* The Hon orable Ja mes G . Carr, United States D istr ict Judge for the

Northern District of Ohio, si tting by designation.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0253P (6th C ir.) File Name: 03a02 53p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
T ERRANCE L ESEAN H ILL ,

Petitioner-Appellee,

v.

G ERALD H OFBAUER , Warden, Responde nt-Appel lant. X - - - -
> , - - N No. 01-2667

Appeal from the United States District Court for the E astern D istrict of Michiga n at Detr oit. No. 00-70960—Arthur J. Tarnow, District Judge.

Argued: May

6, 2003 Decided and Filed: July 28, 2003

Befor e: SUHRHE INRICH and GI LMAN , Circuit Jud

ges; CARR, District Judge. *

_________________ COUNSEL

AR GU ED: Laura Grave s Moody, OFF ICE OF THE ATTORNEY GENER AL, Lansin g, Michiga n, for Ap pellant. 2 Hill v. Hofbauer No. 01-2667

Corbett E. O’Mear a , O’MEARA & O’MEA

RA, Gross e Pointe Farms, Michigan, for Appellee. ON BRI EF: Lau r a Graves Moody, OFF ICE OF THE ATTORNEYGEN ER AL, Lansing, Michi g an, for Appellant. Corbett E. O’Meara, O’MEARA & O’MEARA, Grosse Pointe Farms, Michigan, for Appellee.

_________________

OPINION

_________________ S UHRHEINRI CH, Circuit Judg e. Respon dent-Ap pella n t Geral d Hofbaue r, in his of

ficial c apacity

as Warde

n of th e Marquet te Correct ional Fa cility inMarquette, Michigan (“the State”), appeals

fromthe district court’s conditional grant of
a writ of habeas corpus under 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death P enal ty Act of 1996 (AEDPA), in favor of Petitioner-Appellee Terr ance Lese an Hill.

The district c ourt foun

d that the statetrial cou

rt denie d Hill his Sixth Amendment Confr o ntation Cla use rig hts. Sp ec if ic al ly, the district

court found that the Michigan court erred by a llowing i nto evide nce a sta tement ma

de by Hil l’ s non-testifying

co-def endant. T he State claims on appeal that the wr it sh ould not ha

ve been grante d becau se the sta te court’s admission of

t he co-defendant’s statement was not “contrary to,” or an “unreasonable applicat i on” of, “ clearly established

Feder al law.” The State

asserts t hat Ohio v. Roberts
, 448 U.S. 56 (1 980) , provides for the admission of hearsay statemen ts where the state ments con

tain sig nif i cant indicia of reliability. The State argues that the co-defe ndant’s statement is reli a ble because it was made aga inst the declar ant’s pe nal inter est.

We reject the State ’s arg

uments and affirm the grant of the writ. We find that the tria l court’s admission of the codefendant’s statement over Hill’s objection wa s contra

ry toNo. 01-2667 Hill v. Hofbauer 3

the preced

ent clea rly established by the Supreme Court in Lee

v. Illinois
, 476 U.S. 53 0 (1986); Bruton v. United States , 391 U.S. 123 (1968); and Douglas v. Alabama
, 38 0 U.S. 415 (1965). We also find the error not harmless because the codefendant’s statement indi cat es that Hill possessed the requisite malice to be guilty of second-degree murde

r.
I.

Hill’s petition for a writ of habeas cor pus ari ses from h

is arrest and conviction following the robb e ry and murde r of Jermaine Johnson on August 24, 1995. On that date, Johnson
was shot and ki lled inside his residence in Fli

nt, Michigan by then-unk nown assa

ilants.

Sometime in 1996, Mek ia Rand le informed Flint police that her ex-boyfriend, Jabbar Priest Bulls, had told her he had participated

in Johnson’s murder. Randle gave recorded statemen ts to the police describing Bulls’ role in the murder. Flint police arrested Bulls and confronted him with Randle’s tape-recorded

statements. Bulls gave a

statement

confessing to the cr ime, and i

nculpati ng Hill a nd anothe r co-de fendant
, Deonte Matthews, as well. Hill and Matthews were subsequently arr

ested.

Inhis statement, Bulls gave his accoun t of the e

vents surroundingJohnson’s murder. He stated that on August 24, 1995, Johnson approached him on the street and offe red him money inexchange for allowing Johnson to perform oral sex
onhim. Bulls verbally ac cepted the offer a nd accompanied Johnson to Johnson’s

home. Bu

lls claimed he had no interest inJohnson’s sexual advances, but he accompanied J oh nson because he thought “[t]hat

[he] could b eat him

up and tak

e his money.” Upon arriving at Johnson’s home, Bulls quick l y excused himself butprom ised to return. After he left Johnson’s house, B ulls went t o Matth ews’ house to r

ecruit Matthews and Hill to aid him in robbing Johnson. Sp ec if ic al ly, B ulls s tated “I told [Matthews] about the fag around the corner; and I told him we c ould go and rob hi m 4 Hill v. Hofbauer No. 01-2667

real quick [sic] a

nd get p aid. I

told him we could go and stick up the fag; and after I

told him that, then I told [Hill].” Moreover, Bul ls ask ed M att hew s t o br in g a gu n. In response, Matthews went upstairs and retrieved a shotgun. Bulls stated that Hill also agreed to the plan to rob Johnson, and the three
menle ft Matthews’ house, walking together. At Johnson’s house, Bulls went to the

back door, while H ill “stayed . . . on the s ide of the house, and [Matthews] . . . was on the other side of the door. And when [Bulls] knocked on the door, [Johnson] opened the door. And as soon as [Johnson] opened the door, [Matthews] rushed and he pointed the shotgun

in his face.” Only

Bulls and

Matth ews entered Johnson’s house, while Hill “[s]to od out side as a lookout.” As Bulls and Matthews were rummaging throug h the house, Johnson attempted to flee, and then Bulls “heard a blast.” Matth ews had shot Johnson, killing him. Immediat el y, Bulls asked Matthews wh y he had shot Johnson, to which Matthews responded: “He tried to run.” Bulls then sprinted down the steps, exited the house, and ran to Randle’s house.

