                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-2299
                         ___________________________

                              Jerome Emmanuel Davis

                        lllllllllllllllllllllPetitioner - Appellant

                                            v.

                             Warden Kent Grandlienard

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

                     Appeal from United States District Court
                    for the District of Minnesota - Minneapolis
                                   ____________

                             Submitted: February 9, 2016
                                 Filed: July 7, 2016
                                  ____________

Before SHEPHERD, BEAM, and KELLY, Circuit Judges.
                           ____________

SHEPHERD, Circuit Judge.

        Jerome Davis was convicted in the Hennepin County, Minnesota District Court
of aiding and abetting first-degree felony murder and sentenced to life in prison. In
his direct appeal to the Minnesota Supreme Court, Davis claimed, inter alia, that the
state trial court erred when it admitted a statement he made to police while in custody
because the police violated his Fifth Amendment right to remain silent. The
Minnesota Supreme Court concluded that any error committed by the trial court was
harmless beyond a reasonable doubt. Davis filed a petition for writ of habeas corpus
in federal court, challenging the Minnesota Supreme Court’s determination that
admission of his statement to police was harmless error. The district court1 adopted
the report and recommendations of the magistrate judge2 and denied Davis’s Miranda3
claim. Davis timely appealed. Having jurisdiction under 28 U.S.C. § 1291, we now
affirm.

                                          I.

       On the evening of May 11, 2007, Minneapolis police officers responded to a
911 call reporting gunshots and found Armando Calix, shot in the neck and bleeding
in front of his apartment building. Calix bled to death, and the medical examiner
pronounced him dead at the scene. Officers searched the apartment for other victims
or suspects but found no one else at the scene. Forensic officers examined the
apartment, gathered evidence, and took DNA samples. Inside the apartment, officers
found a bullet hole in a window, bullet fragments near the window, and a knife with
Calix’s blood on it. Officers initially questioned two bystanders who reported they
had observed two men running away from the building, but did not follow up with the
bystanders.

      Police investigators also contacted the 911 caller, Brinett Beckford, who had
been visiting family in a building across an alley from Calix’s apartment building.
Beckford reported that he looked out a window shortly before the shooting and saw
two young men crossing the alley. The two men passed through a gap in a fence then

      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
      2
        The Honorable Jeffrey J. Keyes, United States Magistrate Judge for the
District of Minnesota.
      3
          Miranda v. Arizona, 384 U.S. 436 (1966).

                                         -2-
entered an apartment building. Beckford did not know their names but claimed he
recognized them because he had seen them on prior occasions in the same area. He
described the height, weight, complexion, and hair style of each man. Beckford also
told investigators he observed one of the men, later identified as Davis, hit his hip on
a metal fencepost as he moved through the fence gap, then put his hand on his hip,
hold his side, and pull in his stomach to pass through the gap. Shortly thereafter, just
past 8:00 p.m., Beckford drove through the alley to leave the building and heard what
sounded to him like a gunshot. Beckford immediately called 911. At a later date,
Beckford met with police to perform a photo lineup and identified Toriano Dorman
as the taller, dark-skinned man from the alley, and Davis as the shorter, light-skinned
man.

       Investigators discovered Calix last received a phone call at 8:01 p.m. on the
night of the shooting. Further investigation of the phone number that called Calix led
police to Dorman, and an investigation of Dorman’s associates led police to Davis.
Police obtained several phone numbers used by Davis and asked the county jail to
search for calls made by inmates to one of those phone numbers. Four phone calls
between inmate Anthony Whigham and a man believed to be Davis were discovered.
The man, who investigators believed to be Davis, told Whigham during the first
recorded phone call, on the day before the shooting, that he was “about to rob
somebody” and that a white woman was attempting to set up a “lick” for him. If the
“lick” went well, the man would receive $10,000, $1,500 of which he would give
Whigham to hire a lawyer. Whigham asked the man for the phone number of Jovan
Gentle, and the man responded with two phone numbers.

       The day after the shooting, a second call took place, during which the man told
Whigham “it’s all bad.” Whigham asked, “something went down?” to which the man
replied, “yeah.” “Is it what I think it is?” asked Whigham. The man responded, “I
think so.” During the third call, placed two days after the shooting, the man told
Whigham he “had to do some business shit,” adding “it ain’t go as smoothly as I

                                          -3-
wanted it to go” and “[s]omebody had to go and it wasn’t me.” Whigham asked the
man if he received “something out of the situation,” and the man said “yep,” and that
he needed to turn it into money. During the last call, the man mentioned to Whigham
that the news covered his “situation” and provided Whigham a new phone number to
call. The new number was a land line connected to an apartment in St. Paul,
Minnesota. On the same day, police obtained a search warrant for that St. Paul
apartment, and upon searching, found seven cell phones, including one with a phone
number matching that called by Whigham from the county jail.

