                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                             File Name: 18a0268p.06

                       UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT



 AHMAD FAWZI ISSA,                                                ┐
                                       Petitioner-Appellant,      │
                                                                  │
                                                                   >        No. 15-4147
        v.                                                        │
                                                                  │
                                                                  │
 MARGARET BRADSHAW, Warden,                                       │
                           Respondent-Appellee.                   │
                                                                  ┘

                             Appeal from the United States District Court
                            for the Southern District of Ohio at Cincinnati.
                       No. 1:03-cv-00280—Sandra S. Beckwith, District Judge.

                                  Decided and Filed: December 13, 2018

             Before: COLE, Chief Judge; MERRITT, MOORE, CLAY, GIBBONS,
             SUTTON, GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD,
              THAPAR, BUSH, LARSEN, and NALBANDIAN, Circuit Judges.*
                                   _________________

                                                  COUNSEL

ON PETITION FOR REHEARING EN BANC: Michael J. Hendershot, Samuel C. Peterson,
Brenda S. Leikala, Charles L. Wille, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellee. ON RESPONSE: S. Adele Shank, LAW OFFICE OF S.
ADELE SHANK, Columbus, Ohio, Lawrence J. Greger, Dayton, Ohio, for Appellant.

       The court delivered an order denying the petition for rehearing en banc. SUTTON, J.
(pp. 3–9), delivered a separate opinion concurring in the denial of the petition for rehearing en
banc.




       *Judge   Batchelder and Judge Cook recused themselves from participation in this ruling.
 No. 15-4147                                Issa v. Bradshaw                             Page 2


                                      _________________

                                               ORDER
                                      _________________

       The court received a petition for rehearing en banc. The original panel has reviewed the
petition for rehearing and concludes that the issues raised in the petition were fully considered
upon the original submission and decision of the case.

       The petition then was circulated to the full court. No judge has requested a vote on the
suggestion for rehearing en banc.

       Therefore, the petition is denied.
 No. 15-4147                             Issa v. Bradshaw                                   Page 3


                                       _________________

                                            OPINION
                                       _________________

       SUTTON, Circuit Judge, concurring in the denial of rehearing en banc. This en banc
petition implicates the recurring tension between deciding cases correctly and delegating
decision-making authority to three-judge panels of the court.

       In my opinion and with all respect to the panel, this case was not decided correctly. At
stake is whether Ahmad Issa, an Ohio prisoner convicted of aggravated murder for his role in a
murder-for-hire scheme in 1997, is entitled to habeas relief for an alleged Confrontation Clause
violation. That clause gives a criminal defendant the right “to be confronted with the witnesses
against him” at trial. U.S. Const. amend. VI.

       In granting habeas relief, the panel erred in assessing what the Confrontation Clause
required at the time of trial and in assessing what the Confrontation Clause requires today.

       First, no constitutional violation occurred at the time of trial two decades ago—at least
not one that AEDPA permits us to correct. The Ohio Supreme Court’s decision rejecting Issa’s
claim was not “contrary to, or . . . 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). In
1997, Andre Miles shot Maher Khriss and Ziad Khriss with a high-powered rifle. The day after
the murders, Miles told his friends Joshua and Bonnie Willis that Issa had agreed to pay him to
kill Maher and described the details of the crime to them. Miles refused to testify at Issa’s trial,
prompting the State to call the Willises to testify about what Miles had told them. The jury
convicted Issa of aggravated murder and recommended the death penalty.              The trial court
sentenced Issa to death. See State v. Issa, 752 N.E.2d 904, 910–13 (Ohio 2001).

       When the state courts decided the case, out-of-court statements could be admitted under
the Confrontation Clause if they (1) fell within a “firmly rooted hearsay exception” or (2) had
“particularized guarantees of trustworthiness.” Ohio v. Roberts, 448 U.S. 56, 66 (1980). The
first prong has nothing to do with this case.       Under the second prong, courts determined
admissibility based on “the totality of circumstances that surround the making of the statement
 No. 15-4147                               Issa v. Bradshaw                                  Page 4


and that render the declarant particularly worthy of belief.” Idaho v. Wright, 497 U.S. 805, 820
(1990).     “[C]ourts ha[d] considerable leeway in their consideration of appropriate factors”
because no one “mechanical test” determined reliability. Id. at 822.

