Terrance Lesean Hill v. GERALD HOFBAUER, Warden

*The Honorable Ja mes G . Carr, United States District Judge for the
Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0253P (6th Cir.)
File Name: 03a0253p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
TERRANCE LESEAN HILL,
Petitioner-Appellee,
v.
GERALD HOFBAUER, Warden,
Respondent-Appellant.
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No. 01-2667
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 00-70960—Arthur J. Tarnow, District Judge.
Argued: May 6, 2003
Decided and Filed: July 28, 2003
Before: SUHRHEINRICH and GILMAN, Circuit Judges;
CARR, District Judge.*
_________________
COUNSEL
ARGUED: Laura Graves Moody, OFFICE OF THE
ATTORNEY GENERAL, Lansing, Michigan, for Appellant.
2 Hill v. Hofbauer No. 01-2667
Corbett E. O’Meara, O’MEARA & O’MEARA, Grosse
Pointe Farms, Michigan, for Appellee. ON BRIEF: Laura
Graves Moody, OFFICE OF THE ATTORNEY GENERAL,
Lansing, Michigan, for Appellant. Corbett E. O’Meara,
O’MEARA & O’MEARA, Grosse Pointe Farms, Michigan,
for Appellee.
_________________
OPINION
_________________
SUHRHEINRICH, Circuit Judge. Respondent-Appellant
Gerald Hofbauer, in his official capacity as Warden of the
Marquette Correctional Facility in Marquette, Michigan (“the
State”), appeals from the 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 Penalty Act of
1996 (AEDPA), in favor of Petitioner-Appellee Terrance
Lesean Hill.
The district court found that the state trial court denied Hill
his Sixth Amendment Confrontation Clause rights.
Specifically, the district court found that the Michigan court
erred by allowing into evidence a statement made by Hill’s
non-testifying co-defendant. The State claims on appeal that
the writ should not have been granted because the state
court’s admission of the co-defendant’s statement was not
“contrary to,” or an “unreasonable application” of, “clearly
established Federal law.” The State asserts that Ohio v.
Roberts, 448 U.S. 56 (1980), provides for the admission of
hearsay statements where the statements contain significant
indicia of reliability. The State argues that the co-defendant’s
statement is reliable because it was made against the
declarant’s penal interest.
We reject the State’s arguments and affirm the grant of the
writ. We find that the trial court’s admission of the co-
defendant’s statement over Hill’s objection was contrary to

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No. 01-2667 Hill v. Hofbauer 3
the precedent clearly established by the Supreme Court in Lee
v. Illinois, 476 U.S. 530 (1986); Bruton v. United States, 391
U.S. 123 (1968); and Douglas v. Alabama, 380 U.S. 415
(1965). We also find the error not harmless because the co-
defendant’s statement indicates that Hill possessed the
requisite malice to be guilty of second-degree murder.
I.
Hill’s petition for a writ of habeas corpus arises from his
arrest and conviction following the robbery and murder of
Jermaine Johnson on August 24, 1995. On that date, Johnson
was shot and killed inside his residence in Flint, Michigan by
then-unknown assailants.
Sometime in 1996, Mekia Randle informed Flint police that
her ex-boyfriend, Jabbar Priest Bulls, had told her he had
participated in Johnson’s murder. Randle gave recorded
statements 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 crime, and inculpating Hill and another co-defendant,
Deonte Matthews, as well. Hill and Matthews were
subsequently arrested.
In his statement, Bulls gave his account of the events
surrounding Johnson’s murder. He stated that on August 24,
1995, Johnson approached him on the street and offered him
money in exchange for allowing Johnson to perform oral sex
on him. Bulls verbally accepted the offer and accompanied
Johnson to Johnson’s home. Bulls claimed he had no interest
in Johnson’s sexual advances, but he accompanied Johnson
because he thought “[t]hat [he] could beat him up and take his
money.” Upon arriving at Johnson’s home, Bulls quickly
excused himself but promised to return. After he left
Johnson’s house, Bulls went to Matthews’ house to recruit
Matthews and Hill to aid him in robbing Johnson.
Specifically, Bulls stated “I told [Matthews] about the fag
around the corner; and I told him we could go and rob him
4 Hill v. Hofbauer No. 01-2667
real quick [sic] and get paid. I told him we could go and stick
up the fag; and after I told him that, then I told [Hill].”
Moreover, Bulls asked Matthews to bring a gun. In response,
Matthews went upstairs and retrieved a shotgun. Bulls stated
that Hill also agreed to the plan to rob Johnson, and the three
men left Matthews’ house, walking together. At Johnson’s
house, Bulls went to the back door, while Hill “stayed . . . on
the side 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 Matthews entered Johnson’s house,
while Hill “[s]tood outside as a lookout.” As Bulls and
Matthews were rummaging through the house, Johnson
attempted to flee, and then Bulls “heard a blast.” Matthews
had shot Johnson, killing him. Immediately, Bulls asked
Matthews why 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 giving his account of the events. He stated that Bulls
came to him to solicit his help in robbing Johnson. Bulls
proposed a plan, under which he expected Hill to stand
outside and “[w]ait for [Bulls] to let [him] inside the house
[to] take . . . items from the house.” Hill initially agreed to do
so. As Hill and Bulls were walking toward Johnson’s house,
Matthews met the two of them and then subsequently left.
