Then Kallay

started pressing Simpson on his April statements. Id. at 44:16–23 (Page ID #3182). At first,

Simpson maintained that he wasn’t involved with the arson, id. at 44:23–45:3 (Page ID #3182–

83), but Kallay pushed harder, id. at 45:11–25, 47:11–15, 50:3–10 (Page ID #3183, 3185, 3188).

Ozbolt counseled Simpson to tell the truth, but added that Kelly and Smith were the prime

suspects. Id. at 48:7–10 (Page ID #3186).

        Simpson relented; he told Kallay and Ozbolt that he was more involved with the arson

than he had initially let on. The day before the fire, Smith asked Simpson if he could drive Kelly

somewhere that evening. Id. at 64:14–65:3 (Page ID #3202–03). Simpson was high on crack

cocaine; Smith gave him more crack in exchange for driving Kelly. Id. at 64:6–11, 65:8–13

(Page ID #3202–03). That night, Simpson and Kelly bought two fifths of alcohol, id. at 68:18–

23, 70:7–8 (Page ID #3206, 3208), and they drove around Columbus drinking, id. at 70:10–16

(Page ID #3208). Eventually, Simpson parked in front of a house which Kelly entered, but

Simpson stayed in the car. Id. at 70:20–71:9 (Page ID #3208–09). When Kelly emerged, he was

carrying the two alcohol bottles, filled with gasoline. Id. at 71:9–17 (Page ID #3209).1

        Kelly told Simpson to drive to South Wheatland Avenue. Id. at 76:11–17 (Page ID

#3214). On the way over, Kelly grabbed a towel from the backseat of the car and started tearing



        1
          The Ohio Court of Appeals summarized Simpson’s June 16 statement as follows: “Kelly and appellant
took two empty bottles of alcohol and filled them with gasoline. They brought the bottles to [Smith] who showed
them how to make a Molotov cocktail.” R. 78-1 (7/23/02 Ohio Ct. App. Op. ¶ 11) (Page ID #812–13). As Simpson
notes in his brief, that summary is wrong: on June 16, Simpson told Kallay and Ozbolt that Kelly filled the two
bottles. Appellee Br. at 11 n.1.

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it into strips. Id. at 76:17–23 (Page ID #3214). Kelly told Simpson that he was “gonna blow that

bitch up.” Id. at 76:24–25 (Page ID #3214).

       Simpson drove to an alley behind 151 South Wheatland, id. at 79:21–22 (Page ID

#3217), where he smoked more crack with Kelly, id. at 79:24–25 (Page ID #3217). Kelly exited

the car carrying the two gasoline-filled bottles and told Simpson to meet him at a nearby corner

in ten seconds. Id. at 82:25–83:12 (Page ID #3220–21). As Simpson headed to the corner, he

heard the sound of glass shattering. Id. at 83:25–84:2 (Page ID #3221–22).

       Simpson told Kallay and Ozbolt that he didn’t know what Kelly and Smith were

planning—even up to the point when Simpson drove to South Wheatland. Id. at 78:12–23,

81:22–25, 83:15–24 (Page ID #3216, 3219, 3221). Kallay told Simpson that he would bring him

in for a polygraph in a few days. Id. at 138:1–8 (Page ID #3276). If Simpson passed the test,

Kallay said he would reinstate Simpson’s recognizance bond, assuming Simpson cooperated

with the arson investigation. Id. at 138:8–10 (Page ID #3276). If Simpson failed or didn’t

cooperate, Kallay threatened to charge him with complicity to commit aggravated murder. Id. at

138:10–139:2 (Page ID #3276–77).

              d. Simpson’s June 20, 2000 statement.

       Simpson returned to the Columbus police station on June 20. R. 78-1 (7/23/02 Ohio Ct.

App. Op. ¶ 12) (Page ID #813). This time, Kallay and Ozbolt were joined by Randy Walker, a

polygrapher with the Columbus Police Department. R. 79-11 (Trial Tr. (6/20/00 Recording) at




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160:1–8) (Page ID #3298). This final interview was videotaped. R. 78-1 (7/23/02 Ohio Ct. App.

Op. ¶ 13) (Page ID #813).

       The officers pressured Simpson from the start of the interview. Kallay told Simpson that

if he didn’t cooperate, Simpson would “eat the whole thing . . . agg murder—conspiracy to

commit.” R. 79-11 (Trial Tr. (6/20/00 Recording) at 160:19–22) (Page ID #3298). Kallay

assured Simpson that he was “not the one we want,” but still threatened to arrest Simpson for

complicity to commit aggravated murder if he didn’t take the polygraph. Id. at 164:13–17 (Page

ID #3302).

       Walker gave Simpson a Miranda waiver form and talked about Simpson’s right to

counsel. Id. at 173:21–174:23 (Page ID #3311–12). Simpson seemed surprised. He asked

Walker: “Oh, I can have an attorney present?” Id. at 174:24–25 (Page ID #3312). Walker said

that Simpson could. Id. at 175:1–3 (Page ID #3313). The two had the following exchange:

       WALKER: [D]o you follow what I’m sayin’? That’s . . . i-i-if you’re telling me
       the truth, then you won’t have a problem with the test. If you’re lying, then, uh,
       yea, if I was lying, I probably would, I’d probably get an attorney, I probably
       wouldn’t take the test.

       SIMPSON: Oh.

       WALKER: Yea, well, that’s me. But that’s a decision that, yea, you know, you
       have to make. This part of the form is wordy and is—is lengthy. What this says
       is, that you are giving me permission to give you the exam.

Id. at 177:17–178:3 (Page ID #3315–16).

