           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                          2     Hill v. Hofbauer                             No. 01-2667
        ELECTRONIC CITATION: 2003 FED App. 0253P (6th Cir.)
                    File Name: 03a0253p.06                                  Corbett E. O’Meara, O’MEARA & O’MEARA, Grosse
                                                                            Pointe Farms, Michigan, for Appellee. ON BRIEF: Laura
                                                                            Graves Moody, OFFICE OF THE ATTORNEY GENERAL,
UNITED STATES COURT OF APPEALS                                              Lansing, Michigan, for Appellant. Corbett E. O’Meara,
                                                                            O’MEARA & O’MEARA, Grosse Pointe Farms, Michigan,
                   FOR THE SIXTH CIRCUIT                                    for Appellee.
                     _________________
                                                                                                 _________________
 TERRANCE LESEAN HILL,            X
          Petitioner-Appellee, -                                                                     OPINION
                                   -                                                             _________________
                                   -  No. 01-2667
           v.                      -                                          SUHRHEINRICH, Circuit Judge. Respondent-Appellant
                                    >                                       Gerald Hofbauer, in his official capacity as Warden of the
                                   ,                                        Marquette Correctional Facility in Marquette, Michigan (“the
 GERALD HOFBAUER, Warden, -
       Respondent-Appellant. -                                              State”), appeals from the district court’s conditional grant of
                                                                            a writ of habeas corpus under 28 U.S.C. § 2254, as amended
                                  N                                         by the Anti-Terrorism and Effective Death Penalty Act of
      Appeal from the United States District Court                          1996 (AEDPA), in favor of Petitioner-Appellee Terrance
     for the Eastern District of Michigan at Detroit.                       Lesean Hill.
    No. 00-70960—Arthur J. Tarnow, District Judge.
                                                                               The district court found that the state trial court denied Hill
                       Argued: May 6, 2003                                  his Sixth Amendment Confrontation Clause rights.
                                                                            Specifically, the district court found that the Michigan court
               Decided and Filed: July 28, 2003                             erred by allowing into evidence a statement made by Hill’s
                                                                            non-testifying co-defendant. The State claims on appeal that
 Before: SUHRHEINRICH and GILMAN, Circuit Judges;                           the writ should not have been granted because the state
              CARR, District Judge.*                                        court’s admission of the co-defendant’s statement was not
                                                                            “contrary to,” or an “unreasonable application” of, “clearly
                       _________________                                    established Federal law.” The State asserts that Ohio v.
                                                                            Roberts, 448 U.S. 56 (1980), provides for the admission of
                             COUNSEL                                        hearsay statements where the statements contain significant
                                                                            indicia of reliability. The State argues that the co-defendant’s
ARGUED: Laura Graves Moody, OFFICE OF THE                                   statement is reliable because it was made against the
ATTORNEY GENERAL, Lansing, Michigan, for Appellant.                         declarant’s penal interest.
                                                                              We reject the State’s arguments and affirm the grant of the
    *
                                                                            writ. We find that the trial court’s admission of the co-
     The Hon orable Ja mes G . Carr, United States District Judge for the   defendant’s statement over Hill’s objection was contrary to
Northern District of Ohio, sitting by designation.

                                   1
No. 01-2667                            Hill v. Hofbauer     3    4     Hill v. Hofbauer                              No. 01-2667

the precedent clearly established by the Supreme Court in Lee    real quick [sic] and get paid. I told him we could go and stick
v. Illinois, 476 U.S. 530 (1986); Bruton v. United States, 391   up the fag; and after I told him that, then I told [Hill].”
U.S. 123 (1968); and Douglas v. Alabama, 380 U.S. 415            Moreover, Bulls asked Matthews to bring a gun. In response,
(1965). We also find the error not harmless because the co-      Matthews went upstairs and retrieved a shotgun. Bulls stated
defendant’s statement indicates that Hill possessed the          that Hill also agreed to the plan to rob Johnson, and the three
requisite malice to be guilty of second-degree murder.           men left Matthews’ house, walking together. At Johnson’s
                                                                 house, Bulls went to the back door, while Hill “stayed . . . on
                              I.                                 the side of the house, and [Matthews] . . . was on the other
                                                                 side of the door. And when [Bulls] knocked on the door,
  Hill’s petition for a writ of habeas corpus arises from his    [Johnson] opened the door. And as soon as [Johnson] opened
arrest and conviction following the robbery and murder of        the door, [Matthews] rushed and he pointed the shotgun in his
Jermaine Johnson on August 24, 1995. On that date, Johnson       face.” Only Bulls and Matthews entered Johnson’s house,
was shot and killed inside his residence in Flint, Michigan by   while Hill “[s]tood outside as a lookout.” As Bulls and
then-unknown assailants.                                         Matthews were rummaging through the house, Johnson
                                                                 attempted to flee, and then Bulls “heard a blast.” Matthews
  Sometime in 1996, Mekia Randle informed Flint police that      had shot Johnson, killing him. Immediately, Bulls asked
her ex-boyfriend, Jabbar Priest Bulls, had told her he had       Matthews why he had shot Johnson, to which Matthews
participated in Johnson’s murder. Randle gave recorded           responded: “He tried to run.” Bulls then sprinted down the
statements to the police describing Bulls’ role in the murder.   steps, exited the house, and ran to Randle’s house.