Bulls told Hill that Matthews was leaving to get a gun
because “it would be easier for him to rob” Johnson.
Matthews returned, but was not visibly carrying a weapon.
Upon reaching Johnson’s house, Hill followed Bulls and
Matthews up the driveway, went behind the house, and
listened while Bulls and Matthews stood at the back door.
Hill stated that, at this time, he “didn’t have [his] mind made
up” whether he was going to enter the house. Bulls knocked
on the door, and had a brief conversation with the resident,
presumably Johnson. At this time, Hill decided to abandon

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No. 01-2667 Hill v. Hofbauer 5
1Deonte Matthews, the purported trigger man, was arrested and
charged, but never brought to trial. The state dismissed Ma tthews’
charges because the only evidence against him was the statem ents of H ill
and Bulls. See Hill v. Hofbauer, 195 F.Supp.2d 87 1, 875 n.3 (E.D. M ich.
2001) (“Hill I”).
the plot and left. He said he heard a shot as he was walking
away.
Subsequently, neighbors apparently saw some men running
from the house, and described a person who resembled Hill.
The Flint police stopped and questioned Hill later that night,
but initially determined he was not involved and released him.
In 1997, Hill and Bulls were tried together in Genessee
County, Michigan, Circuit Court.1 During the trial, neither
defendant testified. However, both Hill’s and Bulls’
statements were entered into evidence. Hill was convicted of
second-degree murder under Mich. Comp. Laws § 750.317;
and assault with intent to rob while armed under Mich. Comp.
Laws § 750.89. Hill received a sentence of life imprisonment
for the murder charge, and fifteen to thirty years’
imprisonment for the assault charge. He appealed to the
Michigan Court of Appeals, claiming, inter alia, that his
Sixth Amendment Confrontation Clause rights were violated
by the introduction of Bulls’ statements. On September 25,
1998, the court affirmed Hill’s convictions and sentence.
People v. Bulls, Nos. 202149 & 202849, 1998 WL 1989786
(Mich. App. Sept. 25, 1998) (per curiam) (“State Appeal”).
The Michigan Supreme Court denied Hill’s application for
leave to appeal on June 29, 1999. People v. Bulls, 598
N.W.2d 341 (Mich. 1999).
Pursuant to 28 U.S.C. § 2254, Hill filed 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”).
On November 27, 2001, the State filed a notice of appeal with
6 Hill v. Hofbauer No. 01-2667
this Court. This appeal is timely under Fed. R. App. P.
4(b)(1)(B).
Bulls was also found guilty at his joint trial with Hill. In
his case, the Michigan Court of Appeals had ruled that the
introduction of Hill’s statement was a violation of Bulls’
Sixth Amendment rights. State Appeal, 1998 WL 1989786,
at *2. The Michigan court found that Hill’s statement did not
fit into the hearsay exception for statements against the
declarant’s penal interest because Hill, in his statement, had
shifted most of the blame to Bulls. Id. at *2. However, the
court found the error harmless because Bulls had admitted
that he knew Matthews was carrying a shotgun, and the jury
could therefore infer Bulls’ malice from his own statement.
Id. Bulls filed a habeas petition and challenged the harmless
error ruling in the district court below. The district court
found the error not harmless and granted the writ. Bulls v.
Jones, 86 F.Supp. 2d 746, 754 (E.D.Mich. 2000). We
affirmed, finding the error not harmless because the
admission of Hill’s statement tended to show that Bulls knew
there “was a high likelihood that Matthews would kill
Johnson,” more so than did Bulls’ own statement. Bulls v.
Jones, 274 F.3d 329, 336 (6th Cir. 2001).
II.
We review a district court’s legal conclusions in a habeas
proceeding de novo, and its factual findings for clear error.
Vincent v. Seabold, 226 F.3d 681, 684 (6th Cir. 2000).
Because Hill filed his petition in November 2001, his case
is governed by 28 U.S.C. § 2254(d), as amended by the
AEDPA of 1996. See Vincent, 226 F.3d at 684; see also
Lindh v. Murphy, 521 U.S. 320, 326 (1997). Section 2254(d),
as amended, provides that a petition for writ of habeas corpus
shall fail before the district court unless the state trial court’s
decision:

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No. 01-2667 Hill v. Hofbauer 7
(1) 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; or
(2) resulted in a decision that was based upon an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme
Court analyzed the AEDPA, and clarified what constitutes a
decision “contrary to,” or an “unreasonable application” of
“clearly established” Supreme Court law. The “contrary to”
and “unreasonable application” clauses of the AEDPA are
independent tests and must be analyzed separately. Id. at 407.