       Gentle later met with police and provided a statement containing the following
information. Gentle contacted Davis on the afternoon of May 11, 2007, the day of
the shooting, regarding a wristwatch. The two men met that afternoon. According
to Gentle, Davis drove a four-door blue Caprice with two passengers, one of whom
was Dorman. During an argument between Gentle and Davis about the wristwatch,
Dorman exited Davis’s car “clenching” a revolver, but Davis ordered Dorman to go
back inside the car. Gentle and Davis parted ways after the argument, but later in the
day, Gentle received a phone call from Davis asking him to meet again and help with
a robbery. Gentle initially indicated he would help, but changed his mind and stayed
home. Davis later came to Gentle’s house, where Gentle claimed Davis told him that
“he hit the lick on a Mexican” and showed him a laundry tub containing fifteen to
twenty pounds of marijuana. Gentle told police that Davis confessed to shooting a
Mexican man “one time in the chest,” then taking the marijuana and running out of
the room with Dorman. Davis also showed Gentle two handguns. Gentle then
claimed he and Davis drove separately to buy baggies to package the marijuana, and
while driving on a bridge over a river, he saw Davis throw something out of his car
window. According to Gentle, Davis later admitted to him that the objects he threw
out of the window were the handguns. Separate from Gentle’s statement, cell phone
records verified that Dorman was in contact with both Davis and Calix on the day of
the shooting. The last phone call from Dorman to Calix, at 8:01 p.m., was routed
through a cell tower only a few blocks from Calix’s apartment building.

                                         -4-
       Police arrested Davis for his involvement in an unrelated assault one week after
the shooting. Davis called Gentle from jail several times, speaking in “code” and
asking for money so that he could post bail before the homicide detectives figured
“out what was going on.” Davis was placed in an interview room with concealed
audio and video recording equipment, where Sergeant Karakostas, a homicide
investigator, interviewed him. Karakostas, who held a hand-held recorder, informed
Davis of his Miranda rights and began to interview him about his whereabouts on the
night of the shooting. Davis initially claimed he had been home in St. Paul the entire
day. Karakostas continued questioning about the day of the shooting, prompting
Davis to worry aloud whether he was being questioned solely about the assault.
Karakostas told Davis that his name had “come up in something else too.” When
Davis asked whether he could go home after the interrogation, Karakostas replied in
the negative, explaining that he was going to jail for the assault and that he was
“getting [himself] kind of jammed up on something” else. Davis became visibly
agitated and said, “I don’t know about nothing that’s going on.” He repeatedly stated
that he wanted to simply go to jail for the assault and told Karakostas, “I don’t want
to talk. I don’t want to talk.” Karakostas told Davis that whether he wanted to talk
was a personal decision, but that he probably should talk to the police. Davis replied
that he did not want to go to jail because he did not do anything wrong.

       Karakostas continued his inquiry regarding Calix’s death and implied that
Davis had been identified. Davis again requested that Karakostas take him to jail for
the assault: “take me to jail . . . I don’t, you can cut that off, I don’t have nothing to
say. ‘Cause I ain’t done nothing. I didn’t assault nobody . . . I don’t know nothing
about that.” Karakostas indicated the interview could end at that time if Davis
wanted it to end, to which Davis again stated “I don’t want to talk.” Karakostas
handed a business card to Davis and encouraged him to call if he changed his mind.
Davis noted from the business card that Karakostas was with the homicide division
and asked, “homicide unit . . . you got me in a homicide?” Karakostas asked Davis
if he wanted to continue talking. Davis responded by asking questions about why he

                                           -5-
was going to jail that day. Karakostas disclosed more information about the police
department’s knowledge of Davis’s involvement in Calix’s shooting. Davis then said,
“[m]y rights says anything I say can and will be used against me in the court of law.
So if I tell you the truth or anything is it gonna be used against me in a court of law,
so I don’t . . . so what’s my point of talking to you? I might as well talk to a lawyer,
someone who can help me.” Karakostas clarified that Davis did, in fact, want an
attorney present for questioning and suspended the interrogation.

