Issa v. Bradshaw, 092118 FED6, 15-4147
| Opinion Judge | KAREN NELSON MOORE, Circuit Judge. |
| Party Name | Ahmad Fawzi Issa, Petitioner-Appellant, v. Margaret Bradshaw, Warden, Respondent-Appellee. |
| Attorney | S. Adele Shank, LAW OFFICE OF S. ADELE SHANK, Columbus, Ohio, for Appellant. Brenda S. Leikala, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. S. Adele Shank, LAW OFFICE OF S. ADELE SHANK, Columbus, Ohio, Lawrence J. Gregor, Dayton, Ohio, for Appellant. Jocelyn K. Lowe, OFFICE... |
| Judge Panel | Before: COLE, Chief Judge; MERRITT and MOORE, Circuit Judges. MERRITT, Circuit Judge, concurring. |
| Case Date | September 21, 2018 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Sixth Circuit |
Argued: May 2, 2018
Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 1:03-cv-00280-Sandra S. Beckwith, District Judge.
ARGUED:
S. Adele Shank, LAW OFFICE OF S. ADELE SHANK, Columbus, Ohio, for Appellant.
Brenda S. Leikala, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
ON BRIEF:
S. Adele Shank, LAW OFFICE OF S. ADELE SHANK, Columbus, Ohio, Lawrence J. Gregor, Dayton, Ohio, for Appellant.
Jocelyn K. Lowe, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
Before: COLE, Chief Judge; MERRITT and MOORE, Circuit Judges.
OPINION
KAREN NELSON MOORE, Circuit Judge.
Ahmad Issa ("Issa"), sometimes known as Mike, petitioned the district court for a writ of habeas corpus. The district court denied all of Issa's grounds for relief, but it granted a certificate of appealability for Issa's first, third, fourth, fifth, sixth, ninth, eleventh, twelfth, twenty-seventh, pending twenty-eighth, pending twenty-ninth, and proposed twenty-eighth through thirty-seventh grounds. R. 218 (Order at 120) (Page ID #4717). For the following reasons, we VACATE and REMAND to the district court with instructions to grant a CONDITIONAL WRIT OF HABEAS CORPUS, giving the State of Ohio 180 days to retry Issa or to release him from custody.
I. BACKGROUND
A. Factual Background
On November 22, 1997, around 1:30 a.m., Andre Miles ("Miles") demanded money from two brothers, Maher Khriss ("Maher") and Ziad Khriss ("Ziad"), outside of Maher's store, Save-Way II Supermarket ("Save-Way") in Cincinnati. State v. Issa (Issa I), 752 N.E.2nd 904, 910 (Ohio 2001). After Maher and Ziad put money on the ground, Miles shot both of them with a high-powered assault rifle. Id. The Cincinnati police examined Miles's actions, and they hypothesized that Issa, an employee at Save-Way, had hired Miles to commit the murders because Linda Khriss ("Linda"), Maher's wife, offered Issa money to kill her husband. Id. The police speculated that Issa gave Miles the rifle and planned where Miles would shoot Maher. Id. Because of this theory, the State charged all three individuals with aggravated murder, and each defendant stood trial. Id. A jury, however, acquitted Linda, and Miles received a life sentence- Issa is the only one to receive a death sentence. Id. at 913, 928.
During the guilt phase in Issa's trial, Miles refused to testify even though he had already testified in Linda's earlier trial. R. 229-3 (App., Trial Tr. at 938-40) (Page ID #9504-06). Prior to his taking the stand, the prosecution had offered Miles immunity, but the prosecution revoked Miles's immunity the day before he was scheduled to make statements in Issa's trial. Id. Because Miles refused to testify, the trial court concluded that he was unavailable. Id. at 945 (Page ID #9511).
The trial court allowed the admission of Miles's out-of-court statements, however, through the testimony of siblings, Bonnie Willis ("Bonnie") and Joshua Willis ("Joshua") (together, the "Willises"), who were Miles's teenage friends at the time of the murders. Id. at 1087, 1162-63 (Page ID #9653, 9728-29). Joshua testified that, a few days prior to the murders, he ran into Miles at the Save-Way, and Miles told Joshua that Issa had paid him to kill someone. Id. at 1164-65 (Page ID #9730-31). Miles asked Joshua if he wanted to help, but Joshua declined the offer and did not believe Miles was serious. Id. When Joshua told Bonnie about Miles's statement, she did not think Miles would actually kill anyone because Miles talked "about doing a lot of things and never did it." Id. at 1126 (Page ID #9692). Then, according to Joshua, around 5:00 p.m. on November 22, Miles called Joshua and told him that he had killed Maher and Ziad. Id. at 1167 (Page ID #9733). Miles informed Joshua that Miles had placed the rifle in a plastic bag and had put it in the Willises' backyard. Id.