A state court decision can be “contrary to” Supreme Court
case law in two ways. First, the decision is contrary if the
state court arrives at a conclusion opposite to that reached by
the Supreme Court on a question of law. Also, a decision is
contrary if the state court considers facts that are materially
indistinguishable from a relevant Supreme Court case and
arrives at an opposite result. Id. at 405. A state court
decision involves an “unreasonable application” of Supreme
Court law if “the state court identifies the correct governing
legal rules from the Court’s cases but unreasonably applies it
to the facts of the particular state prisoner’s case.” It is also
an “unreasonable application” of Supreme Court precedent
where a state court invokes a Supreme Court case and
unreasonably extends its legal principle to a new context
where it should not apply, or fails to extend it where it should
apply. Id. at 407. Moreover, “clearly established 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 of the time of the relevant
state-court decision.” Id. at 412.
8 Hill v. Hofbauer No. 01-2667
2The M ichigan Court of Appe als also relied o n M ich. R. E vid.
804(b)(3) to determine that there exists a hearsay exception for statem ents
against penal interest. See State Appeal, 1998 W L 1989 786, at *2. Mich.
R. Evid. 804 (b)(3 ) provides that “[a] statement which was at the time of
its making so far co ntrary to the declarant’s pecuniary or proprietary
interest, or so far tended to subject the declarant to civil or criminal
liability . . . that a reasonable person in the declarant’s position would not
have made the statement unless believing it to be true” is not excluded
under the hearsay rule if the d eclarant is unavailable to testify. See also
Fed. R. Evid. 804(b)(3) (stating same).
III.
In Ohio v. Roberts, 448 U.S. 56 (1980), the Supreme Court
held that a hearsay statement is nonetheless admissible
against a 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 “indicia of reliability
which have been widely viewed as determinative of whether
a statement may be placed before the jury though there is no
confrontation of the declarant, and [that affords] ‘the trier of
fact a satisfactory basis for evaluating the truth of the prior
statement.’” Id. at 65 (quoting Mancusi v. Stubbs, 408 U.S.
204, 213 (1972) (citations omitted)). Where the hearsay
statement does not fall within a “firmly rooted” hearsay
exception, it is admissible only upon a showing of other
“particularized guarantees of trustworthiness.” Roberts, 448
U.S. at 66.
In this case, the Michigan Court of Appeals recognized the
existence of Hill’s federal constitutional rights, 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 because
they fell within the “firmly rooted” hearsay exception for
statements against penal interest.2 Specifically, the court
stated:
Although Bulls made his statements concerning Hill
while in custody, the record is devoid of any indication

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No. 01-2667 Hill v. Hofbauer 9
that Bulls was motivated to make the statements by a
desire to curry favor from the authorities. Further, Bulls’
statements have several indicia of reliability in that they
do not minimize his role or responsibility in the crime,
they were voluntarily given, and they were not motivated
by a desire to lie or distort the truth regarding Hill’s
involvement in the 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 have sufficient indicia of reliability to satisfy
Confrontation Clause concerns. Thus, the trial court did
not err in admitting the statements against 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 “objectively unreasonable and contrary
to” Lilly v. Virginia, 527 U.S. 116 (1999), and Lee v. Illinois,
476 U.S. 530 (1986). Hill I, 195 F.Supp.2d at 881. The
district court found that those cases stand for the proposition
that “a co-defendant’s confession inculpating the accused is
inherently unreliable, and . . . convictions supported by such
evidence violate the constitutional right of confrontation.” Id.
(quoting Lee, 476 U.S. at 546). Accordingly, the court held
that Bulls’ statements were outside any “firmly rooted”
exception under Roberts. Hill I, 195 F.Supp.2d at 882. The
district court continued its analysis, and independently
examined Bulls’ statement under the second prong of the
Roberts test to determine whether it nonetheless bore
“guarantees of trustworthiness” to justify its admission. Id.
at 882-84. The district court found none and granted 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
Lilly in its entirety because that case was not decided until
1999, a year after Hill’s conviction was affirmed by the
Michigan Court of Appeals. The State asserts that, at the
10 Hill v. Hofbauer No. 01-2667
3The district co urt partially rejected the State’s argume nt that Lilly
could not apply here, stating:
Lilly is not being applied in this instance to give the petitioner
the advantage of a new constitutional rule of criminal procedure.
