                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                    File Name: 18a0212p.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.

                                   Argued: May 2, 2018

                          Decided and Filed: September 21, 2018

             Before: COLE, Chief Judge; MERRITT and MOORE, Circuit Judges.

                                    _________________

                                        COUNSEL

ARGUED: S. Adele Shank, LAW OFFICE OF S. ADELE SHANK, Columbus, Ohio, for
Appellant. Brenda S. Leikala, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellee. ON BRIEF: S. Adele Shank, LAW OFFICE OF S. ADELE SHANK,
Columbus, Ohio, Lawrence J. Gregor, Dayton, Ohio, for Appellant. Jocelyn K. Lowe, OFFICE
OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

        MOORE, J., delivered the opinion of the court in which COLE, C.J., and MERRITT, J.,
joined. MERRITT, J. (pp. 18–21), delivered a separate concurring opinion.
 No. 15-4147                               Issa v. Bradshaw                                     Page 2


                                         _________________

                                              OPINION
                                         _________________

        KAREN NELSON MOORE, Circuit Judge. Ahmad Issa (“Issa”), sometimes known as
Mike, petitioned the district court for a writ of habeas corpus. The district court denied all of
Issa’s grounds for relief, but it granted a certificate of appealability for Issa’s first, third, fourth,
fifth, sixth, ninth, eleventh, twelfth, twenty-seventh, pending twenty-eighth, pending twenty-
ninth, and proposed twenty-eighth through thirty-seventh grounds. R. 218 (Order at 120) (Page
ID #4717). For the following reasons, we VACATE and REMAND to the district court with
instructions to grant a CONDITIONAL WRIT OF HABEAS CORPUS, giving the State of
Ohio 180 days to retry Issa or to release him from custody.

                                         I. BACKGROUND

A. Factual Background

        On November 22, 1997, around 1:30 a.m., Andre Miles (“Miles”) demanded money from
two brothers, Maher Khriss (“Maher”) and Ziad Khriss (“Ziad”), outside of Maher’s store, Save-
Way II Supermarket (“Save-Way”) in Cincinnati. State v. Issa (Issa I), 752 N.E.2nd 904, 910
(Ohio 2001). After Maher and Ziad put money on the ground, Miles shot both of them with a
high-powered assault rifle. Id. The Cincinnati police examined Miles’s actions, and they
hypothesized that Issa, an employee at Save-Way, had hired Miles to commit the murders
because Linda Khriss (“Linda”), Maher’s wife, offered Issa money to kill her husband. Id. The
police speculated that Issa gave Miles the rifle and planned where Miles would shoot Maher. Id.
Because of this theory, the State charged all three individuals with aggravated murder, and each
defendant stood trial. Id. A jury, however, acquitted Linda, and Miles received a life sentence—
Issa is the only one to receive a death sentence. Id. at 913, 928.

        During the guilt phase in Issa’s trial, Miles refused to testify even though he had already
testified in Linda’s earlier trial. R. 229-3 (App., Trial Tr. at 938–40) (Page ID #9504–06). Prior
to his taking the stand, the prosecution had offered Miles immunity, but the prosecution revoked
Miles’s immunity the day before he was scheduled to make statements in Issa’s trial. Id.
 No. 15-4147                              Issa v. Bradshaw                                Page 3


Because Miles refused to testify, the trial court concluded that he was unavailable. Id. at 945
(Page ID #9511).

       The trial court allowed the admission of Miles’s out-of-court statements, however,
through the testimony of siblings, Bonnie Willis (“Bonnie”) and Joshua Willis (“Joshua”)
(together, the “Willises”), who were Miles’s teenage friends at the time of the murders. Id. at
1087, 1162–63 (Page ID #9653, 9728–29). Joshua testified that, a few days prior to the murders,
he ran into Miles at the Save-Way, and Miles told Joshua that Issa had paid him to kill someone.
Id. at 1164–65 (Page ID #9730–31). Miles asked Joshua if he wanted to help, but Joshua
declined the offer and did not believe Miles was serious. Id. When Joshua told Bonnie about
Miles’s statement, she did not think Miles would actually kill anyone because Miles talked
“about doing a lot of things and never did it.” Id. at 1126 (Page ID #9692). Then, according to
Joshua, around 5:00 p.m. on November 22, Miles called Joshua and told him that he had killed
Maher and Ziad. Id. at 1167 (Page ID #9733). Miles informed Joshua that Miles had placed the
rifle in a plastic bag and had put it in the Willises’ backyard. Id.

       The next day, according to the Willises’ testimony, Miles went to the Willises’ home and
described the murders. Id. at 1094–97, 1168–69 (Page ID #9660–63, 9734–35). The Willises
testified that Miles told the Willises that Issa was going to give Miles $2000 for killing Maher.
Id. at 1106 (Page ID #9672). At Issa’s trial, the Willises described Miles’s statements to them
about how the murders occurred; for instance, Bonnie stated that Miles said that he got the rifle,
which was hidden behind some crates that were behind a dumpster at the Save-Way, and then
waited for Maher to come back to the store. Id. at 1106–07 (Page ID #9672–73). Bonnie then
testified that Miles told the Willises that, when Miles saw Maher with Ziad, Miles demanded
money from them, and they placed money on the ground. Id. at 1107–08 (Page ID #9673–74).
Miles told the Willises that as he was bending to pick up the money, however, the rifle went off
and shattered Maher’s beverage bottle. Id. According to Bonnie, Miles said that he shot each
brother several times. Id. Bonnie then testified that Miles stated that Miles ran to the Willises’
home and put the rifle in their yard; Miles then might have met Issa at a nearby parking lot, and
Issa perhaps then drove Miles home. Id. at 1103–04 (Page ID #9669–70). The Willises also
 No. 15-4147                              Issa v. Bradshaw                                     Page 4


testified at Issa’s trial that, while Miles told this story, they thought that Miles was bragging. Id.
at 1032, 1174–75 (Page ID #9598, 9740–41).

