                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  March 18, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT




    WORD ACKWARD, JR.,

                Petitioner-Appellant,

    v.                                                   No. 08-3102
                                               (D.C. No. 5:07-CV-03052-WEB)
    LOUIS BRUCE, Warden, Hutchinson                       (D. Kan.)
    Correctional Facility; PAUL
    MORRISON, Kansas Attorney
    General,

                Respondents-Appellees.


                            ORDER AND JUDGMENT *


Before MURPHY, McKAY, and ANDERSON, Circuit Judges.



         Word Ackward, an Oklahoma prisoner serving a life sentence for felony

murder, appeals from the district court’s denial of his petition for a writ of habeas

corpus filed pursuant to 28 U.S.C. § 2254. We granted a certificate of



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
appealability (COA) on one issue: whether the introduction of the murder

weapon and associated testimony at trial had a substantial and injurious effect on

the verdict and consequently prejudiced Mr. Ackward’s constitutional rights.

Because we conclude that the admission of this evidence was harmless, we affirm.

                                 BACKGROUND

      The following is a brief summary of the facts, taken primarily from the

Kansas Supreme Court’s direct appeal decision. State v. Ackward, 128 P.3d 382,

385-86, 388, 392-93 (Kan. 2006). We presume the facts found by the state court

to be correct. See 28 U.S.C. § 2254(e)(1).

      On February 12, 2003, Joshua Buckman was killed by gunshot at a Topeka,

Kansas apartment complex. On the night of the murder, he and his friend, Nathan

Wells, met Mr. Buckman’s friends, Mr. Ackward and Mario Oneal, at a gas

station. Mr. Buckman and Mr. Wells, who were in one car, followed

Mr. Ackward and Mr. Oneal, who were in another car, to the apartment complex

and parked next to them. Mr. Ackward backed the car he was driving into the

parking space, so the driver’s windows were facing each other. Mr. Buckman and

Mr. Ackward went into an apartment building, while the other two stayed in the

cars. According to Mr. Ackward, they went to the apartment building so that

Mr. Buckman could buy marijuana.




                                        -2-
      A short while later, Mr. Wells and Mr. Oneal heard two gunshots.

Mr. Oneal moved to the driver’s seat of the car he was in and pointed a gun at

Mr. Wells, who was in the other vehicle, and asked him for money. As Mr. Wells

responded that he had no money, Mr. Ackward ran from the apartment building to

the passenger side of the car where Mr. Oneal was waiting for him. Mr. Ackward

yelled that he had money. Mr. Wells saw that Mr. Ackward was holding a gun.

Mr. Ackward and Mr. Oneal left. In the car, Mr. Ackward told Mr. Oneal that he

and Mr. Buckman had fought and that he had shot Mr. Buckman twice.

      Police questioned Mr. Ackward for at least eight hours, and videotaped the

entire time he was in the interview room. Over the course of the eight hours,

Mr. Ackward changed his story several times. During questioning, Mr. Ackward

asked to talk to his father. Although the two conversed alone, police listened to

the conversation. It appeared that Mr. Ackward and his father discussed the

location of the gun. When Mr. Ackward’s father left the police station, police

officers followed him. He proceeded to a house where he picked up something

outside the house. As he was driving away, police officers stopped him. He had

a black magazine clip with ammunition in it.

      After Mr. Ackward’s father left the police station, Mr. Ackward requested

an attorney. Despite that request, the police continued the interrogation.

Mr. Awkward confessed to shooting Mr. Buckman and agreed to show the police

where he had hidden the gun.

                                         -3-
      The trial court suppressed the statements Mr. Ackward made after he

requested an attorney. But the court declined to suppress the gun. Mr. Ackward

was convicted of felony murder and attempted possession of marijuana with the

intent to distribute and sentenced to life and fourteen months’ imprisonment,

respectively.

      The Kansas Supreme Court affirmed his convictions and sentences.

Ackward, 128 P.3d 382. In doing so, that court held that the trial court erred in

admitting the gun, because it was seized in violation of Mr. Ackward’s Sixth

Amendment right to counsel. Id. at 396-97. Nonetheless, the Kansas Supreme

Court determined that the error did not prejudice Mr. Awkward and was harmless

because there was ample evidence of the presence of a gun during the crime and

Mr. Ackward’s possession of it. Id. at 397. The court pointed to Mr. Wells’s

eyewitness testimony and Mr. Ackward’s statement. Id.

      Mr. Ackward then filed his petition for a writ of habeas corpus in federal

district court, challenging the Kansas Supreme Court’s harmless error analysis.

He argued that the Kansas Supreme Court erred in failing to apply the

beyond-a-reasonable-doubt harmless-error standard set forth in Chapman v.

California, 386 U.S. 18, 22-24 (1967). The federal district court agreed, but held

that the error was harmless under Brecht v. Abrahamson, 507 U.S. 619, 638

(1993). Consequently, the district court denied habeas relief and a COA.