       Simpson didn’t take the polygraph test. R. 78-1 (7/23/02 Ohio Ct. App. Op. ¶ 12) (Page

ID #813). He did, however, admit that he knew about Smith and Kelly’s plans before the night


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of the fire. At first, Simpson backpedaled: he told the officers that he “had nothing to do with”

the arson. R. 79-11 (Trial Tr. (6/20/00 Recording) at 216:9–10 (Page ID #3354). Simpson said

that his June 16 statement was a lie—that he had told Ozbolt and Kallay that he was involved

with the fire only because they weren’t “gonna take nothing else for an answer.” Id. 216:15–18

(Page ID #3354). Simpson added that he wanted to take the polygraph to prove his innocence.

Id. at 216:21–217:2 (Page ID #3354–55).

        The officers pushed back hard. Walker suggested that an eyewitness may have seen

Simpson at 151 South Wheatland around the time of the fire. Id. at 244:1–6 (Page ID #3381).

Simpson started crying. Id. at 256:12 (Page ID #3393). Kallay told Simpson that if he didn’t tell

the complete story of the arson, the officers would cut a deal with Kelly. Id. at 268:15–20 (Page

ID #3405). Simpson asked the officers: “Is this a wise thing to do without my lawyer, is this a

wise thing to do?” Id. at 273:1–2 (Page ID #3410). Kallay responded: “[H]ow are we supposed

to answer that?” Id. at 273:3–4 (Page ID #3410).

        Eventually, Simpson gave in. Simpson made three major admissions on June 20—he

told the officers:

        1.   That he had heard Smith “and Kelly discuss the arson one week before it
             happened”;

        2.   “[T]hat, on the day of the arson, he heard [Smith] tell Kelly that she wanted
             the house ‘blown up’”; and

        3.   “[T]hat he heard [Smith] tell Kelly how to make a Molotov cocktail.”




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Simpson, 615 F.3d at 442. Nonetheless, “Simpson still maintained that he had not been involved

in the planning of the arson or in making the Molotov cocktails, and had no intent to kill

anyone.” Id.

B. Procedural History

          1. Simpson is tried, convicted, and sentenced to ninety years in prison.

          The State of Ohio indicted Simpson on August 24, 2000, charging him with thirteen

counts:

          1.   Two counts of aggravated murder (Ohio Rev. Code § 2903.01) for killing
               Shenequa Bell, both of which “contained death penalty specifications” (Ohio
               Rev. Code § 2929.04(A));

          2.   Five counts of attempted murder (Ohio Rev. Code §§ 2903.02 and 2923.02);

          3.   One aggravated arson count (Ohio Rev. Code § 2909.02); and

          4.   Five felonious assault counts (Ohio Rev. Code § 2903.11)

R. 78-1 (7/23/02 Ohio Ct. App. Op. ¶ 3) (Page ID #809). Under Ohio law, aggravated murder,

murder (a lesser-included offense of which Simpson was convicted), and attempted murder are

specific-intent crimes: they require a finding of purpose. Ohio Rev. Code §§ 2903.01(A),

2903.02(A), 2923.02(A); see Simpson, 615 F.3d at 443–44. Aggravated arson and felonious

assault are general-intent crimes: they do not require proof of purpose. Ohio Rev. Code

§§ 2903.11, 2909.02; see Simpson, 615 F.3d at 445. Simpson pleaded not guilty to all of the

counts against him. R. 78-1 (7/23/02 Ohio Ct. App. Op. ¶ 3) (Page ID #809).




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       Before trial, Simpson moved to suppress the four statements he made in April and June

2000. Id. ¶ 4 (Page ID #809). The trial court held a hearing and denied Simpson’s suppression

motion. Id. (Page ID #809–10).

       “Without question, the most incriminating evidence presented against [Simpson] at trial

were his own statements.” Id. ¶ 19 (Page ID #816). No physical evidence tied Simpson to the

arson; no eyewitnesses testified that Simpson was involved. Simpson, 615 F.3d at 442. The jury

did, however, hear the tapes of Simpson’s April 24 and April 27 statements and watch the videos

of his June 16 and June 20 confessions. R. 78-1 (7/23/02 Ohio Ct. App. Op. ¶ 13) (Page ID

#813). Just “two other pieces of evidence potentially implicated Simpson”:

       1. [A] sheriff’s deputy at the local jail testified that he overheard Simpson ask
          “why didn’t they charge the bitch too. It was her idea to start the fire.”; and

       2. [A]n inmate from a cell next to Simpson testified that Simpson told him that
          there were three people involved in the fire, he was one of them, and that they
          used Molotov cocktails.

Simpson, 615 F.3d at 442.

       The recordings of Simpson’s statements plainly made an impact on the jury. During

deliberations, the jury asked to hear the parts of the audiotapes and videos “that relate[d] to [the]

planning of the fire.” R. 79-13 (Trial Tr. at 144:2–5) (Page ID #3864). The court played both

videos a second time. Id. at 144:19–24 (Page ID #3864). And the jury focused intently on the

issue of “purpose”: the jurors asked the trial court a question about the definition of purpose

before reaching a verdict. Id. at 157:1–7 (Page ID #3877).




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       After twenty-eight hours of deliberations, the jury convicted Simpson “of all five counts

of attempted murder and felonious assault, . . . one count of aggravated arson, . . . the lesser

included offense of murder of Shenequa Bell, and . . . the aggravated felony-murder of Shenequa

Bell.” R. 78-1 (7/23/02 Ohio Ct. App. Op. ¶ 16) (Page ID #814); see Simpson, 615 F.3d at 444.

The jury also returned a death-penalty specification for the aggravated-murder count. R. 78-1

(7/23/02 Ohio Ct. App. Op. ¶ 16) (Page ID #814). After a mitigation hearing, a jury voted to

sentence Simpson to life in prison. Id. ¶ 17 (Page ID #814). The trial court ultimately sentenced

Simpson to ninety years’ imprisonment. Id.