Flint police arrested Bulls and confronted him with Randle’s
tape-recorded statements. Bulls gave a statement confessing         After his arrest, Hill also gave a statement to police,
to the crime, and inculpating Hill and another co-defendant,     likewise giving his account of the events. He stated that Bulls
Deonte Matthews, as well. Hill and Matthews were                 came to him to solicit his help in robbing Johnson. Bulls
subsequently arrested.                                           proposed a plan, under which he expected Hill to stand
                                                                 outside and “[w]ait for [Bulls] to let [him] inside the house
  In his statement, Bulls gave his account of the events         [to] take . . . items from the house.” Hill initially agreed to do
surrounding Johnson’s murder. He stated that on August 24,       so. As Hill and Bulls were walking toward Johnson’s house,
1995, Johnson approached him on the street and offered him       Matthews met the two of them and then subsequently left.
money in exchange for allowing Johnson to perform oral sex       Bulls told Hill that Matthews was leaving to get a gun
on him. Bulls verbally accepted the offer and accompanied        because “it would be easier for him to rob” Johnson.
Johnson to Johnson’s home. Bulls claimed he had no interest      Matthews returned, but was not visibly carrying a weapon.
in Johnson’s sexual advances, but he accompanied Johnson         Upon reaching Johnson’s house, Hill followed Bulls and
because he thought “[t]hat [he] could beat him up and take his   Matthews up the driveway, went behind the house, and
money.” Upon arriving at Johnson’s home, Bulls quickly           listened while Bulls and Matthews stood at the back door.
excused himself but promised to return. After he left            Hill stated that, at this time, he “didn’t have [his] mind made
Johnson’s house, Bulls went to Matthews’ house to recruit        up” whether he was going to enter the house. Bulls knocked
Matthews and Hill to aid him in robbing Johnson.                 on the door, and had a brief conversation with the resident,
Specifically, Bulls stated “I told [Matthews] about the fag      presumably Johnson. At this time, Hill decided to abandon
around the corner; and I told him we could go and rob him
No. 01-2667                                   Hill v. Hofbauer          5    6     Hill v. Hofbauer                              No. 01-2667

the plot and left. He said he heard a shot as he was walking                 this Court. This appeal is timely under Fed. R. App. P.
away.                                                                        4(b)(1)(B).
  Subsequently, neighbors apparently saw some men running                       Bulls was also found guilty at his joint trial with Hill. In
from the house, and described a person who resembled Hill.                   his case, the Michigan Court of Appeals had ruled that the
The Flint police stopped and questioned Hill later that night,               introduction of Hill’s statement was a violation of Bulls’
but initially determined he was not involved and released him.               Sixth Amendment rights. State Appeal, 1998 WL 1989786,
                                                                             at *2. The Michigan court found that Hill’s statement did not
  In 1997, Hill and Bulls were tried together in Genessee                    fit into the hearsay exception for statements against the
County, Michigan, Circuit Court.1 During the trial, neither                  declarant’s penal interest because Hill, in his statement, had
defendant testified. However, both Hill’s and Bulls’                         shifted most of the blame to Bulls. Id. at *2. However, the
statements were entered into evidence. Hill was convicted of                 court found the error harmless because Bulls had admitted
second-degree murder under Mich. Comp. Laws § 750.317;                       that he knew Matthews was carrying a shotgun, and the jury
and assault with intent to rob while armed under Mich. Comp.                 could therefore infer Bulls’ malice from his own statement.
Laws § 750.89. Hill received a sentence of life imprisonment                 Id. Bulls filed a habeas petition and challenged the harmless
for the murder charge, and fifteen to thirty years’                          error ruling in the district court below. The district court
imprisonment for the assault charge. He appealed to the                      found the error not harmless and granted the writ. Bulls v.
Michigan Court of Appeals, claiming, inter alia, that his                    Jones, 86 F.Supp. 2d 746, 754 (E.D.Mich. 2000). We
Sixth Amendment Confrontation Clause rights were violated                    affirmed, finding the error not harmless because the
by the introduction of Bulls’ statements. On September 25,                   admission of Hill’s statement tended to show that Bulls knew
1998, the court affirmed Hill’s convictions and sentence.                    there “was a high likelihood that Matthews would kill
People v. Bulls, Nos. 202149 & 202849, 1998 WL 1989786                       Johnson,” more so than did Bulls’ own statement. Bulls v.
(Mich. App. Sept. 25, 1998) (per curiam) (“State Appeal”).                   Jones, 274 F.3d 329, 336 (6th Cir. 2001).
The Michigan Supreme Court denied Hill’s application for
leave to appeal on June 29, 1999. People v. Bulls, 598                                                       II.
N.W.2d 341 (Mich. 1999).
                                                                               We review a district court’s legal conclusions in a habeas
   Pursuant to 28 U.S.C. § 2254, Hill filed a petition for a writ            proceeding de novo, and its factual findings for clear error.
of habeas corpus with the district court. The court                          Vincent v. Seabold, 226 F.3d 681, 684 (6th Cir. 2000).
conditionally granted the petition on November 1, 2001. Hill
v. Hofbauer, 195 F. Supp.2d 871 (E.D. Mich. 2001) (“Hill I”).                   Because Hill filed his petition in November 2001, his case
On November 27, 2001, the State filed a notice of appeal with                is governed by 28 U.S.C. § 2254(d), as amended by the
                                                                             AEDPA of 1996. See Vincent, 226 F.3d at 684; see also
                                                                             Lindh v. Murphy, 521 U.S. 320, 326 (1997). Section 2254(d),
                                                                             as amended, provides that a petition for writ of habeas corpus
    1
     Deonte Matthews, the purported trigger man, was arrested and            shall fail before the district court unless the state trial court’s
charged, but never bro ught to trial. The state dismissed Ma tthews’         decision:
charges because the only evidence against him was the statem ents of H ill
and Bulls. See Hill v. Hofbauer, 195 F.Supp.2d 87 1, 875 n.3 (E.D. M ich.