       Davis asked if Karakostas would bring him water. When Karakostas returned
a few minutes later with the water, he told Davis it “shouldn’t be too much longer”
until an attorney arrived for Davis. Davis made hand motions indicating Karakostas
should remain in the room and asked him to close the door. He asked Karakostas if
he could go home if he revealed what he knew about the shooting. Karakostas
informed Davis that he would have to read Davis his Miranda rights again before they
could resume their conversation, and that he could not promise Davis would be able
to go home. Karakostas reassured Davis that if he was not involved in the shooting,
he would recommend a bond on the assault charge. Karakostas answered more of
Davis’s questions and read his Miranda rights again. Then, he asked Davis to tell his
version of events from May 11, 2007 after Davis indicated he understood his rights
and wanted to talk. Karakostas also agreed to turn off his hand-held recorder but did
not alert Davis to the concealed recording equipment in the room.

       In his statement recorded by the audio and video equipment in the interview
room, Davis admitted to Karakostas that he was inside Calix’s apartment during the
shooting but denied involvement in the murder or robbery, consistently claiming that
he was “in the wrong place at the wrong time.” Dorman planned to go to Calix’s
apartment to buy marijuana and Davis agreed to go with him. Davis averred that
“three Mexicans” were in the apartment. While Dorman spoke with Calix, Davis
watched TV on a couch with one of the other men. Suddenly, Davis saw Dorman pull
out a gun. Davis ran and hid in a closet with one of the other men, then heard a gun

                                          -6-
shot. He peeked out of the closet and saw Dorman motioning to him that it was time
to go. Davis then left the apartment with Dorman, after which the men split up and
Davis returned to his apartment in St. Paul.

      Davis was indicted in Minnesota state court for causing the death of Calix,
“acting alone or intentionally aiding, advising, hiring, counseling or conspiring” with
Dorman, while using a firearm, “with intent to effect the death” of Calix “while
committing or attempting to commit the crime of aggravated robbery.” Davis moved
to suppress the recording of his statement to Karakostas, but the trial court denied the
motion, concluding the statement was voluntary and that Karakostas did not use any
improper techniques. Several hours of the recorded interview were played at trial.
The State did not present any witnesses who were in Calix’s apartment at the time of
the shooting. Beckford and Gentle each testified as to their knowledge of the events.
The state also played the recordings of the jail calls between Whigham and the person
at Davis’s phone number. In closing statements, the state emphasized the changes in
Davis’s story over the course of his interview with Karakostas.

        Following a four-day trial, the jury convicted Davis of first-degree felony
murder. At sentencing, Davis maintained that he did not commit the offense. The
trial court sentenced Davis to life imprisonment. Davis appealed his conviction to the
Minnesota Supreme Court, arguing that his videotaped statement was obtained in
violation of his right to be free from compelled self-incrimination under Miranda and
Colorado v. Connelly, 479 U.S. 157 (1986). The Minnesota Supreme Court affirmed
Davis’s conviction, dividing the statement into two parts: “the admissible portion
given after Davis waived his Miranda rights but before he said ‘I don’t want to talk,’
and the purportedly inadmissible portion after Karakostas allegedly violated Davis’s
right to remain silent.” State v. Davis, 820 N.W.2d 525, 533 (Minn. 2012). The court
concluded that “the jury’s verdict was surely unattributable to any error in admitting
the portion of Davis’s statement recorded after he allegedly invoked his right to
remain silent.” Id. at 534. Reasoning that “any error was harmless because mere

                                          -7-
presence at the scene of a crime does not establish that Davis aided or abetted
criminal activity” and that Davis’s statement was cumulative to other testimony, the
court held that admission of Davis’s full statement did not entitle him to a new trial.
Id. (citing State v. Buckingham, 772 N.W.2d 64, 71 (Minn. 2009)).

       Davis filed a pro se petition under 28 U.S.C. § 2254 for a writ of habeas
corpus. A magistrate judge issued a report and recommendation recommending that
the district court deny the petition but grant a certificate of appealability as to the
following question: “Was the Minnesota Supreme Court’s finding objectively
unreasonable that any error in admitting Davis’s statements from interrogation after
his invocation of his right to silence was harmless beyond a reasonable doubt?” The
district court adopted the report and recommendation in its entirety over Davis’s
objections and granted the certificate of appealability as recommended by the
magistrate judge. Davis made a motion to alter or amend the judgment pursuant to
Federal Rule of Civil Procedure 59(e), which the district court denied. This timely
appeal followed.