       Joshua also testified at Issa’s trial that, several days later, Joshua ran into Issa at the Save-
Way, and Issa asked Joshua “Does anybody know?” and Joshua said “No, not that I know of.”
Id. at 1183 (Page ID #9749). During this discussion, Joshua told Issa that Issa needed to get the
rifle from the Willises’ backyard. Id. at 1171 (Page ID #9737). Issa replied that he would talk to
Miles and that Miles would get the rifle. Id. When Joshua noticed that the bag was still in his
yard, he confronted Issa again at the Save-Way. Id. at 1172 (Page ID #9738). Bonnie also
testified that she told Issa he needed to get the rifle from their yard, and during this conversation,
Issa asked Bonnie to tell Miles to not go near the store because police were investigating. Id. at
1099, 1133–32 (Page ID #9665).

       Renee Hayes (“Hayes”), another Save-Way employee, also testified at Issa’s trial. Id. at
836 (Page ID #9401).       Hayes testified that she thought that she observed Linda and Issa
exchange $2000 on November 25, but she was not certain and did not pay close attention. Id. at
847, 857 (Page ID #9412, 9422). Hayes also testified, however, that all employees would help
count and package money. Id. at 846 (Page ID #9411). Furthermore, Hayes did not hear Linda
or Issa make statements regarding a murder, but she did hear them discuss making a deposit for
the store. Id. at 853–54 (Page ID #9418–19). According to Hayes, the money was deposited
into the store’s checking account on November 25. Id. at 853 (Page ID #9418).

       Additionally, Dwayne Howard, Hayes’s husband, testified, and he stated that he saw a
rifle at Issa’s apartment. Id. at 861, 864–66 (Page ID #9427, 9430–32). Howard then identified
during Issa’s trial the rifle that he saw in Issa’s apartment as the murder weapon. Id. at 866
(Page ID #9432). Also, according to Howard, Issa told Howard “Don’t be telling people [sic] no
lies [sic] and stuff like that, seen him with a gun [sic].” Id. at 869 (Page ID #9435). On the other
hand, Howard also stated that he does not know anything about guns and that he would not be
able to identify the murder weapon if there were two identical rifles in front of him. Id. at 872,
875 (Page ID #9438, 9441).
 No. 15-4147                           Issa v. Bradshaw                                 Page 5


       Souhail Gammoh (“Gammoh”), another Save-Way employee, also testified that, on the
night of the murders, Issa gave him a ride home from work. Id. at 887 (Page ID #9453). When
Issa dropped Gammoh off between 1:14 and 1:20 a.m., Issa told Gammoh that he might pick
Gammoh up later to go to a bar. Id. at 890 (Page ID #9456). Issa eventually did return around
twenty-five or thirty-five minutes later, but Gammoh based this time range on the amount of beer
that he had consumed from the time that Issa dropped off Gammoh and then returned. Id. at 894
(Page ID #9460).

       Gammoh then testified that, at the crime scene, Gammoh told an officer that he and Issa
closed the store, dropped off Issa’s mom, and then went to the bar; he did not mention to the
officer, however, that Issa was not with Gammoh all night. Id. at 903–04 (Page ID #9469–70).
When Gammoh saw Issa later, Issa told Gammoh that the “[n]ext time they ask [Gammoh], tell
them that [they] were together.” Id. at 906 (Page ID #9472). Gammoh also testified that he
observed Issa take a white trash bag out of Issa’s trunk, but Gammoh did not know whether the
trash bag was short-and-square or long-and-thin shaped. Id. at 916–17 (Page ID #9482–83).
Additionally, Gammoh thought that he saw a rifle in Issa’s apartment two weeks before the
murders. Id. at 919 (Page ID #9485).

       When an officer testified at Issa’s trial, he stated that the police knew that the murder
weapon used 7.62-caliber ammunition. R. 229-2 (App., Trial Tr. at 764–65) (Page ID #9329–
30). The police then found one round of 7.62-caliber ammunition in Issa’s apartment, but they
did not find a weapon. Id. at 765 (Page ID #9330). A firearms examiner also testified that the
round from Issa’s apartment was from a different manufacturer than the discharged cartridge
casings found next to the murder weapon. Id. at 777–78 (Page ID #9342–43).

       Based on this evidence, on September 2, 1998, the jury convicted Issa of aggravated
murder with a death penalty specification because the offense was committed for hire, so the
penalty phase of the trial began. R. 229-3 (App., Trial Tr. at 1521–22) (Page ID #10089–90).
Then on September 10, 1998, the jury recommend the death penalty, and the trial court sentenced
Issa to death on October 16, 1998. Id. at 1642, 1647, 1651 (Page ID #10210, 10215, 10219).
 No. 15-4147                             Issa v. Bradshaw                                   Page 6


B. Procedural Background

        On direct appeal, the Ohio Supreme Court affirmed Issa’s conviction and sentence. See
Issa I, 752 N.E.2nd at 928. However, before the Ohio Supreme Court issued its decision, Issa
filed a petition for postconviction relief.    State v. Issa (Issa II), No. C-000793, 2001 WL
1635592, at *1 (Ohio Ct. App. Dec. 21, 2001) (per curiam). After the trial court denied the
petition, the Ohio Court of Appeals determined that Issa was not entitled to relief. Id. at *6.
When Issa appealed this decision, the Ohio Supreme Court denied review on April 17, 2002.
State v. Issa (Issa III), 766 N.E.2d 162 (Table) (Ohio 2002).