       2. The Ohio Court of Appeals upholds Simpson’s sentence but remands his
          case for resentencing.
       The Ohio Court of Appeals sustained Simpson’s convictions. Id. ¶ 86 (Page ID #840). It

held that Simpson “was not in custody” for Miranda purposes when he gave his April 24 and

April 27 statements. Id. ¶ 25 (Page ID #819). Even if he had been in custody, the court added,

any error in admitting those two statements was harmless. Id. ¶ 26 (Page ID #819).

       As for the June confessions, the state court of appeals held that both were voluntary. Id.

¶¶ 35, 38 (Page ID #822–23). The court did not address whether, assuming that either or both

violated Miranda, their admission was harmless, although it noted that Simpson’s “June 2000

interrogations constituted overwhelming evidence of his guilt.” Id. ¶ 27 (Page ID #819).

       “[F]or reasons not material to this case,” the Ohio Court of Appeals vacated Simpson’s

sentence and remanded his case for resentencing. Simpson, 615 F.3d at 427. The trial court




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resentenced him “to a total term of imprisonment of no less than seventy-nine years, and

potentially life, in prison.” Id.

        3. This Court partially grants Simpson’s § 2254 petition.
        Simpson sought habeas relief in the United States District Court for the Southern District

of Ohio. R. 2 (Section 2254 Petition) (Page ID #9). In a Report and Recommendation, a

magistrate judge agreed with the Ohio Court of Appeals’ analysis of Simpson’s two April

statements, but “directed the state to supplement the record” with tapes or transcripts of

Simpson’s two June statements. R. 20 (4/16/07 R. & R. at 38–39) (Page ID #176–77); Simpson,

615 F.3d at 427. In a second Report and Recommendation, the magistrate judge rejected all of

Simpson’s Miranda claims. R. 33 (11/2/07 R. & R. at 21) (Page ID #253). The district judge

dismissed Simpson’s habeas petition. R. 37 (1/2/08 Op. and Order at 5) (Page ID #270).

        This court partially reversed. The panel first addressed the merits of Simpson’s Miranda

claims, then turned to harmless error. On the merits, the panel held that the Ohio Court of

Appeals unreasonably applied Miranda and its progeny when it upheld the trial court’s

admission of Simpson’s April 24, April 27, and June 20 statements. Simpson, 615 F.3d at 424.

The panel first analyzed the June statements. It determined that Simpson’s June 16 statement

was not obtained in violation of Miranda. Id. at 434. However, the court held that during

Simpson’s June 20 interrogation, Walker (the polygrapher) impermissibly dissuaded Simpson

from speaking with an attorney. Id. at 436–39. Turning to Simpson’s two April statements, the

court held that both were admitted in violation of Miranda, because Simpson was in custody (but



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wasn’t Mirandized) when he spoke with Kallay and Ozbolt on April 24 and April 27. Id. at 439–

42.

       Having found constitutional error, the panel then held that the state trial court’s admission

of Simpson’s April 24, April 27, and June 20 statements was “harmless as to Simpson’s

convictions for aggravated arson and felonious assault” (the two general-intent crimes), but was

“not harmless as to the convictions for aggravated murder, murder, and attempted murder” (the

specific-intent offenses). Id. at 424; see id. at 442–45. The court thus vacated Simpson’s

convictions for those three specific-intent crimes, but did not disturb Simpson’s felonious-assault

or aggravated-arson convictions. Id. at 445.

       Judge White wrote separately. She would have held that all four of Simpson’s statements

were obtained in violation of Miranda, and that admission of none of the statements was

harmless. Id. at 445–48 (White, J., dissenting in part, concurring in part).

       4. The Supreme Court issues Howes v. Fields.

       The Warden petitioned for certiorari on October 4, 2010. Warden’s Pet. for Cert. at 29.

While that petition was pending, the Supreme Court decided Howes, the basis for the grant-

vacate-and-remand (“GVR”) order in Simpson’s case. Howes overturned this court’s habeas

grant in Fields v. Howes, 617 F.3d 813 (6th Cir. 2010), rev’d, Howes v. Fields, 132 S. Ct. 1181

(2012), and clarified Miranda’s force in jailhouse interrogations. In Fields, a divided panel of

this court had held that the Michigan Court of Appeals unreasonably applied Mathis v. United

States, 391 U.S. 1 (1968), when it affirmed the admission of statements that an inmate (Fields)



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made during a jailhouse interrogation. Fields, 617 F.3d at 815–16. Our court in Fields read

Mathis as standing for a bright-line rule: “The central holding of Mathis is that a Miranda

warning is required whenever an incarcerated individual is isolated from the general prison

population and interrogated, i.e. questioned in a manner likely to lead to self-incrimination, about

conduct occurring outside of the prison.” Id. at 818.

       The Supreme Court reversed. Mathis, the Court explained, did not establish such a

“categorical rule.” Howes, 132 S. Ct. at 1192. Rather, whether an inmate should be considered

“in custody” under Miranda depends on the totality of the circumstances surrounding his

interrogation. Id. at 1189, 1192. “[S]ervice of a term of imprisonment, without more,” the Court

wrote, “is not enough to constitute Miranda custody.” Id. at 1191.

       5. The Supreme Court GVRs Simpson’s case, and on remand the district
          court affirms this court’s habeas grant.

       The Supreme Court granted the Warden’s petition for certiorari and remanded Simpson’s

case “for further consideration in light of Howes.” Sheets v. Simpson, 132 S. Ct. 1632 (2012).

We remanded Simpson’s case to the district court. R. 65 (7/1/13 Order) (Page ID #434).

       The magistrate judge issued a Report and Recommendation concluding that “Howes does

not alter the outcome of this case” and recommending that Simpson’s habeas petition be granted

consistent with this court’s 2010 opinion. R. 86 (11/10/14 R. & R. at 28–29) (Page ID #4306–

07).   The district judge adopted and affirmed the Report and Recommendation, granting

Simpson’s § 2254 petition as to his aggravated-murder, murder, and attempted-murder




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convictions. R. 93 (3/11/15 Op. and Order at 3–4) (Page ID #4401–02). The Warden timely

appealed. R. 95 (Resp’t Warden’s Notice of Appeal) (Page ID #4404).