                                          II.

        On appeal, Davis contends that the Minnesota Supreme Court unreasonably
applied federal law when it concluded that the admission of his videotaped statements
at trial was “harmless beyond a reasonable doubt,” and the district court therefore
erred when it held otherwise. Because Davis appeals from a denial of habeas relief,
the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d) applies. Under AEDPA, habeas relief will not be granted with respect to
any claim adjudicated on the merits in State Court proceedings, unless such
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;” or “that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.

                                         -8-
§ 2254(d). “AEDPA’s highly deferential standards kick in” where the prisoner’s
claim has been adjudicated on the merits in state court. Davis v. Ayala, 135 S. Ct.
2187, 2198 (2015) (citing Harrington v. Richter, 562 U.S. 86, 103 (2011)). Where
a state court holds that any federal error was harmless beyond a reasonable doubt, the
decision constitutes an adjudication on the merits. Id. If a prisoner’s constitutional
rights were violated as a result of the state court’s decision, the prisoner must also
demonstrate that the error was prejudicial, as federal courts may not grant habeas
relief unless the error in the state trial had a “substantial and injurious effect or
influence in determining the jury’s verdict.” Fry v. Pliler, 551 U.S. 112, 116 (2007)
(quoting Brecht v. Abrahamson, 507 U.S. 619, 631 (1993)).

       The Minnesota Supreme Court assumed without deciding, for purposes of its
opinion, that Karakostas violated Davis’s right to remain silent when he continued to
question Davis after Davis first said “I don’t want to talk.” Davis, 820 N.W.2d at
533. The court also assumed without deciding that the Minnesota district court erred
in admitting the statement after that point, leaving the sole focus of the issue on
whether the error was harmless beyond a reasonable doubt. Id. The court pointed out
that after Davis waived his Miranda rights but before he told Karakostas “I don’t want
to talk,” Davis lied about his whereabouts on the night of Calix’s murder and
provided a version of events that was contradicted by both Gentle and Beckford, the
911 caller. Id. at 533-34. Because that portion of the statement was admissible, the
court concluded the damage to Davis’s credibility occurred before Karakostas
allegedly violated Davis’s right to remain silent. Id. at 534.

       The purportedly inadmissible portion of Davis’s statement placed him in
Calix’s apartment at the time of the shooting; however, the court recognized that
Davis “otherwise repeatedly denied being involved in a robbery or murder.” Id. The
court also noted that, in the purportedly inadmissible portion of the statement, Davis
claimed to be an innocent bystander in the apartment and that the defense relied on
the exculpatory nature of Davis’s statement during closing arguments. Id.

                                         -9-
Accordingly, the court concluded that “the jury’s verdict was surely unattributable to
any error in admitting the portion of Davis’s statement recorded after he allegedly
invoked his right to remain silent.” Id. The court determined Davis’s admission to
being at the crime scene was harmless because mere presence at the scene of a crime
is insufficient to establish Davis aided or abetted criminal activity and it was
cumulative to other evidence linking Davis to the crime scene. Id. Concluding that
any error in allowing the purportedly inadmissible portion of Davis’s statement into
evidence was harmless beyond a reasonable doubt, the court held that admission of
the statement did not entitle Davis to a new trial. Id.

       Davis argues that the portion of his statement recorded after he told Karkostas
“I don’t want to talk” is inadmissible under Miranda, that the jury’s verdict was not
“surely unattributable” to the trial court’s erroneous admission of the statement under
Sullivan v. Louisiana, 508 U.S. 275 (1993), and that the trial court error had a
“substantial and injurious effect” on the verdict under Fry, 551 U.S. at 112.
Specifically, Davis argues the latter portion of his statement is inadmissible because
he invoked his right to remain silent, after which “the interrogation must cease.” See
Miranda, 384 U.S. at 473-74. Like the Minnesota Supreme Court and the district
court, for purposes of this opinion, we also assume that the latter portion of Davis’s
interview was inadmissible due to the Miranda violation.

