Sharee Miller v. Clarice Stovall

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0031p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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SHAREE MILLER,
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Petitioner-Appellant,
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No. 12-2171
v.
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Respondent-Appellee. -
CLARICE STOVALL, Warden,
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:05-cv-73447—Victoria A. Roberts, District Judge.
Argued: October 9, 2013
Decided and Filed: February 11, 2014
Before: BOGGS, MOORE, and KETHLEDGE, Circuit Judges.
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COUNSEL
ARGUED: Kimberly Thomas, UNIVERSITY OF MICHIGAN, Ann Arbor, Michigan,
for Appellant. John S. Pallas, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellee. ON BRIEF: Kimberly Thomas, UNIVERSITY OF
MICHIGAN, Ann Arbor, Michigan, for Appellant. Mark G. Sands, OFFICE OF THE
MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
BOGGS, J., delivered the opinion of the court, in which KETHLEDGE, J.,
joined, and MOORE, J., joined in the result. MOORE, J. (pg. 14), delivered a separate
opinion concurring in the judgment.
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OPINION
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BOGGS, Circuit Judge. Sharee Miller (“Miller”) was convicted in Michigan
state court of second-degree murder and conspiracy to commit first-degree murder and
was sentenced to life without parole. The prosecution alleged, and the jury found, that
1
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Miller had plotted with her lover, Jerry Cassaday, to murder her husband, Bruce Miller.
The evidence of Miller’s guilt included extensive email and instant-message (“IM”)
conversations between Cassaday and Miller, in which Miller lied to Cassaday that she
was pregnant with his children but that her husband abused her and caused her to
miscarry; convinced Cassaday that her husband was a dangerous man involved in
organized crime and that her life was in danger; and plotted with Cassaday the precise
details of her husband’s murder. Shortly before the murder, Cassaday, who lived some
distance away from Miller, told his brother Mike that he was leaving town for a couple
of days and that, if he did not return, Mike should look for a briefcase under Cassaday’s
bed. Bruce Miller was murdered on November 9, 1999. By December, Miller had
broken off her relationship with Cassaday and started dating someone else.
On February 11, 2000, Cassaday committed suicide. While cleaning Cassaday’s
home following his death, Mike found a briefcase and four notes. Three of the notes
were addressed to family members: his youngest son, his ex-wife, and his parents. The
fourth was taped to the briefcase and directed Mike not to open the briefcase alone, but
rather, to open it in the presence of an attorney, which Mike did. Inside were copies of
the emails and IM conversations implicating Miller in the murder. Mike sent the other
three notes along to their respective addressees.
The contents of the briefcase were admitted into evidence at trial along with
evidence linking the electronic communications to Miller’s and Cassaday’s individual
America On-Line (“AOL”) accounts. Cassaday’s suicide note to his parents was also
admitted at trial. Only the admission of the suicide note is disputed in this appeal.
Miller claims that the admission of the note violated her clearly established right under
the Sixth Amendment to confront her accuser. Miller therefore appeals the district
court’s denial of her petition for a writ of habeas corpus. We hold that the Michigan
Court of Appeals did not err in upholding the note’s admission at trial and affirm the
order of the district court.
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I
This case is before us for the second time. The Michigan trial and appellate
courts originally analyzed the admissibility of Cassaday’s suicide note under Ohio v.
Roberts, 448 U.S. 56, 66-68 (1980), which held that hearsay statements were admissible
provided they bore sufficient “indicia of reliability.” Before Miller’s conviction became
final under state law, however, the Supreme Court decided Crawford v. Washington,
541 U.S. 36 (2004), which, abrogating Ohio v. Roberts, barred the admission of hearsay
statements that are testimonial in nature, save under limited circumstances not applicable
here. Miller notified the Michigan Supreme Court of the decision in Crawford while her
motion for leave to appeal was pending. The Michigan Supreme Court denied Miller
leave to appeal on April 1, 2004, and denied a motion to reconsider on June 30, 2004.
Miller did not seek a writ of certiorari from the United States Supreme Court.