          The Ohio Supreme Court reasonably applied that test in rejecting Issa’s claim and most
assuredly did not contradict the test. In its words:

          Applying [Lilly v. Virginia, 527 U.S. 116 (1999)] and [State v. Madrigal,
          721 N.E.2d 52 (Ohio 2000)] to this case, it is clear that in order to determine
          whether the admission of evidence concerning Miles’s confession violated
          appellant’s confrontation rights, we must examine the circumstances under which
          the confession was made. Unlike the declarants in Lilly and Madrigal, Miles was
          not talking to police as a suspect when he made the out-of-court statement.
          Miles’s confession was made spontaneously and voluntarily to his friends in their
          home. Moreover, Miles had nothing to gain from inculpating appellant in the
          crime. In fact, by stating that appellant had hired him to kill Maher, Miles was
          admitting a capital crime, i.e., murder for hire. Furthermore, Miles’s statement
          was clearly not an attempt to shift blame from himself because he was bragging
          about his role as the shooter in the double homicide.
          We therefore find that the circumstances surrounding the confession did “render
          the declarant [Miles] particularly worthy of belief.” Madrigal, 87 Ohio St.3d at
          387, 721 N.E.2d at 63, quoting Wright, 497 U.S. at 819 . . . . Our decision herein
          is buttressed by Chief Justice Rehnquist’s separate opinion in Lilly, in which he
          noted that in a prior case, the court “recognized that statements to fellow
          prisoners, like confessions to family members or friends, bear sufficient indicia of
          reliability to be placed before a jury without confrontation of the declarant.”
          (Emphasis added.) Id., 527 U.S. at 147, 119 S.Ct. at 1905, 144 L.Ed.2d at 141
          (Rehnquist, C.J., concurring in judgment). Accordingly, we hold that the
          admission of Bonnie’s and Joshua’s testimony concerning Miles’s confession did
          not violate the Confrontation Clause.

Issa, 752 N.E.2d at 919.

          By my count, the Ohio Supreme Court considered ten factors regarding Miles’s
statements:      Miles was not talking to police, was not a suspect, made the statements
spontaneously, made the statements voluntarily, made the statements to friends, made the
statements in his friends’ home, had nothing to gain from inculpating Issa, admitted committing
a capital crime, did not attempt to shift blame, and was boasting about what he had done. The
Ohio Supreme Court reasonably found Miles’s statements reliable and worthy of belief under
“the circumstances surrounding the confession.” Id.
 No. 15-4147                               Issa v. Bradshaw                                 Page 5


       Our panel nonetheless granted Issa relief, holding that the Ohio Supreme Court’s decision
conflicted with Wright’s requirement that courts consider the totality of the circumstances in
determining the reliability of the out-of-court statements.      As the panel saw it, “the Ohio
Supreme Court determined that Miles’s statements were trustworthy simply because he made
them to his friends” instead of the police, without “considering any other facts.”           Issa v.
Bradshaw, 904 F.3d 446, 457 (6th Cir. 2018). That alleged deficiency became the springboard
for the panel’s decision to take a fresh look at the case, then to find that the statements were
unreliable, then to hold them constitutionally inadmissible, then to grant the writ. Id. at 457–61.

       This approach cannot be squared with Congress’s mandate that we may disregard state-
court decisions only if they are “contrary to” or “unreasonably apply” decisions of the U.S.
Supreme Court. The Ohio Supreme Court invoked the relevant cases, quoted several of them,
and fairly applied the Roberts test to Issa’s case. The worst that can be said of the decision is
that it did not say “totality” in describing the test.        But surely it applied an all-of-the-
circumstances test in view of the many criteria—ten—that it mentioned and that reasonably
supported the reliability of these statements.

       For my part, I cannot identify any other material circumstance the court should have
considered.

       For its part, the panel identified two circumstances the Ohio Supreme Court should have
considered. One is that Miles, long after the murders, testified at Linda Khriss’s murder trial (the
State believed Linda initially hired Issa to kill Maher, her husband) and at that point denied
talking to the Willises. But we have no warrant to take the Ohio Supreme Court to task for
neglecting to consider this factor. It is not a permissible factor. Under the Roberts test, courts
assess reliability based on the circumstances that “render the declarant particularly worthy of
belief” at the time. Wright, 497 U.S. at 819. Just as one could not say an out-of-court statement
became reliable based on corroborating evidence at trial, id., one cannot say a statement became
unreliable based on statements at a later trial.