        On April 17, 2003, Issa filed his initial petition for writ of habeas corpus in the district
court. R. 8 (Pet.) (Page ID #4784). After a series of procedural steps over the years, on
September 21, 2015, the district court issued its decision regarding Issa’s petition. Issa v. Bagley
(Issa IV), No. 1:03-CV-280, 2015 WL 5542524 (S.D. Ohio Sept. 21, 2015). The district court
denied Issa’s requests for relief, but it granted a certificate of appealability for several grounds:
(1) first ground, failure to call Linda as a witness; (2) third and fourth ground, failure to perform
adequate mitigation and present additional mitigation witnesses; (3) fifth ground, failure to
obtain cultural expert and/or professional translator; (4) sixth ground, admission of the Willises’
testimony about Miles’s hearsay statements; (5) ninth ground, equitable tolling for ineffective
assistance of appellate counsel claim; (6) eleventh ground, disproportionate sentence; (7) twelfth
ground, failure to utilize mitigation expert; (8) twenty-seventh ground, appellate counsel’s
conflict of interest; (9) pending twenty-eighth ground, Ohio’s lethal injection protocol violates
the Eighth Amendment, (10) pending twenty-ninth ground, Ohio’s lethal injection protocol
violates the Fourteenth Amendment; and (11) proposed twenty-eighth through thirty-seventh
ground, legality of Ohio’s method of lethal injection. Id. at *54. These grounds are now before
this panel.

                                        II. DISCUSSION

        Issa filed his petition in 2003, so the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) applies. R. 8 (Pet.) (Page ID #4784). For a question of law, this court can
grant relief if a state-court judgment “resulted in a decision that was contrary to, or involved an
 No. 15-4147                                    Issa v. Bradshaw                                          Page 7


unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1) (emphasis added). A decision is “contrary
to” when “it ‘applies a rule that contradicts the governing law set forth in [Supreme Court] cases’
or if it ‘confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [this] precedent.’” 1 Williams
v. Mitchell, 792 F.3d 606, 611–12 (6th Cir. 2015) (alterations in original) (quoting Williams v.
Taylor, 529 U.S. 362, 405–06 (2000)). “When the state court issues a decision that is contrary to
federal law, we review the merits of the petitioner’s claim de novo.” Dyer v. Bowlen, 465 F.3d
280, 284 (6th Cir. 2006); see also Fulcher v. Motley, 444 F.3d 791, 799 (6th Cir. 2006). For this
analysis, we cannot consider Supreme Court dicta or the decisions of the courts of appeals.
Brumley v. Wingard, 269 F.3d 629, 638 (6th Cir. 2001).

A. The Ohio Supreme Court’s decision is contrary to Supreme Court precedent regarding
   the Confrontation Clause.

        The Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him.” U.S. CONST. amend. VI.
At the time of Issa’s trial in 1998, the test in Ohio v. Roberts, 448 U.S. 56 (1980), controlled.
Eventually, in Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court replaced and
overruled this test in Roberts.2          See Davis v. Washington, 547 U.S. 813, 825 n.4 (2006).
Crawford, however, is not retroactive.3 See Whorton v. Bockting, 549 U.S. 406, 421 (2007).


        1This   opinion will focus on the “contrary to” prong. Although Issa does not explicitly state the phrase
“contrary to” in the section of his brief discussing the Confrontation Clause, he does discuss the state supreme
court’s improper application of Supreme Court law. See Appellant’s Br. at 48, 58. The State also stated in its brief
that the state supreme court’s decision regarding the Confrontation Clause “was neither contrary to, nor an
unreasonable application of, clearly established federal law.” Appellee’s Br. at 12. Accordingly, we will review
whether the state supreme court’s decision was “contrary to” Supreme Court precedent.
        2In Desai v. Booker, 538 F.3d 424 (6th Cir. 2008), we stated that a habeas applicant cannot receive relief
under Roberts when the out-of-court statements were admissible under Crawford. See 538 F.3d at 427; see also
Doan v. Carter, 548 F.3d 449, 457 (6th Cir. 2008); Jackson v. McKee, 525 F.3d 430, 438 (6th Cir. 2008).
          Nevertheless, the conclusions in Desai, Doan, and Jackson run afoul of the manner of analysis that we
established in earlier cases. See Fulcher, 444 F.3d at 799–811; Stallings v. Bobby, 464 F.3d 576, 581–84 (6th Cir.
2006). In Fulcher, a defendant contended that the admission of a taped statement to police violated the
Confrontation Clause. See 444 F.3d at 797. Because Roberts was the controlling law at the time, we considered
whether the admission of the witness’s statements violated the Confrontation Clause. Id. at 800. For this analysis,
we first determined that the state court had applied law that was contrary to the governing law. Id. at 806. We then
reviewed de novo whether the statements had sufficient indicia of trustworthiness under Roberts, and we concluded
 No. 15-4147                                     Issa v. Bradshaw                                             Page 8


         Under Roberts, there is a two-part test to determine whether an out-of-court statement is
valid under the Confrontation Clause: the witness needs to be unavailable and the statement
needs to have adequate “indicia of reliability.” 448 U.S. at 66. There are two ways that an out-
of-court statement can be reliable. First, “[r]eliability can be inferred without more in a case
where the evidence falls within a firmly rooted hearsay exception.” Id. If the statement does not
fall within a firmly rooted hearsay exception, then “the evidence must be excluded, at least
absent a showing of particularized guarantees of trustworthiness.”                         Id.    Whether Miles’s
statements to the Willises have particularized guarantees of trustworthiness is the only issue we
need to address because the Supreme Court eventually abrogated the unavailability requirement
before Issa’s trial, White v. Illinois, 502 U.S. 346, 354 (1992), and the State concedes that
Miles’s statements do not fall within a firmly rooted hearsay exception, see Appellee’s Br. at 30.