After his arrest, Hill also gave a statement to police, likewise givinghis account of the events. H e stated that Bull s came t o him to solic it his help i n robbing Johnson. Bu

lls proposed a plan, under wh ich h e expected Hill to stand outside and “[w]ai

t for [Bul ls] to le t [him] inside the house [to] take . . . items from the house.” Hill initially ag reed to do
so. As Hill and Bulls were walking toward Johnson’s house, Matthews me t the two of them and t

hen subse quently

left. Bulls told Hill tha

t Matthew s was lea

ving toge t a gun becau se “it would be easier for him to rob” Johnson

. Matthews ret

urned , but was not visibly carry ing a weapon. Uponreaching Johnson’s ho use, Hill followed Bulls and Matthews up the driveway , went behind the h ouse, and listened while Bu

lls and Ma

tth ews s tood at the back door. Hill stated that, at this time, he “didn’t have [his] mind made up” whether

he was g oing to e

nter the house. B ulls knocked
onthe door, and had a brief conversation with the residen t, presuma b ly Johnson. At this time, Hill decided to abandonNo. 01-2667 Hill v. Hofbauer 5

1 De onte M atthews , the pur por ted trigg er ma n, w as arrested and ch arged, b ut never bro ught to trial. The state dismissed Ma tthews’ charges because the only evidence against him was the statem ents of H ill and Bu lls. See Hill v. Hofbauer , 195 F.Supp.2d 87 1, 875 n.3 (E.D. M ich. 2001) (“ Hill I ”). the plot and left. He said he heard a shot as he was wa lking
aw ay.
Su bs eq ue nt ly, neighbors apparently saw some men runn in g fromthe house, and described a person who resembled Hill. The Flint police sto

pped and questione d Hilllater tha

t night, butinitially determined

he was not involved and

releas ed him.

In1997, Hill a

nd Bulls were tried together in Genessee Count y, Mich igan, Ci

rcuit Cour

t. 1 During the trial, neither defendant testifie d. Howev er, both H ill’s and B ulls’ statemen ts were e ntered i nto evidence. Hill was convicted of second-degree

murder under Mich. Comp. Laws § 750.317; and assault w ith intent t o rob while

armed under Mich. Comp. Laws § 750.89. Hill received a sentence of life imprisonment for the m urder charge , and fif teen to th

irty ye ars’ imprisonmentfor t he assault charge. He appe aled to the Michigan Court of Appeals, claiming, inter alia , that his SixthAmendment Confrontation Clause ri ghts were violated by the introduction of Bulls’ statements. On S e ptember 25, 1998, the court affirmed Hi ll’s convictions and sentence. People v. Bulls
, Nos. 202149 & 202849, 1998 WL 1989786 (Mich. App. Sept. 25, 1998) (per curiam) (“State Appea l ”). The Michiga

n Supreme

Court den

ied Hill’s applic at ion for le a ve to appeal on June 29, 1999. People v . Bulls , 598 N.W.2d 341 (Mich. 1999).

Pursuant to 28 U.S.C. § 2 254, Hill f iled a petition for

a writ of habeas corpus with the district court. The court conditionally

granted the petition on November 1, 2001. Hill

v. Hofbauer , 195 F. Supp.2d 871 (E.D. Mich. 2001) (“ Hill I ”). OnNovember 27, 2001, the State filed a notice of appeal w ith 6 Hill v. Hofbauer No. 01-2667

this Court. Thi s appeal is timely

under F ed. R. App . P. 4(b)(1)(B).

B ulls was also f

ound gui lty a

t his joint tr

ial with Hill. I n his case, the Michigan Court of Appeal s ha d ruled that the introductionof Hill’s stateme nt was a violation of Bulls’ SixthAmendment rights. State Appeal , 1998 WL 1989786, at *2. The Michigan court found that Hill’s statemen t did not fit into the h earsay

exception for statements against the declarant’s penal int er est because Hill, in his statement, had sh ifted most of the blame to Bulls. Id. at *2. However, th e court found the error harmless because B ulls had admitted that he knew Matthews was carry

ing a shotgun, and

the jury could therefore infer Bulls’ malice f rom hi s own state

ment. Id. Bulls filed a habeas petition a nd challe nged th e harmle ss error ruling in the district court below. The distr ict court found the error not harmless and granted the writ

. Bulls v. J ones , 86 F. Supp. 2d 746 , 754 (E.D. Mich. 2000) . We affirmed, finding

the err or not harml ess because the admission of Hill’s statemen t tended t o show tha

t Bulls knew there “ was a h igh like lihood tha t Matthew s would kill Johnson,” more so than d id Bulls’ own statement. Bulls v. Jones , 274 F.3d 329, 336 (6th Cir. 2001).

II.

We review a district court’s legal conc lusions in a habeas proceeding de no vo , and its factual findings for clear er ror. Vincent v . Seabold , 226 F.3d 681, 684 (6th Cir. 2000).

Becau se Hill filed his p etition in N ovember 2001, hiscase is governed by

28 U.S.C. § 225 4(d), as amended by the AEDPA of 1996. See Vincent , 226 F.3d at 684; see also Lindh v. Murphy , 521 U.S. 320, 326 (1997). Section 2254(d),
as amended, provides that a petition for writ of habeas corpus shallfail before the district court unless the state trial court’s decision:No. 01-2667 Hill v. Hofbauer 7

(1) resulted in a decision that was contrary to, or involved an unrea sonable a

pplication of, cle arly established

Feder al law, a s determi

ned by the Supre

me Court of the United States; or (2) resulted in a decision that was based upo n a n unreasonabledetermination of the facts in light of the evide nce pre sente d in t he St ate cou rt pro ceedin g.
In Williams v. Taylor
, 529 U.S. 36 2 (2000), the Supre me Court analyzed the AEDPA, and c larified what constitute s a decisi on “c ontrary to,” or an “unreasonable application” of “clear ly established” Supr

eme Court law. The “contrary to” and “unrea sonable a

pplication” cla

uses o f the AEDPA are independent

tests and must be analyzed separ

ately. Id. at 407. A state court decision can be “contrary to” Supreme Court
casel aw i n two ways. First, the decision is contrary if the statecourt arrives at

a conclusion opposite to that reached by the Supreme Court

on a question o f law. Al so, a dec ision is contrary if the sta te court c onsiders

facts tha t are mat erially indisting uishable from a relevant Supreme Court case and arrives at an opposit e result. Id. at 405. A state court decisioninvolves a

n “unrea sonable a

pplication” of Supr

eme Courtlaw if “the state court identifies the co rrect governing legal rules from

the Court’ s cases b

ut unrea sonably

applies it to the facts of the p arti cula r state pr isoner’ s case.”