                                        II. ANALYSIS

       The central issue in this appeal is whether the Supreme Court’s decision in Howes

changes the reasoning or outcome of this court’s 2010 Simpson opinion. “[A] GVR order does

not necessarily imply that the Supreme Court has in mind a different result in the case, nor does

it suggest that our prior decision was erroneous.” In re Whirlpool Corp. Front-Loading Washer

Products Liab. Litig., 722 F.3d 838, 845 (6th Cir. 2013). Rather, the GVR order poses a narrow

question: does Howes “compel[] a different resolution” of Simpson’s case? Id.

       We answer that question: “yes and no.” We affirm the district court’s partial habeas

grant, but we do so on different grounds. The 2010 panel held that three of the four statements

Simpson gave—on April 24, April 27, and June 20—were unconstitutionally obtained and

admitted against Simpson in violation of Miranda. The district court reached the same result on

remand. We think that that conclusion does not withstand scrutiny under Howes. Mindful of the

high bar that AEDPA imposes, we conclude that no clearly established federal law confirms that

Simpson was “in custody” when he made his two jailhouse statements on April 24 and April 27.

       However, we do not believe—and the Warden does not argue—that Howes changes the

2010 panel’s conclusion that Simpson’s June 20 statement was admitted against him in violation

of Miranda. Further, we conclude that that error was not harmless as to Simpson’s convictions

for the three specific-intent offenses of aggravated murder, murder, and attempted murder. Thus,



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like the 2010 panel and the district court on remand, we grant in part Simpson’s habeas petition

and vacate his convictions for aggravated murder, murder, and attempted murder.

A. Standard of Review

       We review de novo the “district court’s legal conclusions and mixed questions of law and

fact.” Moore v. Mitchell, 708 F.3d 760, 774 (6th Cir. 2013). Our review has two parts. First,

under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), we may grant

Simpson habeas relief only if the Ohio Court of Appeals—which issued “the last reasoned state-

court opinion” in this case, Ylst v. Nunnemaker, 501 U.S. 797, 804–05 (1991)—adjudicated

Simpson’s Miranda claims on the merits in a way “that was contrary to, or involved an

unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1).

       Second, if we find that any of Simpson’s statements were admitted in violation of

Miranda, we then need to determine whether their admission was harmless error. Arizona v.

Fulminante, 499 U.S. 279, 309–12 (1991). Because Simpson’s case is on collateral review,

Simpson is “not entitled to habeas relief” on his Miranda claims “unless [he] can establish that”

the trial court’s admission of his statements “resulted in ‘actual prejudice.’” Davis v. Ayala, 135

S. Ct. 2187, 2197 (2015) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). Under this

standard, “relief is proper only if” we have “grave doubt about whether” the trial court’s

admission of Simpson’s statements “had substantial and injurious effect or influence in

determining the jury’s verdict.” Id. at 2197–98 (quoting O’Neal v. McAninch, 513 U.S. 432, 436

(1995)) (internal quotation marks omitted).



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B. Simpson’s Miranda claims.

          Howes compels a different resolution of certain aspects of Simpson’s case, but not a

different end result. We affirm, on different grounds, the district court’s partial grant of habeas

relief.

          In light of the totality of circumstances surrounding Simpson’s April 24 and April 27

jailhouse interrogations, no clearly established federal law confirms that they were custodial.

Thus, Simpson’s Miranda claims as to his two April statements fail.

          However, Howes does not change the 2010 panel’s conclusion that Simpson’s June 20

statement was obtained and admitted against him in violation of Miranda. The Warden has

made no argument to the contrary. Because the trial court’s admission of Simpson’s June 20

statement was not harmless error, we reach the same result as the district court on remand: we

vacate Simpson’s convictions for aggravated murder, murder, and attempted murder.2

          1. Under Howes, Simpson’s April 24 and April 27 statements were not
             obtained in violation of Miranda, because he was not in custody when he
             made those statements.

          The district court erred on remand. We read Howes as confirming that Simpson was not

in custody during his April 24 or April 27 interrogations. Thus, Kallay and Ozbolt were not

required to Mirandize Simpson on either date. Simpson’s Miranda claims as to these two

statements fail.




          2
          Simpson does not challenge the 2010 panel’s conclusion that his June 16 statement was admitted properly
against him.

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               a. Simpson’s April 24 interrogation was non-custodial.

       The Ohio Court of Appeals did not unreasonably apply federal law when it held that

Simpson was not in custody on April 24. The thrust of Howes is that “a prisoner is [not] always

in custody for purposes of Miranda whenever a prisoner is isolated from the general prison

population and questioned about conduct outside the prison.” Howes, 132 S. Ct. at 1188–89; see

also Maryland v. Shatzer, 559 U.S. 98, 113 (2010) (“[L]awful imprisonment imposed upon

conviction of a crime does not create the coercive pressures identified in Miranda.”). Rather,

whether a prisoner in that situation is “in custody” depends on a Miranda totality-of-the-

circumstances analysis. Howes, 132 S. Ct. at 1189. Because some factors suggest that Simpson

was in custody on April 24, and others do not, AEDPA bars us from granting Simpson relief on

this claim.

       Howes identified a number of factors relevant to the question whether a prisoner is “in

custody” when he is interrogated in prison. As an “initial step,” this questions turns on whether a

reasonable person in the prisoner’s position would have felt free to leave the interrogation, an

inquiry that includes factors such as:

       1. “[T]he location of the questioning”;

       2. “[I]ts duration”;

       3. “[S]tatements made during the interview”;

       4. “[T]he presence or absence of physical restraints”; and

       5. “[T]he release of the interviewee at the end of the questioning.”