         For this analysis, as the Supreme Court has emphasized, “‘particularized guarantees of
trustworthiness’ must be shown from the totality of the circumstances.” Idaho v. Wright, 497
U.S. 805, 819 (1990) (emphasis added). It also limited the scope of circumstances that a court
can examine by stating “the relevant circumstances include only those that surround the making
of the statement and that render the declarant particularly worthy of belief.” Id. The Supreme
Court nevertheless concluded that “courts have considerable leeway in their consideration of
appropriate factors.” Id. at 822. “[It] therefore decline[d] to endorse a mechanical test for
determining ‘particularized guarantees of trustworthiness’ under the [Confrontation] Clause.” Id.

that they did not. Id. at 808. Next, we determined that the error was not harmless. Id. at 811. Lastly, we examined
the defendant’s argument that Crawford applied. Id. We stated, however, that “[g]iven our decision to order that
the writ be granted on the basis of pre-Crawford law, we find it unnecessary to address . . . Crawford.” Id. at 811
(emphasis added). Thus, in Fulcher, we concluded that we did not need to consider Crawford when we had already
determined that relief was warranted under Roberts. We again applied this format, and rejected examining the out-
of-court statements under Crawford, in Stallings, 464 F.3d at 581–84.
         Because our analysis in Desai, Doan, and Jackson occurred after we had already established the applicable
format for analyzing this issue in Fulcher and Stallings, the format in Fulcher and in Stallings controls our analysis
here. See Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (“A panel of this Court
cannot overrule the decision of another panel. The prior decision remains controlling authority unless an
inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting
en banc overrules the prior decision.”); see 6 Cir. R. 32.1(b) (stating that published panel opinions are binding on all
subsequent panels). We therefore do not consider Crawford when the state court erred in its application of the then-
governing decision in Roberts.
          3In its brief, the State did not address Desai or whether Crawford applies to prevent Issa from obtaining
relief. See Appellee’s Br. at 26–33.
 No. 15-4147                             Issa v. Bradshaw                                 Page 9


       The Supreme Court also emphasized that this is not a slack requirement. “Because
evidence possessing ‘particularized guarantees of trustworthiness’ must be at least as reliable as
evidence admitted under a firmly rooted hearsay exception,” the Supreme Court has clarified
“that evidence admitted under the former requirement must similarly be so trustworthy that
adversarial testing would add little to its reliability.” Id. at 821. “Thus, unless an affirmative
reason, arising from the circumstances in which the statement was made, provides a basis for
rebutting the presumption that a hearsay statement is not worthy of reliance at trial, the
Confrontation Clause requires exclusion of the out-of-court statement.” Id.

       When conducting this analysis, the Supreme Court noted that a court cannot use “a
preconceived and artificial litmus test.” Id. at 819. For instance, in Wright, the Supreme Court
examined whether a child’s out-of-court statements regarding abuse were sufficiently
trustworthy. Id. at 809, 816. The state supreme court had determined that the testimony was not
trustworthy because the interview of the child did not follow procedural safeguards. Id. at 818.
“Although [the Supreme Court] agree[d] with the court below that the Confrontation Clause bars
the admission of the younger daughter’s hearsay statements, [it] reject[ed] the apparently
dispositive weight placed by that court on the lack of procedural safeguards at the interview.” Id.
(emphasis added). In support of this reasoning, the Supreme Court stated that “[o]ut-of-court
statements made by children regarding sexual abuse arise in a wide variety of circumstances, and
[it] d[id] not believe the Constitution imposes a fixed set of procedural prerequisites to the
admission of such statements at trial.” Id. (emphasis added). The Supreme Court was concerned
that “[t]he procedural requirements identified by the court below, to the extent regarded as
conditions precedent to the admission of child hearsay statements in child sexual abuse cases,
may in many instances be inappropriate or unnecessary to a determination whether a given
statement is sufficiently trustworthy for Confrontation Clause purposes.” Id. Thus, it concluded
that, “[a]lthough the procedural guidelines propounded by the court below may well enhance the
reliability of out-of-court statements of children regarding sexual abuse, [it] decline[d] to read
into the Confrontation Clause a preconceived and artificial litmus test for the procedural
propriety of professional interviews in which children make hearsay statements against a
defendant.” Id. at 819 (emphasis added).
 No. 15-4147                                   Issa v. Bradshaw                                         Page 10


        The plurality in Lilly v. Virginia, 527 U.S. 116, 136 (1999), also examined the application
of the “residual trustworthiness test” to a codefendant’s statements.4 According to the plurality,
the Supreme Court “ha[s] consistently either stated or assumed that the mere fact that one
accomplice’s confession qualified as a statement against his penal interest did not justify its use
as evidence against another person.”5 Id. at 128. “[B]ecause the use of an accomplice’s
confession ‘creates a special, and vital need for cross-examination,’ a prosecutor desiring to offer
such evidence must comply with Bruton, hold separate trials, use separate juries, or abandon the
use of the confession.” Id. (quoting Gray v. Maryland, 523 U.S. 185, 194–95) (1998)). The
plurality stated that the Court has “spoken with one voice in declaring presumptively unreliable
accomplices’ confessions that incriminate defendants.” Id. at 131 (quoting Lee v. Illinois, 476
U.S. 530, 541 (1986)).