       Davis contends that after the state trial court erroneously admitted that portion
of the statement, his admission to being in Calix’s apartment at the time of the
shooting encouraged the jury to disbelieve Davis’s initial statement that he was not
at the crime scene, harmed his credibility uniquely by using his “own words” as
opposed to the testimony of other witnesses, and did not amount to cumulative
testimony because no forensic evidence or eyewitness testimony linked him directly
to the shooting. The jury’s verdict could not have been “surely unattributable” to the
erroneous admission of the statement according to Davis. See Sullivan, 508 U.S. at
279. Finally, Davis asserts that those same arguments support a finding of a

                                         -10-
“substantial and injurious effect” of the error on the verdict, proving the prejudicial
impact of the state court error. See Fry, 551 U.S. at 120. For all of these reasons,
Davis contends that the Minnesota Supreme Court unreasonably applied federal law.

       The government notes the highly deferential standard applied under AEDPA
when a federal habeas claim has been adjudicated on the merits in state court and
contends that the Minnesota Supreme Court’s determination that the state trial court’s
admission of the inadmissible portion of Davis’s statement was not an objectively
unreasonable application of United States Supreme Court precedent. See Ayala, 135
S. Ct. at 2198. Emphasizing that Davis used the admission of the full statement to
present an exculpatory version of the events without subjecting himself to cross-
examination by testifying at trial, the government argues that Davis used the
challenged portion of the statement as a centerpiece of his defense, so the Minnesota
Supreme Court’s reliance on the exculpatory nature of the statement was objectively
reasonable. The government further urges this Court that the statement was
cumulative to other evidence linking Davis to the crime, damage to Davis’s
credibility occurred during the admissible portion of the statement, and the state’s
other evidence against Davis was overwhelming. For those reasons, the government
contends that the Minnesota Supreme Court’s decision was not “so lacking in
justification” that no fair-minded jurist could possibly agree with its ruling. Id. at
2199.

       A state court decision is “contrary to” clearly-established federal law if the
state court arrives at a conclusion opposite to that reached by the United States
Supreme Court on a question of law or if the state court reaches the opposite result
in a case involving facts that are materially indistinguishable from relevant Supreme
Court precedent. Williams v. Taylor, 529 U.S. 362, 405 (2000). “A state court’s
decision is not ‘contrary to . . . clearly established Federal law’ simply because the
court did not cite [United States Supreme Court] opinions.” Mitchell v. Esparza, 540
U.S. 12, 16 (2003) (per curiam) (internal citation omitted). Here, the Minnesota

                                         -11-
Supreme Court did not reach a legal conclusion opposite any holdings of the Supreme
Court, and Davis cites no Supreme Court case with materially indistinguishable facts
in which the Supreme Court found the admission of a defendant’s statement to be
harmful error. Although the Minnesota Supreme Court relied heavily on its own
precedent, it did not decide Davis’s case in a manner “contrary to” clearly-established
federal law.

       We next examine whether the Minnesota Supreme Court’s decision resulted
in a decision that involved the unreasonable application of clearly-established federal
law. The “unreasonable application” clause requires the state court decision to be
“objectively unreasonable,” which demands the decision be more than incorrect or
erroneous. Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (citing Williams, 529 U.S.
at 409-10). The “objectively unreasonable” standard is not satisfied even by clear
error. Escobedo v. Lund, 760 F.3d 863, 869 (8th Cir. 2014) (citing Lockyer v.
Andrade, 538 U.S. 63, 75-76 (2003)). The state court’s application of federal law
may even be erroneous or incorrect in our independent judgment without being
“objectively unreasonable.” Engesser v. Dooley, 457 F.3d 731, 736 (8th Cir. 2006)
(citing Clemons v. Luebbers, 381 F.3d 744, 750 (8th Cir. 2004)).

       We fail to find any unreasonable application of clearly-established federal law
in the Minnesota Supreme Court’s decision. The court provided a detailed analysis,
as described above, explaining that any error committed by the state trial court when
it admitted the inadmissible portion of Davis’s statement was harmless beyond a
reasonable doubt based on clearly-established federal law. As the district court noted,
the admission of Davis’s full statement was cumulative to other testimony, served
exculpatory purposes in the defense’s case, and did not further damage Davis’s
credibility given the proper admission of the earlier portion of his statement. We
agree with the district court and cannot say the Minnesota Supreme Court’s decision
involved an unreasonable application of any United States Supreme Court precedent.



                                         -12-
                                         III.

       The Minnesota Supreme Court’s decision in Davis adjudicated the merits of
Davis’s case, but did not result in a decision that was contrary to, or involved the
unreasonable application of, clearly-established federal law as required by AEDPA
before a writ of habeas corpus can be granted. Accordingly, we affirm the decision
of the district court and deny Davis’s petition for a writ of habeas corpus.