In a split decision on habeas review, this court held that the Michigan courts
should have re-adjudicated Miller’s claim in light of Crawford, since her appeal to the
state’s highest court was still pending at the time Crawford was decided and the state-
court decision had therefore not yet become final under state law. Miller v. Stovall,
608 F.3d 913, 919 (6th Cir. 2010), cert. granted, judgment vacated, 132 S. Ct. 573 (U.S.
2011). This court further held that the suicide note was testimonial in nature and
therefore inadmissible under Crawford, that the State had waived harmless-error review,
and that, in view of the foregoing, Miller was being held in violation of her clearly
established rights under the Confrontation Clause. Id. at 925-28. Michigan appealed,
and the Supreme Court granted certiorari, vacated this court’s judgment, and remanded
for further consideration in light of its decision in Greene v. Fisher, 132 S. Ct. 38, 43
(2011). In Greene, the Court clarified that state courts must follow clearly established
law as it existed “at the time of the state-court adjudication on the merits.” That is,
under 28 U.S.C. § 2254(d), “clearly established Federal law” is the law at the time the
original decision was made, not, as this court had held in Miller, 608 F.3d at 919, the law
“before the conviction became final.” See Greene, 132 S. Ct. at at 44. Thus, even
though Greene’s appeal was still pending before the state supreme court when there was
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an intervening change in federal law, the state was not required to revisit the original
decisions of its trial and appellate courts. The Supreme Court also observed that Greene
had failed to seek certiorari from the U.S. Supreme Court and failed to pursue state post-
conviction relief before filing a habeas claim in federal court. Id. at 45.
As relevant here, Miller’s case appears to be identical to Greene’s. Because
Crawford was not decided until after the state trial and appellate courts evaluated
Miller’s Confrontation Clause claim on the merits, the state courts were not obligated
to revisit Miller’s claim in light of Crawford. And, as in Greene, Miller did not seek
relief from the U.S. Supreme Court and did not pursue state post-conviction relief. In
light of the Supreme Court’s remand and its decision in Greene, we remanded Miller’s
case to the district court for reconsideration.
The parties now agree that, in light of Greene, the relevant law to be applied in
assessing the state court’s evaluation of Miller’s Confrontation Clause claim is the law
that existed at the time of the state trial and appellate courts’ adjudication on the merits,
namely, the law under Ohio v. Roberts and its progeny. The district court denied
petitioner relief but granted a Certificate of Appealability (“COA”) on the constitutional
claims that it found were reasonably debatable. The district court granted a COA on
three issues: (1) whether the Michigan Court of Appeals applied a rule contrary to
Supreme Court precedent when it relied on the “consistency” of the statements in
Cassaday’s suicide note to uphold the admission of the note; (2) whether the court’s
decision involved an unreasonable application of Ohio v. Roberts; and (3) whether the
court erred in ruling that the admission of the note did not violate Miller’s Confrontation
Clause right under the Sixth Amendment. See Miller v. Stovall, No. 05-73447, 2012 WL
3151541 (E.D. Mich. Aug. 2, 2012).
We evaluate Miller’s claims under the highly deferential standard of review
mandated by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
See 28 U.S.C. § 2254(d). AEDPA’s deferential standard applies where a state prisoner’s
habeas claims were “adjudicated on the merits in State court proceedings.” Robinson
v. Howes, 663 F.3d 819, 822-23 (6th Cir. 2011) (quoting 28 U.S.C. § 2254(d)). Under
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AEDPA, habeas relief shall not be granted unless, as relevant here, the state court’s
adjudication “resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of
the United States.” 28 U.S.C. § 2254(d)(1). “AEDPA requires a state prisoner to show
that the state court’s ruling on the claim being presented in federal court was so lacking
in justification that there was an error beyond any possibility for fairminded
disagreement.” Burt v. Titlow, 134 S. Ct. 10, 16 (2013) (internal alteration and quotation
marks omitted).
II
A
In Ohio v. Roberts, the Supreme Court held that the statements of a hearsay
declarant unavailable for cross-examination at trial were only admissible if they bore
“adequate indicia of reliability.” 448 U.S. at 66 (internal quotation marks omitted).
Where the statements did not fall within “a firmly rooted hearsay exception,” they were
inadmissible “absent a showing of particularized guarantees of trustworthiness.” Id.
The “relevant circumstances” for determining whether evidence satisfied this standard
included only those that surrounded the making of the statement and that rendered the
declarant “particularly worthy of belief.” Idaho v. Wright, 497 U.S. 805, 819 (1990).
