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Issa v. Bradshaw

United States Court of Appeals, Sixth Circuit

September 21, 2018

Ahmad Fawzi Issa, Petitioner-Appellant,
Margaret Bradshaw, Warden, Respondent-Appellee.

          Argued: May 2, 2018

          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.


          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.

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


          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. 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 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).

         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).

         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.


         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 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).

         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.

         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).

         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.

         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., ...

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