It is a lso
an“unreasonab le application” of Supreme Court precedent where a state court inv okes a Supreme Court case and
unreasonably

extends its legal pri nci ple to a new context where it should no t apply, or fails to extend it w

here it sh ould ap pl y. Id. at 407. Moreover, “clear ly es tablished Federal law, as determined by

the Supreme Court of the United States” “refers to the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as o f the time of the relevant state-court decision.” Id. at 412. 8 Hill v. Hofbauer No. 01-2667

2 The M ichigan Co urt of A ppe als also r elied o n M ich. R. E vid

. 804(b)( 3) to determine that there exist s a hears ay exce ption for statem ents against penal interest. See St ate Appeal , 1998 W L 1989 786, at *2. Mich. R. Evid . 804 (b)(3 ) pro vid e s t hat “[a] st ateme nt w hich was a t t he t ime of its making so far co ntrary to the declarant’s p ecuniary or proprietary interest, or so far tended t o subject the decl aran t t o civi l or cri minal liability

. . . tha t a r eason able person in t he decl arant ’s position w ould n ot have mad e the state men t unless b elieving it to be t rue” i s not ex cluded under the h ears ay rule if the d eclara nt is unav ailable to testify. See also Fed. R. Evid. 804(b)(3) (stating same). III.

In Ohio v. Ro berts , 448 U.S. 56 (1980), the Supreme Court held that a hearsay

stat emen t is noneth eless ad missible againsta defendant if it falls within a “firmly rooted” hearsay exception. The Court defined a “firmly rooted” exception as
one that assures the court that there are “in dicia of reliabil ity whichhave been

widely viewed a s determinative of whether a statement

may be placed before the jury

though there is no confrontation

of the de claran

t, and [that affords] ‘the trier of fact a satisfa ctory basis for evalu ating the truth of the prior statement.’” Id

. at 65 ( quot ing Mancusi v. Stubbs , 408 U.S. 204, 2 13 (197 2) (citations omitted)). Where the hearsay st atement does not fall within a “firmly roote d” he arsa y exception, it is admissible only upon a sho wing of other “particularized

guarantees of

trustworthiness.” Roberts , 448 U.S. at 66.

Inthis case, the Michigan Court of Appea ls recognized the existence of Hill’s f

ederal constituti onal ri ghts, and acknowledged Roberts

as the leading case law

in the area. See State Appeal , 1998 WL 1989786, at *1. Relying on Roberts
, the court found that Bulls’ statements were reliable bec au s e they fell within the “firmly root ed” hearsay

exception for statemen ts against p en al intere st. 2 Specifically, the c ourt stated:

Alth ough Bul ls made his s tatement s concer ning Hill while in cu stody , the record is devoid of any indicationNo. 01-2667 Hill v. Hofbauer 9

that Bu l ls wa s m ot iv at ed to ma ke th e s ta te me nt s b y a desire to curry

favor f rom the a uthoritie s. Furthe

r, Bulls’ statemen ts have several ind

icia of r eliability in thatthey do not minimize h

is role or responsi bility in the crime, they were voluntarily given, a

nd they were

notmotivated by a desire to lie o r dis tort the truth regarding Hill’s involvement

inthe crime. Accordingly, we conclude that the carry-over portions of Bulls’ statements implicating Hill fall within the penal interest exception to the hearsay rule and hav e suffi cient indicia of reliability to satisfy ConfrontationClause concerns. Thus, the trial court did not err in admitting

the state ments ag ainst Hill. State Appeal , 1998 WL 1989786, at *2.

Hill petitioned the district court below for a writ of habeas corpus. The district court determined that the Michigan court’s decision was “obj ectively

unreasonableand contrary to” Lilly v. Vi

rginia , 527 U.S. 116 (1999), and Lee v. Il linois
, 476 U.S. 530 (1986). Hill I , 195 F .Supp.2d a t 881. The districtcourt found

that those cases stand for the proposition that “a co-defend a nt’s conf

ession inc ulpating the acc used is inheren tly unreliable, and . . . convictions supported by such evidence violate the constitutional right of confrontation.” Id. (quoting Lee , 476 U. S. at 546). Ac cordingly, the cour t held that Bulls’ statements were outside any “firmly rooted” exception under Roberts

. Hill I
, 195 F.Supp.2d at 882. The dis trict court continued its analy sis, and in

depende ntly examined B ulls’ statement under the second prong of the Roberts test to determine whether it nonethe less bore “guarantee s of

trustworthiness” to justify its admission. Id. at 882-84. The district

court found none and

grante d the writ

. Id. at 884.