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Id. However, “standard conditions of confinement and associated restrictions on freedom”—i.e.,

the conditions and restrictions that attend prisoners’ daily lives—do not automatically render

prison interrogations custodial. Id. at 1190–91. Howes gave three reasons why this is so: (1)

“questioning a person who is already serving a prison term does not generally involve the shock

that very often accompanies arrest”; (2) “a prisoner, unlike a person who has not been sentenced

to a term of incarceration, is unlikely to be lured into speaking by a longing for prompt release”;

and (3) “a prisoner, unlike a person who has not been convicted and sentenced, knows that the

law enforcement officers who question him probably lack the authority to affect the duration of

his sentence.” Id.

       Some of the factors Howes listed suggest that Simpson was in custody on April 24, and

others do not. We see two strong arguments in Simpson’s favor. First, Kallay and Ozbolt never

told Simpson that he could end the interview. See Supp. Br. of Resp.-Appellee (6th Cir. 08-

3224, July 26, 2012) at 23 (“Simpson is also correct that the failure of the police to inform him

he could stop the interview also weighs in favor of finding custody.”). Howes cited the fact that

Fields’s interrogators told Fields that he could leave his interrogation as the “[m]ost important”

factor suggesting that Fields’s jailhouse interview was non-custodial. Howes, 132 S. Ct. at 1193;

see id. at 1194 (emphasizing “undisputed fact that respondent was told that he was free to end the

questioning and to return to his cell”). That Kallay and Ozbolt never told Simpson he could

leave the conference room strongly suggests that “a reasonable person” in Simpson’s position




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Simpson v. Warden, Warren Corr. Inst.


would not have felt “at liberty to terminate the interrogation and leave.” Thompson v. Keohane,

516 U.S. 99, 112 (1995).

       Second, contrary to the hypothetical prison-interview scenarios Howes envisioned,

Simpson knew that Kallay and Ozbolt could get him out of prison. They promised him as much:

the officers told Simpson that they would secure his early release if he gave them information

about the arson. Unlike the typical inmate Howes pictured, Simpson was likely “lured into

speaking by a longing for prompt release,” Howes, 132 S. Ct. at 1191—a longing strengthened

by the then-recent birth of Simpson’s child.

       On the other hand, some of the Howes factors suggest that Simpson was not in custody

on April 24. For one, the interview was short: it lasted less than an hour. Cf. Howes, 132 S. Ct.

at 1193 (five-to-seven-hour prison interview that “continued well past the hour when respondent

generally went to bed” was non-custodial); Berkemer v. McCarty, 468 U.S. 420, 437–38 (1984)

(routine traffic stops are non-custodial because they are “presumptively temporary and brief”).

Nor was Simpson physically restrained: we have read nothing in the record suggesting that

Simpson was handcuffed or otherwise restrained when he spoke with Kallay and Ozbolt on April

24. See Simpson Br. at 26 n.5; cf. New York v. Quarles, 467 U.S. 649, 655 (1984) (respondent

was in custody when police officers handcuffed and surrounded him). Moreover, during the

April 24 interrogation (and unlike the two June interrogations), Kallay and Ozbolt didn’t use

aggressive questioning tactics: at that point, the officers didn’t consider Simpson a suspect, and

they were trying to convince Simpson to cooperate with their arson investigation. Cf. Stansbury



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v. California, 511 U.S. 318, 325 (1994) (although officers’ statements to suspects are relevant to

custody analysis, “[e]ven a clear statement from an officer that the person under interrogation is

a prime suspect is not, in itself, dispositive of the custody issue”).

        The upshot of these opposing factors is this: although Howes gives us good reason to

conclude that Simpson was in custody on April 24, AEDPA requires more. The Ohio Court of

Appeals’ decision rejecting Simpson’s Miranda claim was not an unreasonable application of

federal law if “‘fairminded jurists could disagree’ on the correctness of [that] decision.’”

Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652,

664 (2004)). AEDPA’s bar to relief applies with even greater force where, as here, we are

evaluating a state-court decision that applied a flexible, fact-specific rule. See Renico v. Lett,

559 U.S. 766, 776 (“‘[T]he more general the rule’ at issue—and thus the greater the potential for

reasoned disagreement among fair-minded judges—‘the more leeway [state] courts have in

reaching outcomes in case-by-case determinations.’” (quoting Alvarado, 541 U.S. at 664)).

Because fairminded jurists could debate whether Simpson was in custody on April 24, we hold

that the Ohio Court of Appeals did not unreasonably apply federal law when it held that Simpson

was not in custody during his interrogation on that date. See Harrington, 562 U.S. at 101.

                b. Simpson’s April 27 statement was also non-custodial.
        Likewise, the Ohio Court of Appeals did not unreasonably apply federal law when it held

that Simpson was not in custody on April 27. The 2010 panel analyzed both April statements

jointly when it considered whether they were inadmissible under Miranda. Simpson, 615 F.3d at

439–42. This approach is problematic because Howes requires more: whether Simpson was in

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custody on April 27 is a fact-specific question that merits independent analysis. Relatedly, the

original panel’s opinion could be read as adopting a rule that Howes disclaimed: that under

Mathis and Miranda, a prisoner who is interrogated about an offense that took place “outside the

prison walls” is categorically in custody. Howes, 132 S. Ct. at 1188. Looking to the totality of

circumstances surrounding Simpson’s April 27 interview—as Howes instructs—we cannot say it

would be unreasonable to hold that he was not in custody.

       Like the April 24 interrogation, some parts of the April 27 interrogation support

Simpson’s argument that he was in custody, and some cut the other way. Among the factors

supporting custody are: (1) Kallay and Ozbolt never told Simpson that he could end the April 27

interrogation, see Supp. Br. of Resp.-Appellee (6th Cir. 08-3224, July 26, 2012) at 30; and

(2) Simpson was in the infirmary when he spoke to the officers on April 27, which suggests that

he felt unable (or, perhaps, was unable) to walk away. On the other hand: (1) the interview

lasted about thirty minutes (i.e., half the length of Simpson’s April 24 interview); and (2) Kallay

and Ozbolt were still attempting to persuade Simpson to cooperate with their investigation, and

thus did not aggressively question Simpson. In sum, whether Simpson was in custody on April

27 is fairly debatable. For that reason, we conclude that this claim does not warrant habeas

relief. See Harrington, 562 U.S. at 101.