2001) (“Hill I”).
No. 01-2667                             Hill v. Hofbauer       7    8        Hill v. Hofbauer                                    No. 01-2667

  (1) resulted in a decision that was contrary to, or                                                   III.
  involved an unreasonable application of, clearly
  established Federal law, as determined by the Supreme                In Ohio v. Roberts, 448 U.S. 56 (1980), the Supreme Court
  Court of the United States; or                                    held that a hearsay statement is nonetheless admissible
                                                                    against a defendant if it falls within a “firmly rooted” hearsay
  (2) resulted in a decision that was based upon an                 exception. The Court defined a “firmly rooted” exception as
  unreasonable determination of the facts in light of the           one that assures the court that there are “indicia of reliability
  evidence presented in the State court proceeding.                 which have been widely viewed as determinative of whether
                                                                    a statement may be placed before the jury though there is no
   In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme          confrontation of the declarant, and [that affords] ‘the trier of
Court analyzed the AEDPA, and clarified what constitutes a          fact a satisfactory basis for evaluating the truth of the prior
decision “contrary to,” or an “unreasonable application” of         statement.’” Id. at 65 (quoting Mancusi v. Stubbs, 408 U.S.
“clearly established” Supreme Court law. The “contrary to”          204, 213 (1972) (citations omitted)). Where the hearsay
and “unreasonable application” clauses of the AEDPA are             statement does not fall within a “firmly rooted” hearsay
independent tests and must be analyzed separately. Id. at 407.      exception, it is admissible only upon a showing of other
A state court decision can be “contrary to” Supreme Court           “particularized guarantees of trustworthiness.” Roberts, 448
case law in two ways. First, the decision is contrary if the        U.S. at 66.
state court arrives at a conclusion opposite to that reached by
the Supreme Court on a question of law. Also, a decision is            In this case, the Michigan Court of Appeals recognized the
contrary if the state court considers facts that are materially     existence of Hill’s federal constitutional rights, and
indistinguishable from a relevant Supreme Court case and            acknowledged Roberts as the leading case law in the area. See
arrives at an opposite result. Id. at 405. A state court            State Appeal, 1998 WL 1989786, at *1. Relying on Roberts,
decision involves an “unreasonable application” of Supreme          the court found that Bulls’ statements were reliable because
Court law if “the state court identifies the correct governing      they fell within the “firmly rooted” hearsay exception for
legal rules from the Court’s cases but unreasonably applies it      statements against penal interest.2 Specifically, the court
to the facts of the particular state prisoner’s case.” It is also   stated:
an “unreasonable application” of Supreme Court precedent
where a state court invokes a Supreme Court case and                    Although Bulls made his statements concerning Hill
unreasonably extends its legal principle to a new context               while in custody, the record is devoid of any indication
where it should not apply, or fails to extend it where it should
apply. Id. at 407. Moreover, “clearly established Federal                2
law, as determined by the Supreme Court of the United                      The M ichigan Court of Appe als also relied o n M ich. R. E vid.
States” “refers to the holdings, as opposed to the dicta, of [the   804(b)(3) to determine that there exists a hearsay exception for statem ents
                                                                    against penal interest. See State Appeal, 1998 W L 1989 786, at *2. Mich.
Supreme] Court’s decisions as of the time of the relevant           R. Evid . 804 (b)(3 ) provides that “[a] statement which was at the time of
state-court decision.” Id. at 412.                                  its making so far co ntrary to the declarant’s pecuniary or proprietary
                                                                    interest, or so far tended to subject the declarant to civil or criminal
                                                                    liability . . . that a reasonable person in the declarant’s position would not
                                                                    have mad e the statement unless believing it to be true” is not excluded
                                                                    under the hearsay rule if the d eclarant is unavailable to testify. See also
                                                                    Fed. R. Evid. 804(b)(3) (stating same).
No. 01-2667                              Hill v. Hofbauer        9   10       Hill v. Hofbauer                                   No. 01-2667

  that Bulls was motivated to make the statements by a               time, the admission of Bulls’ statement against Hill cannot
  desire to curry favor from the authorities. Further, Bulls’        have been “contrary to . . . clearly established Federal law, as
  statements have several indicia of reliability in that they        determined by the Supreme Court of the United States,” 28
  do not minimize his role or responsibility in the crime,           U.S.C. § 2254(d)(1), because the Supreme Court had not yet
  they were voluntarily given, and they were not motivated           decided the issue in Lilly.
  by a desire to lie or distort the truth regarding Hill’s
  involvement in the crime. Accordingly, we conclude that              The State is correct that any new law in Lilly cannot be
  the carry-over portions of Bulls’ statements implicating           considered under the AEDPA, but the State misreads, first,
  Hill fall within the penal interest exception to the hearsay       the district court opinion as relying solely on Lilly, and,
  rule and have sufficient indicia of reliability to satisfy         second, Lilly as creating a new rule rather than stating one
  Confrontation Clause concerns. Thus, the trial court did           mandated from earlier precedent.3
  not err in admitting the statements against Hill.
