                                                                                FILED
                                                                    United States Court of Appeals
                                       PUBLISH                              Tenth Circuit

                      UNITED STATES COURT OF APPEALS                        July 15, 2015

                                                                        Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                           Clerk of Court
                        _________________________________

KIMBERLY D. SHARP,

      Petitioner - Appellant,

v.                                                            No. 14-3090

KAREN ROHLING, Warden, Larned
Correctional Mental Health Facility;
DEREK SCHMIDT,* Attorney General for
the State of Kansas,

      Respondents - Appellees.
                      _________________________________

           APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF KANSAS
                      (D.C. No. 5:10-CV-03100-JTM)
                   _________________________________

Jean K. Gilles Phillips, The Paul E. Wilson Center for Innocence and Post Conviction
Remedies, University of Kansas School of Law, Lawrence, Kansas, for Petitioner-
Appellant.

Kristafer R. Ailslieger, Deputy Solicitor General, Office of the Attorney General for the
State of Kansas, Topeka, Kansas, for Respondents-Appellees.
                         _________________________________

Before HARTZ, GORSUCH, and MATHESON, Circuit Judges.
                  _________________________________

MATHESON, Circuit Judge.


       *
         Derek Schmidt is substituted for Stephen Six as the current Attorney General for
the State of Kansas pursuant to Fed. R. App. P. 43(c)(2).
       In 2006, Kimberly Sharp lived homeless in Kansas with her two children. One

day while she was with three homeless men at a camp site, David Owen approached the

group and harangued them for being homeless. An altercation ensued. Two of the

homeless men dragged Mr. Owen into the woods and tied him to a tree, where he was

later found dead.

       While investigating the death, police interviewed Ms. Sharp. During the

interview, she confessed to playing a role and accompanied officers to the camp site to

re-enact the events. The police videotaped the interview and re-enactment. She was

subsequently charged in state court with first-degree felony murder and kidnapping.

       Ms. Sharp moved to suppress her confessional statements, arguing they were

involuntary because the police promised leniency—no jail—and help finding shelter for

her and her children to live. The court denied the motion, concluding her statements

were voluntary based on its factual finding that Ms. Sharp was not operating under any

promises.

       A jury, having received evidence of Ms. Sharp’s statements, found her guilty on

both counts. The court sentenced her to life in prison (with a chance of parole after 20

years) on the murder conviction and 61 months in prison on the kidnapping conviction, to

run concurrently. She appealed the denial of her motion to suppress.

       The Kansas Supreme Court affirmed, concluding the record supported the trial

court’s finding that Ms. Sharp was not operating under any promises. She then filed a

petition under 28 U.S.C. § 2254 seeking habeas relief in the United States District Court

for the District of Kansas, arguing her confessions were not voluntary and were admitted


                                            -2-
in violation of the Fifth and Fourteenth Amendments. The court denied her petition and

granted her a certificate of appealability (“COA”) under 28 U.S.C. § 2253(c).

       On appeal Ms. Sharp challenges the state supreme court’s factual findings and

seeks habeas relief.1 We conclude Ms. Sharp overcomes the deferential constraints of the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254, as

to the court’s fact-finding. Thus reviewing this matter de novo, we determine Ms.

Sharp’s confessional statements following a promise of no jail time were involuntary, the

state trial court erred by admitting them at trial in violation of Ms. Sharp’s Fifth and

Fourteenth Amendment rights, and the error was harmful. We therefore reverse the

district court and grant Ms. Sharp’s petition for a writ of habeas corpus as to her

convictions, subject to the state’s right to retry Ms. Sharp within a reasonable time.

                                   I. BACKGROUND

                                   A. Factual History

       When reviewing a § 2254 habeas petition, we must presume the state supreme

court’s factual findings are correct unless the petitioner presents clear and convincing

evidence the findings are incorrect. 28 U.S.C. § 2254(e)(1). Although Ms. Sharp

challenges the Kansas Supreme Court’s factual findings as to whether promises induced

her to confess, she does not challenge the court’s following description of the factual

history:


       1
         As explained more fully below, we analyze Ms. Sharp’s petition under 28 U.S.C.
§ 2254(d)(2). Although she makes § 2254(d)(1) arguments, her petition also challenges
the state supreme court’s factual findings, which fits § 2254(d)(2).


                                              -3-
As an advocate for the homeless, David Owen used unconventional
methods. These methods included offering the use of his phone cards and
cell phones for them to call their loved ones. Owen also tried to force them
to return to their families by destroying their camps and taking their
equipment and supplies. He often photographed the destroyed camps and
carried the pictures while visiting other camps.

Owen had been reported missing for several weeks when on July 2, 2006, a
canine search team found his body in a heavily wooded area on the bank of
the Kansas River in Topeka.           No personal property, including
identification, shoes, socks, or eyeglasses, was located on or around
Owen’s body. The officers recovered an axe and some pieces of rope when
they searched the surrounding area. The coroner opined that Owen had
been dead for several weeks or months, and he listed the manner of death as
homicide. Approximately 10 days after discovery of Owen’s body,
defendant Kimberly Sharp and three other homeless people—her boyfriend
Charles Hollingsworth, Carl Lee Baker, and John Cornell—were arrested
and subsequently charged with kidnapping and felony murder.

Sharp and Hollingsworth were seated on a bench near the river when
detectives first encountered them. Detective Bryan Wheeles noticed that
Sharp was scared, so he walked her further down the street, away from
Detective Mike Barron and Hollingsworth. Wheeles explained that they
needed to talk to her about their investigation into Owen’s death. Wheeles
and Barron then separately transported Sharp and Hollingsworth to the
Topeka Police Department to be interviewed.

Wheeles was informed on the way to the station that there was an
outstanding warrant for Sharp out of Emporia, Kansas. When they reached
the station, Sharp was put in an interview room where Wheeles Mirandized
her after telling her that she was under arrest. Wheeles did not tell her
specifically why she had been placed under arrest.

Wheeles then conducted a fully recorded interview with Sharp. The
interview contained three basic parts: (1) an initial interview lasting 20 or
30 minutes in which Sharp described most of the events surrounding
Owen’s kidnapping; (2) a re-enactment of the crimes with Wheeles at the
homeless camp; and (3) a final interview at the station.

During Sharp’s initial interview, she told Wheeles that on Thursday, June
15, 2006, she was sitting around a campfire with Hollingsworth, Baker, and
Cornell. Around 7 p.m., Owen walked into the camp and told these
homeless people that they should not camp and should call their families.



                                     -4-
      Everyone was upset by his remarks, especially when he said he would have
      burned their camp if they had not been there.

      Sharp told Wheeles that Baker began arguing with Owen, who then said he
      was going to call the police. When Owen reached for his phone, Baker and
      Hollingsworth knocked him to the ground. Hollingsworth then struck
      Owen and dragged him into the woods.

      According to Sharp, she also headed into the woods to see what was going
      on. There she saw Owen on his knees and Hollingsworth with “an axe that
      he was going to [use to] kill him like that.” Sharp told Hollingsworth,
      “[N]o, don’t do that, don’t do that. I can’t be an accessory to this shit, you
      know. I can’t do that. I got two kids . . . .” She said Cornell then brought
      Hollingsworth a rope which was used to tie up Owen. Baker stuffed a rag
      in Owen’s mouth, and the two men continued to beat him. Sharp told
      Wheeles that Cornell then burned all of Owen’s possessions, including his
      pictures, notebooks, shoes, and socks. Hollingsworth and Baker then
      dragged Owen into the woods, and Sharp never saw Owen again.

      After additional discussion during which Sharp continued to deny any
      participation, Wheeles specifically asked if she helped burn Owen’s
      possessions. She denied helping burn or having Owen’s phone or bag at
      any point. Sharp eventually admitted that she helped burn. When Sharp
      then asked if she was going to jail, Wheeles responded, “No, no, no, no, no,
      no, no, no, [no, no].2 You are a witness to this thing as long as you do not
      do something dumb and jam yourself.” He further explained that if she had
      been scared she should tell him and, “Just don’t tell me no if I ask you
      something.” Sharp then detailed her role in burning Owen’s phones and
      notebooks.

      After Sharp informed Wheeles that her two kids were with Baker at another
      homeless camp, he left the interview. Upon his return he told her they were
      going to work together to get her kids “out of harm’s way.” He advised
      that Baker was a registered sex offender and had an outstanding arrest
      warrant for a parole violation. They then left together, retrieved the kids,
      and brought them back to the station within the hour to be with Sharp.

      Approximately 1 hour later Wheeles escorted Sharp to the camp where she
      re-enacted the events surrounding Owen’s kidnapping and murder. During

      2
         We inserted two additional uses of the word “no” in Detective Wheeles’s
response to Ms. Sharp’s question about going to jail. The interview transcript indicates
he said “no” eight times, but the video shows he said it ten times.