On the contrary, Lilly is relied upon merely to dem onstrate that
at the time o f Petitioner’s trial in 1997, the against penal interest
exception to the hearsay rule had not been determined to be a
“firmly rooted” exception under the mode of analysis established
by Oh io v. Roberts in 1980 , and, in fact, has now been so
rejected as manifested by Lilly. It should also be rememb ered in
this context that Petitioner had no burden to demon strate
anything; it was the burden of the State, as the proponent of the
evidence, to show that the against pena l interest exception to the
hearsay rule was an acceptable reason to admit the evidence
notwithstanding the Confrontation Clause. It could no t do so
then and, even in the ab sence of Lilly, it can not do so now.
Hill I, 195 F.Supp.2d at 880 n. 6. Accordingly, the district court placed
the burd en on the State to present Supreme Court case law allowing for
the admission of Bulls’ statement, rather than requiring Hill to present
Supreme Court case law disallowing it. This is the wrong standard. At
the federal stage, the habeas petitioner, not the State, has the burden of
proving that the state courts were in error, not the other way around.
Under the AE DP A, a writ is properly granted only if the petitioner can
demo nstrate that the Supreme Court has provided “clearly established”
precedent deeming the trial court’s actions unconstitutional. The Supreme
Court’s silence on a particular issue cannot constitute “clearly
established” Federal law. Therefore, the district court erred in rejecting
the State’s argume nt that any new rule espoused in Lilly cannot be
considered on habe as review. See also Teague v. Lane, 489 U.S. 288, 301
(1989) (prohibiting reliance on a case that “breaks new ground” after state
time, the admission of Bulls’ statement against Hill cannot
have been “contrary to . . . clearly established Federal law, as
determined by the Supreme Court of the United States,” 28
U.S.C. § 2254(d)(1), because the Supreme Court had not yet
decided the issue in Lilly.
The State is correct that any new law in Lilly cannot be
considered under the AEDPA, but the State misreads, first,
the district court opinion as relying solely on Lilly, and,
second, Lilly as creating a new rule rather than stating one
mandated from earlier precedent.3

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No. 01-2667 Hill v. Hofbauer 11
court proceedings in habeas cases).
Although the decision in Lilly drove the district court’s
opinion, the court nonetheless cited the earlier Supreme Court
cases of Lee and Bruton v. United States, 391 U.S. 123
(1968), to stand for the same proposition as Lilly, and to
demonstrate that the principles espoused in Lilly were
previously established. See Hill I, 195 F.Supp.2d at 879; see
also Teague v. Lane, 489 U.S. 288, 301 (1989) (stating that,
in regard to habeas cases, a subsequently decided case does
not present new law if it is “dictated by precedent existing at
the time the defendant’s conviction became final”).
In Lilly, a plurality unequivocally stated that confessions
made by a co-defendant inculpating not only himself but his
co-criminals are “inherently unreliable” and not within a
“firmly rooted” hearsay exception for statements against
penal interest. Lilly, 527 U.S. at 131. Accordingly, the Court
ruled that under the framework discussed in Roberts, a co-
defendant’s custodial confession cannot be entered into
evidence absent additional “guarantees of trustworthiness.”
The Court “distinguishe[d] accomplices’ confessions that
inculpate themselves and the accused as beyond a proper
understanding of the against penal-interest exception because
an accomplice often has a considerable interest in ‘confessing
and betraying his cocriminals.’” Id. at 131 (citing 5 J.
Wigmore, EVIDENCE § 1477, at 358, n. 1 (J. Chadbourn rev.
1974)). The Court further distinguished the confessions of
accomplices from the statements of co-conspirators made in
furtherance of a conspiracy, which have traditionally been
held trustworthy, because in the case of custodial confessions,
the government is typically “involved in the statements’
production.” Therefore such statements do not bear the same
indicia of reliability as is present in statements made of the
declarant’s own accord. See id. at 137.
Moreover, the Supreme Court expressly referenced past
Supreme Court cases in achieving its result in Lilly, stating
12 Hill v. Hofbauer No. 01-2667
that “[i]t is clear that our cases consistently have viewed an
accomplice’s statements that shift or spread the blame to a
criminal defendant as falling outside the realm of those
‘hearsay exception[s] [that are] so trustworthy that adversarial
testing can be expected to add little to [the statements’]
reliability.’” Id. at 133 (quoting White v. Illinois, 502 U.S.
346, 357 (1992)) (emphasis added) (alterations in original);
see also Lilly, id. at 131 (citing Douglas v. Alabama, 380 U.S.
415 (1965)).
In our opinion in Bulls’ case, we spoke to whether Lilly was
mandated by earlier precedent, and addressed substantially
the same cases referenced by the Lilly Court:
The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” That
guarantee includes the right to cross-examine witnesses.
