Argued: May 2, 2018
from the United States District Court for the Southern
District of Ohio at Cincinnati. No. 1:03-cv-00280-Sandra S.
Beckwith, District Judge.
Adele Shank, LAW OFFICE OF S. ADELE SHANK, Columbus, Ohio,
S. Leikala, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellee.
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.
NELSON MOORE, Circuit Judge.
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.
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
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).
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'
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,
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).
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).
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).
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).
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
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).
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).
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).
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.
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.'" 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).
The Ohio Supreme Court's decision is contrary to Supreme
Court precedent regarding the Confrontation Clause.
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. See Davis v. Washington, 547 U.S.
813, 825 n.4 (2006). Crawford, however, is not
retroactive. See Whorton v. Bockting, 549 U.S.
406, 421 (2007).
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.
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."
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
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).
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. 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." 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
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.
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.
the Roberts standard, the Ohio State Supreme Court
reviewed Issa's allegation that the admission of
Miles's statements to the Willises violated the
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., ...