       The other circumstance was this: The panel said that, in the course of Miles’s friendship
with the Willises, Miles often bragged and told stories the Willises weren’t sure were true. But
 No. 15-4147                             Issa v. Bradshaw                                 Page 6


the Ohio Supreme Court did consider this possibility and simply drew a different conclusion
about it—that he was boasting and that this reality added authenticity to (rather than subtracted
authenticity from) the statements. Either possibility, it seems to me, is reasonable. What’s not
reasonable is to say that the Ohio Supreme Court’s decision is “contrary” to Roberts because it
could have viewed this circumstance in a slightly different light than the panel viewed it. Find
me a totality-of-the-circumstances test in which it is not possible—it’s always possible—for the
reviewer court to identify another consideration the reviewee court might have addressed or for
that matter a consideration the reviewee court might have addressed differently. If we interpret
AEDPA to mean that we may identify one factor a state court didn’t mention in a totality-of-the-
circumstances test, then use that failure to grant habeas relief, that amounts to circumvention of
the law, not respect for the modest power it gives us.

       How, then, could one conclude that the Ohio Supreme Court did not apply a totality-of-
the-circumstances test? Or applied it unreasonably? I do not see a plausible explanation. To
accept the panel’s conclusion that the decision was contrary to Wright and Roberts would be to
accept that a state-court decision is contrary to clearly established law whenever it fails to
mention one word from the U.S. Supreme Court’s applicable test, emphasizes some factors over
others under a totality test, or draws a different conclusion with respect to one factor under a
totality test. Only a most ungenerous reading of the Ohio Supreme Court’s decision permits the
conclusion that the court failed to consider all of the material circumstances surrounding the
statements or applied the test unreasonably.

       Second, Issa is not eligible for habeas relief for another, freestanding reason: Miles’s
statements would be admitted today anyway. Under current Confrontation Clause jurisprudence,
the statements were readily admissible, making any potential error (including the one identified
by the panel) harmless. In Crawford v. Washington, the Supreme Court abrogated Roberts and
later cases applying the “indicia of reliability” test. 541 U.S. 36, 60–68 (2004). It is now clear
that only “testimonial statements”—those “made with the primary purpose of creating evidence”
for a prosecution—implicate the Confrontation Clause. Ohio v. Clark, 135 S. Ct. 2173, 2181
(2015); see Crawford, 541 U.S. at 51 (defining testimony as a “solemn declaration or affirmation
made for the purpose of establishing or proving some fact” (quotation omitted)).
 No. 15-4147                               Issa v. Bradshaw                                 Page 7


        All of this adds a serious additional obstacle to Issa, as the habeas statute provides relief
only for prisoners “in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). Miles did not make the spontaneous statements to his friends
solemnly or in order to establish a fact for a trial. He was showing off. His statements were not
remotely testimonial and thus did not violate the Confrontation Clause. Because the State does
not currently hold Issa in violation of the Confrontation Clause or any other provision of the
Constitution, he is not eligible for habeas relief.

        Ten years ago, one of our decisions made this precise point. Desai v. Booker, 538 F.3d
424, 427–28 (6th Cir. 2008) (holding that the inmate could not obtain habeas relief under
§ 2254(a) for non-testimonial statements admitted under the pre-Crawford regime). The panel
should have respected it here.

        Think about Desai’s point this way.           If Issa received what he wants—a new trial
premised on the contention that the state courts erred in admitting the Willises’ testimony under
Roberts—it would not do him any good. The State could admit that same testimony in the new
trial, this time under Crawford’s directive that the Confrontation Clause applies only to
testimonial statements. A new trial with the same evidence as the old trial makes any potential
error quintessentially harmless, which means the panel erred in granting habeas relief. Desai,
538 F.3d at 428; see Brecht v. Abrahamson, 507 U.S. 619, 638 (1993).

