Marshall v. Bristol Superior Court , 753 F.3d 10 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-1965
RYAN MARSHALL,
Petitioner, Appellee,
v.
BRISTOL SUPERIOR COURT,
Respondent, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
Before
Lynch, Chief Judge,
Howard and Kayatta, Circuit Judges.
Amy L. Karangekis, Assistant Attorney General, with whom
Martha Coakley, Attorney General of Massachusetts, and Kris C.
Foster, Assistant Attorney General, were on brief, for appellant.
Richard J. Fallon for appellee.
May 23, 2014
LYNCH, Chief Judge. Petitioner Ryan Marshall was granted
a writ of habeas corpus, pursuant to 18 U.S.C. § 2241, on double
jeopardy grounds. The writ bars Marshall's imminent prosecution
for the murder of George Carpenter pending in the Bristol County
Superior Court.
Marshall was indicted in 2001 and convicted in 2006 as an
accessory before the fact to Carpenter's murder. The Massachusetts
Supreme Judicial Court ("SJC") reversed that conviction in August
2010. It reasoned that although the evidence did establish
Marshall's "active participation in, and presence during, the
commission of the felony," the conviction could not stand where the
conduct that was charged was required to have taken place before
the felony was committed. Commonwealth v. Rodriguez, 931 N.E.2d
20, 43 (Mass. 2010).
Following the SJC's decision in Rodriguez, the
Commonwealth then indicted Marshall for murder. Marshall moved to
dismiss this latter indictment, arguing that the SJC's earlier
reversal had been based on insufficiency of the evidence and,
hence, that the Double Jeopardy Clause as incorporated against the
states barred a second prosecution. In affirming the denial of his
motion to dismiss, the SJC disagreed with Marshall, holding that
its earlier reversal had been based on a variance between the crime
charged and the crime proved at trial under state law. Marshall v.
Commonwealth, 977 N.E.2d 40, 48 (Mass. 2012). Under both state and
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federal law, it held that a second prosecution following a reversal
based on such a variance does not give rise to a double jeopardy
problem. Id.
Marshall filed a petition for habeas relief under 18
U.S.C. § 2241 seeking to block his pending prosecution. On federal
habeas review, the district court granted petitioner's request for
relief. Marshall v. Bristol Cnty. Superior Court, 951 F. Supp. 2d
232, 236 (D. Mass. 2013). The district court accepted petitioner's
double jeopardy argument. Id. at 235-36. In addition, the
district court held that a newly asserted and hence unexhausted "ex
post facto law" argument did not preclude it from granting relief.
Id. at 234 & n.1. The Commonwealth has appealed. The issuance of
the writ was stayed pending our review.
We reverse. We hold that, under Tibbs v. Florida, 457
U.S. 31 (1982), this court is bound by the SJC's interpretation of
its earlier reversal and the requirements of Massachusetts law.
Bound as we are to accept the SJC's interpretations of its own
state law and its own decision in Marshall of what it held in
Rodriguez, petitioner's double jeopardy argument necessarily fails.
We also reject petitioner's ex post facto claim as patently without
merit.
I.
The facts and background of the case are set forth in the
two SJC decisions. In the early morning of February 16, 2001, the
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victim, George Carpenter, age 45, was socializing with friends at
the home of Donna Medeiros, Marshall's mother. Rodriguez, 931
N.E.2d at 26-27. Petitioner, his girlfriend, and his three friends
-- Robert Tirado, Jonathan Torres, and Heather Lawrence -- arrived
at the house soon after.1 Id. at 27.
At some point, an argument began between Marshall,
Tirado, and the victim. Id. The altercation between Tirado and
the victim spilled out into the street when they left Medeiros's
house. When Carpenter got into his car and tried to drive away,
Tirado slashed the front driver's-side tire. Id. After driving
1
Tirado, along with Lionel Rodriguez, Orlando Badillo, and
Dennis Smith, was charged with murder in the first degree, while
Torres was indicted as an accessory before the fact to murder in
the first degree. Marshall, 977 N.E.2d at 42 & n.4. Tirado and
Torres were tried first; Tirado was convicted of murder in the
second degree, and Torres was acquitted. Rodriguez, 931 N.E.2d at
26 n.4. After being tried together, both Badillo and Smith were
convicted of murder in the second degree. Id. Tirado's conviction
was affirmed by the Appeals Court, see Commonwealth v. Tirado, 842
N.E.2d 980 (Mass. App. Ct. 2006), as was the order denying his
motion for a new trial, Commonwealth v. Tirado, 898 N.E.2d 890
(Mass. App. Ct. 2009) (table). Badillo's and Smith's convictions
were reversed on the ground that certain medical evidence and
testimony had been improperly admitted. Commonwealth v. Badillo,
968 N.E.2d 942, at *2 (Mass. App. Ct. 2012) (table). "Other than
the improperly admitted evidence, the Commonwealth produced minimal
evidence about Carpenter's physical condition after the assault and
no evidence about the medical cause of his death." Id.