The State argues that the district court erred to the extent

it relied on Lilly . The State contends that we should disregard Li llyin i ts entire

ty b ecause

that cas e was not

decided until 1999, a yea

r after Hill’s conviction was affirmed by the Michigan Court of A

ppeals. T

he Sta te as serts that, at the 10 Hill v. Hofbauer No. 01-2667

3 The district co urt par tially rejec ted the State’s ar gume nt that Lilly

cou ld no t app ly here, statin g: Lilly is not bein g applied i n thi s ins tance t o give t he peti tioner the advant age of

a new consti tut ional rule of crimi nal procedur e. On the co ntrary, Lilly is relied u pon mere ly to dem onstra te that at the time o f Petition er’s tri al i n 1997, the against penal interest except ion to the hearsay r ule had no t been determin ed to be a “firmly roote d” exce pti on under the mode of anal ysi s est ablis hed by Oh io v. Ro berts in 1980 , and, in fact, has now be en so reject ed as manif

ested by Lilly . It should also b e rem emb ered in t his conte xt that P etitioner had n o bu rden to de mon strate anything; it was the burden of the State, as the proponent of the evidence, to show that the against pena l interest ex cep tion to the hearsay rule was an a cceptable reason t o admit t he evidenc e notwithst anding the Confr ontati on Clause. It could no t do so then an d, eve n in the ab sence of Lilly , it can not do so n ow.

Hill I , 195 F. Supp.2d a t 880 n . 6. Accordi ngly , th e dist rict court pl aced the burd en on th e Stat e to pre sent Supreme Court

case law all owing for the adm ission o f Bulls’ state men t, r ather than requir ing Hill t o present Supr eme C ourt c ase la w di sal low in g i t. This is th e wr ong s tan dard . At the federalstage , th e habeas pet iti oner, not the St ate, has the burden o f prov ing t hat the sta te c ourt s wer e inerror , not the othe r way

aroun d. Under the AE DP A, a writ is properlygrant ed only i f th e petitioner can demo nst rate that

the Supreme Court

has pr ovided “cl earl y es tabl ish ed” precedent deeming the trial co urt’s act ion s un cons ti tu ti onal . The Supr eme Co urt’s silence on a parti cular iss ue cann ot cons titute “clear ly est abli shed” Fed eral law

. Ther efore, the dis trict court erred in rejecting the State’s ar gume nt that a ny new rule espoused in Lilly cannot be considere d on habe as revie w. See als o Teague v. Lane , 489 U.S. 288, 301 (1989) (proh ibi ti ng re li ance ona cas e th at “ breaks new gr ound” aft er state time, the admiss ion of Bu lls’ sta tement against Hill cannot have been “contrary

to . . . clearly e stablished Federallaw, as determined

by the Supreme Court of the U nited St ates,” 28 U.S.C. § 2254(d) (1), bec ause the Supreme Court had not yet decided the issue in Lilly

. The State is cor

rect that any new la

w in Lilly

cannot be considered

under the

AEDPA, bu

t the State

misreads
, firs t, the district court opinion as relying solely on Lilly , and, second, Lilly

a s creating a new rule ra ther than stating one mandate d from ea

rlier pr eceden t. 3No. 01-2667 Hill v. Hofbauer 11

court proceedings in habeas cases). Alth ough the decision in Lilly drove the district court’s opinion, the cour

t nonethe less cited the earlier Supreme Court
cases of Lee an d Bruton v. United States , 391 U.S. 123 (1968), to s tand fo r the same proposition as Lilly , and to d emons tratethat the principles espoused in Lilly were previous ly

established. See Hill I

, 195 F.Su pp.2d at 8 79; see also Teague v. Lane
, 489 U.S. 288, 301 ( 1989) (st ating that, inregard to habeas case s, a subsequ en tl y decided case does notpresent

new law if it is “dictated by precedent existing at the time the defendant’s conviction became final”)

. In Lilly , a plur ality unequivocally stated that confessions made by a co-de fendant

inculpat ing not on

ly himself but his co-criminal s ar e “inherently unreliable” and not within a “firmly rooted” hearsa y exception f

or statements ag ainst penal interest

. Lilly , 527 U.S. at 131. Accordingly , the Court ruled that unde

r the fra mework d

iscuss ed in Roberts , a codefendan t’ s custodia

l confes sion cann

ot be ente

red into evidence absent

add itional “guarantees of trustworthiness.” The Court “distinguishe[d] accomplices’ confessions that inculpat e themselves and the accused as beyond a prope

r understandingof the against penal-i nterest exception

because
anaccompl ice ofte

n has a consider able interest in ‘confessing and betraying

his cocriminals.’” Id. at 131 (citing5 J. Wigmore, E VIDENCE § 1477, at 358, n. 1 (J. Chadbourn rev. 1974)). The C our t further distinguished the confessions of accompl ices from the state ments of co-conspirators made in furtheranceof a cons

piracy , which ha

ve tradi ti o nally been held trustwor thy , becau se in the case of

custodia l confes sions, the gover nment is ty

pically “involve d in the statemen ts’ production.” Therefore such statements do not bear the same indicia of reliability as is prese

nt in statements made of the declarant’s own accord. See id. at 137.
Moreover, the Supre me C ourt expre ssly refer enced p ast Supreme Court cases i n achi eving i ts result in Lilly , stating 12 Hill v. Hofbauer No. 01-2667

that “[i]t is clea

r that our cases consiste

ntly have viewed an accomplice’s statemen ts that shift or spread the blame to a criminal defend ant as falling outside th e realm o f those ‘hearsay exce ption [s ] [that ar e] so trustworthy that adversar ial testing can be expected to add little

to [the sta

teme nts’]

r eliability.’” Id. at 133 (quot ing White v. Illinoi s , 502 U.S. 346, 357 (1992)) (empha sis ad ded) (alterations in original);

see also Lilly
, id. at 131 (citi ng Douglas v. Alabama , 380 U.S. 415 (1965)).