       2. Howes does not alter the 2010 panel’s conclusion that Simpson’s June 20
          statement was admitted in violation of Miranda, and the trial court’s
          admission of this statement against Simpson was not harmless.

       That leaves Simpson’s June 20 statement. Because we hold that Simpson’s April 24 and

April 27 statements were not obtained in violation of Miranda, whether Simpson deserves

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Simpson v. Warden, Warren Corr. Inst.


habeas relief depends on two questions. First, does Howes alter the 2010 panel’s conclusion that

Simpson’s June 20 statement was admitted against Simpson in violation of Miranda? Second, if

Simpson’s June 20 statement was inadmissible, was its admission harmless?

       We answer “no” to both questions. Howes does not alter the 2010 panel’s analysis of

Simpson’s June 20 statement: that statement was obtained in violation of Miranda, and the

Warden makes no argument to the contrary. We are also satisfied that the trial court’s admission

of Simpson’s June 20 statement was not harmless as to Simpson’s convictions for the three

specific-intent crimes of which he was found guilty: aggravated murder, murder, and attempted

murder. We thus vacate Simpson’s convictions for those three offenses.

              a. Simpson’s June 20 statement was inadmissible under Miranda.
       For two reasons, we do not believe that Howes changes the 2010 panel’s conclusion that

Simpson’s June 20 statement was obtained in violation of Miranda. First, Howes does not speak

to the Miranda issue that Simpson’s June 20 statement raises. Second, the Warden has not

argued on appeal that Simpson’s June 20 statement was admissible—under Howes or otherwise.

For both reasons, we hold that Simpson’s June 20 statement was obtained and admitted against

Simpson in violation of Miranda.

       To begin, Howes does not address the dispositive Miranda issue that Simpson’s June 20

statement implicates. Howes concerns the circumstances in which a prisoner may be considered

“in custody” under Miranda. However, neither party disputes that Simpson was in custody on

June 20; indeed, Walker gave Simpson a Miranda waiver form during the interrogation. Rather,

the key issue—and the reason the prior panel found constitutional error—was that Walker

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Simpson v. Warden, Warren Corr. Inst.


impermissibly discouraged Simpson from exercising his Miranda-guaranteed right to counsel.

See Simpson, 615 F.3d at 436–39; R. 86 (11/10/14 R. & R. at 17) (Page ID #4295). Moreover,

Howes speaks to interrogations that occur in prison. Simpson, however, was not in prison on

June 20—he gave his statement at a Columbus police station. Howes thus does not change the

2010 panel’s conclusion that Simpson’s June 20 statement was obtained in violation of Miranda.

       The Warden appears to agree. Supp. Br. of Resp.-Appellee (6th Cir. 08-3224, July 26,

2012) at 40 (“[T]his Court’s decision in Simpson, and everything in it, remains correct, except

what must be reexamined in light of Fields. Fields, of course, concerns how Miranda custody

applies to a prisoner, a matter that only applies to the April interviews.”). Before the district

court on remand, the Warden argued that Simpson’s June 20 confession was voluntary and that

Walker did not improperly dissuade Simpson from invoking his right to counsel. R. 83 (Resp’t’s

Br. in Response to Pet’r’s Supp. Br. at 22–27 (Page ID #4181–86); R. 91 (Resp’t Warden’s

Response to Pet’r’s Obj. to R&R at 3) (Page ID #4363). On appeal, however, the Warden’s sole

argument concerning Simpson’s June 20 statement is that the trial court’s admission of that

statement was harmless. Resp.-Appellant’s Merit Br. at 32–33; Resp.-Appellant’s Reply Br. at

6–9. The Warden thus gives us no reason to question our conclusion that, even in light of

Howes, Simpson’s June 20 statement was inadmissible under Miranda

              b. The trial court’s erroneous admission of Simpson’s June 20
                 statement was not harmless.

       Although Howes does not change the 2010 panel’s conclusion that Simpson’s June 20

statement was admitted in violation of Miranda, it does change our harmless-error calculus.


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Simpson v. Warden, Warren Corr. Inst.


Because the 2010 panel determined that three of Simpson’s statements were obtained in

violation of Miranda—those on April 24, April 27, and June 20—it evaluated their cumulative

prejudicial effect when it assessed whether their admission was harmless. Simpson, 615 F.3d at

442–45. Under Howes, however, Simpson’s April 24 and April 27 statements were not obtained

in violation of Miranda.     That narrows our harmless-error inquiry:       was the trial court’s

admission of Simpson’s June 20 statement—standing alone—harmless error as to Simpson’s

convictions for aggravated murder, murder, and attempted murder?