See Pointer v. Texas, 380 U.S. 400, 404 (1965). The
Supreme Court has repeatedly held that a non-testifying
co-defendant’s statements that implicate a defendant are
presumptively unreliable and their admission violates the
Confrontation Clause. See Douglas v. Alabama, 380
U.S. 415, 419 (1965); see also Bruton v. United States,
391 U.S. 123, 126 (1968) (holding that the admission of
non-testifying co-defendant’s confession incriminating
defendant, even with jury instructions to consider
confession only against the co-defendant, violates the
Confrontation Clause). The Supreme Court has noted
that since Douglas, it “has spoken with one voice in
declaring presumptively unreliable accomplices’
confessions that incriminate defendants.” Lee v. Illinois,
476 U.S. 530, 541 (1986); see also Lilly, 527 U.S. at 131;
Cruz v. New York, 481 U.S. 186, 193 (1987). To
overcome this presumption of unreliability and introduce
such statements into evidence, the prosecution must
show that the statements bear “adequate indicia of
reliability.” Roberts, 448 U.S. at 66; United States v.
McCleskey, 228 F.3d 640, 644 (6th Cir. 2000) (“[I]t is

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No. 01-2667 Hill v. Hofbauer 13
4In another case, United States v. McCleskey, 228 F.3d 64 0 (6th Cir.
2000), we likewise held that a co-defendant’s custodial confession does
not fall within a “firmly rooted” hearsay exception. Id. at 643-45.
However, McCleskey was no t a habeas case, but a federal drug case .
Therefore, our analysis was not bound by the strictures of the AEDPA.
Accordingly, although we relied on the decision in Lee, we did not
perform a thorough analysis of whether the principle was “clearly
established” by the Supreme C ourt, as that term is used in the AE DP A.
clear that Supreme Court Confrontation Clause
jurisprudence does not permit the introduction of hearsay
declarations uttered by accomplices in law enforcement
custody that inculpate a defendant, absent further
‘particularized guarantees’ of the declaration’s
trustworthiness.”).
Bulls v. Jones, 274 F.3d 329, 333-34 (6th Cir. 2001). In
Bulls, the State had conceded it was constitutional error for
the trial court to enter Hill’s statement against Bulls because
Hill’s statement shifted a greater portion of the blame to
Bulls, and thus was not against Hill’s penal interest. The only
issue before us in Bulls was whether the error was harmless.
Accordingly, our discussion in Bulls of whether the principles
espoused in Lilly were previously clearly established was
dicta.
Today, we squarely face the issue whether Lilly was pre-
ordained by earlier clearly established Supreme Court law for
the first time.4 Therefore, we find it necessary 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 statement wherein a declarant places any blame
at all on his co-defendant is unreliable and inadmissible
hearsay. Id. at 419. In a joint trial, the prosecutor was not
permitted to refresh the memory of the uncooperative
declarant with his statement because it implicated the
defendant as well as himself. The Court found that such use
14 Hill v. Hofbauer No. 01-2667
would “plainly den[y the defendant] the right of cross-
examination secured by the Confrontation Clause.” Id.
In Bruton v. United States, 391 U.S. 123 (1968), a non-
testifying co-defendant had made a statement inculpating not
only himself but the defendant, George Bruton, as well. At a
joint trial, prosecutors sought to enter the statement, which
was admittedly hearsay, under the exception for the
admissions of a party-opponent. The trial court admitted the
statement against the declarant and instructed the jury that the
statement could not be considered against Bruton. The
Supreme Court ruled that the limiting instruction was not
sufficient. The Court found that the Sixth Amendment right
to cross-examination is absolute, and admission of the co-
defendant’s statement therefore violated Bruton’s right to
confront the evidence against him. There was no presumption
of veracity in the statement because the credibility of such
statements is “inevitably suspect.” 391 U.S. at 136.
In Lee v. Illinois, 476 U.S. 530 (1986), the Court again held
a co-defendant’s confession not within a hearsay exception
and inadmissible. There, Millie Lee’s co-defendant, Edwin
Thomas, gave a statement inculpating both himself and Lee
in a plot to kill Lee’s aunt. Notwithstanding that Thomas’
statement was voluntary and also incriminated himself, the
Court held the statement unreliable and stated:
Although . . . the confession was found to be voluntary
for Fifth Amendment purposes, such a finding does not
bear on the question of whether the confession was also
free from any desire, motive, or impulse Thomas may
have had either to mitigate the appearance of his own
culpability by spreading the blame or to overstate Lee’s
involvement in retaliation for [Lee] having implicated
him in the murders.
Id. at 544. Moreover, the Court in Lee recognized even then
that its rule was not new law, stating that “there is no
occasion to depart from the time-honored teaching that a co-

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No. 01-2667 Hill v. Hofbauer 15
defendant’s confession inculpating the accused is inherently
unreliable, and that convictions supported by such evidence
violate the constitutional right of confrontation.” Id. at 546
(emphasis added).
In Cruz v. New York, 481 U.S. 186 (1987), the defendant,
Eulogio Cruz, sought to suppress 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 against Cruz, finding it reliable because of the two
statements’ “interlocking” nature. Cruz, 481 U.S. at 189.