                                            -5-
       the re-enactment, Sharp told Wheeles that when Hollingsworth was
       standing over Owen with an axe, she had said to him, “No, don’t kill him.”
       Wheeles requested clarification, “Did you say ‘No, don’t kill him,’ or did
       you say, ‘No, don’t kill him here?’” Sharp responded, “Don’t kill him
       here.” (Emphasis added.) Sharp also admitted that Hollingsworth had then
       asked her to bring him some rope, and she told Cornell to go get it. She
       further admitted that it was her idea to burn Owen’s things so there would
       not be any evidence to tie her to the events. “I said we have to burn it
       ‘cause I don’t need the evidence. I don’t want to be tied to this.”

       Following the re-enactment, Wheeles brought Sharp back to the station. He
       asked her a few more questions and then left her alone in the interview
       room with her children. Approximately 1 hour after returning to the
       station, Wheeles was notified that the district attorney’s office had decided
       to charge Sharp. When Wheeles told her that she was going to be placed
       under arrest, she became angry and upset. Sharp accused Wheeles of lying
       to her and said that he had tricked her, telling him: “This is bullshit.”

State v. Sharp, 210 P.3d 590, 596 (Kan. 2009).

       In addition to the state supreme court’s factual summary, we also note Detective

Wheeles began the interview with Ms. Sharp by telling her, “As long as you’re straight

with me, we’re not going to have any problems. . . . I’m not going to lie to you in this

investigation at all.” App. Vol. I at 38-39.3 Additionally, once Ms. Sharp’s children

were retrieved from the camp site, Detective Wheeles placed Ms. Sharp and her children

in an interrogation room and asked Ms. Sharp to prepare a written statement describing in

detail her observations of the attack on Mr. Owen. Id. at 52.




       3
        The record in this case has documents from the state and federal district court
proceedings, and video recordings. Citations to the state record start with “State App.”
Documents from the federal district court’s proceedings are cited as “App.” The video
recordings are cited as “Suppl. App.”


                                             -6-
                                  B. Procedural History

1. State Court Proceedings

   a. The charge and motion to suppress

       On July 17, 2006, Ms. Sharp was charged with one count of felony murder. On

August 25, 2006, the charge was amended to include a second count for kidnapping with

intent to injure or terrorize.4

       On December 11, 2006, the state trial court held a hearing to consider whether Ms.

Sharp’s statements should be suppressed as involuntary. At the hearing, Detective

Wheeles testified that while he and Ms. Sharp were returning to the police station after

the re-enactment, he told her the district attorney would ultimately make the charging

decision in the case. He also testified that he did not make her any promises, and instead

simply urged Ms. Sharp to be truthful and assured her that he would retrieve her children

from the homeless camp. Ms. Sharp did not testify. Her counsel argued the statements

from the interview and re-enactment should be suppressed because they were not

voluntary—they were induced by Detectives Wheeles’s promises to be lenient and help

find a safe place for her and her children to stay. The trial court viewed the video of the

interviews and re-enactment, and denied the motion, ruling as follows:




       4
        Mr. Hollingsworth, Mr. Baker, and Mr. Cornell were also charged with felony
murder on July 17, 2006, and kidnapping with the intent to injure or terrorize on August
25, 2006.


                                             -7-
       I’ve seen the -- I’m going to call it the DVD video on the computer screen,
       two different parts of that. I’ve not5 seen the video on the television, the
       video on the television being the re-enactment, and at all times, I observed
       Miss Sharp and her actions and I’ve also observed them here in the
       courtroom today, that in detail. Detective Wheeles said that she was scared
       and nervous, but what they discussed in the car, I couldn’t tell you, I don’t
       think Detective Wheeles can even tell you; but once they were back at the
       Law Enforcement Center, she was given her Miranda rights, she
       voluntarily gave up her Miranda rights, she talked, I saw her in that
       interview room, I saw her with a bottle of water. I can even, if I could think
       of the name of it, I could even tell you what the name of that water is,
       because it’s in a blue type bottle. In addition, there’s times when she
       stretches out in the law enforcement room when he leaves, she stretches
       from one chair to another one. She appears to be very relaxed, very candid.
       Her responses are very clear. Occasionally maybe have to ask a question or
       what’s meant. At no time does she appear that she’s under duress. At no
       time does she appear that she’s under the influence of anything in so far as
       her responses to any questions. At no time and definitely you can see it
       when she’s walking in the area down by the river during the re-enactment
       she has no trouble positioning herself in different positions, positions
       Detective Wheeles in different positions where people were at given times
       allegedly when this alleged crime or crimes occurred. Um, she indicated
       eventually what participation she had in the alleged crime, or at least a
       portion of it if not all that, I do not know. Um, they got the kids, the kid
       were in the room with her, she was appropriate in so far as the kids were
       concerned, in so far as trying to get them to quiet down. There was some
       bottles -- water bottles, pop bottles or whatever in the room, one little boy
       playing like it was a gun, this type of thing, psst, psst, psst, psst, like
       shooting flies or birds in the air. At no time did she appear she was under
       duress, coercion, operating under any promises. [Sharp] talked to the
       detective and the length of attention wasn’t unusual, she was given things
       to drink, she was even taken out -- she took them out to the scene of re-
       enactment. They went to two different camps while they were there. She
       was able to do that, she was able to walk around, her demeanor was fine.
       As the officer testified, she was cooperative, which comes across on the
       video. Therefore, the Court denies the motion to suppress, and the
       statements in this court’s opinion [were] freely, voluntarily and intelligently
       made and could be used at trial.


       5
        This appears to be either a misstatement or a transcription error because the
judge goes on to describe his observations of the re-enactment video.


                                             -8-
State App. Vol. II at 67-69.

   b. Trial

       During the five-day trial, Ms. Sharp’s statements to Detective Wheeles were

admitted into evidence. The jury found Ms. Sharp guilty of both counts—first-degree

felony murder and kidnapping. The court sentenced her to life in prison (with the

possibility of parole after 20 years) for the murder conviction and 61 months for the

kidnapping conviction, to be served concurrently.

   c. Appeal

       Ms. Sharp appealed her conviction to the Kansas Supreme Court, arguing, among

other things, the trial court erroneously denied the motion to suppress because her

statements to Detective Wheeles were not voluntary. Sharp, 210 P.3d at 594.6

       i. Majority opinion

       The Kansas Supreme Court affirmed the state trial court’s decision not to suppress

the statements. Id. at 606. It reviewed de novo the trial court’s legal conclusion that the

statements were voluntary, considering under the totality of circumstances whether Ms.

Sharp’s free will was overborne and her capacity for self-determination was critically

impaired. Id. at 597. It explained the totality of circumstances test required the court to

consider Ms. Sharp’s mental state; the manner and duration of her interrogation; her

ability to communicate with the outside world; her age, intellect, and background;

       6
         Ms. Sharp also argued the trial court erroneously limited the cross-examination
of Mr. Cornell, erroneously admitted hearsay evidence, and committed cumulative error.
Sharp, 210 P.3d at 594-95, 605. Ms. Sharp did not reassert these arguments in her § 2254
petition, so we do not discuss them here.


                                             -9-
whether the interrogating officers conducted their interview with her in a fair manner;

and her fluency in the English language. Id. at 598.

       Ms. Sharp conceded that her argument mainly challenged the trial court’s factual

findings that she was not operating under any promises. Id. at 598. By limiting her

voluntariness argument to the trial court’s factual findings, she effectively reduced the

supreme court’s voluntariness analysis to deciding whether the factual record supported

the findings.

          1) Ms. Sharp’s challenge to factual findings

       The Kansas Supreme Court reviewed the trial court’s factual findings under the

substantial competent evidence standard. Id. at 597. It explained “[s]ubstantial

competent evidence is that which possesses both relevance and substance and which

furnishes a substantial basis in fact from which the issues can reasonably be resolved.”

Sharp, 210 P.3d at 602. The court noted this standard is consistent with the clearly

erroneous standard the United States Supreme Court applies to factual findings

underlying voluntariness determinations. See id. (citing Arizona v. Fulminante, 499 U.S.

279, 286-87 (1991)).

       Ms. Sharp challenged the trial court’s factual findings that she was not operating

under any promises. She argued her will was overborne because (a) Detective Wheeles

promised her leniency, (b) he promised to help find a place for her and her children to

live, and (c) she was in a vulnerable position due to her recent divorce and homelessness

(with two children). Id. at 597, 606. The court concluded substantial competent evidence

supported the trial court’s findings that Ms. Sharp was not operating under any promises


                                            - 10 -
during the interviews and re-enactment; she did not appear to be under duress or

coercion; and she was relaxed, candid, and cooperative. Id. at 602-06.

              a) Promise of leniency

       Ms. Sharp argued Detective Wheeles promised her leniency in exchange for her

confession when he said she would not go to jail. Id. at 599. The court rejected Ms.

Sharp’s contention and found substantial competent evidence showed no such promise

was made. Id. at 603-05. Alternatively, the court said Detective Wheeles conditioned

any such promise, and Ms. Sharp did not satisfy the condition. Id. at 604.