The Supreme Court has never identified a particular set of requirements that had
to be met for a statement to be deemed trustworthy. See Wright, 497 U.S. at 822 (“We
. . . decline to endorse a mechanical test for determining ‘particularized guarantees of
trustworthiness’ under the Clause.”). Instead, the Court emphasized that “the unifying
principle” was whether the declarant “was particularly likely to be telling the truth when
the statement was made.” Id. The Ohio v. Roberts line of cases established a “general
approach” to determining trustworthiness, and affirmed that “courts have considerable
leeway in their consideration of appropriate factors.” Id. at 814, 822.
Moreover, “[b]ecause AEDPA authorizes federal courts to grant relief only when
state courts act unreasonably, it follows that the more general the rule at issue—and thus
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the greater the potential for reasoned disagreement among fair-minded judges—the more
leeway state courts have in reaching outcomes in case-by-case determinations.” Renico
v. Lett, 559 U.S. 766, 776 (2010) (citations and internal quotation and alteration marks
omitted). Since the Supreme Court expressly granted state courts “considerable leeway”
in determining the trustworthiness of a hearsay statement, federal courts may grant relief
only when state courts exercise their discretion “unreasonably.”
The Michigan state courts developed and applied a reliability standard based on
a comprehensive analysis of federal Confrontation Clause law. In People v. Lee,
following an extensive discussion of Ohio v. Roberts, Idaho v. Wright, and
Confrontation Clause cases related thereto in the federal courts of appeals, a Michigan
Court of Appeals identified eight factors as among those “to be considered” when
“determining whether a statement has adequate indicia of reliability.” 622 N.W.2d 71,
76-80 (Mich. App. 2000). The factors were: “(1) the spontaneity of the statements, (2)
the consistency of the statements, (3) lack of motive to fabricate or lack of bias, (4) the
reason the declarant cannot testify, (5) the voluntariness of the statements, i.e., whether
they were made in response to leading questions or made under undue influence, (6)
personal knowledge of the declarant about the matter on which he spoke, (7) to whom
the statements were made . . . and (8) the time frame within which the statements were
made.” Id. at 80 (internal citations omitted). The court gave no indication that it
believed any one factor to be dispositive. The court also noted that it must consider “the
totality of the circumstances surrounding the making of the statement[s]” and that it
“may not consider whether evidence produced at trial corroborates the statement[s].”
Id. Neither the Supreme Court nor any other federal court has suggested that the Lee
standard was not an appropriate implementation of Ohio v. Roberts and its progeny.
B
In Miller’s case, the Michigan Court of Appeals recited the standard articulated
in Lee, including the prohibition on considering corroborating evidence; evaluated each
of the Lee factors in the context of Miller’s claim; and determined that the statements in
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Cassaday’s suicide note were trustworthy and therefore admissible. People v. Miller,
2003 WL 21465338 at *2 (Mich. Ct. App. 2003). The court found as follows:
As noted by the trial court, Cassaday’s statements were (1) spontaneous
and voluntary because he made them without prompting or inquiry,
(2) consistent, (3) made fairly contemporaneously to his impending
death, and (4) made from personal knowledge. In addition, Cassaday
directed the statements to family members, i.e., his mother and father,
people to whom Cassaday would likely speak the truth. Also, the reason
Cassaday could not testify, because he had committed suicide, militates
in favor of admissibility and supports a lack of motive to fabricate.
Id.
III
A
In her appeal of the district court’s denial of habeas relief, Miller first argues that
the Michigan Court of Appeals violated clearly established federal law when it relied on
the “consistency” of the statements in Cassaday’s suicide note to find the note
admissible. In Idaho, 497 U.S. at 823, the Supreme Court observed that “the use of
corroborating evidence to support a hearsay statement’s ‘particularized guarantees of
trustworthiness’ would permit admission of a presumptively unreliable statement by
bootstrapping on the trustworthiness of other evidence at trial.” Accordingly, the Court
held that such corroboration does not provide a basis “for presuming the declarant to be
trustworthy.” Id. Miller argues that the Michigan Court of Appeals violated clearly
established Confrontation Clause law when it “relied on the letter’s consistency with
other evidence in the case to support a finding of reliability.” Appellant’s Br. at 5.