       We answer that question: “no.” Before explaining why, a note about harmless error and

our standard of review. When the last-reasoned state-court decision in a habeas case analyzes a

petitioner’s constitutional claims for harmless error, “a federal court may not award habeas relief

under § 2254 unless the harmlessness determination itself was unreasonable.” Davis, 135 S. Ct.

at 2199 (quoting Fry v. Pliler, 551 U.S. 112, 119 (2007)); see id. at 2198 (“[T]he Brecht standard

‘subsumes’ the requirements that § 2254(d) imposes when a federal habeas petitioner contests a

state court’s [harmlessness] determination . . . .”). The Ohio Court of Appeals determined that

any error in admitting Simpson’s two April statements was harmless. However, that court did

not address whether the trial court’s admission of Simpson’s June 20 statement was harmless

error. We thus assess the harmlessness of Simpson’s June 20 statement under Brecht, not Brecht

viewed through the prism of § 2254(d)(1). Id. at 2197–99. To recap: under that standard,

Simpson is “not entitled to habeas relief . . . unless [he] can establish that” the trial court’s




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Simpson v. Warden, Warren Corr. Inst.


admission of his June 20 statement “resulted in ‘actual prejudice.’” Id. at 2197 (quoting Brecht,

507 U.S. at 637).

       For two reasons, we hold that the trial court’s admission of Simpson’s June 20 statement

was not harmless under Brecht. First, the Warden waived this harmless-error argument. Second,

even if the Warden did not waive this harmless-error defense, it fails: the trial court’s admission

of Simpson’s June 20 statement was not harmless as to Simpson’s convictions for aggravated

murder, murder, and attempted murder. We thus vacate Simpson’s convictions for those three

offenses, reaching the same result but for different reasons than those of the 2010 panel.

                       (1) The Warden waived the argument that the trial court’s
                           admission of Simpson’s June 20 statement was harmless
                           error.

       The Warden waived the argument that Simpson’s June 20 statement was harmless.

“[T]he harmless error defense can be waived.” Lovins v. Parker, 712 F.3d 283, 303 (6th Cir.

2013); see Randy Hertz & James S. Liebman, 2 Federal Habeas Corpus Practice and Procedure

§ 31.2[a] (6th ed. 2011) (“Like other defenses to habeas corpus relief, the ‘harmless error’

obstacle does not arise unless the state asserts it; the state’s failure to do so in a timely and

unequivocal fashion waives the defense.”). But see Gover v. Perry, 698 F.3d 295, 301 (6th Cir.

2012) (when entertaining habeas petition, “this court has discretion to consider harmlessness sua

sponte when reviewing for constitutional error”). Just so here: by failing to raise the issue

below, the Warden waived the argument that admission of Simpson’s June 20 statement was

harmless error.



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        In the most recent round of briefs before this court, the Warden argues—for the first

time—that the trial court’s admission of Simpson’s June 20 statement was harmless error.

Resp.-Appellant’s Merit Br. at 32–33. The Warden did not make this argument in response to

Simpson’s initial habeas petition. R. 9 (Resp.’s Answer/Return of Writ) (Page ID #27). Nor did

the Warden raise this harmless-error argument during the first round of briefs before this court.

Br. of Resp’t-Appellee (6th Cir. 08-3224, June 23, 2009). Indeed, at oral argument in April

2010, counsel for the Warden conceded that the trial court’s admission of Simpson’s June 16 and

20 statements were not harmless.            Simpson Supp. Br. (6th Cir. 08-3224, July 12, 2012),

Addendum at 32a–33a.

        On remand, the Warden argued—in cursory, conclusory fashion—that admission of

Simpson’s June 20 statement was harmless. R. 83 (Resp’t’s Br. in Response to Pet’r’s Supp. Br.

at 31–32 (Page ID #4190–91); R. 91 (Resp’t Warden’s Response to Pet’r’s Obj. to R&R at 2–3,

8) (Page ID #4362–63, 4368). “[S]uch a perfunctory discussion of harmless error” is insufficient

to preserve this argument. United States v. Johnson, 467 F.3d 559, 564 (6th Cir. 2006). The

Warden thus waived the argument that the trial court’s admission of Simpson’s June 20

statement was harmless.

                         (2) Simpson’s June 20 statement was not harmless.

        Even if the Warden had not waived this harmless-error argument, it would fail on the

merits: the trial court’s admission of Simpson’s June 20 statement was not harmless.3 “For


        3
         Simpson makes this argument—that the trial court’s admission of his June 20 statement, standing alone,
merits habeas relief—in his brief, but the Warden argues that Simpson waived it. Simpson Br. at 44–56; Warden

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Simpson v. Warden, Warren Corr. Inst.


reasons of finality, comity, and federalism,” Simpson is “not entitled to habeas relief” unless the

trial court’s admission of his June 20 statement actually prejudiced him. Davis, 135 S. Ct. at

2197 (quoting Brecht, 507 U.S. at 637). In evaluating whether Simpson has satisfied Brecht, our

“‘inquiry cannot be merely whether there was enough to support the result’” of Simpson’s trial

“apart from the phase affected by the error.” O’Neal, 513 U.S. at 438 (quoting Kotteakos v.

United States, 328 U.S. 750, 765 (1946)). “It is rather, even so, whether the error itself had

substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.’” Id.

(quoting Kotteakos, 328 U.S. at 765).

        Simpson has satisfied Brecht. We have, at minimum, “grave doubt about whether” the

trial court’s erroneous admission of Simpson’s June 20 statement “had ‘substantial and injurious

effect or influence in determining the jury’s verdict’”—insofar as that verdict pronounced

Simpson guilty of aggravated murder, murder, and attempted murder. Davis, 135 S. Ct. at 2197–

98 (quoting O’Neal, 513 U.S. at 436). Examining the elements of those three crimes in light of

the admissible evidence that Simpson’s jury received makes this plain.

        Simpson’s trial judge instructed Simpson’s jury that in order to convict Simpson of

aggravated murder, murder, or attempted murder, they would have to determine that Simpson

purposefully killed (or attempted to kill) the occupants of 151 South Wheatland Avenue. R. 79-

13 (Trial Tr. (5/31/01) at 82:24–83:4, 89:4–8, 90:5–7, 91:7–14, 95:12–15, 96:14–19) (Page ID

#3802–03, 3809, 3810, 3811, 3815, 3816). Here is how the judge defined “purpose”:

Reply Br. at 6–9. The Warden is incorrect. Simpson made this argument in his two briefs to the district court on
remand. R. 80 (Pet’r’s Supp. Br at 15–23) (Page ID #4138–46); R. 84 (Pet’r’s Supp. Reply Br. at 3–15) (Page ID
#4202–14). Simpson did not waive this argument—he preserved it.