Inour opinion in Bulls’ case, we spoke to whether Lilly was mandated by earlier

precedent, and addressed subs tanti ally the same cases referenc ed by the Lilly Court:

The Sixth Amendment provides t hat “ [i]n all criminal prosecu tions, the acc

use d shall enjoy the rig

ht . . . to be confronted

with the witnesse s against him.” That guaranteeincludes the right to cross- examine wi

tnesses. See Poin ter v. Texas , 380 U.S. 400, 404 (1965). The Supreme Courthas repeatedly

held that a non-testifying co-defendant’s statements that implicate a defendant are presumpt ively unreliable and their adm issi on violates the ConfrontationClause. See Douglas v. Alabama , 380 U.S. 415, 419 ( 1965); see also Bru ton v. United States
, 391 U.S. 123, 126 (1968) (holding that the admission of non-testifying

co-def endant’ s confes s i on incriminating defenda nt, e ven w ith jury instructions to consider confession

only againstt he co-defendant, violates the ConfrontationClaus e). The Supreme Court has noted that since Douglas , it “has s poken wit

h one voic e in de claring pr esumptively unreliable accomplices ’ confessions that incriminate defendants.” Lee v. Il linois
, 476 U.S. 530, 541 (1986); see also Li lly , 527 U.S. at 131; Cruzv. New York

, 481 U .S. 186, 193 (1987). To
overcome this presumption of unrel iability and introduce suchstateme

nts into evide

nce, the prosecu tion must show that the statemen ts bea r “adequate indicia of reliability.” Roberts , 448 U.S. at 66; U nited States v. McCles key
, 228 F.3d 6 40, 644 (6 th Cir. 2000 ) (“[I ]t isNo. 01-2667 Hill v. Hofbauer 13

4 In another

case, United States v. McCleske y , 228 F.3d 64 0 (6th Cir. 2000), we likew ise held that a co -defen dant’s custodi al conf essi on does not fal l wi thi n a “f

irml y root ed” h earsa y exce ption

. Id. at 643- 45. H owever, McCleskey was no t a hab eas ca se, but a feder al drug case

. T herefor e, ourana ly si s wa s no t bou nd byth e st

ri ctu res of t he AE DPA

. Acc ord ingly, although we reli ed on the decision in Lee , we did not perform a thorough

analy sis of whet

her th e principle wa s “cl ear ly estab lished” by the S upre me C ourt, as that term is used in the AE DP A. cl e ar that Supre

me Court Confronta

tion Clause jurisprudence does not permit the introduction of hearsay declarations uttered by

accomplices inlaw enforcement custody that inculpate a defendant, absent further ‘particularized

guarantees’ of the decl arati on’ s trustworthiness.”).

Bulls v. Jones , 274 F.3d 329, 33 3-3 4 (6 th Ci r. 2 001 ). In B u lls
, the State had conceded it was constitutional error for the trial cou

rt to ente r Hill’s st atement a gainst B ulls beca

use Hill’s state ment shifted a great er portion of the bl ame to Bulls, and thus was not against Hill’s penal interest. The only issue before us in Bulls was whether the error was har mless. Ac co rd in gl y, our

discussion in Bulls of whether the principles espou sed in Lilly were previously

clearly e stablished w a s dicta.

T od ay, we squarely

face the issue whether Lillywas preordained by e arlier c learly

established Supre

me Courtlaw for the first time. 4 Therefore, we find it necessar y to discuss the facts of the Supreme Court cases cited in Lilly and Bulls in further detail.

In Douglas v. Alabama , 380 U.S. 415 (1965), the Court found that a stateme nt where in a decl arant pl aces an y bl ame at al l on hi s co-def

endant is unrelia ble and inadmissible he ar sa y. Id. at 419. In a joint trial , the prosecutor was not permitted to refresh the memory of the uncooperative declarant with hi s statement because it implicated the defendant as well as himself

. The Cour

t found tha

t such use 14 Hill v. Hofbauer No. 01-2667

would “ pl ainly den[y the defe ndant] the

right ofcrossexamination secured by the Confr ontation Clause.” Id.

In Bruton v. United States , 391 U.S. 123 (1968), a nontestifying co-defendant

had made a statement inculpating not only himself but the defendant, George B ruton, as well. At a jointtrial, prosecutors sought to enter the stat ement , which
was admittedly hearsa

y, under the e

xception for the admissions of a party-opponent. The trial court admitted the statement againstthe declarant and instructed thejury that the statemen t could not be considered against Bruton. The Supreme Court ruled that the limiting instruction was not sufficie nt. The Court

found that the Sixth Amendment right to cross-e xaminatio n is absolute, and admission of the codefe ndan t’s statemen

t theref ore viola ted Bru ton’s rig ht to confront the evidence against him. There wa s no presumption of veraci t y in the statement beca use the credibility of suc h statements is “inevitably suspect.” 391 U .S. at 136.

In Lee v. Illinois , 476 U.S. 5 30 (1986) , the Cour t again held
a co-defendant’s con fe ssion not within a hearsay e xception and i na dmissible. There, Millie L ee’s co -defen dant, Edw

in Thomas, gave a

statemen t inculpa ting both himself and Lee ina plot to kill Lee’s aunt. Not wit hstanding

that Thoma s’ statement was volu n tary and a

lso incriminated himself, the Court held the statement unreliable and stated: Althoug h . . . t he confession was found to be voluntary for Fifth Amendment purposes, such a f inding does not bear on the question of

whether the confession

was also free f ro m any desire, motive, or impulse Thomas ma y have had either to mitigate the appearanc e of his own culpabil ity

by s preadin g the bla me or to overstateLee’s involvement

in retali ati on for [Lee] having implicated him in the mu

rders.

Id. at 544. Moreover, the Court in Lee recognized even then that its rule w as not new

law, stat

i ng tha t “there is no occasion to depart from the time-honored teaching that a co-No. 01-2667 Hill v. Hofbauer 15

defendant’s confession inculpatingthe acc used is inheren

tly unreliable, and that

con victions supported by such evidenc e violate the const itutional r ight o f confrontation.” Id. at 546 (emphasis added).

In Cruz v. New

York , 481 U.S. 1 86 (1987), t he defe ndant, Eulogio Cruz, sought to sup press his co-defendant’s confession

under Bruton . However, Cruz had also made a confession

which mirrored his co-defendant’s statement in all relevant aspects. The trial court admitted the co-defendant’s confession

aga inst C ruz, finding

it reliab le beca

use of the two statemen ts’ “interlocking” nature. Cruz , 481 U.S. a t 1 89

. The Supreme Court reversed, and held tha t the existence of Cruz’s own corroborat

ing con fession d

id not automaticall

y render the co-d

efenda nt’s state

ment reli able, an

d its admission constituted Sixth Amendment erro r. Id. at 193. The Court

held, however, that the defendant’s corroborating confession

could be used on appeal to determine whether the error was harmless. Id. at 194.