        The plurality in Lilly then noted, however, that “the presumption of unreliability that
attaches to codefendants’ confessions . . . may be rebutted.” Id. at 137 (alteration in original)
(quoting Lee, 476 U.S. at 543). For instance, the Supreme Court has held that “any inherent
unreliability that accompanies co-conspirator statements made during the course and in
furtherance of the conspiracy is per se rebutted by the circumstances giving rise to the long
history of admitting such statements.” Id. Nevertheless, the plurality noted that “[i]t is highly
unlikely that the presumptive unreliability that attaches to accomplices’ confessions that shift or
spread blame can be effectively rebutted when the statements are given under conditions that
implicate the core concerns of the old ex parte affidavit practice”; for instance, “when the
government is involved in the statements’ production, and when the statements describe past
events and have not been subjected to adversarial testing.” Id.




        4We    have previously concluded that Justice Stevens wrote the opinion of the court because “the remaining
two justices (Scalia and Thomas) believed that the Confrontation Clause barred a broader range of statements
against penal interest.” Fulcher, 444 F.3d at 800 n.4.
        5In  Greene v. Fisher, 565 U.S. 34, 40 (2011), the Supreme Court concluded that “clearly established
Federal law” is the law that existed at the time of “the last state-court adjudication on the merits” of the claim.
Because the Ohio Supreme Court adjudicated Issa’s Confrontation Clause argument on the merits and the United
States Supreme Court decided Lilly before the Ohio Supreme Court examined Issa’s claim, the standards set in Lilly
are applicable here.
 No. 15-4147                             Issa v. Bradshaw                                 Page 11


       In the case at hand in Lilly, the plurality considered several facts to conclude that “[i]t
[was] abundantly clear that neither the words that [the codefendant] spoke nor the setting in
which he was questioned provides any basis for concluding that his comments regarding
petitioner’s guilt were so reliable that there was no need to subject them to adversarial testing in
a trial setting.” Id. at 139. For instance, the plurality noted that “[the codefendant] was in
custody for his involvement in, and knowledge of, serious crimes and made his statements under
the supervision of governmental authorities.” Id. The plurality also averred that the codefendant
“was primarily responding to the officers’ leading questions, which were asked without any
contemporaneous cross-examination by adverse parties.” Id. In light of this, the plurality
resolved that the codefendant “had a natural motive to attempt to exculpate himself as much as
possible.”   Id.   It was furthermore concerning to the plurality that the codefendant “was
obviously still under the influence of alcohol.” Id. The plurality then concluded that “[e]ach of
these factors militates against finding that his statements were so inherently reliable that cross-
examination would have been superfluous.” Id.

       Under the Roberts standard, the Ohio State Supreme Court reviewed Issa’s allegation that
the admission of Miles’s statements to the Willises violated the Confrontation Clause:

               Applying Lilly 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, 110 S.Ct. at
       3148, 111 L.Ed.2d at 655. 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
 No. 15-4147                             Issa v. Bradshaw                                  Page 12


       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 I, 752 N.E.2d at 919. Thus, the Ohio Supreme Court determined that Miles’s statements
were trustworthy simply because he made them to his friends.

       The Ohio Supreme Court’s analysis, however, is contrary to Wright. Throughout its
reasoning, the Ohio Supreme Court did not consider Wright’s requirement to examine the
“totality of the circumstances” surrounding the out-of-court statement. See Issa, 752 N.E.2d at
919. Instead, the Ohio Supreme Court focused only on whether Miles made these statements to
the police—this was the determinative factor: “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.’” Id.
(internal citation omitted) (quoting Lilly, 527 U.S. at 147 (Rehnquist, J., concurring)). By not
considering any other facts, the Ohio Supreme Court applied “a preconceived and artificial
litmus test” and failed to consider “the totality of the circumstances,” which is contrary to what a
court “must” do during this analysis. Wright, 497 U.S. at 819.

B. A de novo review of the totality of the circumstances shows that Miles’s statements to
   the Willises are not trustworthy.

       Because we have determined that the Ohio Supreme Court has applied law contrary to
Supreme Court precedent, we review de novo whether the out-of-court statements are admissible
under the Roberts standard. See Fulcher, 444 F.3d at 799, 806 (conducting de novo review to
conclude that the statements were inadmissible under the Roberts standard). Although the
Supreme Court has not provided a set list of factors for us to consider, it has described several
factors that are relevant to the case before us. For instance, if a statement is spontaneous, then it
suggests that the statement is trustworthy. See Wright, 497 U.S. at 821. Additionally, when the
speaker has consistently repeated the statements, it suggests that the statement is trustworthy. Id.
When a speaker has a motive to fabricate the statement, however, the statement might not be
trustworthy, which can occur when the speaker makes the statements to the police. See id. at
 No. 15-4147                             Issa v. Bradshaw                                 Page 13


821–22; see also Lee, 476 U.S. at 544. The declarant’s mental state at the time that the statement
was made also provides insight into whether the statement is trustworthy. Wright, 497 U.S. at
821. In contrast, when a speaker makes the statement to someone other than police, such as a
friend or family, the nature of the relationship could suggest that the statement is trustworthy.
Cf. Lilly, 527 U.S. at 139.