State Appeal, 1998 WL 1989786, at *2.                                     3
                                                                          The district co urt partially rejected the State’s argume nt that Lilly
                                                                     could not apply here, stating:
   Hill petitioned the district court below for a writ of habeas         Lilly is not being applied in this instance to give the petitioner
corpus. The district court determined that the Michigan                  the advantage of a new constitutional rule of criminal procedure.
court’s decision was “objectively unreasonable and contrary              On the contrary, Lilly is relied upon merely to dem onstrate that
                                                                         at the time o f Petitioner’s trial in 1997, the against penal interest
to” Lilly v. Virginia, 527 U.S. 116 (1999), and Lee v. Illinois,         exception to the hearsay rule had not been determined to be a
476 U.S. 530 (1986). Hill I, 195 F.Supp.2d at 881. The                   “firmly rooted” exception under the mode of analysis established
district court found that those cases stand for the proposition          by Oh io v. Ro berts in 1980 , and, in fact, has now been so
that “a co-defendant’s confession inculpating the accused is             rejected as manifested by Lilly. It should also be rememb ered in
inherently unreliable, and . . . convictions supported by such           this context that Petitioner had no burden to demon strate
                                                                         anything; it was the burden of the State, as the proponent of the
evidence violate the constitutional right of confrontation.” Id.         evidence, to show that the against pena l interest exception to the
(quoting Lee, 476 U.S. at 546). Accordingly, the court held              hearsay rule was an acceptable reason to admit the evidence
that Bulls’ statements were outside any “firmly rooted”                  notwithstanding the Confrontation Clause. It could no t do so
exception under Roberts. Hill I, 195 F.Supp.2d at 882. The               then and, even in the ab sence of Lilly, it can not do so now.
district court continued its analysis, and independently
                                                                     Hill I, 195 F.Supp.2d at 880 n. 6. Accordingly, the district court placed
examined Bulls’ statement under the second prong of the              the burd en on the State to present Supreme Court case law allowing for
Roberts test to determine whether it nonetheless bore                the adm ission of Bulls’ statement, rather than requiring Hill to present
“guarantees of trustworthiness” to justify its admission. Id.        Supreme Court c ase law disallowing it. This is the wrong standard. At
at 882-84. The district court found none and granted the writ.       the federal stage, the habeas petitioner, not the State, has the burden of
Id. at 884.                                                          proving that the state courts were in error, not the other way around.
                                                                     Under the AE DP A, a writ is properly granted only if the petitioner can
                                                                     demo nstrate that the Supreme Court has provided “clearly established”
  The State argues that the district court erred to the extent it    precedent deeming the trial court’s actions unconstitutional. The Supreme
relied on Lilly. The State contends that we should disregard         Court’s silence on a particular issue cannot constitute “clearly
Lilly in its entirety because that case was not decided until        established” Federal law. Therefore, the district court erred in rejecting
1999, a year after Hill’s conviction was affirmed by the             the State’s argume nt that any new rule espoused in Lilly cannot be
Michigan Court of Appeals. The State asserts that, at the            considered on habe as review. See also Teague v. Lane, 489 U.S. 288, 301
                                                                     (1989) (prohibiting reliance on a case that “breaks new ground” after state
No. 01-2667                            Hill v. Hofbauer     11    12   Hill v. Hofbauer                             No. 01-2667

  Although the decision in Lilly drove the district court’s       that “[i]t is clear that our cases consistently have viewed an
opinion, the court nonetheless cited the earlier Supreme Court    accomplice’s statements that shift or spread the blame to a
cases of Lee and Bruton v. United States, 391 U.S. 123            criminal defendant as falling outside the realm of those
(1968), to stand for the same proposition as Lilly, and to        ‘hearsay exception[s] [that are] so trustworthy that adversarial
demonstrate that the principles espoused in Lilly were            testing can be expected to add little to [the statements’]
previously established. See Hill I, 195 F.Supp.2d at 879; see     reliability.’” Id. at 133 (quoting White v. Illinois, 502 U.S.
also Teague v. Lane, 489 U.S. 288, 301 (1989) (stating that,      346, 357 (1992)) (emphasis added) (alterations in original);
in regard to habeas cases, a subsequently decided case does       see also Lilly, id. at 131 (citing Douglas v. Alabama, 380 U.S.
not present new law if it is “dictated by precedent existing at   415 (1965)).
the time the defendant’s conviction became final”).
                                                                    In our opinion in Bulls’ case, we spoke to whether Lilly was
  In Lilly, a plurality unequivocally stated that confessions     mandated by earlier precedent, and addressed substantially
made by a co-defendant inculpating not only himself but his       the same cases referenced by the Lilly Court:
co-criminals are “inherently unreliable” and not within a
“firmly rooted” hearsay exception for statements against              The Sixth Amendment provides that “[i]n all criminal
penal interest. Lilly, 527 U.S. at 131. Accordingly, the Court      prosecutions, the accused shall enjoy the right . . . to be
ruled that under the framework discussed in Roberts, a co-          confronted with the witnesses against him.” That
defendant’s custodial confession cannot be entered into             guarantee includes the right to cross-examine witnesses.