       First, in its discussion of leniency, the court highlighted Detective Wheeles’s

testimony from the suppression hearing, where he denied making any threats or promises

and instead claimed he had exhorted Ms. Sharp to be truthful. Id. at 603. It said the

interview transcript supported Detective Wheeles’s characterization of his comments and

that the transcript does not contain the words “promise” or “threat.” Id.7 The court

considered the context of the statements and agreed with Detective Wheeles that he

caught Ms. Sharp in two lies during the interview, and that he admonished her to tell the

truth. Id. It concluded Detective Wheeles did not promise her leniency. Id.

       Second, the court determined that substantial competent evidence supported an

alternative factual finding that Detective Wheeles conditioned any promise of leniency on

Ms. Sharp not “do[ing] something dumb and jam[ming] [her]self.” Id. at 603-04. The

       7
         The court’s analysis on this point is confusing because it later acknowledged that
Detective Wheeles did use the word “promise” in reference to Ms. Sharp’s children. See
id. at 605. It appears the court limited its comment about the transcript to the portion
dealing with leniency.


                                            - 11 -
court understood the comment to mean Detective Wheeles would be lenient as long as

Ms. Sharp did not inculpate herself in the crime. Id. at 604. Based on the details of the

crime and Ms. Sharp’s admission to participating, the court concluded she did not satisfy

her end of the deal and therefore was not “operating under” the conditional promise. Id.

It identified two incriminating statements Ms. Sharp made while re-enacting the crime at

the camp site. Id. She said she told Mr. Hollingsworth, “Don’t kill him here,” which the

court interpreted to mean she did not mind if Mr. Hollingsworth killed Mr. Owen

elsewhere. Id. And she admitted it was her idea to burn Mr. Owen’s belongings. Id.

The court therefore decided Ms. Sharp failed to satisfy the terms of Detective Wheeles’s

conditional promise. Id. at 605.

                b) Promise to help Ms. Sharp and her children

       The court also concluded substantial competent evidence supported the trial

court’s finding that Ms. Sharp was not operating under a promise relating to her children

when she confessed. Id. at 605-06.

       First, the court said substantial competent evidence showed Ms. Sharp did not

confess in exchange for the police’s helping her and her children. Id. at 605.

       Second, the court determined Detective Wheeles was trying to protect the children

by removing them from a homeless camp where they were alone with a convicted sex

offender. Id.

       Third, the court recognized an alternative basis to affirm—the purported promise

to help Ms. Sharp’s children was a “collateral benefit,” which it described as a promise

“with no assurance of benefit to [the] accused with respect to the crime.” Id. (quotations


                                            - 12 -
and emphasis omitted). The court explained such promises generally cannot render a

confession involuntary under Kansas law. Id. at 605-06.

              c) Ms. Sharp’s vulnerable position

       The court rejected Ms. Sharp’s assertion that her vulnerable position during the

interview and re-enactment made her statements involuntary. Id. at 606. It referenced

the video recordings of her interview and re-enactment and concluded substantial

competent evidence supported the trial court’s factual finding that Ms. Sharp seemed

relaxed and provided clear answers, and did not appear to be under duress or coercion.

Id.

          2) Voluntariness under the totality of circumstances

       Having rejected Ms. Sharp’s challenges to the trial court’s factual findings, the

court considered facts Ms. Sharp had not challenged on appeal but were relevant to

voluntariness: “[Ms.] Sharp was Mirandized; she voluntarily gave up her Miranda rights;

she did not appear to be under the influence of anything; the detention length was not

unusual; she was given things to drink; and she was cooperative.” Id. Based on the trial

court’s factual findings the state supreme court concluded, under the totality of the

circumstances, that Ms. Sharp’s statements were voluntary. Id. at 606.

       ii. Dissenting opinion

       One justice dissented, criticizing the majority for relying on Detective Wheeles’s

testimony from the suppression hearing, at which he explained his subjective reasons for

comments he made during his interview with Ms. Sharp. Id. at 612. The dissent argued

anyone in Ms. Sharp’s position would have interpreted Detective Wheeles’s assurance


                                            - 13 -
that Ms. Sharp was not going to jail as a promise, and Ms. Sharp fulfilled her end of any

deal by not saying “no” in response to his questions, as he had instructed her to do. Id.

       The dissent also challenged the majority’s calling the promises concerning Ms.

Sharp’s children a “collateral benefit.” Id. at 612. It argued Ms. Sharp thought she

would directly benefit from the promise to find a women’s shelter for her and her

children. Id. More importantly, the dissent argued, the promise offered Ms. Sharp—

safety for her young children—was no less compelling than a promise of leniency for the

crime being investigated. Id.

2. Federal District Court Proceedings

       On May 11, 2010, Ms. Sharp filed a federal habeas petition under 28 U.S.C.

§ 2254 in the federal district court in Kansas, alleging the state trial court’s denial of her

motion to suppress violated her Fifth and Fourteenth Amendment rights. The district

court, deferring to the state supreme court’s factual findings, concluded the court

reasonably applied clearly established federal law and denied the petition.

                II. JURISDICTION AND STANDARDS OF REVIEW

       The federal district court granted Ms. Sharp a COA as to the issues raised in her

§ 2254 petition. She filed a timely notice of appeal. We have jurisdiction under 28

U.S.C. §§ 1291 and 2253. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); Lockett v.

Trammel, 711 F.3d 1218, 1230 (10th Cir. 2013).

       AEDPA circumscribes our review of a § 2254 petition by precluding habeas relief

as to a claim decided on the merits in state court, unless the determination




                                              - 14 -
       (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 on an unreasonable determination
       of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

       We review a federal district court’s legal analysis of a § 2254 petition de novo.

Frost v. Pryor, 749 F.3d 1212, 1223-24 (10th Cir. 2014).

                                     III. DISCUSSION

       Ms. Sharp seeks relief under § 2254, arguing the state supreme court erred in

considering the coercive effect of Detective Wheeles’s promises during his interview

with her. She argues Detective Wheeles induced her confession by promising leniency

and assistance in finding shelter for her and her children.

       “[T]he ultimate issue of ‘voluntariness’ is a legal question,” but its determination

is based on “subsidiary factual questions.” Miller v. Fenton, 474 U.S. 104, 110, 112

(1985). One such factual question is whether an officer’s comments amount to a

promise relevant to the voluntariness analysis. United States v. Lopez, 437 F.3d 1059,

1064 (10th Cir. 2006) (“The district court’s determination that [an officer’s] actions

amounted to a promise of leniency is a factual finding.”); see also United States v.

Morris, 247 F.3d 1080, 1089-90 (10th Cir. 2001) (reviewing district court’s

determination that interrogating officer’s conduct did not amount to a promise of leniency

under the clearly erroneous standard).

       Where, as here, a habeas petitioner challenges a factual finding subsidiary to a

legal determination, the challenge necessarily implicates both the accuracy of the finding


                                             - 15 -
and the correctness of the legal conclusion. See Maynard v. Boone, 468 F.3d 665, 673

(10th Cir. 2006) (explaining applicability of § 2254(d)(1) and § 2254(d)(2) to mixed

questions of law and fact such as sufficiency of the evidence, on habeas review). Ms.

Sharp’s brief does not explicitly base her argument on § 2254(d)(2), but we construe her

challenge as seeking habeas relief under both § 2254(d)(1) and § 2254(d)(2). We do not

address her § 2254(d)(1) arguments because we conclude she satisfies § 2254(d)(2).

                       A. Ms. Sharp’s § 2254(d)(1) Arguments

       Ms. Sharp argues under § 2254(d)(1) that the state supreme court unreasonably

applied clearly established federal law by using an erroneous legal standard to make

factual findings about whether Detective Wheeles made promises to Ms. Sharp. She

contends the court failed to consider Detective Wheeles’s statements from her

perspective, as required by Miller, 474 U.S. 104. She asserts the state supreme court

instead relied on Detective Wheeles’s testimony from the suppression hearing, where he

described his subjective assessment of his comments.

       If the court had reasonably applied federal law, she argues, it would have found

Detective Wheeles promised her leniency and assistance in finding shelter for her and her

children, and that she believed he had the authority to make such promises. Ms. Sharp

details how the record contradicts the state supreme court’s findings as to whether

Detective Wheeles made promises. She argues the interview transcript contradicts the

state supreme court’s assertion that Detective Wheeles never used the word “promise.”

And she contends any reasonable person in her position would have understood Detective




                                           - 16 -
Wheeles’s comments to be promises of leniency and assistance for her and her children,

made in exchange for her cooperation.

       Ms. Sharp also argues the state supreme court unreasonably applied clearly

established federal law by finding any promise to help her children was merely a

“collateral benefit” that would not benefit her directly. She contends clearly established

federal law establishes that promises to benefit family members can be coercive enough

to render a suspect’s statements involuntary and therefore cannot be dismissed as simply

collateral.

                       B. Ms. Sharp’s § 2254(d)(2) Arguments

       Limiting our analysis to § 2254(d)(1) would overlook significant portions of Ms.