As the foregoing discussion indicates, the Supreme Court had provide d a line of cases holding that a co-defenda nt’s
cus todial confession is inherently unr eliable. However, t

h e State nonetheless contends that the Lilly rule cannot be said to have be en previ ously

“clear ly established” by

the Supre me Courtbecause several federa l c ircuits had held such statemen ts admissible

in the fa ce of the above-c ited Supre

me Courtpreced

ent. Altho

ugh only Supreme C ourt cas e law is relevant under the AEDPA in examining what Fe deral la w is “clear ly established, ” the decisions of the United States Courts of Appeals may be infor mative to the extent we have already reviewed and interpreted the relevant Supreme Court
caselaw to determine whether a lega l principle or right had been cl ea rl y established by the Supreme Court. See, e.g. , O’Brien v. Dubois , 145 F.3d 16, 25 (1st Cir. 1998), overruled

on other grounds
, McCambri dge v. Ha ll
, 303 F.3d 24, 36-37 (1st Cir. 2002) (en ba nc). Be cause w e had exam ined this issue only

in dicta , a review of other circuits’ pre- Lilly case 16 Hill v. Hofbauer No. 01-2667

lawi nterpr eting Douglas
, Bruton , and Lee may be informative.

In United States v. York

, 933 F.2d 1343 (7th Cir. 1991), the Seventh Circuit affirmed the admission of a co-conspirator’s statement agai nst the de fendant

at his insur

ance fr aud tria l. The co-cons

pirator, Gail Mahe

r, had ma de state ments to two associates claiming

that s he and the defendant, Tom York, had planned to blow up the lounge York owned in or de r to collect the insurance proceeds. Id. at 1360. Maher, having died, did not testify. The c o urt affirmed the admission of Maher’s statement, noting that it tended to subject

her to such criminal liability that shewould not have made the statement had it not been true. Id.

In United States v. Seele y , 892 F.2d 1 (1st Cir. 1989), authored by then-Cir

cuit Judge

Stephen B rey

er, the F irst Circuit likewise u

phel d the admission of a co-conspirator’s statement as aga inst his pen

al intere st. There, the defe ndant, Edw ard Seeley , was cha

rged in connec tion with

tw o Massach usetts bank

robberies. A

fellow bank robber, Robert Wayne, ma de st atements to his girlfriend that inculpated himself, Seeley, and thre e other men in the bank heists. Id. at 1. Wayne was found de ad a month aft er the robberies, and
was therefore not charge d in the crimes and unable to testify at Seeley’s tri al. The trial court allowed Wayne ’s girlfriend to testify to his statemen

ts, and the

First Cir cuit uphe ld their admission, finding

that the st

atements bore suf ficient i ndicia of reliabi lit y beca

use Wayne would not have ma de such statemen ts to his girlfriend had they not been true. Id. at 4;

see also United

States v. Fields , 871 F.2d 188 (1st Cir. 1989) (affirming admission

of Way ne’s sta tementsagainst another accomplice for same reasons).

In United Sta tes v. Kats ougrakis , 715 F.2d 769 (2d Cir. 1983), one of the co-conspirators, Ky riakos Chrisanthou, was badly burned

while setting fire to the defenda nt’s rest aurant, and subsequent ly died from his injuries. The trial court allowed Chrisanthou’s wife

and his fr

iend, Fit os Vasilou , toNo. 01-2667 Hill v. Hofbauer 17

5 The St ate als o raise s two S ixth Circ uit cases to sup por t its proposi ti on that

the Supreme Court

had not previous ly cl early establ ished the rule of Lilly . However, neither case is applicable here. In Neuman v. Rivers , 125 F.3d 315 (6th C ir. 199 7), we held th a t statements against penal interest fell within a “firml y rooted” hearsay exception. But in t hat case, the adm itted statem ent did not incu lpate the decl arant’ s accompli ce, but o nly spo ke to the decla rant’s ro le in the cr ime. See id. at 319-20. In Gill iam v. M itchell , 179 F.3d 990 (6th Cir . 1999), we r elie d on Neuman and likewise h eld an acco mplic e’s con fession a dmiss ible. We did n ot, however, perform an analysi s of whether t he declarant’s s tatement spoke only to his ow n role in the crim e or inc ulpate d his co horts a s well. Rather, in light of Lilly pend ing at the tim e in front of t he Sup reme Co urt,

we gave only a cursory revi ew of the “firmly rooted” exception issue, and rest ed o ur holding alterna tively on tw o oth er gro unds

. See id. at 994 n. 1. First, w e fou nd that the decl arant’ s st atement contai ned additi onal partic ularize d gua rantee s of trustwo rthiness. Id. at 994. And second, we found that any er ror wa s none theless ha rmless

. Id. at 994- 95. testify at Katsougrakis’s fraud trial ab out statements that Chrisanthouhad made

to each of them implicating himself, as wel l as Katsou

grakis and other

co-cons pirators , in a sche

me to defrau d Katsoug

rakis’s i nsurers by s etting f

ire to his b usi ness. The Second Circuit affirme d the admi ssions, finding sufficie

nt indicia

of relia bilit y in Chrisanthou’s statemen ts because

they were sufficien

tly a gainst h is pe nal interest. Id. at 775-76.
However, each o f

these circuit cases is distinguishable from the case sub judice

. 5 The def endant in each ca se made h

is statemen t, not to police, but to an a cquai ntance or a fellow accomplice. Therefore, at the time of the state ment, none of the defendants was motivated by a desire to curry

the favor of lawenforcement officials. See, e.g. , Katsougrak is , 715 F.2d at 775 (stat ing that