evidence absent additional “guarantees of trustworthiness.”         See Pointer v. Texas, 380 U.S. 400, 404 (1965). The
The Court “distinguishe[d] accomplices’ confessions that            Supreme Court has repeatedly held that a non-testifying
inculpate themselves and the accused as beyond a proper             co-defendant’s statements that implicate a defendant are
understanding of the against penal-interest exception because       presumptively unreliable and their admission violates the
an accomplice often has a considerable interest in ‘confessing      Confrontation Clause. See Douglas v. Alabama, 380
and betraying his cocriminals.’” Id. at 131 (citing 5 J.            U.S. 415, 419 (1965); see also Bruton v. United States,
Wigmore, EVIDENCE § 1477, at 358, n. 1 (J. Chadbourn rev.           391 U.S. 123, 126 (1968) (holding that the admission of
1974)). The Court further distinguished the confessions of          non-testifying co-defendant’s confession incriminating
accomplices from the statements of co-conspirators made in          defendant, even with jury instructions to consider
furtherance of a conspiracy, which have traditionally been          confession only against the co-defendant, violates the
held trustworthy, because in the case of custodial confessions,     Confrontation Clause). The Supreme Court has noted
the government is typically “involved in the statements’            that since Douglas, it “has spoken with one voice in
production.” Therefore such statements do not bear the same         declaring presumptively unreliable accomplices’
indicia of reliability as is present in statements made of the      confessions that incriminate defendants.” Lee v. Illinois,
declarant’s own accord. See id. at 137.                             476 U.S. 530, 541 (1986); see also Lilly, 527 U.S. at 131;
                                                                    Cruz v. New York, 481 U.S. 186, 193 (1987). To
  Moreover, the Supreme Court expressly referenced past             overcome this presumption of unreliability and introduce
Supreme Court cases in achieving its result in Lilly, stating       such statements into evidence, the prosecution must
                                                                    show that the statements bear “adequate indicia of
                                                                    reliability.” Roberts, 448 U.S. at 66; United States v.
court proceedings in habeas cases).
                                                                    McCleskey, 228 F.3d 640, 644 (6th Cir. 2000) (“[I]t is
No. 01-2667                                   Hill v. Hofbauer        13     14   Hill v. Hofbauer                             No. 01-2667

  clear that Supreme Court Confrontation Clause                              would “plainly den[y the defendant] the right of cross-
  jurisprudence does not permit the introduction of hearsay                  examination secured by the Confrontation Clause.” Id.
  declarations uttered by accomplices in law enforcement
  custody that inculpate a defendant, absent further                            In Bruton v. United States, 391 U.S. 123 (1968), a non-
  ‘particularized guarantees’ of the declaration’s                           testifying co-defendant had made a statement inculpating not
  trustworthiness.”).                                                        only himself but the defendant, George Bruton, as well. At a
                                                                             joint trial, prosecutors sought to enter the statement, which
Bulls v. Jones, 274 F.3d 329, 333-34 (6th Cir. 2001). In                     was admittedly hearsay, under the exception for the
Bulls, the State had conceded it was constitutional error for                admissions of a party-opponent. The trial court admitted the
the trial court to enter Hill’s statement against Bulls because              statement against the declarant and instructed the jury that the
Hill’s statement shifted a greater portion of the blame to                   statement could not be considered against Bruton. The
Bulls, and thus was not against Hill’s penal interest. The only              Supreme Court ruled that the limiting instruction was not
issue before us in Bulls was whether the error was harmless.                 sufficient. The Court found that the Sixth Amendment right
Accordingly, our discussion in Bulls of whether the principles               to cross-examination is absolute, and admission of the co-
espoused in Lilly were previously clearly established was                    defendant’s statement therefore violated Bruton’s right to
dicta.                                                                       confront the evidence against him. There was no presumption
                                                                             of veracity in the statement because the credibility of such
  Today, we squarely face the issue whether Lilly was pre-                   statements is “inevitably suspect.” 391 U.S. at 136.
ordained by earlier clearly established Supreme Court law for
the first time.4 Therefore, we find it necessary to discuss the                 In Lee v. Illinois, 476 U.S. 530 (1986), the Court again held
facts of the Supreme Court cases cited in Lilly and Bulls in                 a co-defendant’s confession not within a hearsay exception
further detail.                                                              and inadmissible. There, Millie Lee’s co-defendant, Edwin
                                                                             Thomas, gave a statement inculpating both himself and Lee
  In Douglas v. Alabama, 380 U.S. 415 (1965), the Court                      in a plot to kill Lee’s aunt. Notwithstanding that Thomas’
found that a statement wherein a declarant places any blame                  statement was voluntary and also incriminated himself, the
at all on his co-defendant is unreliable and inadmissible                    Court held the statement unreliable and stated:
hearsay. Id. at 419. In a joint trial, the prosecutor was not
permitted to refresh the memory of the uncooperative                           Although . . . the confession was found to be voluntary
declarant with his statement because it implicated the                         for Fifth Amendment purposes, such a finding does not
defendant as well as himself. The Court found that such use                    bear on the question of whether the confession was also
                                                                               free from any desire, motive, or impulse Thomas may
                                                                               have had either to mitigate the appearance of his own
    4                                                                          culpability by spreading the blame or to overstate Lee’s
      In another case, United States v. McCleskey, 228 F.3d 64 0 (6th Cir.     involvement in retaliation for [Lee] having implicated
2000), we likewise held that a co-defendant’s custodial confession does
not fall within a “firmly rooted” hearsay exception. Id. at 643-45.
                                                                               him in the murders.
However, McCleskey was no t a habeas case, but a federal drug case .
Therefore, our analysis was not bound by the strictures of the AEDPA.        Id. at 544. Moreover, the Court in Lee recognized even then
Accordingly, although we relied on the decision in Lee, we did not           that its rule was not new law, stating that “there is no
perform a thorough analysis of whether the principle was “clearly            occasion to depart from the time-honored teaching that a co-
established” by the Supreme C ourt, as that term is used in the AE DP A.
No. 01-2667                            Hill v. Hofbauer     15    16   Hill v. Hofbauer                             No. 01-2667

defendant’s confession inculpating the accused is inherently      law interpreting Douglas, Bruton, and Lee may be
unreliable, and that convictions supported by such evidence       informative.
violate the constitutional right of confrontation.” Id. at 546
(emphasis added).                                                    In United States v. York, 933 F.2d 1343 (7th Cir. 1991), the
                                                                  Seventh Circuit affirmed the admission of a co-conspirator’s
  In Cruz v. New York, 481 U.S. 186 (1987), the defendant,        statement against the defendant at his insurance fraud trial.