On closer inspection, there is no indication that the Michigan Court of Appeals
upheld the admission of the note because other evidence at trial corroborated its
contents. Miller seizes on the court’s brief statement of the second Lee factor—“the
consistency of the statements”—and speculates that the Michigan Court of Appeals must
have been comparing Cassaday’s statements in the note to other evidence. But all the
court did was call the statements “consistent.” Nowhere did the court assess the note’s
No. 12-2171 Miller v. Stovall Page 8
credibility in light of other evidence. And it would be unreasonable to assume that the
court was doing so sub silentio, when, in immediately preceding language, the court
expressly noted that doing so was impermissible. Rather, the most natural reading of the
court’s statement is that “Cassaday’s statements” were internally consistent i.e.
consistent with each other. To be sure, as discussed below, the internal consistency of
the note’s statements is not, in itself, a strong indicator of their reliability, but it is a
permissible consideration. There is no reason to think that that one factor among eight
was the driving force behind the court’s finding. Regardless, there is no basis for
concluding that the court determined the note’s trustworthiness on the basis of other
evidence. Accordingly, we reject Miller’s claim that the Michigan Court of Appeals
acted “contrary to” clearly established law.
B
Miller next argues that the Michigan Court of Appeals “unreasonably applied
clearly established Confrontation Clause law” in admitting the note. Appellant’s Br. at
20. Miller argues that the court’s application of the Ohio v. Roberts line of cases was
unreasonable because the court improperly relied on a number of factors in determining
that the statements in the note were trustworthy. Miller claims that the statements were
not spontaneous; that the internal consistency and contemporaneousness of the
statements and Cassaday’s personal knowledge of the events do not indicate reliability;
that Cassaday had a motive to lie; and that statements made in a letter turned over to
police were not inherently reliable.
As set out above, the Michigan Court of Appeals recited and applied each of the
Lee factors, and it reasonably concluded that a number of those factors were strong
indicators of reliability. The court of appeals observed that the statements in the note
were made voluntarily (factor 5) at a time when Cassaday was not even under
investigation in connection with the murder (factor 3). They were addressed to his
parents, people he was unlikely to lie to (factor 7), especially in his final farewell (factor
4), and in a contrite note implicating himself in a heinous crime. They did not attempt
to minimize his role in or responsibility for the murder; on the contrary, they were self-
No. 12-2171 Miller v. Stovall Page 9
incriminating statements at a time when, as mentioned, no one suspected his
involvement (again, factors 3 and 5). Indeed, the tone and language of the note are those
of a man who was distressed, remorseful, and resigned.
In particular, Miller’s claim to the contrary notwithstanding, the state court
reasonably found that Cassaday lacked a motive to fabricate the letter’s contents. Miller
claims that Cassaday was a codefendant of Miller’s and that, therefore, his statements
concerning Miller’s guilt are not credible: “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.” Bulls v. Jones,
274 F.3d 329, 334 (6th Cir. 2001), abrogated on other grounds by Eddleman v. McKee,
471 F.3d 576 (6th Cir. 2006). While it is true that the confessions of a codefendant are
presumed to be unreliable, Cassaday was not a codefendant, and there was no indication
that he thought he would become one. He was not under investigation and, of course,
would not have been subject to post-mortem jeopardy. Cassaday was not in the position
of the typical codefendant, who may be motivated to lie in order to cut a deal with the
government or shift responsibility to another party.
Miller further argues that the note is suspect because it “was designed to go to
law enforcement,” Appellant’s Br. at 32, but the record does not support that inference;
on the contrary, the note was addressed to Cassaday’s parents, Cassaday had already
directed a separate package of materials to law enforcement that did not include
information in or about the note, the note had no language suggesting that it be passed
on, and the other two similar notes—to Cassaday’s son and ex-wife—never surfaced.
Miller suggests that Cassaday implicated her in the note because he wanted her
to, in Cassaday’s words, “get what is coming.” While that may explain why he directed
the other evidence to law enforcement, it does not explain why he would lie in the
suicide note to his parents. In addition, the only apparent reason that Cassaday would
take so drastic an action to punish Miller—compiling all this evidence before
committing suicide—is if she did in fact manipulate him into killing her husband.
Finally, it was not unreasonable for the court of appeals to find that Cassaday was less
No. 12-2171 Miller v. Stovall Page 10
likely to lie knowing that his death was imminent. In view of all the foregoing, Miller’s
view of the note as a strategic maneuver designed to incriminate her is implausible.
