Hill v. Hofbauer, 01-2667.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Citation337 F.3d 706
Docket NumberNo. 01-2667.,01-2667.
PartiesTerrance Lesean HILL, Petitioner-Appellee, v. Gerald HOFBAUER, Warden, Respondent-Appellant.
Decision Date28 July 2003
337 F.3d 706
Terrance Lesean HILL, Petitioner-Appellee,
Gerald HOFBAUER, Warden, Respondent-Appellant.
No. 01-2667.
United States Court of Appeals, Sixth Circuit.
Argued May 6, 2003.
Decided and Filed July 28, 2003.

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Corbett E. O'Meara (argued and briefed), O'Meara & O'Meara, Grosse Pointe Farms, MI, for Appellee.

Laura Graves Moody (argued and briefed), Office of the Attorney General, Lansing, MI, for Appellant.

Before: SUHRHEINRICH and GILMAN, Circuit Judges; CARR, District Judge.*


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, 100 S.Ct. 2531, 65 L.Ed.2d 597 (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 the precedent clearly established by the Supreme Court in Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); and Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (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.

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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 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

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resident, presumably Johnson. At this time, Hill decided to abandon 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 this 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, 460 Mich. 864, 598 N.W.2d 341 (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 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).


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.

Page 711

§ 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, 117 S.Ct. 2059, 138 L.Ed.2d 481 (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:

(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, 120 S.Ct. 1495, ...

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