KELLY, Circuit Judge, concurring in the judgment.

       The outcome of this case turns on the Minnesota Supreme Court’s
determination that the inadmissible portion of Davis’s statement to Sergeant
Karakostas was exculpatory, cumulative, and not more damaging to Davis’s
credibility than the admissible portion of the statement. I disagree, and believe that
the state court was incorrect in concluding that the admission of Davis’s statement
was harmless beyond a reasonable doubt. However, because we are limited to
considering whether the state court’s decision was an unreasonable application of
federal law, I concur in the judgment of the court.

       The inadmissible portion of Davis’s statement was not truly exculpatory
because it unequivocally placed him in the apartment at the time of the shooting.
Though he denied having committed the actual shooting, his explanation of his
presence in the apartment was the only evidence that directly placed him at the scene
of the crime. For this same reason, the statement was not cumulative. Though other
evidence linked Davis to the crime scene generally, only his own words placed him
in that exact apartment at the precise time of the shooting. And while Davis’s
credibility was already damaged by the admissible portion of his statement, I believe
it was undoubtedly more damaging for the jury to hear two inconsistent stories about
the events surrounding the shooting from Davis himself. Though the jury could

                                        -13-
certainly have found the admissible portion of Davis’s statement not credible in light
of the other evidence in the case, hearing the full statement all but guaranteed that
they would be unwilling to find any aspect of his defense credible. Given the perhaps
intangible but definitely harmful effects the entirety of Davis’s statement could have
had on the jury, I could not conclude that it was harmless beyond a reasonable doubt.
Ayala, 135 S. Ct. at 2197; see also Garcia v. Long, 808 F.3d 771, 782 (9th Cir. 2015)
(improper admission of the defendant’s confession was not harmless where his
“initial denial of the allegations and subsequent contradictory admission seriously
undermined his own credibility and correspondingly bolstered [the victim’s]
credibility”); Gov’t of Virgin Islands v. Davis, 561 F.3d 159, 166–67 (3d Cir. 2009)
(the prosecutor’s improper references to the defendant’s failure to provide his
exculpatory version of events to the police was not harmless, where “the conflicting
versions of the shooting” meant that “the credibility of the witnesses was crucial to
the jury’s verdict”); Velarde v. Shulsen, 757 F.2d 1093, 1095 (10th Cir. 1985)
(“where the very essence of a case is the jury’s evaluation of defendant’s credibility,
the admission of tainted evidence [damaging the defendant’s credibility] cannot be
considered harmless”); Grizzell v. Wainwright, 692 F.2d 722, 726 (11th Cir. 1982)
(where substantial evidence placed the defendant at the scene of the crime, but his
own testimony exonerated him from the crime itself, the erroneous admission of
misdemeanor convictions to impeach his credibility was not harmless); Hinman v.
McCarthy, 676 F.2d 343, 350–52 (9th Cir. 1982) (admission of the defendant’s
statement, obtained in violation of his Miranda rights, was not harmless where the
statement impeached the defendant’s testimony that he had no intent to rob the
victim). Though the jury could have found Davis guilty even without the
inadmissible portion of the statement, I am unable to summon any certainty that the
admission of the statement did not contribute to the jury’s verdict. Mitchell, 540 U.S.
at 18.

      However, on our review of the Minnesota Supreme Court’s decision, we may
not directly apply the harmless error standard to the facts of this case, but must

                                         -14-
instead consider whether the Minnesota Supreme Court’s application of the standard
was objectively unreasonable. Id.; Ayala, 135 S. Ct. at 2197–98. Though I disagree,
I cannot say that it was unreasonable for the state court to conclude that the
inadmissible portion of the statement was harmless beyond a reasonable doubt. The
court could have reasoned that because the literal words of the statement did
exculpate Davis from the actual shooting, and because there was other evidence
linking him to the crime, the jury’s verdict was “surely unattributable” to the
inadmissible portion of Davis’s statement. United States v. Holmes, 620 F.3d 836,
846 (8th Cir. 2010). The Minnesota Supreme Court’s decision, though in my view
incorrect, was not “so lacking in justification that there was an error . . . beyond any
possibility for fairminded disagreement.” Ayala, 135 S. Ct. at 2199 (quoting
Harrington, 562 U.S. at 103). Accordingly, I concur in the judgment of the court.
                        ______________________________




                                         -15-