The Supreme Court reversed, and held that the existence of
Cruz’s own corroborating confession did not automatically
render the co-defendant’s statement reliable, and its
admission constituted Sixth Amendment error. 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 provided a line of cases holding that a co-defendant’s
custodial confession is inherently unreliable. However, the
State nonetheless contends that the Lilly rule cannot be said
to have been previously “clearly established” by the Supreme
Court because several federal circuits had held such
statements admissible in the face of the above-cited Supreme
Court precedent. Although only Supreme Court case law is
relevant under the AEDPA in examining what Federal law is
“clearly established,” the decisions of the United States
Courts of Appeals may be informative to the extent we have
already reviewed and interpreted the relevant Supreme Court
case law to determine whether a legal principle or right had
been clearly established by the Supreme Court. See, e.g.,
O’Brien v. Dubois, 145 F.3d 16, 25 (1st Cir. 1998), overruled
on other grounds, McCambridge v. Hall, 303 F.3d 24, 36-37
(1st Cir. 2002) (en banc). Because we had examined this
issue only in dicta, a review of other circuits’ pre-Lilly case
16 Hill v. Hofbauer No. 01-2667
law interpreting 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 against the defendant at his insurance fraud trial.
The co-conspirator, Gail Maher, had made statements to two
associates claiming that she and the defendant, Tom York,
had planned to blow up the lounge York owned in order to
collect the insurance proceeds. Id. at 1360. Maher, having
died, did not testify. The court affirmed the admission of
Maher’s statement, noting that it tended to subject her to such
criminal liability that she would not have made the statement
had it not been true. Id.
In United States v. Seeley, 892 F.2d 1 (1st Cir. 1989),
authored by then-Circuit Judge Stephen Breyer, the First
Circuit likewise upheld the admission of a co-conspirator’s
statement as against his penal interest. There, the defendant,
Edward Seeley, was charged in connection with two
Massachusetts bank robberies. A fellow bank robber, Robert
Wayne, made statements to his girlfriend that inculpated
himself, Seeley, and three other men in the bank heists. Id. at
1. Wayne was found dead a month after the robberies, and
was therefore not charged in the crimes and unable to testify
at Seeley’s trial. The trial court allowed Wayne’s girlfriend
to testify to his statements, and the First Circuit upheld their
admission, finding that the statements bore sufficient indicia
of reliability because Wayne would not have made such
statements 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 Wayne’s statements against another
accomplice for same reasons).
In United States v. Katsougrakis, 715 F.2d 769 (2d Cir.
1983), one of the co-conspirators, Kyriakos Chrisanthou, was
badly burned while setting fire to the defendant’s restaurant,
and subsequently died from his injuries. The trial court
allowed Chrisanthou’s wife and his friend, Fitos Vasilou, to

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No. 01-2667 Hill v. Hofbauer 17
5The State also raises two Sixth Circuit cases to support its
proposition that the Supreme Court had not previously clearly established
the rule of Lilly. However, neither case is applicable here. In Neuman v.
Rivers, 125 F.3d 315 (6th Cir. 199 7), we held that statements against
penal interest fell within a “firmly rooted” hearsay exception. But in that
case, the admitted statem ent did not inculpate the declarant’s accomplice,
but only spoke to the declarant’s role in the crime. See id. at 319-20. In
Gilliam v. Mitchell, 179 F.3d 990 (6th Cir. 1999), we relied on Neuman
and likewise held an acco mplice’s confession admissible. We did not,
however, perform an analysis of whether the declarant’s statement spoke
only to his ow n role in the crime or inculpated his co horts as well.
Rather, in light of Lilly pend ing at the time in front of the Supreme Court,
we gave only a cursory review of the “firmly rooted” exception issue, and
rested our holding alternatively on two other grounds. See id. at 994 n.
1. First, we found that the declarant’s statement contained additional
particularized guarantees of trustwo rthiness. Id. at 994. And second, we
found that any error wa s none theless ha rmless. Id. at 994-95.
testify at Katsougrakis’s fraud trial about statements that
Chrisanthou had made to each of them implicating himself, as
well as Katsougrakis and other co-conspirators, in a scheme
to defraud Katsougrakis’s insurers by setting fire to his
business. The Second Circuit affirmed the admissions,
finding sufficient indicia of reliability in Chrisanthou’s
statements because they were sufficiently against his penal
interest. Id. at 775-76.