Eulogio Cruz, sought to suppress his co-defendant’s               The co-conspirator, Gail Maher, had made statements to two
confession under Bruton. However, Cruz had also made a            associates claiming that she and the defendant, Tom York,
confession which mirrored his co-defendant’s statement in all     had planned to blow up the lounge York owned in order to
relevant aspects. The trial court admitted the co-defendant’s     collect the insurance proceeds. Id. at 1360. Maher, having
confession against Cruz, finding it reliable because of the two   died, did not testify. The court affirmed the admission of
statements’ “interlocking” nature. Cruz, 481 U.S. at 189.         Maher’s statement, noting that it tended to subject her to such
The Supreme Court reversed, and held that the existence of        criminal liability that she would not have made the statement
Cruz’s own corroborating confession did not automatically         had it not been true. Id.
render the co-defendant’s statement reliable, and its
admission constituted Sixth Amendment error. Id. at 193.             In United States v. Seeley, 892 F.2d 1 (1st Cir. 1989),
The Court held, however, that the defendant’s corroborating       authored by then-Circuit Judge Stephen Breyer, the First
confession could be used on appeal to determine whether the       Circuit likewise upheld the admission of a co-conspirator’s
error was harmless. Id. at 194.                                   statement as against his penal interest. There, the defendant,
                                                                  Edward Seeley, was charged in connection with two
   As the foregoing discussion indicates, the Supreme Court       Massachusetts bank robberies. A fellow bank robber, Robert
had provided a line of cases holding that a co-defendant’s        Wayne, made statements to his girlfriend that inculpated
custodial confession is inherently unreliable. However, the       himself, Seeley, and three other men in the bank heists. Id. at
State nonetheless contends that the Lilly rule cannot be said     1. Wayne was found dead a month after the robberies, and
to have been previously “clearly established” by the Supreme      was therefore not charged in the crimes and unable to testify
Court because several federal circuits had held such              at Seeley’s trial. The trial court allowed Wayne’s girlfriend
statements admissible in the face of the above-cited Supreme      to testify to his statements, and the First Circuit upheld their
Court precedent. Although only Supreme Court case law is          admission, finding that the statements bore sufficient indicia
relevant under the AEDPA in examining what Federal law is         of reliability because Wayne would not have made such
“clearly established,” the decisions of the United States         statements to his girlfriend had they not been true. Id. at 4;
Courts of Appeals may be informative to the extent we have        see also United States v. Fields, 871 F.2d 188 (1st Cir. 1989)
already reviewed and interpreted the relevant Supreme Court       (affirming admission of Wayne’s statements against another
case law to determine whether a legal principle or right had      accomplice for same reasons).
been clearly established by the Supreme Court. See, e.g.,
O’Brien v. Dubois, 145 F.3d 16, 25 (1st Cir. 1998), overruled        In United States v. Katsougrakis, 715 F.2d 769 (2d Cir.
on other grounds, McCambridge v. Hall, 303 F.3d 24, 36-37         1983), one of the co-conspirators, Kyriakos Chrisanthou, was
(1st Cir. 2002) (en banc). Because we had examined this           badly burned while setting fire to the defendant’s restaurant,
issue only in dicta, a review of other circuits’ pre-Lilly case   and subsequently died from his injuries. The trial court
                                                                  allowed Chrisanthou’s wife and his friend, Fitos Vasilou, to
No. 01-2667                                      Hill v. Hofbauer         17     18   Hill v. Hofbauer                             No. 01-2667

testify at Katsougrakis’s fraud trial about statements that                      disregarded by the Supreme Court in situations where the
Chrisanthou had made to each of them implicating himself, as                     declarant’s custodial confession at all implicates somebody
well as Katsougrakis and other co-conspirators, in a scheme                      else. Such statements are never truly against the declarant’s
to defraud Katsougrakis’s insurers by setting fire to his                        penal interest because a defendant in custody always has a
business. The Second Circuit affirmed the admissions,                            motivation to implicate and pass the blame to another, even
finding sufficient indicia of reliability in Chrisanthou’s                       if in the slightest. See Lee, 476 U.S. at 541. As the Supreme
statements because they were sufficiently against his penal                      Court stated in Williamson v. United States, 512 U.S. 594,
interest. Id. at 775-76.                                                         599-600 (1994), such statements are inherently unreliable
                                                                                 because “[o]ne of the most effective ways to lie is to mix
   However, each of these circuit cases is distinguishable from                  falsehood with truth, especially truth that seems particularly
the case sub judice.5 The defendant in each case made his                        persuasive because of its self-inculpatory nature.”
statement, not to police, but to an acquaintance or a fellow
accomplice. Therefore, at the time of the statement, none of                       Therefore, what was dicta in Bulls we make explicit today.
the defendants was motivated by a desire to curry the favor of                   We hold that Douglas, Bruton, and Lee evidence that the
law enforcement officials. See, e.g., Katsougrakis, 715 F.2d                     Supreme Court had clearly established the principle that a co-
at 775 (stating that Chrisanthou’s statements bore adequate                      defendant’s custodial confessions are unreliable and not
indicia of reliability only because they were made while                         within a “firmly rooted” hearsay exception prior to Lilly.