Chrisanthou’s state

ments bor

e adequate indicia of relia bility only

because they were ma

de while “talking p rivately with his friend” and not to police). Douglas
, Bruton , and Lee indicate that the Supreme Court has held statements made to police to closer scrutiny. Alth ough Rule 804(b)(3) provides a hearsay ex cep tion for st

atements againstthe decl arant’ s interest, this rule has been consiste ntly 18 Hill v. Hofbauer No. 01-2667

disregarded

by the Supreme Court in s itu ations where the declarant’s cust

odia l confession at all implicates somebody else. Suc h stateme nts are nev er truly

against the declarant’s penal inte rest bec ause a de fendant in custody

alway s has a motivation to implicate a nd pass the blame to another, even if in the slightest. See Lee , 476 U.S. at 541. As the Supr eme Courtstated in Wil

li amson v. United States , 512 U.S. 594, 599-600 (1994), such statements are i nhe rently unrelia ble because “[o]ne of the most eff

ective way s to li e i s to mix falsehood with truth , especi ally

t ruth that s eems par

ticularl y persuasive because of its self-inculpatory nature.” Therefore, what was dicta in Bulls we ma ke ex pl ic it to da y. We hold that Douglas
, Bruton , and Lee eviden c e that the Supreme Court had

clearly established the pr

inciple thata codefendant’s custodia

l confes s ions are unreliable and not within a “firmly roote d” hearsay ex ception prior to Lilly

. Here, Bulls’ c

ustodial st

atements are no di ffere

nt than tho se st atements

held inadmissible in Douglas
, Bruton , and L ee

. We therefore conclude that the trial cour t’s adm ission of Bu lls’ statement was “contrary to” the law of tho s e indisting uishable Supreme C ourt cas es.
W e also hold t

hat the tr ial cour t’s admiss ion of Bu

lls ’ statement was an “unreasonable a ppli cation” of the legal principles espoused in Roberts , the only Supreme Court cas e identified by the state cour

t of appeals. The Michigan court attempted to exten d the list of “firmly rooted” he arsay exceptio ns to include a co-defendant’s custodial confession i nculpatin g his cohorts. In light of Bruton and the other above-cited

Supreme C o u rt precedent, we find this action objectiv ely

unreasonable under the“extension theory” of the “unrea sonable

application” standard of the AED PA. See Williams , 529 U.S. at 407.

The State also argues that the district court erred in finding that Bulls’ st atement d

id not othe

rwis e con tain significant “guaranteesof trustworthiness.” However, the State has proposed no “guarantees of

trustworthiness” beyond the f actNo. 01-2667 Hill v. Hofbauer 19

that Bulls’ statement was a self-inculpatory confession. As stated above, this is insufficient to establish “significa n t indicia of reliability.”

IV.

Nonethe less, the trial error in this case is s ubject to harmless error analy sis. See Chapman v . California
, 386 U.S. 18, 24 (1 96 7) . O n d ir ec t r ev ie w, we em pl oy a reas onable doubtstandard

to determine whether a constitutionalerror is harmless

. Id. But

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.” Brecht v. Abrahamson
, 507 U.S. 619, 623 (1993). The Brecht standard has survived the e nactmen t of the AEDPA. We ha ve held that if a petit ioner ca n pass Brecht

analy sis , “he w ill surely have demonstrated that the state court’s finding that the error
was harmless beyond a

reasonable doubt . . . resulted from an
unrea sonable

application of Chapman .” See Nev ers v

. Killinger
, 169 F.3d 352, 371-72 (6th Cir. 1999); see also Bulls
, 274 F.3d at

335. In determining whe

ther Confrontation Clauseerror is

harmless under Chapman
, the reviewing court should consider : “the importance of the wit ness’ te stimony

in the p rosecut

ion’s ca se, whet

her the t estim ony was cumulative
, the presence or absence of e vide n ce corroborating or contradictingthe testimony of the witne ss on mate

rial point s,

. . . and, of

course, the over

all stren gth of th e prosecution’s case.” Delaware

v. van Ar sdall
, 475 U.S. 673, 684 ( 1986); cf. Idaho v. Wright , 497 U.S. 805, 822 (1990) (stating that
e xistence of corr

oboratin g evide nce informs the questi on o f harmless error). If

the r eviewing judge is

in “gra ve doubt” about whether constitutional error is h armless, it is not. O’Neal v. McAninch , 513 U.S. 432, 445 (1995).

Indetermining wh ether t he error in this pa rticular case is harmless
, we must de cide whe ther the oth er evidence, including Hill’s own statem en t, is overwhelming and sufficie nt to establish the elements of second-degree murder and armed assault with intent to rob be yond a reasona ble 20 Hill v. Hofbauer No. 01-2667

6 Bu lls’ stateme nt went a s follow s: Q: Did you ask [M atthews] i f he had anythi ng? A: Ye s. Q: A nd wh at was tha t? A: I ask ed him if he had a gun— som e hea t. Q: And did he? A: Ye s. Q: What ki nd? A: Shotgun. Q: Where did he g et th e sh otg un f rom? A: He went upstairs. Q: Now you said you told [Hill ] something. A: Ye s. Q: W hat was that? A: I told him the s ame thi ng that I told [Matthews] about the f ag and robbing. doubt. Otherwise, we must find that the introduction of Bulls’ statement actually pr ejudiced Hill, ha d a “substantial and injurious e ffect”

under Brecht , and was an “unrea sonable application” of

Chapman

. The State ar

gues tha t “Bulls’ [] statement

complete ly mirrors, in relevan t aspect s, Hill’s own statement about his participation

in the robbery

and subsequent murder,” Brief for Appellan

t, at 37, a

nd there fore its i

ntroduct i on was harmless error, if error at all. Cf. Cruz , 48 1 U.S. at 194 (holding e rror may be

harmless where co-defendant’s statement is duplicative of defendant’s). The State is correct that Hill’s statement is consisten t withBulls’ in several respects. Hill indicated that he had originally agre ed to the planto rob Johnson, that he voluntarily went to Johnson’s house, and that his role was to be a lookout an d wait for Matthews and Bulls to r eturn. However, Bulls’ and Hill’s statemen ts are not e

ntirely identica l. Bulls st ated tha t Hill and Matthews were together

at Matthe

ws’ home whe

n Bulls fi rst approached

them. This is significant because Bulls stated that Matthew s retr ieved a shotgun while all three men were together in Matthew s’ home, thereby imply ing that Hill was
aware that Matthews had a gun. 6 By contrast, Hill stated thatNo. 01-2667 Hill v. Hofbauer 21

Q: So t he t hre e of youmade a

pla n t o go r ob hi m? A: R ight. Q: Did the three of you leave the house t ogether? A: Ye s. Q: Where di d you g o? A: To the fag ’s hous e. Q: How was the gun

concealed as you wal ked ther e? A: M atthews had it in his pants.

