Sam v. Hartley , 359 F. App'x 12 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 22, 2009
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JULIAN SAM,
Petitioner-Appellant,
v. No. 09-1376
(D.C. No. 07-CV-01405-LTB-KMT)
STEVE HARTLEY; THE (D. Colo.)
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before KELLY, BRISCOE, and HOLMES, Circuit Judges.
Julian Sam, a Colorado state prisoner appearing pro se, seeks a certificate
of appealability (“COA”) in order to challenge the district court’s denial of his
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons
stated below, we DENY Sam’s request and DISMISS this matter.
I
On February 12, 1999, Julian Sam and an accomplice entered the basement
of a home in Denver, Colorado wearing ski masks and proceeded to assault and
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
rob the residents at gun point. When the police arrived at the scene, they flooded
the home with tear gas. Sam’s accomplice was apprehended when he fled from
the residence. Sam was found inside a bedroom closet, hiding under a pile of
clothing.
Sam was subsequently charged in Denver City and County Court with two
counts of aggravated robbery, one count of first degree robbery, one count of
second degree robbery, one count of second degree assault, and two counts of
menacing. Sam was convicted by a jury of all six charges. He was then
sentenced to two consecutive thirty-year terms on the robbery charges. He was
also sentenced to the following concurrent sentences: thirty years for the burglary
charge, sixteen years for the assault charge and six years for each of the two
menacing charges.
Sam then filed a direct appeal to the Colorado Court of Appeals (“CCA”).
The CCA affirmed his convictions, but remanded with instructions to clarify the
issue of which robbery sentence the remaining sentences were to run concurrent
to. See People v. Sam, No. 00CA0203 (Colo. Ct. App. Dec. 6, 2001) (“Sam I”).
Sam then petitioned the Colorado Supreme Court for a writ of certiorari, which
was denied on April 29, 2002.
Sam next filed a motion to vacate his conviction pursuant to Rule 35(c) of
the Colorado Rules of Criminal Procedure, alleging ineffective assistance of
counsel. The trial court held an evidentiary hearing before denying Sam’s motion
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in a written order. Sam appealed the denial of his Rule 35(c) motion and the
CCA affirmed the trial court on December 14, 2006. See People v. Sam, No.
04CA2489 (Colo. Ct. App. Dec. 14, 2006) (“Sam II”). Sam then petitioned the
Colorado Supreme Court for a writ of certiorari which was denied on April 2,
2007.
In June 2007, Sam filed a second Rule 35(c) motion in which he alleged his
postconviction counsel had been ineffective in failing to investigate and present a
particular allegation of ineffective assistance of trial counsel. The district court
dismissed this motion as untimely and successive, but did not rule on its merits.
On appeal, the CCA chose to address the merits of Sam’s motion, but nonetheless
affirmed the district court’s dismissal. See People v. Sam, No. 07CA1903 (Colo.
Ct. App. Nov. 6, 2008) (“Sam III”).
Meanwhile, on July 5, 2007, Sam filed a petition for federal habeas corpus
relief pursuant to 28 U.S.C. § 2254 in the United States District Court for the
District of Colorado. In his petition Sam raised seven grounds for relief: (1) that
he was denied the right to call witnesses; (2) that due to the denial of his right to
call witnesses, he was also denied the right to present a defense; (3) that he was
denied his right to due process by the trial court’s rejection of his proposed “mere
presence” jury instruction; (4) that he was denied the right to have the jury
properly consider the lesser included offenses; (5) that the jury was not properly
instructed on the elements of burglary under Colorado law; (6) that he was denied
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a fair trial due to cumulative error; and (7) that he was denied the right to
effective assistance of both trial counsel and postconviction counsel. The district
court denied Sam’s petition for habeas relief in a very thorough, written order.
See Sam v. Hartley, et al., No. 07-cv-01405-L-TB (D. Colo. June 24, 2009) (“Sam
IV”).
II
A COA is a jurisdictional prerequisite to an appeal from the district court’s
denial of a habeas petition filed under § 2254. See 28 U.S.C. § 2253(c)(1). A
COA may be issued “only if the applicant has made a substantial showing of the
denial of a constitutional right.” Id. at § 2253(c)(2). If the district court has
rejected a prisoner’s claims on the merits, in order to show the denial of a
constitutional right a prisoner must demonstrate that “reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), if a
claim has been adjudicated on the merits in state court, a petitioner is entitled to §
2254 habeas relief only if he can establish that the state court’s adjudication of
the claim:
(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
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determination of the facts in light of the evidence presented at the
state court proceeding.
28 U.S.C. § 2254(d). Further, in this context “a determination of a factual issue
made by a State court shall be presumed to be correct [and] … [t]he applicant
[bears] the burden of rebutting the presumption of correctness by clear and
convincing evidence.” Id. at § 2254(e)(1).
Since the CCA addressed Sam’s claims on their merits, the district court
applied these provisions of the AEDPA. Thus, our task is to determine whether,
with respect to each of Sam’s claims, reasonable jurists could debate the district
court’s determination that the CCA’s adjudication was neither unreasonable nor
contrary to established federal law. For the following reasons, we conclude that
Sam has failed to make such a showing with respect to any of the seven issues he
raises.