       Several facts suggest that Miles’s statements to the Willises are trustworthy.          For
instance, the Willises testified that they were friends with Miles. R. 229-3 (App., Trial Tr. at
1087, 1162–63) (Page ID #9653, 9728–29). Miles, in fact, had lived at the Willises’ home for a
period of time. Id. at 1087 (Page ID #9653). That Miles made the statements about the murders
at the Willises’ home points towards trustworthiness.           Id. at 1142 (Page ID #9708).
Additionally, by making these statements to friends, Miles did not have a reason to shift blame to
Issa. Miles also made these statements voluntarily, and he did not make these statements in
response to leading questions. Therefore, several facts suggest trustworthiness.

       A deeper examination of the circumstances surrounding Miles’s statements, nonetheless,
suggests that they are not trustworthy. Bonnie, for example, testified that Miles boasted and
bragged frequently, so she did not take him seriously:

       Q.      Dre was talking about killing somebody?
       A.      No. As I said, I did not talk to Dre. Everything that I heard was from my
               brother. Dre was talking about doing a lot of things and never did it; when
               I heard it. I said, you know - -
       A.      Dre had a tendency to brag, talk big, right. He came from Chicago. He
               talked about a lot of things he did.
       Q.      And you didn’t necessarily believe all his stories?
       A.      I did but I didn’t. To me, that was really no big deal, if he did that’s him;
               if he didn’t that’s still him.
       Q.      You think it was a big deal that Dre may be bragging about killing two
               people?
       A.      What’s the big deal? As I said, I - -

               ....

       Q.      When [Miles] was describing to you these cold-blooded killings, what’s
               his attitude? How - -
       A.      He had no remorse at all. He was actually bragging.
 No. 15-4147                             Issa v. Bradshaw                                  Page 14


       Q.      He had no remorse at all? He was actually bragging?
               He was boasting?
       A.      Right.
       Q.      He was a big man, a tough guy?
       A.      Right.

Id. at 1126, 1137–38 (Page ID #9692, 9703–04). Joshua made similar observations about
Miles’s demeanor:

       Q.      Some time before that shooting happened, did anyone discuss shooting
               with you?
       A.      Yes.
       Q.      Who?
       A.      Andre Miles.
               ....
       Q.      And what did Andre Miles say to you?
       A.      He said he had to kill somebody for some money and that he was hired by
               Mike and he asked me did I want to take part in it. I said he was crazy.
               ....
       Q.      Did you take him seriously at that point?
       A.      No, it went in one ear and out the other. I got back in the car and left.
               ....

       Q.      Can you state whether or not Andre Miles ever talked about killing anyone
               else if they talked?
       A.      He joked around with it a lot. I didn’t never take him seriously. I always
               knew he was capable of doing it, though.
       Q.      What did he joke around about?
       A.      He would always joke around, say he killed somebody in Chicago or
               different places.
Id. at 1164–65, 1174–75 (Page ID #9730–31, 9740–41). Because the Willises stated that they
believed Miles often lied and that Miles was bragging, the circumstances of the Willises’ specific
relationship with Miles suggest that Miles’s statements are not trustworthy.

       Similarly, Miles’s testimony in Linda’s trial directly contradicts the statements that he
allegedly made to the Willises after the murders:

       Q.      Mr. Miles, what is your relationships to the Willises?
       A.      Just a friend.
 No. 15-4147                              Issa v. Bradshaw                               Page 15


       Q.       Good friends of yours?
       A.       Just a friend - - associates.
       Q.       Associates in what, sir?
       A.       I know them. I mean, I talk to them, I conversate with them. We speak.
                We hang out.
       Q.       What do you hang out doing together?
       A.       Drinking. Whatever.
       Q.       Getting high?
       A.       Yeah.
                ....
       Q.       Let’s talk about the Willises for a second. You talked with Bonnie and
                Joshua Willis before you committed this murder, didn’t you, sir?
       A.       No.
       Q.       You had no conversation with them - -
       A.       About this incident?
       Q.       - - about the fact that you were approached by Ahmad Issa to have these
                people killed.
       A.       No.
       Q.       When is the last time that you saw either of the Willises before you killed
                these people?
       A.       I don’t remember, offhand.
       Q.       A week? A month? A year?
       A.       Probably a couple weeks, maybe a week.
       Q.       Did you talk to them after the murder?
       A.       Yes.
       Q.       How soon after?
       A.       The next day.
       Q.       And is that when you told Joshua Willis what you had done?
       A.       No.
       Q.       Is it your testimony that you never told them what you did?
       A.       Never told them.
       Q.       So certainly you never gave them any information that Linda was involved
                in this murder-for-hire scheme, did you?
       A.       No.