        The panel shunted Desai to the side on the ground that it failed to follow Fulcher v.
Motley, 444 F.3d 791 (6th Cir. 2006), and Stallings v. Bobby, 464 F.3d 576 (6th Cir. 2006),
which both granted habeas relief under the Roberts test. The point does not stand up. Neither
case discussed, or for that matter mentioned, whether Crawford applied in this context. They
asked only whether Crawford applied retroactively because in those cases the decision helped
the habeas applicants.     Neither case thus had any explanation for addressing today’s issue
because the statements in both cases were testimonial—and therefore also inadmissible—under
Crawford. Stallings said exactly that. 464 F.3d at 581. The same was true in Fulcher. 444 F.3d
at 808 (statements by defendant’s girlfriend to police while in custody, while subjected to
interrogation and leading statements, and while suspected by police of wrongdoing).
 No. 15-4147                             Issa v. Bradshaw                                      Page 8


       Unjustifiably setting Desai to the side is one thing. What makes it worse is to replace it
with an approach that comes to the opposite conclusion and violates AEDPA in the process.
Congress has authorized federal courts to give habeas relief to a prisoner only when a State
presently holds him in violation of his constitutional rights, not to someone who at some prior
point was held in violation of the Constitution according to a later-overruled precedent.
28 U.S.C. § 2254(a). There’s no other way to read that provision. All in all, the panel’s new rule
runs headlong into the language of the habeas statute, buries a precedent (Desai) that comes to
the opposite conclusion, and has no provenance in Fulcher or Stallings—the two decisions that
allegedly gave the panel an explanation for looking anew at the issue in the first instance.

       Don’t let the timing of Roberts, Crawford, or this two-decade-old trial distract you.
There are two independent reasons for denying relief under AEDPA today:                 No eligible
constitutional violation occurred under any of the tests at any time. Whether one considers the
belt for denying relief (that the state-court decision did not contradict or unreasonably apply the
Roberts test) or the suspenders (that Issa is not currently in custody in violation of the
Constitution under the Crawford test), the conclusion is identical: The writ cannot issue.

       What to do? On the one hand, several considerations support en banc review of this
decision. The panel ignored, indeed seemingly overruled, our decision in Desai. And in doing
so, it precipitated a circuit split. At least one other circuit has followed Desai in denying
confrontation claims under § 2254(a) when the statements are not testimonial under Crawford.
See Mitchell v. Superintendent Dallas SCI, 902 F.3d 156, 163–64 (3d Cir. 2018). Plus, I have a
hard time looking the other way when the statute that gives federal courts this supervisory power
requires a showing that the state courts “contradicted” or “unreasonably applied” Supreme Court
precedent, when at least the same (if not more) can be said of our panel’s decision.

       On the other hand, the dispositive hand for me, the number of cases presenting this issue
is small and growing smaller. Crawford was decided in 2004. It thus would seem to be the rare,
perhaps non-existent, non-capital case that will raise the issue today. As for capital cases, the
number of cases presenting this issue must be vanishingly small. Even with the snail-like pace
of capital-habeas litigation, the number of capital-punishment convictions obtained under
Roberts leading to habeas claims looked at after Crawford must be near zero as well. Consider
 No. 15-4147                              Issa v. Bradshaw                                  Page 9


what must happen. You need a capital case that turns on the out-of-court statement of a witness
who does not testify. Then you need a federal habeas decision that the state court contradicted or
unreasonably applied the Roberts test in admitting the witness’s statement. Then you need a
situation in which the evidence, while inadmissible under Roberts, would be admissible under
Crawford. One could add the condition that the witness must have crossed the international date
line before trial without materially shrinking this tiny pool of cases.

       Not every error, it’s worth remembering, is worth correcting through the en banc process.
That’s why a decision not to vote for en banc rehearing, in the words of Judge Harry Edwards,
does not “sanction the result [the panel] reached” but simply reflects that it does not justify such
a “significant expenditure of judicial energies.” Bartlett ex rel. Neuman v. Bowen, 824 F.2d
1240, 1243–44 (D.C. Cir. 1987) (Edwards, J., concurring in the denial of rehearing en banc)
(quotation omitted). The trust implicit in delegating authority to three-judge panels to resolve
cases as they see them would not mean much if the delegation lasted only as long as they
resolved the cases correctly as others see them. Last but not least: We are not the court of last
resort. From time to time, it’s worth letting the United States Supreme Court decide whether a
decision is correct and, if not, whether it is worth correcting.

       For these reasons, I concur in the denial of rehearing en banc.

                                               ENTERED BY ORDER OF THE COURT




                                               ___________________________________
                                               Deborah S. Hunt, Clerk