Sharp’s arguments. She contends the state supreme court’s voluntariness determination

is not entitled to AEDPA deference because it was based on faulty factual findings. She

argues that the record does not support those findings. These arguments track

§ 2254(d)(2), and we construe them as seeking relief under that provision.

       Even though Ms. Sharp does not cite § 2254(d)(2) in her brief, she repeatedly

attacks the state supreme court’s factual findings. She contends, for example, that “[n]o

substantial competent evidence exists to support the factual finding that Detective

Wheeles did not make promises to Ms. Sharp,” Aplt. Br. at 32, and that the state supreme

court “unreasonably found that any promises Detective Wheeles made were, at most,

conditional promises” based on her not inculpating herself. Id. at 39.8 Throughout her

       8
        Ms. Sharp advanced identical arguments to the district court in support of her
§ 2254 petition. See, e.g., App. Vol. I at 27, 32.


                                            - 17 -
brief, she asserts that the plain meaning of Detective Wheeles’s comments contradicts the

state supreme court’s findings that he did not promise her leniency or assistance in

helping find shelter for her and her children. See id. at 24, 30-35, 43-44. By repeatedly

challenging the accuracy of the court’s factual findings, Ms. Sharp effectively asks us to

address whether the state supreme court’s decision on voluntariness “was based on an

unreasonable determination of the facts in light of the evidence presented in the State

court proceeding.” 28 U.S.C. § 2254(d)(2).

       The State acknowledges that Ms. Sharp’s arguments challenge the state supreme

court’s factual findings: “Petitioner is essentially asking this Court to reconsider the state

courts’ findings of fact.” Aplee Br. at 7; see also id. at 12 (“When one drills down to the

crux of Petitioner’s arguments, it appears that she is asking the Court to reconsider the

state court findings of fact.”).

       Other circuits have construed an appellant’s § 2254 arguments based on the

substance of the challenge, rather than the citation to § 2254(d)(1) or § 2254(d)(2). See

Wheeler v. Rozum, 410 F. App’x 453, 457 n.4 (6th Cir. 2010) (unpublished) (construing

appellant’s arguments as seeking relief under § 2254(d)(1) because the petition could be

fairly read as seeking relief under that subsection despite the magistrate judge’s

construing the petition as seeking relief solely under § 2254(d)(2), and the government

had not argued appellant’s § 2254(d)(1) arguments had been waived). Compare Peraza

v. Campbell, 462 F. App’x 700, 701 (9th Cir. 2011) (unpublished) (construing appellant’s

§ 2254(d)(1) argument under § 2254(d)(2)), with Appellant’s Brief, Peraza v. Campbell,

462 F. App’x 700 (9th Cir. 2011) (No. 10-15629), 2011 WL 2002975 (seeking habeas


                                             - 18 -
relief under § 2254(d)(1) without citing § 2254(d)(2) while challenging the state court’s

factual finding by arguing its fact-finding process was defective).9

                               C. § 2254(d)(2) Analysis

       We limit our analysis to § 2254(d)(2) and do not address Ms. Sharp’s § 2254(d)(1)

arguments because we determine (1) Ms. Sharp satisfies § 2254(d)(2); (2) on de novo

review, Ms. Sharp’s confessional statements were involuntary once Detective Wheeles

said she would not go to jail; and (3) the trial court committed harmful error by admitting

Ms. Sharp’s involuntary statements at trial.

       “[A] state-court factual determination is not unreasonable merely because the

federal habeas court would have reached a different conclusion in the first instance.”

Wood v. Allen, 558 U.S. 290, 301 (2010). If “reasonable minds reviewing the record

might disagree about the finding in question,” we defer to the state court’s determination.

Brumfield v. Cain, No. 13-1433, slip op. at 8, --- S. Ct. ----, 2015 WL 2473376, at *6

(2015) (quoting Wood, 558 U.S. at 301).10 But if a habeas petitioner satisfies


       9
         These unpublished and not precedential out-of-circuit opinions are instructive
here. See 10th Cir. R. 32.1 (“Unpublished decisions are not precedential, but may be
cited for their persuasive value.”); see also Fed. R. App. P. 32.1.
       10
          State court factual findings are presumed correct unless the petitioner shows by
clear and convincing evidence they are not. 28 U.S.C. § 2254(e)(1). The interplay
between § 2254(d)(2) and § 2254(e)(1) is an open question. See Brumfield, slip op. at 16,
2015 WL 2473376, at *11; Grant v. Trammell, 727 F.3d 1006, 1024 n.6 (10th Cir. 2013).
And it is unclear which standard imposes a greater burden on the petitioner. Compare
Wood, 558 U.S. at 301 (explaining § 2254(e)(1)’s standard is “arguably more deferential”
than § 2254(d)(2)), with Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (implying
§ 2254(d)(2)’s standard is more exacting than § 2254(e)(1)’s— “[t]he question under
AEDPA is not whether a federal court believes the state court’s determination was
incorrect but whether that determination was unreasonable—a substantially higher

                                               - 19 -
§ 2254(d)(2), we proceed to review the state court’s determination de novo. Byrd v.

Workman, 645 F.3d 1159, 1172 (10th Cir. 2011).

1. State Supreme Court’s Decision Was Based on Unreasonable Factual Finding

       To overcome AEDPA deference under § 2254(d)(2), Ms. Sharp must show the

state supreme court’s voluntariness decision “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d)(2). It is not sufficient to show that “[r]easonable

minds reviewing the record might disagree” about the state supreme court’s finding. Rice

v. Collins, 546 U.S. 333, 341-42 (2006). “[W]here the state courts plainly misapprehend

or misstate the record in making their findings, and the misapprehension goes to a

material factual issue that is central to petitioner’s claim, that misapprehension can fatally

undermine the fact-finding process, rendering the resulting factual finding unreasonable.”

Byrd, 645 F.3d at 1171-72 (quoting Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir.

2004)).

       The Kansas trial court found Ms. Sharp was not “operating under any promises.”

State App. Vol. II at 69. The supreme court reviewed that determination and concluded

substantial competent evidence showed Detective Wheeles did not promise Ms. Sharp

leniency, or alternatively, any promise of leniency was conditioned on Ms. Sharp not

inculpating herself. As we point out below, the court was not clear on this next point, but

it also decided Ms. Sharp was not operating under a promise to help find shelter for her

threshold”). We need not decide the issue here because the state court’s finding fails
either standard for the reasons explained below.


                                             - 20 -
and her children, or alternatively, any promise to help Ms. Sharp’s children was a non-

coercive collateral benefit because it would not directly benefit Ms. Sharp. We conclude

(1) the supreme court’s voluntariness determination was based in significant part on its

fact findings about Detective Wheeles’s alleged promises; (2) it unreasonably found

Detective Wheeles did not promise Ms. Sharp leniency; and (3) it unreasonably found

Detective Wheeles did not promise to help Ms. Sharp and her children; or it decided any

such promise did not induce Ms. Sharp to confess, which is a voluntariness determination

and not a factual finding.

          a. The state supreme court’s voluntariness decision was based on its findings
             about promises

       To satisfy § 2254(d)(2), the habeas petitioner must show that a state court’s

ultimate determination was based on an unreasonable and material factual finding. See

Byrd, 645 F.3d at 1172. In this case, the state supreme court’s ultimate determination

was that Ms. Sharp’s confession was voluntary. This determination was based in large

part on the court’s factual findings about whether Detective Wheeles made promises.

       To determine whether a suspect’s confession was voluntary, courts consider

whether, under the totality of circumstances, the suspect’s “will has been overborne and

his capacity for self-determination critically impaired.” Schneckloth v. Bustamonte, 412

U.S. 218, 225-26 (1973). “Under Supreme Court and Tenth Circuit precedent, a promise

of leniency is relevant to determining whether a confession was involuntary and,

depending on the totality of the circumstances, may render a confession coerced.”

Clanton v. Cooper, 129 F.3d 1147, 1159 (10th Cir. 1997).



                                            - 21 -
       Although the Kansas Supreme Court considered various facts to determine

whether, in the totality of circumstances, Ms. Sharp’s confessional statements were

voluntary, its determination hinged on whether Detective Wheeles coerced her confession

by making her promises of leniency or assistance for her and her children. The court

addressed the existence of such promises and based its voluntariness determination

largely on its findings that (1) Detective Wheeles did not promise Ms. Sharp leniency, or

alternatively, conditioned leniency on her not inculpating herself, and (2) Ms. Sharp was

not operating under any promises to help find shelter for Ms. Sharp and her children, or

alternatively, any such promise was merely a non-coercive collateral benefit.

   b. The state supreme court’s findings regarding a promise of leniency were
      unreasonable

       Ms. Sharp argues the following exchange reveals Detective Wheeles made an

explicit promise of leniency:

              [Detective Wheeles]: If you were scared and you were helping [Mr.
       Cornell] burn things because you were afraid they were going to hurt you if
       you didn’t go along, you need to tell me that right now. Are you picking up
       on what I’m telling you?
              [Ms. Sharp]: Uh-huh.
              [Detective Wheeles]: You cannot, cannot hold anything back in this
       thing at all, Kim, you can’t. This is as serious as it comes.
              [Ms. Sharp]: I know, I know, I know.
              [Detective Wheeles]: Okay.
              [Ms. Sharp]: Yeah, I helped burn.
              [Detective Wheeles]: Okay, now --
              [Ms. Sharp]: Am I going to jail?
              [Detective Wheeles]: No, no, no, no, no, no, no, no, [no, no]. You
       are a witness to this thing so long as you do not do something dumb and
       jam yourself. If you were scared, explain to me that you were scared--
              [Ms. Sharp]: I was very.
              [Detective Wheeles]: --when you did what you did. I understand
       the whole situation.