R. 228-1 (L. Khriss Trial Tr. at 468–72) (Page ID #8028–32). Based on this testimony, Miles
never discussed the murders with the Willises, which conflicts with Miles’s alleged statements to
the siblings.   Thus, based on the totality of the circumstances, Miles’s statements are not
sufficiently trustworthy to warrant their admission in Issa’s trial.
 No. 15-4147                             Issa v. Bradshaw                                  Page 16


C. The error was not harmless.

       “[A] constitutional error is cause for federal habeas relief only if it has ‘a substantial and
injurious effect or influence in determining the jury’s verdict.’” Hill v. Hofbauer, 337 F.3d 706,
718 (6th Cir. 2003) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)). “This Court has
held that the Brecht standard survived the enactment of AEDPA.” Fulcher, 444 F.3d at 822.
“[T]he proper standard by which to gauge the injurious impact . . . is to consider the evidence
before the jury absent the constitutionally infirm evidence.” Brumley, 269 F.3d at 646. There
are five factors to consider:      (1) the importance of the out-of-court statements to the
prosecution’s case; (2) whether the statements are cumulative; (3) whether other evidence
materially contradicts or corroborates the out-of-court statements; (4) the amount of cross-
examination that occurred; and (5) the strength of the prosecution’s case. See Madrigal v.
Bagley, 413 F.3d 548, 551 (6th Cir. 2005) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684
(1986)).

       First, Miles’s out-of-court statements were important to the prosecution’s case. The
prosecution, for instance, emphasized in its closing that it wanted the jury “to look at . . . Bonnie
and Josh’s statements because that’s where you get the statements of Andre Miles, that’s where
you find Andre Miles did the shooting.” R. 229-3 (App., Trial Tr. at 1445) (Page ID #10013).
Additionally, at the end of closing argument, the prosecution stated that the Willises “provided
details to the police that the police didn’t have. Think of that. They are the cornerstone of this
investigation.” Id. at 1448–49 (Page ID #10016–17) (emphasis added). Thus, Miles’s out-of-
court statements were central to the prosecution’s case.

       Second, Miles’s statements are the only direct evidence implicating Issa in a murder for
hire. Hayes, for example, stated that she possibly observed Linda and Issa exchange $2,000, but
she also stated that employees regularly helped count and package money. See id. at 846–48
(Page ID #9411–13). She also said that money was deposited into the store’s checking account
on November 25, 1997. Id. at 853 (Page ID #9418). However, Howard and Gammoh each
testified that he believed that he saw a rifle in Issa’s apartment. Id. at 864–66, 919 (Page ID
#9430–32, 9485). Gammoh’s testimony also suggests that Issa might have had time to assist
Miles because Issa dropped Gammoh off between 1:14 a.m. and 1:20 a.m. on the night of the
 No. 15-4147                             Issa v. Bradshaw                               Page 17


murders and then picked Gammoh up about twenty-five or thirty-five minutes later—Gammoh
came up with the calculation of this amount of time because that is how long it took him to finish
his beer. Id. at 890, 894 (Page ID #9456, 9460). According to Gammoh’s testimony, the next
day, Issa told Gammoh that the “[n]ext time [the police] ask [Gammoh], tell them that [Issa and
Gammoh] were together, you know.” Id. at 906 (Page ID #9472). Gammoh also stated that he
observed Issa take a white trash bag out of Issa’s trunk, but he did not know the bag’s shape. Id.
at 916–17 (Page ID #9482–83). Regarding the rifle, an officer testified that the police found one
round of 7.62-caliber ammunition in Issa’s apartment, but this was from a different manufacturer
than the cartridges next to the murder weapon. R. 229-2 (App., Trial Tr. at 765, 777–78) (Page
ID #9330, 9342–43). Joshua also stated in court, regarding the rifle in the Willises’ backyard,
that Issa told Joshua “[o]kay. I’ll talk to Andre and if Andre don’t come and get it, I will.” R.
229-3 (App., Trial Tr. at 1171) (Page ID #9737). Bonnie similarly testified that Issa asked
Bonnie to tell Miles to not go to the Save-Way because the police were investigating. Id. at 1099
(Page ID #9665). In reviewing this remaining evidence, however, we cannot conclude that
Miles’s inadmissible statements did not have “a substantial and injurious effect or influence in
determining the jury’s verdict,” so the error was not harmless. Brecht, 507 U.S. at 623 (quoting
Kotteakosv v. United States, 328 U.S. 750, 776 (1946)).

                                      III. CONCLUSION

       Because the admission of Miles’s statements violated the Confrontation Clause under
then governing Supreme Court law and was not harmless, we VACATE and REMAND to the
district court with instructions to grant a CONDITIONAL WRIT OF HABEAS CORPUS,
giving the State of Ohio 180 days to retry Issa or to release him from custody. In light of this
conclusion, we will not address Issa’s additional grounds for relief.
 No. 15-4147                             Issa v. Bradshaw                                  Page 18


                                       _________________

                                        CONCURRENCE
                                       _________________

       MERRITT, Circuit Judge, concurring. I agree and concur in Judge Moore’s opinion that
the admission of the hearsay testimony of Joshua and Bonnie Willis violated the Confrontation
Clause, but the failure to call Linda Khriss as a witness also constituted ineffective assistance of
counsel.

       Issa was charged with aggravated murder with prior calculation and design and a death
specification of murder for hire. Issa’s codefendant, Linda Khriss, facing the same charges as
Issa, testified in her own trial and denied hiring anyone to kill her husband. She specifically
exonerated Issa, testifying at her trial that Issa did not conspire to kill her husband. Linda Khriss
Trial Tr. at 101. She denied the existence of any plan to kill her husband.

       Q.      [A]t any time prior to the death of your husband did you and Ahmad Issa
               conspire or plan to kill your husband?
       A.      No sir, we never did.

Linda Khriss Tr. Trans. at 86. Linda Khriss was acquitted. The state then presented the same
theory at Issa’s trial that it relied on at Linda’s: Linda hired Issa to kill her husband, and Issa
hired Miles to be the triggerman. Linda Khriss was available to testify at Issa’s trial—and in fact
sat in the courtroom throughout much of his trial. Yet trial counsel failed to call her. Issa
therefore did not benefit from the testimony she gave at her own trial. The failure of Issa’s
counsel to have Linda testify to disprove Issa’s involvement in the murder constitutes ineffective
assistance of counsel.