As to Rodriguez, the jury had found him guilty of murder in
the first degree on a theory of extreme atrocity or cruelty.
Rodriguez, 931 N.E.2d at 25-26. On appeal, the SJC reduced his
conviction to murder in the second degree because, although other
properly admitted evidence established that Rodriguez had committed
an unlawful killing, medical evidence and testimony pertinent to
the theory of extreme atrocity or cruelty was erroneously admitted.
Id. at 34-39.
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the car a short distance, the victim got out of the vehicle and
continued arguing with Tirado. Id. The violence escalated when
Marshall and Torres, along with three more of their friends,
arrived on the scene outside. Id. With the exception of Torres,
all of the men present attacked the victim, including one who hit
him with a tire iron. Id. at 27-28. Marshall kicked the victim
twice and attempted to throw a trash barrel at him. Id. at 28.
The perpetrators left the victim unconscious on the
street, and when police arrived they found him bloody and
unconscious. Id. Carpenter died later that day as a result of
acute internal hemorrhaging due to blunt force trauma. Id.
A. Trial
The prosecution chose to indict Marshall as an accessory
before the fact to murder in the first degree under Mass. Gen. Laws
ch. 274, § 2 ("Whoever aids in the commission of a felony, or is
accessory thereto before the fact by counselling, hiring or
otherwise procuring such felony to be committed, shall be punished
in the manner provided for the punishment of the principal
felon."). Rodriguez, 931 N.E.2d at 39-40. Marshall was not
indicted for the murder itself. Though the indictment charged him
with acts before the murder was committed, the Commonwealth
proceeded at trial under an "aiding" the murder theory, not under
an accessory before the fact theory. Id. at 40. At the close of
the state's presentation of evidence, Marshall's counsel moved for
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a required finding of not guilty, arguing that no evidence had been
presented that, before the beating, Marshall had in any way
"counselled, hired, or otherwise procured" the commission of the
felony. Id. The prosecutor agreed, but argued that there was
sufficient evidence for the jury to convict on the aiding theory.
Id. The trial judge, reasoning that the crime of being an
accessory before the fact is "largely identical to the joint
venture doctrine," denied the motion, id., and the jury convicted
in February 2006, id. at 25.
B. First SJC Decision: Commonwealth v. Rodriguez
A co-defendant, Lionel Rodriguez, and Marshall appealed
to the SJC. Marshall argued that the denial of his motion was in
error because there was insufficient evidence to convict him of
being an accessory before the fact. Id. at 40. The SJC agreed
with Marshall; it reasoned first that "the actions of one who
'aids' and 'accessories before the fact' are not the same, and are
separate and distinct forms of accomplice liability." Id. Given
this "separate and distinct" conclusion, the SJC reasoned, "the
indictment charging Marshall improperly defined the offense on
which he was tried . . . [and] the [trial court] submitted the case
to the jury with improper instructions, as [it] told the jury that
they could convict Marshall as an accessory before the fact if he
'aided in the commission of the murder of [the victim].'" Id. at
42-43. Those instructions were in error because they were not
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consistent with the indictment, which charged conduct that took
place before the felony was committed. Id. at 43.
The SJC added that the evidence did establish Marshall's
"active participation in, and presence during, the commission of
the felony," and noted that the state "should have simply added
Marshall's name to that portion of the indictment alleging murder,
without reference to Marshall's acting as an accessory before the
fact."2 Id. The SJC concluded that "because the evidence
presented was legally insufficient to warrant a finding of
Marshall's guilt as an accessory before the fact, Marshall's motion
for a required finding of not guilty should have been allowed."