                                           - 22 -
              [Ms. Sharp]: Okay.
              [Detective Wheeles]: Just don’t tell me no if I ask you something.
              [Ms. Sharp]: Okay.

App. Vol. I at 49.

       The state trial court found Ms. Sharp was not operating under any promises. The

supreme court understood this to mean Detective Wheeles made no promise of leniency.

Instead, the supreme court found Detective Wheeles simply urged Ms. Sharp to be

truthful or made a promise conditioned on Ms. Sharp not inculpating herself. We

conclude the supreme court’s findings were unreasonable.

       The finding that Detective Wheeles did not promise leniency and instead urged

Ms. Sharp to be truthful is unreasonable because it is not a plausible reading of the

interview. At the beginning of the interview, Detective Wheeles told Ms. Sharp he was

not upset at her for lying to him when he first approached her and Mr. Hollingsworth.

Detective Wheeles told Ms. Sharp he separated her from Mr. Hollingsworth because he

could sense she was afraid and asked her to explain what happened to Mr. Owen. She

described the attack, claiming she did not participate and tried to talk Mr. Hollingsworth

and Mr. Baker out of killing Mr. Owen. Detective Wheeles asked if she helped burn Mr.

Owen’s belongings and if she thought she was in danger after witnessing the attack. At

first she denied helping to burn the items. Detective Wheeles explained she was in a

serious situation and again asked if she had participated out of fear for her own safety.

Up to this point in the interview, Detective Wheeles’s statements were not promises.

       Ms. Sharp next contradicted her prior statement and confessed to helping burn Mr.

Owen’s belongings. She then asked if she was going to jail. Detective Wheeles


                                            - 23 -
responded with an unequivocal “no,” which he repeated in the video nine more times.

His answer was not a simple exhortation to be truthful. He had just received an

incriminating answer and immediately and unequivocally reassured Ms. Sharp she was

not going to jail. In short, he promised she would not go to jail despite her confession.

       Following the “no jail” promise, Detective Wheeles told Ms. Sharp she was just a

witness so long as she did not do “something dumb and jam [her]self” and urged her not

to say “no” to his questions. But neither comment altered his clear promise of leniency.

Detective Wheeles’s promise was plain and direct. None of his subsequent statements

diluted his insistence that Ms. Sharp would not go to jail despite her confession. His

assurance was a promise that Ms. Sharp would be treated leniently. The state supreme

court’s finding that Detective Wheeles made no promise of leniency was therefore

unreasonable.

       The court’s alternative finding that Detective Wheeles’s statement was a promise

of leniency conditioned on Ms. Sharp not inculpating herself was also unreasonable. Ms.

Sharp already had inculpated herself before he made the “no jail” promise. She had just

admitted to helping burn Mr. Owen’s belongings, confessing her active role in the crime.

It is therefore unreasonable to understand Detective Wheeles’s adamant assurance that

Ms. Sharp would not go to jail as being conditioned on Ms. Sharp not implicating herself

in the crime—she already had.

       Based on our review of the record, we conclude the supreme court unreasonably

found Detective Wheeles did not promise leniency. The court’s alternative finding—that




                                            - 24 -
any promise of leniency was conditioned on Ms. Sharp not inculpating herself—was also

unreasonable.

   c. Any finding that Detective Wheeles did not promise to help Ms. Sharp and her
      children find shelter was unreasonable

       During the interview, Detective Wheeles said he would help Ms. Sharp and her

children find shelter. He used the word “promise.” As to this matter, the state trial court

and the state supreme court both found Ms. Sharp was not “operating under a promise.”

It is unclear whether this meant (1) Detective Wheeles made no promise or (2) he did

make a promise but it did not influence Ms. Sharp to make confessional statements. If

the state courts meant the former, they made an unreasonable finding of fact because

Detective Wheeles explicitly promised to help with shelter. If they meant the latter, they

made a voluntariness determination about the promise. Either way, we will consider this

promise in our de novo consideration of voluntariness.

       Early in Detective Wheeles’s interview with Ms. Sharp, she identified Mr. Baker

as a participant in the crime. Detective Wheeles appeared to know the police were

already looking for Mr. Baker. After Ms. Sharp admitted her role in the incident,

Detective Wheeles asked her if she could show him the camp site where the confrontation

occurred. She agreed, which led to the following exchange:

              [Detective Wheeles]: And you can show me exactly where these
       things are at and what you’re talking about because I’ve got a feeling that
       my troops are swarming in on that camp right now or probably this evening
       because, I mean, obviously we need to get [Mr. Hollingsworth] and [Mr.
       Baker] picked up too and this is a very serious--
              [Ms. Sharp]: [Mr. Baker] is with my kids.
              [Detective Wheeles]: [Mr. Baker] is with your kids at another
       location?


                                            - 25 -
               ....
               [Ms. Sharp]: At the new camp site that we’re at.
               [Detective Wheeles]: The new camp site. Where is the new camp
      site at in relationship to the old camp site?
               [Ms. Sharp]: Okay. You got to go-- it’s on a ways down from the,
      from the camp right-- there’s a railroad bridge, there’s an Oakland bridge. I
      can’t really explain it.
               [Detective Wheeles]: You can show me.
               [Ms. Sharp]: Of course, my kids are down there.
               [Detective Wheeles]: All right. Let me deal with that real quick, all
      right? Take a drink of water. Let me deal with that real quick.
               [Ms. Sharp]: Who will keep my kids?

App. at 51. Without answering Ms. Sharp’s question, Detective Wheeles left the room

for approximately ten minutes. When he returned, Detective Wheeles told Ms. Sharp,

      Couple more things you and I need to get squared out and then you and I
      are going to work together and hard to get your kids out of harms way. Did
      you know what [Mr. Baker] is wanted for? Okay, he’s a registered sex
      offender, too, okay. He’s got a parole violation out for his arrest, okay. So
      what we are going to do here is you are going to go get in an undercover
      vehicle with me and another detective. You’re going to take us to where
      this new camp site is. We are going to suck [Mr. Baker] up . . . . We need
      to get your kids out of the situation. We’ll worry about all the other stuff
      after we get to that point. You need to show me exactly.

Id. Detective Wheeles then asked Ms. Sharp a handful of brief questions about the

incident, after which the following exchange occurred:

             [Detective Wheeles]: Okay. We’re going to leave your stuff here
      because I’m going to be bringing-- hopefully best case scenario, we’ll get
      you and your kids back here. Now, you’re coming back here because we
      have a lot of things to sort out.
             [Ms. Sharp]: Uh-huh.
             [Detective Wheeles]: You understand that, right? But you
      understand I’m trying to help you and your kids out in this situation?
             [Ms. Sharp]: Uh-huh. I don’t know-- is there anyway that I could
      like go to a battered women’s shelter or something?
             [Detective Wheeles]: We’ll work out some place for you to go.
             [Ms. Sharp]: Because I can’t go back to the mission.



                                           - 26 -
              [Detective Wheeles]: Yeah, I can only-- let me handle one thing at a
       time, but I promise we’ll get that worked out. Let me grab one thing and
       I’ll come get you.

Suppl. App. Vol. I, DVD clip A, at 01:13:19 p.m.-01:13:53 p.m.

       The state supreme court found Ms. Sharp was not “operating under any promises.”

Sharp, 210 P.3d at 605-06. The problem with the statement that Ms. Sharp was not

“operating under any promises” is that it is ambiguous. It could mean the court found

Detective Wheeles made no such promise. It also could mean the court found a promise

was made but Ms. Sharp did not act based on that promise.11 The court also relied on

Kansas law to conclude any benefit to Ms. Sharp’s children was a mere collateral benefit,

which is typically insufficient to render a confession involuntary.12

       If the state supreme court found Detective Wheeles made no promise regarding

Ms. Sharp’s children, this finding was unreasonable. Ms. Sharp asked Detective Wheeles

for help finding a shelter, and he responded, “We’ll work out some place for you to go

. . . . I promise we’ll get that worked out.” App. at 52. If the court instead determined

Ms. Sharp did not answer questions based on the promise to help her and her children,

that is part of the voluntariness analysis.