The next day, according to the Willises' testimony, Miles went to the Willises' home and described the murders. Id. at 1094-97, 1168-69 (Page ID #9660-63, 9734-35). The Willises testified that Miles told the Willises that Issa was going to give Miles $2000 for killing Maher. Id. at 1106 (Page ID #9672). At Issa's trial, the Willises described Miles's statements to them about how the murders occurred; for instance, Bonnie stated that Miles said that he got the rifle, which was hidden behind some crates that were behind a dumpster at the Save-Way, and then waited for Maher to come back to the store. Id. at 1106-07 (Page ID #9672-73). Bonnie then testified that Miles told the Willises that, when Miles saw Maher with Ziad, Miles demanded money from them, and they placed money on the ground. Id. at 1107-08 (Page ID #9673-74). Miles told the Willises that as he was bending to pick up the money, however, the rifle went off and shattered Maher's beverage bottle. Id. According to Bonnie, Miles said that he shot each brother several times. Id. Bonnie then testified that Miles stated that Miles ran to the Willises' home and put the rifle in their yard; Miles then might have met Issa at a nearby parking lot, and Issa perhaps then drove Miles home. Id. at 1103-04 (Page ID #9669-70). The Willises also testified at Issa's trial that, while Miles told this story, they thought that Miles was bragging. Id. at 1032, 1174-75 (Page ID #9598, 9740-41).
Joshua also testified at Issa's trial that, several days later, Joshua ran into Issa at the Save-Way, and Issa asked Joshua "Does anybody know?" and Joshua said "No, not that I know of." Id. at 1183 (Page ID #9749). During this discussion, Joshua told Issa that Issa needed to get the rifle from the Willises' backyard. Id. at 1171 (Page ID #9737). Issa replied that he would talk to Miles and that Miles would get the rifle. Id. When Joshua noticed that the bag was still in his yard, he confronted Issa again at the Save-Way. Id. at 1172 (Page ID #9738). Bonnie also testified that she told Issa he needed to get the rifle from their yard, and during this conversation, Issa asked Bonnie to tell Miles to not go near the store because police were investigating. Id. at 1099, 1133-32 (Page ID #9665).
Renee Hayes ("Hayes"), another Save-Way employee, also testified at Issa's trial. Id. at 836 (Page ID #9401). Hayes testified that she thought that she observed Linda and Issa exchange $2000 on November 25, but she was not certain and did not pay close attention. Id. at 847, 857 (Page ID #9412, 9422). Hayes also testified, however, that all employees would help count and package money. Id. at 846 (Page ID #9411). Furthermore, Hayes did not hear Linda or Issa make statements regarding a murder, but she did hear them discuss making a deposit for the store. Id. at 853-54 (Page ID #9418-19). According to Hayes, the money was deposited into the store's checking account on November 25. Id. at 853 (Page ID #9418).
Additionally, Dwayne Howard, Hayes's husband, testified, and he stated that he saw a rifle at Issa's apartment. Id. at 861, 864-66 (Page ID #9427, 9430-32). Howard then identified during Issa's trial the rifle that he saw in Issa's apartment as the murder weapon. Id. at 866 (Page ID #9432). Also, according to Howard, Issa told Howard "Don't be telling people [sic] no lies [sic] and stuff like that, seen him with a gun [sic]." Id. at 869 (Page ID #9435). On the other hand, Howard also stated that he does not know anything about guns and that he would not be able to identify the murder weapon if there were two identical rifles in front of him. Id. at 872, 875 (Page ID #9438, 9441).
Souhail Gammoh ("Gammoh"), another Save-Way employee, also testified that, on the night of the murders, Issa gave him a ride home from work. Id. at 887 (Page ID #9453). When Issa dropped Gammoh off between 1:14 and 1:20 a.m., Issa told Gammoh that he might pick Gammoh up later to go to a bar. Id. at 890 (Page ID #9456). Issa eventually did return around twenty-five or thirty-five minutes later, but Gammoh based this time range on the amount of beer that he had consumed from the time that Issa dropped off Gammoh and then returned. Id. at 894 (Page ID #9460).
Gammoh then testified that, at the crime scene, Gammoh told an officer that he and Issa closed the store, dropped off Issa's mom, and then went to the bar; he did not mention to the officer, however, that Issa was not with Gammoh all night. Id. at 903-04 (Page ID #9469-70). When Gammoh saw Issa later, Issa told Gammoh that the "[n]ext time they ask [Gammoh], tell them that [they] were together." Id. at 906 (Page ID #9472). Gammoh also testified that he observed Issa take a white trash bag out of Issa's trunk, but Gammoh did not know whether the trash bag was short-and-square or long-and-thin shaped. Id. at 916-17 (Page ID #9482-83). Additionally, Gammoh thought that he saw a rifle in Issa's apartment two weeks before the murders. Id. at 919 (Page ID #9485).
When an officer testified at Issa's trial, he stated that the police knew that the murder weapon used 7.62-caliber ammunition. R. 229-2 (App., Trial Tr. at 764-65) (Page ID #9329- 30). The police then found one round of 7.62-caliber ammunition in Issa's apartment, but they did not find a weapon. Id. at 765 (Page ID #9330). A firearms examiner also testified that the round from Issa's apartment was from a different manufacturer than the discharged cartridge casings found next to the murder weapon. Id. at 777-78 (Page ID #9342-43).
Based on this evidence, on September 2, 1998, the jury convicted Issa of aggravated murder with a death penalty specification because the offense...
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