“talking privately with his friend” and not to police).                          Here, Bulls’ custodial statements are no different than those
Douglas, Bruton, and Lee indicate that the Supreme Court has                     statements held inadmissible in Douglas, Bruton, and Lee.
held statements made to police to closer scrutiny. Although                      We therefore conclude that the trial court’s admission of
Rule 804(b)(3) provides a hearsay exception for statements                       Bulls’ statement was “contrary to” the law of those
against the declarant’s interest, this rule has been consistently                indistinguishable Supreme Court cases.
                                                                                    We also hold that the trial court’s admission of Bulls’
                                                                                 statement was an “unreasonable application” of the legal
    5
      The State also raises two Sixth Circuit cases to support its               principles espoused in Roberts, the only Supreme Court case
proposition that the Supreme Court had not previously clearly established        identified by the state court of appeals. The Michigan court
the rule of Lilly. However, neither case is applicable here. In Neuman v.        attempted to extend the list of “firmly rooted” hearsay
Rivers, 125 F.3d 315 (6th C ir. 199 7), we held that statements against
penal interest fell within a “firmly rooted” hearsay exception. But in that
                                                                                 exceptions to include a co-defendant’s custodial confession
case, the adm itted statem ent did not incu lpate the declarant’s accomplice,    inculpating his cohorts. In light of Bruton and the other
but only spoke to the decla rant’s role in the crime. See id. at 319-20. In      above-cited Supreme Court precedent, we find this action
Gilliam v. Mitchell, 179 F.3d 990 (6th Cir. 1999), we relied on Neuman           objectively unreasonable under the “extension theory” of the
and likewise held an acco mplice’s con fession admissible. We did not,           “unreasonable application” standard of the AEDPA. See
however, perform an analysis of whether the declarant’s statement spoke
only to his ow n role in the crime or inc ulpated his co horts as well.
                                                                                 Williams, 529 U.S. at 407.
Rather, in light of Lilly pend ing at the tim e in front of the Supreme Court,
we gave only a cursory review of the “firmly rooted” exception issue, and          The State also argues that the district court erred in finding
rested our holding alternatively on two other gro unds. See id. at 994 n.        that Bulls’ statement did not otherwise contain significant
1. First, we found that the declarant’s statement contained additional           “guarantees of trustworthiness.” However, the State has
particularized guarantees of trustwo rthiness. Id. at 994. And second, we        proposed no “guarantees of trustworthiness” beyond the fact
found that any error wa s none theless ha rmless. Id. at 994-95.
No. 01-2667                             Hill v. Hofbauer     19    20       Hill v. Hofbauer                                 No. 01-2667

that Bulls’ statement was a self-inculpatory confession. As        doubt. Otherwise, we must find that the introduction of
stated above, this is insufficient to establish “significant       Bulls’ statement actually prejudiced Hill, had a “substantial
indicia of reliability.”                                           and injurious effect” under Brecht, and was an “unreasonable
                                                                   application” of Chapman.
                              IV.
                                                                      The State argues that “Bulls’[] statement completely
   Nonetheless, the trial error in this case is subject to         mirrors, in relevant aspects, Hill’s own statement about his
harmless error analysis. See Chapman v. California, 386 U.S.       participation in the robbery and subsequent murder,” Brief
18, 24 (1967). On direct review, we employ a reasonable            for Appellant, at 37, and therefore its introduction was
doubt standard to determine whether a constitutional error is      harmless error, if error at all. Cf. Cruz, 481 U.S. at 194
harmless. Id. But a constitutional error is cause for federal      (holding error may be harmless where co-defendant’s
habeas relief only if it has “a substantial and injurious effect   statement is duplicative of defendant’s). The State is correct
or influence in determining the jury’s verdict.” Brecht v.         that Hill’s statement is consistent with Bulls’ in several
Abrahamson, 507 U.S. 619, 623 (1993). The Brecht standard          respects. Hill indicated that he had originally agreed to the
has survived the enactment of the AEDPA. We have held              plan to rob Johnson, that he voluntarily went to Johnson’s
that if a petitioner can pass Brecht analysis, “he will surely     house, and that his role was to be a lookout and wait for
have demonstrated that the state court’s finding that the error    Matthews and Bulls to return. However, Bulls’ and Hill’s
was harmless beyond a reasonable doubt . . . resulted from an      statements are not entirely identical. Bulls stated that Hill and
unreasonable application of Chapman.” See Nevers v.                Matthews were together at Matthews’ home when Bulls first
Killinger, 169 F.3d 352, 371-72 (6th Cir. 1999); see also          approached them. This is significant because Bulls stated that
Bulls, 274 F.3d at 335. In determining whether Confrontation       Matthews retrieved a shotgun while all three men were
Clause error is harmless under Chapman, the reviewing court        together in Matthews’ home, thereby implying that Hill was
should consider: “the importance of the witness’ testimony in      aware that Matthews had a gun.6 By contrast, Hill stated that
the prosecution’s case, whether the testimony was cumulative,
the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points,          6
. . . and, of course, the overall strength of the prosecution’s          Bulls’ statement went as follows:
case.” Delaware v. van Arsdall, 475 U.S. 673, 684 (1986); cf.           Q: Did you ask [M atthews] if he had anything?
                                                                        A: Yes.
Idaho v. Wright, 497 U.S. 805, 822 (1990) (stating that                 Q: A nd wh at was tha t?
existence of corroborating evidence informs the question of             A: I asked him if he had a gun— some heat.
harmless error). If the reviewing judge is in “grave doubt”             Q: And did he?
about whether constitutional error is harmless, it is not.              A: Yes.
O’Neal v. McAninch, 513 U.S. 432, 445 (1995).                           Q: What kind?
                                                                        A: Shotgun.
                                                                        Q: Where did he get the shotgun from?