7 Hil l and the police had the foll owing exchange concerning hi s knowledge that Matthews was carrying a gun: Q: Did [M atthews] cat ch up with you? A: Ye s. Q: W here a t? A: O n Ha milton a nd F orest H ill. Q: Did he have a weap on? A: Not that I know of, no. Q: You didn’t s ee one? A: No. Q: Did you ask h im if

he had one? A: No. Bulls first approached Hill when Hill was alone, and that Ma tthews met Hill and Bulls later, as they were alrea d y walking toward the victim’s house unarmed. Hill contended that Matthews and Bulls had a conversation, and Matthews subseque ntly left. Hill said B ulls told him that Matthews was leavingto get a gun. However, Hill claimed tha t when Matthews returne d, he did not see Matthews carry

ing a gun. In fact, Hill unequivocally sta ted that he did not kno w Matthews had a gun. 7

Inorder to find

H ill guilty

of secon d-deg ree mur der in Michigan, the St ate must prove that there was: (1) a death; (2) caused by an ac

t of the defendant; (3) with malice; an d (4) without justification or excuse. See People v. Goecke
, 579 N.W.2d868, 878 (Mich. 1998). Moreover, under Michigan law, an aider and abettor can be cha r ged as a p rinciple if he “procur es, counsels , aids, or

abets” i nthe commission of the crime. See Mic h. Comp. L aws Anno t. § 767.39 ; see also Peo plev. Palmer , 220 N.W.2d 393, 396-97 (Mich. 1974). 22 Hill v. Hofbauer No. 01-2667

“Ma lic e,” in Michigan, is defined as “the intent to kill, the intentto cause great

bodily harm, or the inten t to do an ac t in wantonand wilful disregard of the likelihood that the natural tendency of such behavior is to cause dea th or gre at bodily harm.” Goecke , 579 N.W.2d at 878-79. However, malice cannot be inferred from Hill’s complicity in the robbery plot alone. See Peopl e v. Aaron , 299 N.W.2d 304, 326 (Mich. 1980 ) (stating that the commission of an underly ing felony does no t a lo ne sa ti sf

y r equi rement of malice). Rather, a factual examination is necessary to d etermine

whether Hill possessed an intent to kill or c ause great

bodily harm bey

ond his intentto rob. See Peo

ple v. Ha rris , 476 N.W.2d 767, 771 (Mich. Ap p. 199 1); see also P eople v. Kelly , 378 N.W.2d 365, 381 (Mich. 1985).

Under an aiding and abetting the ory , the State must prove ei ther th at Hill held the requisite intent for second-degree murder or had knowledge that Bulls and

Matthews held that intent. See People v. King , 534 N.W.2d 534, 538 (Mich. App. 1995). An aider and abettor of a robbery mus t know of hi s cohort ’s intent to ki ll the vict im, or at le ast his inte

nt t o phy sically

harm the vic tim, before he can be found to have ai dedan d abetted the murder as well. Such intent can be inf erred from the a

ider and abettor ’s knowle dge tha t hi s cohort possesses a weapon. See, e.g. , People v. Feldmann
, 449 N.W.2d692, 697 (Mich. App . 1989); see also People v. Turner , 540 N.W.2d 728, 733 (Mich. App. 1995), overruled in part on other grounds
, People v . Mass , 628 N.W.2 d 540
, 548 (Mich. 2001). However, “[i]t is funda mentally unfair and inviolation of basic principles of individual criminal culpabil ity

to hold one

felon lia ble for a n unfore seen dea th that did not result from actions agreed upon by the participants.” Turner , 540 N.W.2d at 548. Therefore, a determination of whether Hill knew that Matthews was carry

ing a gun is relev ant to the jury’s determinatio n of whether Hill is guilty of second-degree murd er. Hill’s statement presents little question that h e origina lly possessed the requisite int en t to rob Johnson, butNo. 01-2667 Hill v. Hofbauer 23

8 As one o f its elemen ts, the arm ed as sault with in tent to r ob charge require s a fi ndi ng that t he perpetrator was armed with a dangerous weapon. Therefore, because Hill was charged un der an aiding and abetting theory, whether Hill knew Matthews was armed is relevant t o the analysis o f this charg e as we ll. See Mich. Comp. Laws § 750.89. leaves open whether he knew Matthews had a g un, and therefore whether Hill possessed the requisite malice necessary for sec ond-deg

ree mur der. Bu ll s’ statement
removes any

doubt by

imply ing that Hill k new of the existence of the gun and

ac qu ie sc ed to it s r ol e i n t he ro bb er y. Ac co rd in gl y, Bulls’ statement is more damaging to Hill than his own. We find, the

refore , that the

SixthAmendment error h ad “a substantial and injurious effect or influence i n determiningthe jury’s ver dict.” See Brecht , 507 U.S. at 623. Hill is enti

tled to a new trial

on both charges

. 8

V.

For the fore going

reasons , we uphold the grant of thewrit by the district court. The order by the district court to the State of Michig an to ret

ry Hill o r release him from penal custody within 120 days of the da

te of the district court order (November

1, 2001), plus time st

ayed pendin

g this ap peal, is hereby A FFIRMED.