Id. In a footnote, the SJC expressly noted that Marshall could not
be retried as an accessory before the fact. Id. at 43 n.34.
C. Second SJC Decision: Marshall v. Commonwealth
The Commonwealth indicted Marshall again, this time
charging him with murder for his involvement in the killing,
pursuant to Mass. Gen. Laws ch. 265, § 1. Marshall moved to
dismiss the indictment, claiming that the second prosecution was
barred by double jeopardy, arguing that "murder is a form or a
'species' of lesser included offense to accessory before the fact
to murder." Marshall, 977 N.E.2d at 41 (internal quotation marks
omitted). The state trial judge (who was not the original trial
2
Petitioner claims that the prosecution chose to indict him
as an accessory before the fact "so that [he] would not get the
benefit of lesser included crimes such as manslaughter."
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judge) denied the motion, and Marshall appealed to a single justice
of the SJC pursuant to Mass. Gen. Laws ch. 211, § 3. Id. at 42.
The justice reserved judgment and presented the issues to the full
SJC. Id.
The SJC rejected Marshall's argument and concluded that
the second indictment was not barred by the Double Jeopardy Clause
as incorporated. The SJC began from the proposition that
"[m]urder, prosecuted on a theory of aiding and abetting, is not a
lesser included offense of accessory before the fact to murder.
Rather, the two are different species of the same crime."
Marshall, 977 N.E.2d at 45. The SJC rejected the portion of
Rodriguez that appeared to read "aiding" the commission of a felony
to be a "separate and distinct" crime from acting as an accessory
before the fact.3 Marshall, 977 N.E.2d at 46-47. The Marshall
court reasoned that "[a]lthough grounded in the language and
structure of the statute, [the Rodriguez] construction of § 2 goes
too far, and is an outlier among our recent decisions regarding the
3
As the Marshall court explained:
Whether the defendant engages in conduct before the
commission of the victim's murder to ensure its
accomplishment, aids in its commission by others,
or commits the murderous assault himself, he is
liable for murder and, if convicted, will be so
punished. We cannot say, then, that each is a
wholly independent theory of liability.
977 N.E.2d at 47.
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scope of accomplice (or joint venture) liability."4 Id. at 45.
Thus, Marshall, addressing a question of state legislative
interpretation, modified Rodriguez's interpretation of
Massachusetts' murder statutes.
After interpreting the Massachusetts aiding and abetting
statute, the SJC turned to the double jeopardy implications of
Rodriguez. The SJC acknowledged that the state cannot retry a
defendant when a conviction is overturned for insufficient
evidence, but a state may do so
[1] where other theories (supported by
evidence at a first trial) would support a
defendant's conviction in the second, see
Commonwealth v. Fickett, [526 N.E.2d 1064,
1068 n.4 (Mass. 1988)], or [2] where a
conviction is reversed on appeal because of a
variance between the indictment and the proof
established at trial. See Commonwealth v.
Ohanian, [370 N.E.2d 695, 698 (Mass. 1977)].
4
In particular, the Marshall court noted its 1997 decision
in Commonwealth v. Ortiz, 679 N.E.2d 1007 (Mass. 1997), which found
that, "[a]lthough [section two] 'continue[d] to use the term
'before the fact,' the phrase now appears to be a vestige of
history, as [recent] statutory changes 'abrogate[d] the distinction
between principals and accessories before the fact.'" Marshall,
977 N.E.2d at 46 (third and fifth alterations in original) (quoting
Ortiz, 679 N.E.2d at 1010).
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Id. at 47-48.5 The Marshall court reasoned that this case falls
somewhere between these two "exceptions" to the double jeopardy
rule, and that while Rodriguez had not employed the "variance"
language precisely, it "essentially concluded . . . that such a
variance was fatal: the defendant was convicted of a crime for
which he had not been indicted." Id. at 48. Ultimately, the SJC
concluded, there was no double jeopardy problem with the state's
decision to prosecute Marshall for a second time for the crime
proved at the first trial. Id.
5
Federal law recognizes these exceptions to double jeopardy
under the heading "procedural dismissals." Evans v. Michigan, 133
S. Ct. 1069, 1075 (2013) ("Procedural dismissals include rulings on
questions that 'are unrelated to factual guilt or innocence,' but
'which serve other purposes,' including 'a legal judgment that a
defendant, although criminally culpable, may not be punished'
because of some problem like an error with the indictment."