  In determining whether the error in this particular case is           A: He went upstairs.
harmless, we must decide whether the other evidence,                    Q: Now you said you told [Hill] something.
including Hill’s own statement, is overwhelming and                     A: Yes.
sufficient to establish the elements of second-degree murder            Q: W hat was that?
and armed assault with intent to rob beyond a reasonable                A: I told him the same thing that I told [Matthews] about the fag and
                                                                        robbing.
No. 01-2667                               Hill v. Hofbauer    21    22   Hill v. Hofbauer                             No. 01-2667

Bulls first approached Hill when Hill was alone, and that           “Malice,” in Michigan, is defined as “the intent to kill, the
Matthews met Hill and Bulls later, as they were already             intent to cause great bodily harm, or the intent to do an act in
walking toward the victim’s house unarmed. Hill contended           wanton and wilful disregard of the likelihood that the natural
that Matthews and Bulls had a conversation, and Matthews            tendency of such behavior is to cause death or great bodily
subsequently left. Hill said Bulls told him that Matthews was       harm.” Goecke, 579 N.W.2d at 878-79. However, malice
leaving to get a gun. However, Hill claimed that when               cannot be inferred from Hill’s complicity in the robbery plot
Matthews returned, he did not see Matthews carrying a gun.          alone. See People v. Aaron, 299 N.W.2d 304, 326 (Mich.
In fact, Hill unequivocally stated that he did not know             1980) (stating that the commission of an underlying felony
Matthews had a gun.7                                                does not alone satisfy requirement of malice). Rather, a
                                                                    factual examination is necessary to determine whether Hill
  In order to find Hill guilty of second-degree murder in           possessed an intent to kill or cause great bodily harm beyond
Michigan, the State must prove that there was: (1) a death;         his intent to rob. See People v. Harris, 476 N.W.2d 767, 771
(2) caused by an act of the defendant; (3) with malice; and         (Mich. App. 1991); see also People v. Kelly, 378 N.W.2d
(4) without justification or excuse. See People v. Goecke, 579      365, 381 (Mich. 1985).
N.W.2d 868, 878 (Mich. 1998). Moreover, under Michigan
law, an aider and abettor can be charged as a principle if he          Under an aiding and abetting theory, the State must prove
“procures, counsels, aids, or abets” in the commission of the       either that Hill held the requisite intent for second-degree
crime. See Mich. Comp. Laws Annot. § 767.39; see also               murder or had knowledge that Bulls and Matthews held that
People v. Palmer, 220 N.W.2d 393, 396-97 (Mich. 1974).              intent. See People v. King, 534 N.W.2d 534, 538 (Mich. App.
                                                                    1995). An aider and abettor of a robbery must know of his
                                                                    cohort’s intent to kill the victim, or at least his intent to
    Q: So the three of you made a plan to go rob him?               physically harm the victim, before he can be found to have
    A: Right.                                                       aided and abetted the murder as well. Such intent can be
    Q: Did the three of you leave the house together?               inferred from the aider and abettor’s knowledge that his
    A: Yes.                                                         cohort possesses a weapon. See, e.g., People v. Feldmann,
    Q: Where did you go?                                            449 N.W.2d 692, 697 (Mich. App. 1989); see also People v.
    A: To the fag’s house.
    Q: How was the gun concealed as you walked there?               Turner, 540 N.W.2d 728, 733 (Mich. App. 1995), overruled
    A: M atthews had it in his pants.                               in part on other grounds, People v. Mass, 628 N.W.2d 540,
                                                                    548 (Mich. 2001). However, “[i]t is fundamentally unfair and
    7
    Hill and the police had the following exchange concerning his   in violation of basic principles of individual criminal
knowledge that Matthews was carrying a gun:                         culpability to hold one felon liable for an unforeseen death
   Q: Did [M atthews] catch up with you?                            that did not result from actions agreed upon by the
   A: Yes.                                                          participants.” Turner, 540 N.W.2d at 548.
   Q: W here at?
   A: O n Ha milton a nd Forest H ill.
   Q: Did he have a weap on?                                          Therefore, a determination of whether Hill knew that
   A: Not that I know of, no.                                       Matthews was carrying a gun is relevant to the jury’s
   Q: You didn’t see one?                                           determination of whether Hill is guilty of second-degree
   A: No.                                                           murder. Hill’s statement presents little question that he
   Q: Did you ask him if he had one?
   A: No.
                                                                    originally possessed the requisite intent to rob Johnson, but
No. 01-2667                                    Hill v. Hofbauer        23

leaves open whether he knew Matthews had a gun, and
therefore whether Hill possessed the requisite malice
necessary for second-degree murder. Bulls’ statement
removes any doubt by implying that Hill knew of the
existence of the gun and acquiesced to its role in the robbery.
Accordingly, Bulls’ statement is more damaging to Hill than
his own. We find, therefore, that the Sixth Amendment error
had “a substantial and injurious effect or influence in
determining the jury’s verdict.” See Brecht, 507 U.S. at 623.
Hill is entitled to a new trial on both charges.8
                                    V.
  For the foregoing reasons, we uphold the grant of the writ
by the district court. The order by the district court to the
State of Michigan to retry Hill or release him from penal
custody within 120 days of the date of the district court order
(November 1, 2001), plus time stayed pending this appeal, is
hereby AFFIRMED.




    8
      As one o f its elemen ts, the armed assault with intent to rob charge
requires a finding that the perpetrator was armed with a dangerous
weapon. Therefore, because Hill was charged under an aiding and
abetting theory, whether Hill knew Matthews was armed is relevant to the
analysis o f this charge as well. See Mich. Comp. Laws § 750.89.
