Walter Lee Wilson, Petitioner-appellee, v. Louis E. Bruce, Respondent-appellant,attorney General of the State of Kansas, Respondent, 10 F.3d 810 (10th Cir. 1993)

ORDER AND JUDGMENT¹ 

KELLY

Respondent-appellant Louis Bruce appeals from the district court's grant of the writ of habeas corpus, 28 U.S.C. 2254, to Petitioner-appellee Walter Lee Wilson. Our jurisdiction arises under 28 U.S.C. 1291 and 2253 and we affirm.

The parties are familiar with the facts and issues of the case and we will not restate them here. We review the state prosecutor's alleged misconduct to determine whether it rendered the entire trial fundamentally unfair so as to deny Mr. Wilson due process. Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); Coleman v. Saffle, 869 F.2d 1377, 1395 (10th Cir. 1989), cert. denied, 494 U.S. 1090 (1990). The factors considered in this due process analysis are: (1) the strength of the state's case; (2) whether the judge gave curative instructions regarding the misconduct; and, (3) the probable effect of the conduct on the jury's deliberative process. Hopkinson v. Shillinger, 866 F.2d 1185, 1210 (10th Cir. 1989), cert. denied, 497 U.S. 1010 (1990). Here, the case against Mr. Wilson was, at best, a close one, the trial judge overruled counsel's objection to the statement in question, and the probable effect of the statement was to play on the fears of the jury. We note the tension between the state-court resolution in this case and similar claims decided by the Kansas courts. State v. Ruff, 847 P.2d 1258, 1266-67 (Kan.1993); State v. Zamora, 803 P.2d 568, 572-73 (Kan.1990); State v. Wilson, 360 P.2d 1092, 1097 (Kan.1961). Be that as it may, we agree with the district court that, as a matter of federal law, the prosecutor's closing argument substantially tainted the fairness of Mr. Wilson's trial such that a new trial is warranted. See, e.g., Coleman, 869 F.2d at 1394-96.

AFFIRMED.