(emphasis added) (quoting United States v. Scott, 437 U.S. 82,
98 & n.11 (1978))); see, e.g., United States v. Lanzotti, 90 F.3d
1217 (7th Cir. 1996) (allowing new trial where earlier conviction
reversed on ground that facts did not support direct violation of
Illinois gambling statute and aiding and abetting theory was not
fairly communicated by instructions); Parker v. Norris, 64 F.3d
1178, 1180-82 (8th Cir. 1995) (allowing retrial under premeditated
murder provision after government charged and convicted defendant
under felony murder provision that did not apply to the defendant's
acts); United States v. Todd, 964 F.2d 925, 929-30 (9th Cir. 1992)
(allowing retrial on related offense of sexual contact where
government charged and convicted defendant under sexual intercourse
statute that did not apply to defendant's acts); United States v.
Miller, 952 F.2d 866, 870-74 (5th Cir. 1992) (allowing retrial on
permissible theory of mail fraud after conviction on legally
deficient "intangible rights" theory had been overturned); United
States v. Davis, 873 F.2d 900, 903-07 (6th Cir. 1989) (same).
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D. Section 2241 Petition and District Court Decision
Marshall then filed a § 2241 petition in the district
court, arguing that because the initial reversal of his conviction
was based on insufficient evidence, his second indictment and
pending trial were barred by double jeopardy. Marshall v. Bristol
Cnty. Superior Court, 951 F. Supp. 2d at 233. He also asserted
that the SJC's changing interpretation of the aiding and abetting
statute was impermissible as it created an ex post facto law. Id.
at 234.
The district court noted that petitioner's ex post facto
claim was not raised before the state court and had not been
exhausted. It held, however, without any supporting citation, that
"exhaustion is not required when the ground for the Writ is double
jeopardy." Id. at 234 n.1. The district court did not address the
merits of Marshall's ex post facto claim.
As to petitioner's double jeopardy claim, the federal
district court agreed with Marshall's characterization of the SJC's
decision in Rodriguez as resting on an insufficiency of the
evidence finding. The district court held that Marshall's second
indictment was prohibited by the Double Jeopardy Clause as
incorporated. Id. at 235-36. It cited Burks v. United States, 437
U.S. 1 (1978), in which the Court held that a defendant cannot be
tried a second time after a reviewing court has found that the
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evidence presented was insufficient to sustain a guilty verdict.
Id. The district court granted the petition, saying that the state
cannot be allowed to pick and choose
successive theories of murder and to proceed
upon successive trials for each of its new
theories. The Commonwealth must stand on its
theory of murder alleged at the first trial or
otherwise the principle of one trial for each
crime, which is at the core of the Double
Jeopardy Clause, would be nullified.
Id. at 236.
The Commonwealth argues to us that the petition should be
denied in full for failure to satisfy the exhaustion requirement as
to the ex post facto argument, and that, even if Marshall meets the
exhaustion requirement, the second indictment does not violate the
Double Jeopardy Clause as incorporated.
II.
"[W]e, as a federal habeas court reviewing a petition
under section 2241, must defer to the SJC's findings of fact but
must undertake plenary review of that court's resolution of issues
of law." Gonzalez v. Justices of Mun. Court of Bos., 382 F.3d 1,
7 (1st Cir. 2004) (citation omitted), judgment vacated on other
grounds, 544 U.S. 918 (2005), and reinstated, 420 F.3d 5 (1st Cir.
2005).6 We review a district court's disposition of a section 2241
6
The Commonwealth does not challenge this de novo standard
of review under section 2241, as opposed to the deference owed to
a state court under the Antiterrorism and Effective Death Penalty
Act, 28 U.S.C. § 2254(d)(1).
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petition de novo. Espinoza v. Sabol, 558 F.3d 83, 91 (1st Cir.
2009).
Petitioner claims two grounds for relief in his § 2241
petition. First, petitioner claims that, in changing "accessory
before the fact" to a "theory" of murder from a separate crime, the
SJC's decision in Marshall gave rise to an unconstitutional "ex
post facto law." Second, petitioner claims that his prosecution
for murder is barred by the Double Jeopardy Clause.