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       A person acts purposely when it is his specific intention to cause a certain result.
       . . . Purpose is further defined as a decision of the mind to do an act with a
       conscious objective of producing a specific result. To do an act purposely is to do
       it intentionally and not accidentally. Purpose and intent mean the same thing.
       The purpose with which a person does an act is known only to himself, unless he
       expresses it to others or indicates it by his conduct. Moreover, the purpose with
       which a person does an act may be determined from the manner in which it is
       done, the means used and all of the other facts and circumstances in evidence.

Id. at 83:7–24 (Page ID #3803); see id. at 91:17–92:13 (Page ID #3811–12).             Under that

definition of purpose, Simpson’s jury could not convict Simpson of aggravated murder, murder,

or attempted murder unless it found—beyond a reasonable doubt—that Simpson specifically

intended to murder the six people inside 151 South Wheatland.

       Assuming that Simpson’s April 24 and April 27 statements were constitutionally

obtained, just five pieces of admissible evidence tied Simpson to the arson:

       1. Simpson’s April 24 statement, in which he laid blame for the arson on Smith
          and Kelly;

       2. Simpson’s April 27 statement, in which he reiterated the account he gave
          Kallay and Ozbolt on April 24;

       3. Simpson’s June 16 statement, in which Simpson (a) admitted to Kallay and
          Ozbolt that he drove Kelly close to the scene of the crime and that Kelly
          assembled a Molotov cocktail during the ride, but (b) maintained that he had
          no idea that Kelly planned to burn down 151 South Wheatland;

       4. A statement that a sheriff’s deputy overheard Simpson make in jail: “[W]hy
          didn’t they charge the bitch too. It was her idea to start the fire.”; and

       5. A statement Simpson allegedly made to a fellow inmate that he was one of
          three people involved in the arson, and that the arson involved Molotov
          cocktails.




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That is thin evidence of Simpson’s specific intent to kill anyone inside 151 South Wheatland

Avenue. No physical evidence inculpated Simpson. No eyewitnesses testified against him. The

only evidence the state introduced against Simpson were his own statements. And one of those

statements—June 20—was the centerpiece of the prosecution’s theory of the case: that Simpson

purposefully helped start the fire at 151 South Wheatland. R. 79-13 (Trial Tr. at 14:3–11, 62:9–

63:22 (Page ID #3733, 3782–83).

       We think it clear why Simpson’s June 20 statement was so critical to the state’s case. It

was not until June 20 that Simpson admitted that he knew—a week in advance—that Smith and

Kelly planned to start the fire. That is powerful evidence that Simpson had the specific intent to

kill the occupants of 151 South Wheatland when he drove Kelly, who assembled a Molotov

cocktail during the ride, to the scene of the crime. Put simply, we are confident that the trial

court’s decision to admit Simpson’s June 20 statement “had ‘substantial and injurious effect or

influence in determining the jury’s verdict.’” Davis, 135 S. Ct. at 2198 (quoting O’Neal, 513

U.S. at 436).

       On remand, the magistrate judge rejected Simpson’s argument that the trial court’s

admission of his June 20 statement, alone, merits habeas relief. R. 86 (11/10/14 R. & R. at 18–

19) (Page ID #4296–97).       The magistrate judge reasoned that the 2010 panel’s decision

“explicitly rejects” that claim. Id. at 19 (Page ID #4297). We disagree. The 2010 panel

concluded that the April 24, April 27, and June 20 statements were not harmless because

(1) Simpson’s June 20 statement established that he was involved directly with the arson, and



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(2) his April 24 and April 27 statements undermined his credibility, which the prosecution used

“in support of its theory that Simpson shared Kelly’s intent and purpose.” Simpson, 615 F.3d at

444. The 2010 panel wrote:

       [E]ven in the June 20th statement, Simpson still maintained that he had not been
       involved in the planning of the arson or in making the Molotov cocktails, and had
       no intent to kill anyone. Thus, to prove that Simpson acted with the purpose of
       causing the death of another, the State needed something more than Simpson’s
       own admissions. Creatively, the State turned to Simpson’s April denials to prove
       this element.

Id. at 442.    That reasoning does not foreclose Simpson’s argument about the stand-alone

prejudice of his June 20 statement. The 2010 panel concluded that three of Simpson’s statements

were admitted in error; it is logical that the panel would consider their cumulative prejudicial

effect on Simpson’s trial. The GVR order, however, does not require this panel to adhere to that

reasoning.    Indeed, adopting wholesale the 2010 panel’s harmless-error analysis would be

impossible, given that Howes fundamentally changes the merits of Simpson’s Miranda

arguments by confirming that his April 24 and April 27 statements were not admitted

erroneously. In any event, we are satisfied that the trial court’s admission of Simpson’s June 20

statement, standing alone, was not harmless.

       The Ohio Court of Appeals put this issue well:            “Without question, the most

incriminating evidence presented against [Simpson] at trial were his own statements.” R. 78-1

(7/23/02 Ohio Ct. App. Op. ¶ 19) (Page ID #816). And one statement stands above the rest:

Simpson’s June 20 statement, in which Simpson admitted that he knew that Smith and Kelly

were planning to commit arson well before he drove Kelly to the scene of the crime. Removing


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Simpson v. Warden, Warren Corr. Inst.


that statement from the trial record leaves virtually no evidence tending to show that Simpson

acted with murderous intent when he drove Kelly to 151 South Wheatland Avenue. That gives

us “grave doubt” about the prejudicial effect of the trial court’s erroneous admission of

Simpson’s June 20 statement. We thus affirm the district court’s judgment vacating Simpson’s

three specific-intent convictions: aggravated murder, murder, and attempted murder.

                                       III. CONCLUSION

          For the reasons set forth above, we AFFIRM the district court’s partial grant of habeas

relief.




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