       11
        The supreme court offered some support for the former understanding by
concluding substantial competent evidence (a standard applicable to factual findings)
showed Ms. Sharp did not exchange her confession for Detective Wheeles’s assistance.
       12
          Because we conclude Ms. Sharp satisfies § 2254(d)(2) in showing the supreme
court’s finding of no promise of leniency was unreasonable, we consider Detective
Wheeles’s comments about helping Ms. Sharp and her children in our de novo
voluntariness determination and need not address the supreme court’s “collateral benefit”
reasoning.


                                              - 27 -
       As we explained above, because Ms. Sharp satisfied § 2254(d)(2) based on the

state supreme court’s unreasonable finding that Detective Wheeles made no promise of

leniency or conditioned leniency, we review the voluntariness of her confessions de novo.

See Bunton v. Atherton, 613 F.3d 973, 982 (10th Cir. 2010). We therefore do not need to

resolve the court’s ambiguous handling of the promise about shelter and will consider

that promise in our de novo review of whether Ms. Sharp made involuntary confessions.

2. Most of Ms. Sharp’s Incriminatory Statements Were Involuntary

       Upon de novo review of Detective Wheeles’s interview with Ms. Sharp, we

conclude her incriminating statements after Detective Wheeles promised she would not

go to jail were involuntary.

          a. Legal background and standard of review

       To determine whether a confession was voluntary, courts assess whether the

suspect’s “will has been overborne and his capacity for self-determination critically

impaired.” Schneckloth, 412 U.S. at 225. Courts must consider the “totality of all the

surrounding circumstances—both the characteristics of the accused and the details of the

interrogation.” Id. at 226; accord Lopez, 437 F.3d at 1063. The United States Supreme

Court has identified a nonexhaustive list of factors for assessing the voluntariness of a

statement: the suspect’s age, education level, whether the suspect was advised of his or

her constitutional rights, the length of his or her detention, the nature of the questioning,

and any physical punishment such as deprivation of food or sleep. Schneckloth, 412 U.S.

at 226; accord United States v. Toles, 297 F.3d 959, 966 (10th Cir. 2002). The totality of

the circumstances test does not favor any one of these factors over the others—it is a


                                             - 28 -
case-specific inquiry where the importance of any given factor can vary in each situation.

Schneckloth, 412 U.S. at 226-27; accord United States v. Lugo, 170 F.3d 996, 1004 (10th

Cir. 1999).

      In light of our determination that AEDPA deference does not apply due to our

§ 2254(d)(2) analysis, we review the state supreme court’s voluntariness determination de

novo. Byrd, 645 F.3d at 1172.

   b. Voluntariness determination

      The state supreme court found various uncontested facts relevant to the

voluntariness analysis. Detective Wheeles advised Ms. Sharp of her Miranda rights

orally and in writing. She waived her rights and spoke with Detective Wheeles. Her

detention was not unusually long—the video indicates Ms. Sharp was in custody for

roughly five hours before her arrest. Detective Wheeles provided Ms. Sharp with water

to drink, and she did not appear to be impaired. Each of these facts weighs in favor of

voluntariness.

      Detective Wheeles’s assurance that Ms. Sharp would not go to jail for her role in

the crime, however, was a critical and troubling moment in the interview. In the first

thirty minutes of the interview, Ms. Sharp described witnessing Mr. Hollingsworth and

Mr. Baker attack, threaten with an axe, hog-tie, gag, and beat Mr. Owens, and then drag

him into the woods. She described the clothes Mr. Owen wore and detailed the personal

items he carried. She also admitted she became angry with Mr. Owen and, most

importantly, confessed to burning his belongings. Yet, when she asked if she was going




                                           - 29 -
to jail, Detective Wheeles unmistakably insisted, “No, no, no, no, no, no, no, no, [no,

no].”

        Although Ms. Sharp’s initial statement that she helped burn Mr. Owen’s

belongings may not have been enough on its own to support a conviction, it was

nonetheless sufficient to make Detective Wheeles’s “no jail” promise at best misleading

and probably false. After she admitted to evidence destruction in a murder investigation,

Ms. Sharp immediately and anxiously asked if she was going to jail. Having elicited an

incriminating statement and clearly wanting more, Detective Wheeles seemingly cleared

the legal land mines with his immediate response of ten “no’s,” but instead left a

primrose path. And Detective Wheeles’s response was no mere limited assurance of

putting in a good word with the prosecutor. See United States v. Roman-Zarate, 115 F.3d

778, 783 (10th Cir. 1997) (concluding interviewing agents’ “limited assurances” to

inform prosecutor about suspect’s cooperation are insufficient to render a confession

involuntary). He flatly rejected Ms. Sharp’s concern about going to jail, without

equivocation. He did not say the charging decision was in the prosecutor’s hands. He

did not express uncertainty about her fate.

        After making the “no jail” promise, Detective Wheeles said, “You are a witness to

this thing as long as you do not do something dumb and jam yourself.” App. Vol. I at 49.

It is unclear what this meant other than Ms. Sharp would not be prosecuted and would be

a witness as long as she cooperated with Detective Wheeles. He then instructed Ms.

Sharp not to say “no” to his questions—further exhortation that she should respond to

Detective Wheeles’s questions and cooperate with his investigation.


                                              - 30 -
       Ms. Sharp’s decision to continue providing details does not seem “to have been

the result of calculation [instead of] coercion.” Roman-Zarate, 115 F.3d at 783.

Detective Wheeles’s promise she would not go to jail induced her confessional

statements because he made clear there would be no cost of disclosure. He gave Ms.

Sharp a get-out-of-jail-free card, and she obliged by giving him more incriminating

details. Ms. Sharp therefore did not simply “balance[] personal considerations with the

possible cost of disclosure,” id., when making her subsequent confessional statements.

Instead, his promise “[wa]s of the sort that may indeed critically impair a defendant’s

capacity for self-determination.” Lopez, 437 F.3d at 1065. And despite Detective

Wheeles’s assurance at the beginning of the interview—that he was “not going to lie to

[Ms. Sharp] in this investigation”—his promise that she would not go to jail was false or

misleading. See Clanton v. Cooper, 129 F.3d 1147, 1159 (holding promise of leniency

coupled with misrepresentations about the evidence against the suspect were coercive

enough to render statements involuntary).

       In isolation, Detective Wheeles’s comments about helping Ms. Sharp and her

children might not appear coercive. He did not explicitly suggest that Ms. Sharp confess

in exchange for his assistance with shelter. But he did mollify her concerns about finding

shelter by saying “[w]e’ll work out some place for you to go,” App. Vol. I at 52, a

promise inconsistent with a suggestion of arrest. And his willingness to cut short the

interview to retrieve her children from the presence of a registered sex offender added

weight to his “no jail” promise of leniency, which he had made only a few minutes

earlier.


                                            - 31 -
       Ms. Sharp’s surprised and angry reaction when Detective Wheeles arrested her at

the end of the interview indicated her incriminating statements were not the product of

free will because they were given on the false premise she would not go to jail. She

accused him of lying and trickery and thought her cooperation would make her a witness,

not a defendant. Suppl. App. Vol. I, DVD clip B, at 5:25:16 p.m.-5:26:28 p.m.

       Having carefully reviewed the interview video and considered the totality of

circumstances, we conclude Ms. Sharp’s will was overborne once Detective Wheeles

promised her she would not go to jail after she admitted to participating in the crime.

Once that promise was made, Ms. Sharp’s subsequent incriminating statements were

involuntary because she had been told she would not go to jail for her involvement. The

trial court therefore erroneously admitted those statements at trial in violation of the Fifth

and Fourteenth Amendments. See Toles, 297 F.3d at 965.

3. The State Supreme Court’s Error was not Harmless

          a. Legal background

       A trial court’s erroneous decision to admit an involuntary confession into evidence

is subject to harmless error analysis. Fulminante, 499 U.S. at 295. “[I]n § 2254

proceedings a court must assess the prejudicial impact of constitutional error in a state-

court criminal trial under the ‘substantial and injurious effect’ standard” articulated in

Brecht v. Abrahamson, 507 U.S. 619 (1993). Fry v. Pliler, 551 U.S. 112, 121 (2007).

Under Brecht, “an error is harmless unless it ‘had substantial and injurious effect or

influence in determining the jury’s verdict.’” Id. at 116 (quoting Brecht, 507 U.S. at

631). “‘The inquiry cannot be merely whether there was enough to support the result,


                                             - 32 -
apart from the phase affected by the error. It is rather whether the error itself had

substantial influence.’” Crease v. McKune, 189 F.3d 1188, 1193 (10th Cir. 1999)

(quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)) (alterations omitted).

       “When a federal judge in a habeas proceeding is in grave doubt about whether a

trial error of federal law had ‘substantial and injurious effect or influence in determining

the jury’s verdict,’” the error is harmful and the court must grant the writ. O’Neal v.