A. "Ex Post Facto Law": Unexhausted But Frivolous
Petitioner claims first that the SJC's decision in
Marshall, 977 N.E.2d at 45 -- characterizing accessory before the
fact as a separate theory of murder as opposed to a separate
offense, abrogating the portion of Rodriguez interpreting the
Massachusetts aiding and abetting statute -- had the effect of
"creat[ing] an ex post facto law for Mr. Marshall in violation of
Article I of the U.S. Constitution." Petitioner failed to exhaust
state remedies with respect to this claim. We reject it on the
merits nonetheless.7
Ordinarily, "[p]rinciples of comity and federalism push
in favor of giving state courts, without premature federal
interference, a meaningful opportunity to consider, and if
7
Because we reach the merits of petitioner's "ex post facto
law" claim, we need not decide whether the "total exhaustion
requirement" that applies to habeas petitions filed pursuant to 18
U.S.C. § 2254, Rhines v. Weber, 544 U.S. 269, 274-78 (2005), also
applies to petitions filed pursuant to 18 U.S.C. § 2241.
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necessary to correct, claims of legal error in state criminal
prosecutions." Pike v. Guarino, 492 F.3d 61, 71 (1st Cir. 2007).
However, "exhaustion is a prudential principle rather than a
jurisdictional limitation," id., and "where, as here, a habeas
petitioner's unexhausted claim is patently without merit, . . . the
interests of judicial economy" recommend "dispos[ing] of that claim
once and for all," Coningford v. Rhode Island, 640 F.3d 478, 483
(1st Cir. 2011); see also Granberry v. Greer, 481 U.S. 129, 135
(1987) (explaining that a federal habeas court may reach the merits
of an unexhausted claim "if it is perfectly clear that the
applicant does not raise even a colorable federal claim").
For the same reason, this court need not decide whether
to abstain from deciding petitioner's ex post facto claim under
Younger v. Harris, 401 U.S. 37, 44–45 (1971), which cautions that
federal courts should generally refrain from enjoining pending
state court proceedings.8 Like exhaustion, "Younger is not a
jurisdictional bar based on Article III requirements, but instead
a prudential limitation on the court's exercise of jurisdiction
grounded in equitable considerations of comity." Spargo v. N.Y.
State Comm'n on Judicial Conduct, 351 F.3d 65, 74 (2d Cir. 2003);
accord Benavidez v. Eu, 34 F.3d 825, 829 (9th Cir. 1994) ("Younger
abstention is not jurisdictional, but reflects a court's prudential
8
The issue of Younger abstention was not raised by the
Commonwealth in the district court. We do not address the issue of
whether the Commonwealth's waiver would be excused.
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decision not to exercise jurisdiction which it in fact possesses."
(emphasis in original)). The interest of comity is not advanced by
forcing state courts to consider frivolous claims. In addition,
the Commonwealth has itself asked for dismissal on the grounds that
petitioner's ex post facto claim is without merit and has
extensively briefed the issue.
"As the text of the [Ex Post Facto] Clause makes clear,
it 'is a limitation upon the powers of the Legislature, and does
not of its own force apply to the Judicial Branch of government.'"
Rogers v. Tennessee, 532 U.S. 451, 456 (2001) (quoting Marks v.
United States, 430 U.S. 188, 191 (1977)). Marshall's "ex post
facto law" claim is mislabeled. He asserts a due process claim.
The Supreme Court has recognized that "limitations on ex post facto
judicial decisionmaking are inherent in the notion of due process."
Rogers, 532 U.S. at 456.
But even recast as a due process argument, petitioner's
claim fails. Constraints on judicial retroactivity are rooted in
"core due process concepts of notice, foreseeability, and, in
particular, the right to fair warning as those concepts bear on the
constitutionality of attaching criminal penalties to what
previously had been innocent conduct." Id. at 459 (citing Bouie v.
City of Columbia, 378 U.S. 347, 351, 352, 354-355 (1964)).
Petitioner cannot seriously contend that he lacked fair notice that
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participation in a fatal beating constituted criminal conduct.
Petitioner's fair notice claim is utterly meritless.