Although a number of the other Lee factors cited by the court of appeals—and
objected to by Miller—were not strong indicators of reliability in this case, the court’s
decision to evaluate them was appropriate: Although the presence of those factors here
does not, by itself, indicate reliability, their absence would surely undermine it. These
additional factors were not impermissible considerations and they do nothing to
undermine the more significant indicators of reliability discussed above. We address the
merits of each of these additional factors below.
We turn first to the appellate court’s finding that the statements were
“consistent.” The prototypical cases in which internal “consistency” may indicate
reliability are cases of child sexual abuse. See Wright, 497 U.S. at 821 (citing
“spontaneity and consistent repetition” as one factor that “properly relate[s] to whether
hearsay statements made by a child witness in child sexual abuse cases are reliable”).
In Stuart v. Wilson, 442 F.3d 506, 523 (6th Cir. 2006), the child, D.S., recounted on two
occasions the same facts concerning his abuse—including the explicit nature of the
conduct and the identity of the abuser: once when he was three years old, to his cousin;
and once when he was five years old, to his parents and the investigating detective in
that case. We held that, “[w]ith respect to consistent repetition . . . the fact that D.S. told
the same story more than two years after his statements to Cousin Cindy especially
supports the reliability of D.S.’s statements.” Id. Here, however, we are not dealing
with testimony repeated on different occasions and in different contexts. Although any
inconsistency in Cassaday’s statements would no doubt have undermined their
credibility, the fact that his singular, unexamined account was coherent is not a
significant “guarantee of trustworthiness.”
Similarly, spontaneity may or may not indicate reliability. We have found that
spontaneity, like consistency, may be a good indicator of reliability in cases of child
sexual abuse. In Stuart, we cited approvingly the state trial court’s finding of
trustworthiness where “D.S.’s statements to Aunt Sue and Cousin Cindy, where both
No. 12-2171 Miller v. Stovall Page 11
asked D.S. what he was doing when he was playing with his penis, were spontaneous,
clearly not orchestrated or directed.” Id. at 511 (citations and internal quotations marks
omitted). We have also found that spontaneity may indicate reliability where it was “a
spontaneous reaction to an exciting event” rather than the “result of reflective thought.”
United States v. Scott, 69 F. App’x 317, 321 (6th Cir. 2003). This kind of spontaneity
is typically invoked in the context of the “excited utterance” exception to the hearsay
rule. See, e.g., United States v. Arnold, 486 F.3d 177, 186 (6th Cir. 2007) (affirming the
admission of the victim’s “spontaneous” statement—“that’s him, that’s the guy that
pulled the gun on me, Joseph Arnold, that’s him”—on the ground that it was prompted
by the unexpected appearance of the victim’s assailant).
Cassaday’s statements were not “excited utterances”: though prepared in
anticipation of suicide, they were not sudden reactions to a startling event; rather, they
were reflections that were typed, printed, and placed in an envelope, along with the other
notes and materials Cassaday had carefully assembled. To be sure, the suicide-note
statements were spontaneous in the sense that they were voluntary and unprompted, and
may therefore be more reliable than statements offered in response to questioning. But
this kind of spontaneity does not, by itself, constitute a “particularized guarantee of
trustworthiness.”
Nor does the fact that the statements in the note were made from “personal
knowledge”—a basic requirement for the testimony of any lay witness, see, e.g., Fed.
R. Evid. 602—strongly support a finding of reliability here. While it is, of course,
important that Cassaday’s statements contained information that he would have
“personally known,” that does not speak to whether the information was true, and
therefore, trustworthy.