McAninch, 513 U.S. 432, 436 (1995); see also id. at 435 (“By ‘grave doubt’ we mean

that, in the judge’s mind, the matter is so evenly balanced that he feels himself in virtual

equipoise as to the harmlessness of the error.”). Analyzing harmlessness under Brecht,

“does not involve a judge who shifts a ‘burden’ to help control the presentation of

evidence at a trial, but rather involves a judge who applies a legal standard

(harmlessness) to a record that the presentation of evidence is no longer likely to affect.”

Id. at 437 (quoting R. Traynor, The Riddle of Harmless Error 26 (1970)). The State was

required to prove Ms. Sharp’s guilt beyond a reasonable doubt. We must decide whether

we have grave doubt that the State would have met its burden if the inadmissible

evidence had been properly suppressed.

   b. Brecht analysis

       Ms. Sharp was convicted for felony murder under Kan. Stat. Ann. § 21-3401(b)

(2006) (repealed 2011), which stated, “Murder in the first degree is the killing of a human

being committed: . . . (b) in the commission of, attempt to commit, or flight from an

inherently dangerous felony.” Kan. Stat. Ann. § 21-3436(a)(1) (2006) (repealed 2011)

defined inherently dangerous felonies to include kidnapping. Kansas law defined


                                             - 33 -
kidnapping as “the taking or confining of any person, accomplished by force, threat or

deception, with the intent to hold such person: . . . (c) to inflict bodily injury or to

terrorize the victim or another.” Kan. Stat. Ann. § 21-3420 (2006) (repealed 2011). We

must therefore consider whether the trial court’s admission of Ms. Sharp’s involuntary

statements had a substantial and injurious effect or influence on the jury’s determination

that Ms. Sharp aided in the crime of taking or confining Mr. Owen with the intent to

inflict bodily injury or terrorize him.

       i. Admissible evidence against Ms. Sharp

       Until Detective Wheeles promised Ms. Sharp would not go to jail, all of her

statements were voluntary and admissible. And up to that point, Ms. Sharp had already

described many details of the crime. She had described witnessing Mr. Hollingsworth

and Mr. Baker hog-tie and beat Mr. Owen, and then drag him into the woods. She had

explained Mr. Cornell had burned Mr. Owen’s belongings, including his phone,

notebooks, wallet, glasses, shoes, and socks. Each of these statements indicated she had

only witnessed and had not participated in the attack on Mr. Owen. She did, however,

implicate herself by confessing to a minor participatory role by saying she “helped burn”

Mr. Owen’s belongings.

       Mr. Cornell testified for the prosecution. He had been charged with felony murder

and kidnapping for his role in Mr. Owen’s death, but he pled guilty to lesser charges—

involuntary manslaughter and kidnapping—in exchange for his testimony. According to

his account, Ms. Sharp threw Mr. Owen’s belongings into an incinerator before Mr.

Owen was tied and beaten. He explained Ms. Sharp was angry with Mr. Owen for


                                              - 34 -
destroying homeless camp sites, and she yelled at Mr. Owen, “How do you like someone

destroying your stuff?” State App. Vol. IX at 53. Mr. Cornell testified that after he gave

Mr. Hollingsworth the rope used to hog-tie Mr. Owen, Ms. Sharp said, “[w]e’re not

gonna kill him, we’re going to tie him up,” id. at 64, and “we’re gonna make [Mr. Owen]

sleep out, tie him to a tree, make him sleep out with the mosquitos, show him how it feels

to sleep outside without a tent or blankets,” id. at 62. Mr. Cornell also testified Ms. Sharp

asked him to dump the incinerator in a nearby camp.

       On cross-examination, Mr. Cornell conceded his trial testimony conflicted with his

prior statements to the police in which he denied having any role in Mr. Owen’s death.

For example, Mr. Cornell initially told the police he had not participated in tying up Mr.

Owen. He instead told them Mr. Owen was already tied up when Mr. Cornell first

walked into the camp site. He also had attempted to minimize his role in helping burn

Mr. Owen’s belongings. At first he claimed he did not help burn. He then admitted to

helping burn but claimed Ms. Sharp was already burning Mr. Owen’s belongings when

Mr. Cornell first walked into the camp site. At trial he testified he arrived at the camp

site before any of Mr. Owen’s belongings were burned. Mr. Cornell also testified that he

expected a lighter sentence because he was testifying for the prosecution.

       ii. Inadmissible evidence against Ms. Sharp

       In light of our conclusion that Ms. Sharp’s statements were involuntary after

Detective Wheeles promised she would not go to jail, the following evidence should not

have been admitted at trial.




                                            - 35 -
       1. “Don’t kill him here.” The State presented the video recording of Ms. Sharp

guiding Detective Wheeles around the camp site, re-enacting the incident, and providing

detail about her observations. At one point, Ms. Sharp showed Detective Wheeles where

she saw Mr. Hollingsworth threatening Mr. Owen with an ax. At the police station, she

had told Detective Wheeles that she thought Mr. Hollingsworth was going to kill Mr.

Owen with the ax, and claimed she said, “[N]o, don’t do that, don’t do that. I can’t be an

accessory to this shit, you know. I can’t do that.” App. at 42. But during the re-

enactment, Detective Wheeles asked her, “Did you say, ‘No, don’t kill him,’ or did you

say, ‘No, don’t kill him here?’” Sharp, 210 P.3d at 596. She responded, “Don’t kill him

here.” Id. (emphasis in original).

       The State relied heavily on this statement at trial. During opening arguments, the

State told the jury, “As [Mr. Hollingsworth] left the camp, Kim Sharp followed him.

When she got there, David Owen was on the ground. Charles Hollingsworth had this

hatchet above David Owen’s head. Kim said, ‘Don’t kill him here.’” State App. Vol. IX

at 10. Shortly thereafter, the State again highlighted her statement, explaining that she

initially told Detective Wheeles she only said, “Don’t kill him,” before admitting during

the re-enactment that she had said, “I told him not to kill him here.” Id. at 11-12.

       Ms. Sharp’s trial testimony indicates both she and the State believed this statement

would influence the jury’s verdict. On direct examination, she claimed, in contradiction

to her videotaped statement, she had not said “Don’t kill him here.” State App. Vol. XI

at 69. The State focused on the statement during Ms. Sharp’s cross-examination:




                                            - 36 -
              [The State]: [Mr. Owen is] beggin’ for his life. You told [Mr.
      Hollingsworth]-- this is what you told [defense counsel], “No, don’t kill
      him.” Is that what you said?
              [Ms. Sharp]: Yes, I did.
              ....
              [The State]: In fact, what you told Detective Wheeles was, “Don’t
      kill him here”; is that correct?
              [Ms. Sharp]: That is correct. But may I speak on that?
              [The State]: No, your counsel can ask you further questions. That’s
      what you told Detective Wheeles on the video reenactment, wasn’t it?
              [Ms. Sharp]: Yes.
              [The State]: You didn’t add anything else? He asked you. Did you
      say, “Don’t kill him,” or, “Don’t kill him here?” That’s a choice; right?
              [Ms. Sharp]: Yes.
              [The State]: And if you did say any one of those things, there was
      nothing to prevent you to say I didn’t say that?
              [Ms. Sharp]: Right.

Id. at 92-94. On redirect, Ms. Sharp again attempted to rebut the statement she made

during the re-enactment:

             [Defense counsel]: When Detective Wheeles asked you did you say
      don’t kill him or don’t kill him here, what can you-- did you respond to
      him?
             [Ms. Sharp]: I said, “Don’t kill him. Don’t kill him.”
             [Defense counsel]: Okay. Now, that’s what you said that day or is
      that what you said to Detective Wheeles?
             [Ms. Sharp]: I said to Detective Wheeles, I said, “Don’t kill him
      here.”
             [Defense counsel]: You had never said that before; correct?
             [Ms. Sharp]: No.
             [Defense counsel]: You had already given Detective Wheeles your
      statement at the Law Enforcement Center before you went into the
      reenactment?
             [Ms. Sharp]: Yes.
             ....
             [Defense counsel]: Did you understand the impact of what
      Detective Wheeles was asking you when he said, don’t kill him or don’t kill
      him here?
             [Ms. Sharp]: No.

Id. at 104-05. And on recross examination, the State again discussed the statement:


                                           - 37 -
             [The State]: You didn’t want David Owen to be killed?
             [Ms. Sharp]: No, I did not.
             [The State]: And you told [Mr. Hollingsworth], don’t kill him here?
             [Ms. Sharp]: I said, “Don’t kill him.”
             [The State]: Right?
             [Ms. Sharp]: Yes.
             ....
             [The State]: Did you-- but you told [Mr. Hollingsworth], don’t kill
       him here, and he didn’t, did he?
             [Ms. Sharp]: No.
             [The State]: Nothing prevented you from writing out as much
       information as you wanted to in your own handwritten statement, did it?
             [Ms. Sharp]: I was nervous, plus I had my kids with me.

Id. at 105-06.

       The State repeatedly focused the jury’s attention on the statement during closing

argument. For example, the prosecutor reiterated the statement and urged the jury “to

reflect back to the reenactment tape in this case, her voice, the way she said that, and the

way that she pointed, ‘Don’t kill him here.’” State App. Vol. XII at 36-37. The

prosecutor continued, “[Ms. Sharp] told you she told [Detective Wheeles], ‘Don’t kill

him here, I can’t be an accessory to this.’” Id. at 37.