However, each of these circuit cases is distinguishable from
the case sub judice.5 The defendant in each case made his
statement, not to police, but to an acquaintance or a fellow
accomplice. Therefore, at the time of the statement, none of
the defendants was motivated by a desire to curry the favor of
law enforcement officials. See, e.g., Katsougrakis, 715 F.2d
at 775 (stating that Chrisanthou’s statements bore adequate
indicia of reliability only because they were made while
“talking privately 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. Although
Rule 804(b)(3) provides a hearsay exception for statements
against the declarant’s interest, this rule has been consistently
18 Hill v. Hofbauer No. 01-2667
disregarded by the Supreme Court in situations where the
declarant’s custodial confession at all implicates somebody
else. Such statements are never truly against the declarant’s
penal interest because a defendant in custody always has a
motivation to implicate and pass the blame to another, even
if in the slightest. See Lee, 476 U.S. at 541. As the Supreme
Court stated in Williamson v. United States, 512 U.S. 594,
599-600 (1994), such statements are inherently unreliable
because “[o]ne of the most effective ways to lie is to mix
falsehood with truth, especially truth that seems particularly
persuasive because of its self-inculpatory nature.”
Therefore, what was dicta in Bulls we make explicit today.
We hold that Douglas, Bruton, and Lee evidence that the
Supreme Court had clearly established the principle that a co-
defendant’s custodial confessions are unreliable and not
within a “firmly rooted” hearsay exception prior to Lilly.
Here, Bulls’ custodial statements are no different than those
statements held inadmissible in Douglas, Bruton, and Lee.
We therefore conclude that the trial court’s admission of
Bulls’ statement was “contrary to” the law of those
indistinguishable Supreme Court cases.
We also hold that the trial court’s admission of Bulls’
statement was an “unreasonable application” of the legal
principles espoused in Roberts, the only Supreme Court case
identified by the state court of appeals. The Michigan court
attempted to extend the list of “firmly rooted” hearsay
exceptions to include a co-defendant’s custodial confession
inculpating his cohorts. In light of Bruton and the other
above-cited Supreme Court precedent, we find this action
objectively unreasonable under the “extension theory” of the
“unreasonable application” standard of the AEDPA. See
Williams, 529 U.S. at 407.
The State also argues that the district court erred in finding
that Bulls’ statement did not otherwise contain significant
“guarantees of trustworthiness.” However, the State has
proposed no “guarantees of trustworthiness” beyond the fact

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No. 01-2667 Hill v. Hofbauer 19
that Bulls’ statement was a self-inculpatory confession. As
stated above, this is insufficient to establish “significant
indicia of reliability.”
IV.
Nonetheless, the trial error in this case is subject to
harmless error analysis. See Chapman v. California, 386 U.S.
18, 24 (1967). On direct review, we employ a reasonable
doubt standard to determine whether a constitutional error 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 enactment of the AEDPA. We have held
that if a petitioner can pass Brecht analysis, “he will surely
have demonstrated that the state court’s finding that the error
was harmless beyond a reasonable doubt . . . resulted from an
unreasonable application of Chapman.” See Nevers v.
Killinger, 169 F.3d 352, 371-72 (6th Cir. 1999); see also
Bulls, 274 F.3d at 335. In determining whether Confrontation
Clause error is harmless under Chapman, the reviewing court
should consider: “the importance of the witness’ testimony in
the prosecution’s case, whether the testimony was cumulative,
the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points,
. . . and, of course, the overall strength of the prosecution’s
case.” Delaware v. van Arsdall, 475 U.S. 673, 684 (1986); cf.
Idaho v. Wright, 497 U.S. 805, 822 (1990) (stating that
existence of corroborating evidence informs the question of
harmless error). If the reviewing judge is in “grave doubt”
about whether constitutional error is harmless, it is not.
O’Neal v. McAninch, 513 U.S. 432, 445 (1995).
In determining whether the error in this particular case is
harmless, we must decide whether the other evidence,
including Hill’s own statement, is overwhelming and
sufficient to establish the elements of second-degree murder
and armed assault with intent to rob beyond a reasonable
20 Hill v. Hofbauer No. 01-2667
6Bulls’ statement went as follows:
Q: Did you ask [M atthews] if he had anything?
A: Yes.
Q: And what was that?
A: I asked him if he had a gun— some heat.
Q: And did he?
A: Yes.
Q: What kind?
A: Shotgun.
Q: Where did he get the shotgun from?
A: He went upstairs.
Q: Now you said you told [Hill] something.
A: Yes.
Q: W hat was that?
A: I told him the same thing that I told [Matthews] about the fag and
robbing.
doubt. Otherwise, we must find that the introduction of
Bulls’ statement actually prejudiced Hill, had a “substantial
and injurious effect” under Brecht, and was an “unreasonable
application” of Chapman.