Finally, depending on the context, contemporaneousness, too, may or may not
indicate reliability. Statements are more likely to be accurate the closer they are in time
to the events they describe. So for example, a disinterested witness is more likely to give
an accurate account of a car accident minutes after it takes place than months or years
later. And at any given point in time, the witness is more likely to remember certain
No. 12-2171 Miller v. Stovall Page 12
facts than others. On the other hand, contemporaneousness is of limited value in
assessing the honesty of a given statement. A criminal could concoct a story in a matter
of minutes, and could do so in advance of committing the crime. Contemporaneousness
may indicate that statements were truthful only where the speaker would not have had
time to fabricate a story. Indeed, that is the spirit behind the traditional “present sense
impression” and “excited utterance” exceptions to the hearsay rule. “The exception for
present sense impression permits the introduction into evidence of a ‘statement
describing or explaining an event or condition made while the declarant was perceiving
the event or condition, or immediately thereafter.’” United States v. Price, 58 F. App’x
105, 106 (6th Cir. 2003) (citing Fed. R. Evid. 803(1)). Similarly, under the excited-
utterance exception, “[a] statement relating to a startling event may be admitted . . .
where: 1) the event was startling enough to cause nervous excitement; 2) the declarant
made the statement following the event, but before there was time to contrive or
misrepresent; and 3) the declarant was still under the stress of the excitement when
making the statement.” Id. (citing Fed. R. Evid. 803(2)).
Here, the state appellate court found that Cassaday’s statements were made
“fairly contemporaneously to his impending death.” As far as accuracy is concerned, the
relevant timeframe is the amount of time that elapsed between the events in question and
Cassaday’s description of those events; the timing of his suicide is irrelevant. One
would expect that Cassaday would still be able to accurately recall his and Miller’s
involvement in the murder three months after it occurred. But the contemporaneousness
of the note to the murder does not indicate that the statements contained therein were
truthful. In contrast, its proximity to his suicide may fairly indicate reliability. As the
Supreme Court has noted, the basis for the “dying declaration” exception to the hearsay
rule is that “the sense of impending death is presumed to remove all temptation to
falsehood, and to enforce as strict an adherence to the truth as would the obligation of
oath.” Wright, 497 U.S. at 820 (quoting Mattox v. United States, 156 U.S. 237, 243
(1895)). Although Cassaday’s statements do not qualify as “dying declarations,” it was
reasonable for the court of appeals to find that Cassaday’s statements were reliable on
similar grounds.
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Although some parts of the Michigan Court of Appeals’ application of the
reliability factors may be arguable, and though some of the factors it cited were
inapposite, the court reasonably identified other, more powerful indicia of reliability,
which, taken together, reasonably allowed the court to approve the admission of the note
at trial. These indicia included that the note was written when Cassaday knew his death
was imminent, that it was written voluntarily and unprompted; that it was addressed to
his parents; the note’s contrite tone; and its confessional, self-incriminating content. The
question before us is not whether we would have admitted the note in the first instance;
rather, it is whether the Michigan trial and appellate courts’ decisions were unreasonable
in light of clearly established federal law. We cannot say that the admission of the note
was “so lacking in justification that there was an error beyond any possibility for
fairminded disagreement.” Burt, 134 S. Ct. at 16 (citations and quotation and alteration
marks omitted). Accordingly, we conclude that its admission was not an unreasonable
application of clearly established law.
C
The third and final issue certified for appeal by the district court was whether the
district court erred in ruling that the admission of the note did not violate Miller’s
Confrontation Clause right. Miller does not argue that her right of confrontation was
violated other than on the grounds previously discussed. Accordingly, this last issue has
no independent substance to it. Based on the foregoing, we hold that the Michigan Court
of Appeals did not violate Miller’s clearly established rights under the Confrontation
Clause.
IV
Because we hold that the Michigan Court of Appeals did not act contrary to or
unreasonably apply clearly established law, we need not consider the State’s argument
in the alternative that any error was harmless in light of the overwhelming evidence of
Miller’s guilt. The judgment of the district court is AFFIRMED.
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______________________________________
CONCURRENCE IN THE JUDGMENT
______________________________________
KAREN NELSON MOORE, Circuit Judge, concurring in the judgment. I agree
that habeas relief is unwarranted at this time. In light of Greene v. Fisher, 132 S. Ct. 38,
43 (2011), I agree with the majority opinion that the “clearly established federal law”
applicable in this case is the law under Ohio v. Roberts, 448 U.S. 56, 66 (1980), which
permits the admission of hearsay evidence when the declarant is unavailable for cross-
examination only if the evidence bears “adequate ‘indicia of reliability.’” I cannot say
that the admission of Cassaday’s suicide note was contrary to or an unreasonable
application of the relevant federal law. See 28 U.S.C. § 2254(d). Therefore, I join in the
judgment affirming the judgment of the district court.