       In her closing arguments, Ms. Sharp’s attorney described, at length, how Ms.

Sharp had rebutted the statement. For example,

       You heard when [Ms. Sharp] said that she said, “I told him, don’t kill him.
       Don’t hurt him. Don’t use the axe.” She made a written statement. . . .
       She wrote, “Don’t kill him. Don’t hurt him. Don’t use the axe.” It wasn’t
       until they were out in the field, they were doing this reenactment, when
       Detective Wheeles said, “Tell me what happened.” . . . . She’s standing
       here, and she said, “I said, don’t kill him. No baby. Don’t do it. Don’t do
       it.” He says, “Did you say, ‘don’t kill him or don’t kill him here?’”
       “Here,” from his mouth, not her mouth, what she did. She said, “Don’t kill
       him here.” And he says-- he tells you-- this was my clarifying question.
       He just repeated it, “Did you say ‘don’t kill him here’?” One word. Did he
       ask the question that would have cleared everything up? Oh my God.


                                             - 38 -
       You’ve been saying-- you said, “don’t kill him,” all morning, all
       afternoon-- your oral, at the same time, your written statement. When you
       just told me what happened, did you mean, don’t kill him here? Kill him
       where else? If that one question would have been asked, we wouldn’t be
       sitting here today. She would have had the chance to say, no, God no.
       What I meant is, “Don’t hurt him. Don’t kill him. Don’t kill him here.”
               “Here.” There’s so many reasons that word could have been said.
       She actually said it when she was repeating it back to him. She was
       paraphrasing herself. She couldn’t remember what she actually said. When
       I asked her, did you understand what his question was? Well, no, she
       certainly didn’t understand the impact of what he was asking her. And if he
       was trying to lead that question, he certainly did a good job.

Id. at 52-54. She also explained the re-enactment tape was the only piece of evidence

indicating Ms. Sharp said, “Don’t kill him here.” Other than that tape, the evidence

uniformly indicates she said, “Don’t kill him.” Id. at 54. The prosecutor’s rebuttal

closing arguments again focused on the statement. Id. at 61-63.

       2. Burning the belongings. During the re-enactment, Ms. Sharp showed Detective

Wheeles where she burned Mr. Owen’s belongings and explained it was her idea to burn

them: “I said we have to burn it ‘cause I don’t need the evidence. I don’t want to be tied

to this.” Sharp, 210 P.3d at 596. Unlike her uncoerced prior confession that she merely

“helped” burn Mr. Owen’s belongings, this later confession indicates she devised the plan

and took the lead to burn Mr. Owen’s belongings to destroy evidence of the crime.

       During opening arguments, the State said, “[Ms. Sharp will] tell you it was her

idea to burn David Owen’s property because they had to destroy any of the evidence that

would link them to this crime.” State App. Vol. II at 12. During her testimony, she

attempted to rebut the assertion that she burned Mr. Owen’s belongings to destroy

evidence of his murder. She explained she instead burned his belongings because she



                                           - 39 -
believed Mr. Owen would have destroyed her property if he had the opportunity. And

during the State’s closing argument, the prosecutor reminded the jury that Ms. Sharp

“decided they had to burn everything else up so the crime couldn’t be connected back to

them.” State App. Vol. XII at 63.

       3. The interview videotape. The State presented the video recording of Ms.

Sharp’s police-station interview. After Detective Wheeles promised she would not go to

jail, Ms. Sharp provided more detail about burning Mr. Owen’s belongings. Ms. Sharp

confessed she and Mr. Cornell destroyed Mr. Owen’s belongings in two separate fires,

and she personally burned Mr. Owen’s two cell phones and notebooks.

       4. Written statement. The State also admitted into evidence Ms. Sharp’s written

statement about the crime, which she prepared after her children were retrieved from the

camp site, and which she had moved to suppress.

       iii. Taking the stand

       Given the attention paid to Ms. Sharp’s involuntary confessional statements during

the trial, we question whether she would have taken the stand to rebut them and open

herself to cross-examination if they had been properly suppressed. See Wolfe v. Clarke,

691 F.3d 410, 425-26 (4th Cir. 2012) (affirming district court’s grant of § 2254 petition

because a Brady violation tainted two of defendant’s convictions, and affirming district

court’s decision to vacate all three of defendant’s convictions because third conviction

relied significantly on defendant’s testimony at trial, and the government could not prove

defendant would have testified without the improperly admitted evidence). Cf. Harrison

v. United States, 392 U.S. 219, 224 (1968) (“It is, of course, difficult to unravel the many


                                            - 40 -
considerations that might have led the petitioner to take the witness stand at his former

trial. But, having illegally placed his confessions before the jury, the Government can

hardly demand a demonstration by the petitioner that he would not have testified as he

did if his inadmissible confessions had not been used.”).

       But she did testify, and on cross-examination she admitted that “in a way” it was

her idea to burn Mr. Owen’s belongings to destroy all evidence that he had been in the

camp site. State App. Vol. IV at 90-91. The State highlighted this statement during

closing arguments. State App. Vol. XII at 63 (“She decided they had to burn everything

else up so the crime couldn’t be connected back to them.”).

       iv. Grave doubt

       We conclude the trial court’s decision to deny Ms. Sharp’s motion to suppress and

to admit her statements was not harmless error under Brecht and “had substantial

influence” on the result. Crease, 189 F.3d at 1193. The untainted evidence against Ms.

Sharp included only her vague statement that she had “helped burn,” and Mr. Cornell’s

testimony that Ms. Sharp burned Mr. Owen’s belongings out of anger before he was tied

up, and knew of Mr. Hollingsworth’s and Mr. Baker’s intention to drag Mr. Owen into

the woods and tie him to a tree. This evidence did not establish the extent of her role or

her intent.

       Her involuntary confessional statements, on the other hand, were detailed and

probative of her specific role in the crime and her state of mind, and the State’s case

against her depended significantly on them. As the Supreme Court said in Fulminante:




                                            - 41 -
       A confession is like no other evidence. Indeed, the defendant’s own
       confession is probably the most probative and damaging evidence that can
       be admitted against him. . . . In the case of a coerced confession . . . a
       reviewing court [must use] extreme caution before determining that the
       admission of the confession at trial was harmless.

499 U.S. at 296 (quotations omitted). The jury could have interpreted Ms. Sharp’s

“Don’t kill him here” statement from the re-enactment video as evidence that she

influenced the commission of the crime and knew Mr. Owen would be killed. Further, in

the re-enactment video, Ms. Sharp detailed her role in burning Mr. Owen’s belongings,

and claimed it was her idea to burn them to destroy evidence of the crime. The jury

could have found this evidence showed Ms. Sharp acted with a culpable state of mind and

aided in concealing the crime. At trial, the parties paid great time and attention to these

statements from the re-enactment video, and both statements featured prominently in

opening and closing arguments. Given the State’s repeated reliance on these statements,

we are convinced the statements played a large role in the jury’s verdict.

       Moreover, we are troubled that Ms. Sharp might not have testified if her

involuntary confessional statements had been suppressed. By testifying, she exposed

herself to cross-examination and admitted that “in a way” it was her idea to burn Mr.

Owen’s belongings to destroy evidence of the crime. This damaging admission also

could have significantly affected the jury’s verdict.

       In summary, although Mr. Cornell’s testimony supported the prosecution’s case,

we have grave doubt whether the trial court’s erroneous admission of Ms. Sharp’s

incriminating statements from the interview, re-enactment, and written statement, and

Ms. Sharp’s decision to testify on her behalf to attempt to rebut her involuntary


                                             - 42 -
confessional statements combined to have substantial and injurious effect or influence in

determining the jury’s verdict. Under Brecht, we therefore must grant relief.

                                    IV. CONCLUSION

       We reverse the district court’s denial of Ms. Sharp’s § 2254 petition. She satisfied

§ 2254(d)(2) by showing the state supreme court’s voluntariness determination was based

on unreasonable factual findings. On de novo review, we conclude her statements after

Detective Wheeles assured her she would not go to jail were involuntary. The court erred

by denying her motion to suppress and admitting her statements at trial in violation of the

Fifth and Fourteenth Amendments. We further conclude the error was not harmless

under Brecht. We therefore reverse the district court and grant Ms. Sharp’s petition for a

writ of habeas corpus as to her convictions, subject to the state’s right to retry her within

a reasonable time. See Fisher v. Gibson, 282 F.3d 1283, 1311 (10th Cir. 2002); see also

Bowen v. Maynard, 799 F.2d 593, 614 n.12 (10th Cir. 1986) (“Generally, a district court

ruling in the petitioner’s favor in a habeas case provides a reasonable time in order to

afford the State an opportunity to re-try the defendant or otherwise correct the

constitutional infirmity.”).




                                             - 43 -