The State argues that “Bulls’[] statement completely
mirrors, in relevant aspects, Hill’s own statement about his
participation in the robbery and subsequent murder,” Brief
for Appellant, at 37, and therefore its introduction was
harmless error, if error at all. Cf. Cruz, 481 U.S. at 194
(holding error may be harmless where co-defendant’s
statement is duplicative of defendant’s). The State is correct
that Hill’s statement is consistent with Bulls’ in several
respects. Hill indicated that he had originally agreed to the
plan to rob Johnson, that he voluntarily went to Johnson’s
house, and that his role was to be a lookout and wait for
Matthews and Bulls to return. However, Bulls’ and Hill’s
statements are not entirely identical. Bulls stated that Hill and
Matthews were together at Matthews’ home when Bulls first
approached them. This is significant because Bulls stated that
Matthews retrieved a shotgun while all three men were
together in Matthews’ home, thereby implying that Hill was
aware that Matthews had a gun.6 By contrast, Hill stated that

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No. 01-2667 Hill v. Hofbauer 21
Q: So the three of you made a plan to go rob him?
A: Right.
Q: Did the three of you leave the house together?
A: Yes.
Q: Where did you go?
A: To the fag’s house.
Q: How was the gun concealed as you walked there?
A: M atthews had it in his pants.
7Hill and the police had the following exchange concerning his
knowledge that Matthews was carrying a gun:
Q: Did [M atthews] catch up with you?
A: Yes.
Q: W here at?
A: On Ha milton and Forest H ill.
Q: Did he have a weap on?
A: Not that I know of, no.
Q: You didn’t see one?
A: No.
Q: Did you ask him if he had one?
A: No.
Bulls first approached Hill when Hill was alone, and that
Matthews met Hill and Bulls later, as they were already
walking toward the victim’s house unarmed. Hill contended
that Matthews and Bulls had a conversation, and Matthews
subsequently left. Hill said Bulls told him that Matthews was
leaving to get a gun. However, Hill claimed that when
Matthews returned, he did not see Matthews carrying a gun.
In fact, Hill unequivocally stated that he did not know
Matthews had a gun.7
In order to find Hill guilty of second-degree murder in
Michigan, the State must prove that there was: (1) a death;
(2) caused by an act of the defendant; (3) with malice; and
(4) without justification or excuse. See People v. Goecke, 579
N.W.2d 868, 878 (Mich. 1998). Moreover, under Michigan
law, an aider and abettor can be charged as a principle if he
“procures, counsels, aids, or abets” in the commission of the
crime. See Mich. Comp. Laws Annot. § 767.39; see also
People v. Palmer, 220 N.W.2d 393, 396-97 (Mich. 1974).
22 Hill v. Hofbauer No. 01-2667
“Malice,” in Michigan, is defined as “the intent to kill, the
intent to cause great bodily harm, or the intent to do an act in
wanton and wilful disregard of the likelihood that the natural
tendency of such behavior is to cause death or great 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 People v. Aaron, 299 N.W.2d 304, 326 (Mich.
1980) (stating that the commission of an underlying felony
does not alone satisfy requirement of malice). Rather, a
factual examination is necessary to determine whether Hill
possessed an intent to kill or cause great bodily harm beyond
his intent to rob. See People v. Harris, 476 N.W.2d 767, 771
(Mich. App. 1991); see also People v. Kelly, 378 N.W.2d
365, 381 (Mich. 1985).
Under an aiding and abetting theory, the State must prove
either that 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 must know of his
cohort’s intent to kill the victim, or at least his intent to
physically harm the victim, before he can be found to have
aided and abetted the murder as well. Such intent can be
inferred from the aider and abettor’s knowledge that his
cohort possesses a weapon. See, e.g., People v. Feldmann,
449 N.W.2d 692, 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.2d 540,
548 (Mich. 2001). However, “[i]t is fundamentally unfair and
in violation of basic principles of individual criminal
culpability to hold one felon liable for an unforeseen death
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 carrying a gun is relevant to the jury’s
determination of whether Hill is guilty of second-degree
murder. Hill’s statement presents little question that he
originally possessed the requisite intent to rob Johnson, but

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No. 01-2667 Hill v. Hofbauer 23
8As one o f its elements, the armed assault with intent to rob charge
requires a finding that the perpetrator was armed with a dangerous
weapon. Therefore, because Hill was charged under an aiding and
abetting theory, whether Hill knew Matthews was armed is relevant to the
analysis of this charge as well. See Mich. Comp. Laws § 750.89.
leaves open whether he knew Matthews had a gun, and
therefore whether Hill possessed the requisite malice
necessary for second-degree murder. Bulls’ statement
removes any doubt by implying that Hill knew of the
existence of the gun and acquiesced to its role in the robbery.
Accordingly, Bulls’ statement is more damaging to Hill than
his own. We find, therefore, that the Sixth Amendment error
had “a substantial and injurious effect or influence in
determining the jury’s verdict.” See Brecht, 507 U.S. at 623.
Hill is entitled to a new trial on both charges.8
V.
For the foregoing reasons, we uphold the grant of the writ
by the district court. The order by the district court to the
State of Michigan to retry Hill or release him from penal
custody within 120 days of the date of the district court order
(November 1, 2001), plus time stayed pending this appeal, is
hereby AFFIRMED.

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