B. Double Jeopardy
It is black letter law that "the Double Jeopardy Clause
precludes a second trial once the reviewing court has found the
evidence legally insufficient." Burks, 437 U.S. at 18; see also
Benton v. Maryland, 395 U.S. 784, 794-95 (1969) (holding that the
"double jeopardy" protection of the Fifth Amendment was
incorporated into the Fourteenth, and hence also carries to the
States). By contrast, where reversal is based upon a variance
between the crime charged in the indictment and the crime proved at
trial, the Double Jeopardy Clause is no bar to retrial. See
Montana v. Hall, 481 U.S. 400, 404 (1987) ("It is clear that the
Constitution permits retrial after a conviction is reversed because
of a defect in the charging instrument.").
Rodriguez, were it standing alone, could be read as
giving conflicting signals. On the one hand, the decision does use
the phrase "the evidence was insufficient." 931 N.E.2d at 43. On
the other hand, the decision uses that phrase in the context of a
discussion emphasizing the mismatch between the crime charged in
the indictment and the crime proved at trial.9 In addition,
9
Rodriguez said:
[T]he indictment charged conduct that took place
"before the said felony was committed," an element
that we have stated is required under G.L. c. 274,
§ 2, to establish guilt as an accessory before the
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Rodriguez noted that Marshall could have been convicted pursuant to
a corrected indictment. See id. ("To charge Marshall with this
conduct, the Commonwealth should have simply added Marshall's name
to that portion of the indictment alleging murder, without
reference to Marshall's acting as an accessory before the fact.").
By itself, the SJC's decision in Rodriguez could be
thought to be ambiguous. Marshall resolved any ambiguity,
explaining:
Although the proof of liability at trial, and
the jury instructions that accompanied it,
would have sufficed if the defendant had been
indicted simply for the murder itself, they
were at variance with the wording of the
indictment. Although we did not employ this
term specifically, we essentially concluded in
Rodriguez . . . that such a variance was
fatal: the defendant was convicted of a crime
for which he had not been indicted.
977 N.E.2d at 48. Marshall held that the reversal in Rodriguez was
based upon a defect in the charging instrument, language of
"insufficien[cy]" notwithstanding.
And a federal habeas court is bound by that holding.
"[T]he meaning attached to an ambiguous prior reversal is a matter
fact. In this case, the evidence was insufficient
to satisfy this requirement, for there was no
evidence at trial that Marshall, before the felony
took place (as was required by the indictment, the
statutory prescribed indictment form, and G.L. c.
274, § 2), counselled, hired, or otherwise procured
the felony to be committed. Rather, the evidence
established his active participation in, and
presence during, the commission of the felony.
931 N.E.2d at 43 (emphasis added).
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of state law." Tibbs, 457 U.S. at 47 n.24 (citing Greene v.
Massey, 437 U.S. 19 (1978)). For that reason, the SJC's
"construction of its prior opinion binds this Court." Id. at
46-47. We are similarly bound by the state court's construction of
its state statutes and other issues of state law. E.g., Wisconsin
v. Mitchell, 508 U.S. 476, 483 (1993) ("There is no doubt that we
are bound by a state court's construction of a state statute.").
The Supreme Court addressed a similar situation in Tibbs.
In that case, the Florida Supreme Court's initial decision
reversing the defendant's conviction left unclear whether reversal
was based on "insufficient evidence" or rather on "weight of the
evidence." 457 U.S. at 38-39. Following a retrial and conviction,
the Florida Supreme Court issued a second opinion clarifying that
its earlier reversal had been based on "weight of the evidence."
Id. The defendant argued on appeal, among other things, that the
earlier reversal had, in fact, been based upon insufficiency, and,
as a result, that the Double Jeopardy Clause as incorporated barred
his retrial. The Supreme Court affirmed the conviction following
retrial, reasoning that "[a]ny ambiguity in Tibbs I . . . was
resolved by the Florida Supreme Court in Tibbs II." Id. at 46.
The state court's "bind[ing]" construction of its earlier decision
established that the defendant's "successful appeal of his
conviction rested upon a finding that the conviction was against
the weight of the evidence, not upon a holding that the evidence
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was legally insufficient to support the verdict." Id. at 46-47.
"Under these circumstances," the Court concluded, "the Double
Jeopardy Clause does not bar retrial." Id. at 47. On like
reasoning, we conclude that the grant of the petition here was in
error.
III.
The district court's grant of petitioner's request for
habeas relief is reversed. Habeas relief is barred, and the
petition is dismissed with prejudice.
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