       The Sixth Amendment guarantees to a criminal defendant “the right . . . to have the
Assistance of Counsel for his defence.” U.S. Const. amend. VI. This right to counsel is “the
right to effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970).
“The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984). To prevail
on a Sixth Amendment claim, a petitioner must prove both that counsel’s representation “fell
 No. 15-4147                              Issa v. Bradshaw                                  Page 19


below an objective standard of reasonableness” measured under “prevailing professional norms,”
id. at 688, and that “there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome” of the petitioner’s trial. Id. at 694.

       Strickland first directs us to examine whether counsel’s performance was deficient, that
is, whether it “fell below an objective standard of reasonableness” measured under “prevailing
professional norms.” Id. at 688. The state contends that because counsel’s decision not to call
Linda was “strategic,” it cannot be ineffective.       “Strategic” decisions can be unreasonable
depending on the circumstances and therefore deficient under Strickland. Roe v. Flores-Ortega,
528 U.S. 470, 481 (2000) (“The relevant question is not whether counsel’s choices were
strategic, but whether they were reasonable.”). Simply labeling the decision “strategic” is not
enough under Strickland. “A lawyer who fails adequately to investigate, and to introduce into
evidence, [information] that demonstrate[s] his client’s factual innocence, or that raise[s]
sufficient doubt as to that question to undermine confidence in the verdict, renders deficient
performance.”     Hart v. Gomez, 174 F.3d 1067, 1070 (9th Cir. 1999) (emphasis added).
Therefore, an attorney’s failure to present available exculpatory evidence is ordinarily deficient
absent some clearly discernible reason. Stewart v. Wolfenbarger, 468 F.3d 338, 355-61 (6th Cir.
2006) (trial counsel has been found ineffective when she fails to present exculpatory testimony);
see also Washington v. Murray, 952 F.2d 1472, 1476 (4th Cir. 1991); Lawrence v. Armontrout,
900 F.2d 127, 130 (8th Cir. 1990); appeal after remand, 961 F.2d 113 (8th Cir. 1992) (failure to
interview alibi witnesses was deficient performance under first Strickland factor); Harris v.
Reed, 894 F.2d 871, 878 (7th Cir. 1990) (failure to call witnesses to contradict eyewitness
identification of defendant was ineffective assistance).

       I cannot perceive any legitimate strategic reason for the failure to present evidence that
would show that a jury of twelve had just concluded that Linda was not guilty of the same crime
Issa was being tried for. It seems obvious that Linda’s testimony would have been helpful to
raise reasonable doubt about whether she hired Issa to kill Maher Khriss.

       The second Strickland prong requires us to determine whether “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
 No. 15-4147                             Issa v. Bradshaw                                Page 20


been different.” Strickland, 466 U.S. at 694. The only testimony directly tying Issa to the
murders was the hearsay statement of Miles introduced through Bonnie and Joshua Willis,
testimony the state recognized as the “cornerstone” of their case. The Willis’ hearsay testimony
should not have been admitted; but, once it was, Issa’s trial counsel needed to refute it. What
better way to disprove the charge than to show that Linda had just been acquitted of the same
charge?

       The Ohio court failed to reasonably apply Strickland. Issa raised the claim of ineffective
assistance of counsel in his state post-conviction petition for relief. The Ohio Court of Appeals
found, without citing any basis for its conclusion, that because part of Linda’s testimony “could
be damaging” to Issa, counsel’s strategic decision not to call her as a witness was not ineffective
assistance. State v. Issa, C-000793, 2001 WL 1635592, at *4 (Ohio Ct. App. Dec. 21, 2001),
appeal not allowed for review, 766 N.E.2d 162 (Ohio 2002) (Table). The Ohio court does not
explain the content of the so-called “damaging” testimony given by Linda at her trial. The
record in this case reflects only the testimony of an acquitted codefendant who testified in her
own defense, denying any plan to kill her husband, as well as explicitly denying that she hired
Issa to kill her husband. The Ohio court’s speculation about the possibility of Linda’s testimony
being “damaging” is insufficient to satisfy Strickland, Towns v. Smith, 395 F.3d 251, 259-60 (6th
Cir. 2005) (no support in the record for speculation that the witnesses’ testimony would have
been damaging to defendant), and is therefore an unreasonable application of Supreme Court
law. Even if something in the testimony could be perceived as negative, it was far outweighed
by the fact that Linda’s testimony disproved the entirety of the state’s case and exonerated Issa.
The failure to call Linda Khriss as a witness fell below an objective standard of reasonableness,
caused harm to Issa and was an unreasonable application of Strickland.

       There is one final reason that Issa should not be put to death. Even if he contributed in
some way to the murder in this case, it is completely irrational to select him for execution while
Linda and Miles are spared. The death penalty system has “capriciously” and “freakishly”
selected Issa for death just as Justice Stewart described in his concurring opinion in Furman v.
Georgia, 408 U.S. 238, 309-10 (1972). If the Eighth Amendment is to “draw its meaning from
evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, 356
 No. 15-4147                              Issa v. Bradshaw                           Page 21


U.S. 86, 101 (1958), we should not let Issa be executed when the trigger man (Miles) is simply
imprisoned. The State of Ohio does not attempt to explain these inconsistent verdicts. The
irrationality of these inconsistencies is apparent.