                                         -4-
                                     ANALYSIS

                                   Legal Standards

      Under the Antiterrorism and Effective Death Penalty Act of 1996, habeas

corpus relief will not be granted on a claim adjudicated on the merits in state

court unless that court’s adjudication was contrary to or an unreasonable

application of Supreme Court precedent or the decision was based on an

unreasonable determination of the facts in light of the evidence presented. See

28 U.S.C. § 2254(d)(1), (2). A state-court decision is contrary to clearly

established law “if the state court applies a rule different from the governing law

set forth in [Supreme Court] cases.” Bell v. Cone, 535 U.S. 685, 694 (2002).

      In this case, the parties agree, and the federal district court correctly

concluded, that the Kansas Supreme Court applied an incorrect harmless error

standard, and should have applied the Chapman proof-beyond-a-reasonable-doubt

harmless-error standard. In other words, the court’s decision was contrary to

clearly establish Supreme Court precedent. See Turrentine v. Mullin, 390 F.3d

1181, 1190 (10th Cir. 2004). Because the Kansas Supreme Court decided this

claim under an improper standard, we do not give deference to its decision. See

Revilla v. Gibson, 283 F.3d 1203, 1220 n.14 (10th Cir. 2002).

      Instead, like the district court, we consider whether the error “had

substantial and injurious effect or influence in determining the jury’s verdict.”

Brecht, 507 U.S. at 623; see Fry v. Pliler, 551 U.S. 112, 127 S. Ct. 2321, 2328

                                          -5-
(2007) (holding that Brecht provides proper standard even though state court

failed to review error “for harmlessness under the ‘harmless beyond a reasonable

doubt’ standard set forth in Chapman.”). We review the district court’s

harmlessness conclusions under Brecht de novo. See Turrentine, 390 F.3d

at 1189.

      In examining the entire record, we will conclude that an error has a

“substantial and injurious effect” if we are “in ‘grave doubt’ about the effect of

the error on the jury’s verdict.” Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir.

2006) (quoting O’Neal v. McAninch, 513 U.S. 432, 435 (1995)). “‘Grave doubt’

exists where the issue of harmlessness is ‘so evenly balanced that [we are] in

virtual equipoise as to the harmlessness of the error.’” Id. at 1009-10 (quoting

O’Neal, 513 U.S. at 435). Relevant factors we may consider in our harmlessness

analysis include the importance of the evidence to the government’s case, whether

the evidence was cumulative, whether there is other evidence corroborating or

contradicting the evidence, and the strength of the government’s case. Cf.

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (listing factors to consider

when conducting harmless-error analysis under Chapman).

                           Application of Legal Standards

      Upon de novo review and after considering the entire record, we agree with

the district court that admission of the gun was harmless under Brecht. The gun




                                         -6-
played a minor role in the trial; the prosecutor did not emphasize the gun; and the

prosecution’s case against Mr. Ackward was strong.

       The testimony of Mr. Wells and Mr. Oneal implicated Mr. Ackward in the

murder. Both testified that Mr. Ackward and Mr. Buckman entered the apartment

building, that they heard two gunshots, and that they saw Mr. Ackward run out of

the apartment building after they heard the gunshots. Mr. Wells more specifically

testified that within a minute of hearing the two gunshots, Mr. Ackward ran from

the apartment building carrying a gun and yelling about having money.

Mr. Oneal testified that Mr. Ackward told him that he shot someone he had been

fighting with. When Mr. Oneal asked Mr. Ackward if he had killed

Mr. Buckman, Mr. Ackward responded that he did not think so. Mr. Oneal

further testified that in his statement to police, he said that Mr. Ackward told him

that he pulled his gun and shot Mr. Buckman twice.

      In addition to the testimony of these two witnesses, other facts suggest that

admission of the gun evidence was harmless. Mr. Ackward’s father obtained the

gun’s magazine clip immediately after meeting with Mr. Ackward, thereby

suggesting that Mr. Ackward told him where to find it. There was no dispute that

a gun was used to commit the murder. In one of his versions of what happened,

Mr. Ackward admitted shooting Mr. Buckman, after the two had struggled over

Mr. Buckman’s gun. Indeed, Mr. Ackward never argued at trial that he did not

kill Mr. Buckman.

                                         -7-
      Moreover, the prosecutor did not focus on the gun in opening or closing

arguments. In his opening statement, the prosecutor mentioned that there were

two shots in the apartment building, that Mr. Ackward ran out of the apartment

building holding the gun, and that Mr. Buckman was killed by a gunshot wound.

The prosecutor only briefly commented on the gun in closing argument, again

mentioning that Mr. Ackward ran from the apartment building with the gun that

was the murder weapon.

                                  CONCLUSION

      While we will not dismiss the gun as having no significance to the jury, we

cannot conclude that it and the emphasis placed on it by the State caused its

admission to have a substantial, injurious effect on the jury’s verdict. See Brecht,

507 U.S. at 637. Because the evidence of guilt in this case was strong, admission

of the evidence concerning the gun was harmless. Accordingly, we AFFIRM the

district court’s judgment.


                                                    Entered for the Court



                                                    Michael R. Murphy
                                                    Circuit Judge




                                         -8-