(1), (2). Denial of the Right to Call Witnesses
In his first two claims, Sam argues that his Sixth Amendment right to
compulsory process and his Fifth Amendment right to due process were violated
when the trial court excluded his girlfriend, Nadiyah Berry, from testifying at
trial. We agree with the CCA and the district court that these two claims were
substantially similar. We will also address them as a single claim.
Sam hoped that Berry would testify that she had given Sam $1,000 in cash
one week prior to the robbery. Sam would rely on this testimony to establish that
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the money that police found on his person was not stolen. The prosecution
objected to the witness testifying because she had not been endorsed until the
third day of trial, she had not been sequestered from other witnesses, she had been
present in the court room during the trial, and the prosecution had no opportunity
to conduct any discovery concerning her potential testimony. The trial court
excluded the testimony, finding that Sam had been on notice since the time the
charges were filed that the source of the money found on his person would be an
issue. The court concluded that allowing Berry’s testimony would be an unfair
surprise to the prosecution.
The CCA agreed that Sam was on notice that the source of the money
would be an issue and that his failure to timely endorse Berry as a witness
violated Rule 16 of the Colorado Rules of Criminal Procedure, which requires
that defense witnesses be disclosed no later than thirty days before trial. See Sam
I at 2. The CCA concluded that the trial court’s decision to exclude Berry’s
testimony was not an abuse of discretion. See id. at 2-6. On federal habeas
review, the district court concluded that the CCA’s affirmation of the trial court
was reasonable, specifically citing Taylor v. Illinois, 484 U.S. 400, 408 (1988).
See Sam IV at 7-11.
In Taylor, the Supreme Court recognized that “[f]ew rights are more
fundamental than that of an accused to present witnesses in his own defense,” but
went on to affirm the trial court’s exclusion of a witness whose name was not
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disclosed to the prosecution until the second day of trial, despite defense
counsel’s admission that he was aware of the witness’ name before trial. 484 U.S.
at 403-05, 408. The Court noted that while less severe remedies for the untimely
disclosure of a defense witness are always available, when the discovery
violations that lead to such untimely disclosures are flagrant or designed to
conceal a plan to present fabricated testimony or gain a tactical advantage,
exclusion of the witness is entirely consistent with the Compulsory Process
Clause of the Sixth Amendment. See id. at 410-416.
We conclude that reasonable jurists would not debate the district court’s
conclusion that the CCA’s adjudication of Sam’s first two claims was based on a
reasonable application of relevant federal law. Therefore, neither of these claims
may serve as an adequate basis for the granting of a COA.
(3). “Mere Presence” Instruction
In his third claim, Sam argues that his constitutional right to due process
was violated when the trial court refused to give his proposed “mere presence”
instruction to the jury. The proposed instruction read as follows: “The guilt of a
defendant cannot be established by mere presence at the scene of a crime, even
with knowledge that a crime is being committed.” Trial Court Record, Vol. I, p.
22. The trial court rejected this instruction citing the CCA’s opinion in People v.
Simien, 671 P.2d 1021 (Colo. Ct. App. 1983), wherein it stated:
[W]here proper instructions are given concerning the presumption of
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innocence, the prosecution’s burden of proof, reasonable doubt, the
essential elements of the offenses, and the definition of the requisite
mens rea, the so called ‘mere presence’ instruction is necessarily
encompassed by the instructions as a whole, and need not be given.
671 P.3d at 1024. On appeal, the CCA held that the trial court had properly
instructed the jury and as such concluded “that the jury did not base its guilty
verdicts on [Sam’s] mere presence at the scene.” Sam I at 6. Finally, the district
court on habeas review concluded that the CCA’s adjudication was reasonable
because the trial court’s failure to give the proposed instruction did not implicate
“fundamental fairness.” Sam IV at 11-13.
In Henderson v. Kibbe, 431 U.S. 145 (1977), the Supreme Court noted that
“[a]n appraisal of the significance of an error in the instructions to the jury
requires a comparison of the instructions which were actually given with those
that should have been given.” 431 U.S. at 154. The Court went on, however, to
say that as a general rule in a habeas proceeding regarding jury instructions, the
proper inquiry is whether “the ailing instruction by itself so infected the entire
trial that the resulting conviction violates due process, not merely whether the
instruction is undesirable, erroneous, or even universally condemned.” Id.(internal citations and quotations omitted).
Given the fact that the jury in Sam’s trial was properly instructed with
respect to the prosecution’s burden of proof, reasonable doubt and the requisite
mens rea, we conclude that reasonable jurists would not debate the district court’s
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conclusion that the CCA reasonably applied relevant federal law. As such, Sam’s
third claim does not provide an adequate basis for the granting of a COA.
(4). Comments of the Prosecutor
In his fourth claim, Sam argues that his constitutional right to due process
was violated when the trial court allowed the prosecutor to encourage the jury to
completely disregard the jury instructions. Specifically, he objects to the
following portion of the prosecutor’s closing argument:
Then you have a bunch of what are called lesser offenses, and
after each there are elements that say I have to prove this and that and
the other that are numbered.
Then the next page that you will see will say, if it necessarily
includes a lesser offense, such as first degree burglary and a lesser
offense of criminal trespass.
Aggravated robbery has a lesser offense of robbery. The lesser
offenses, you can only convict on those if you believe there was no gun
involved, or Mr. Sam was just in there without the intention to commit
theft; he just happened to be there. Those are the lesser included
offenses. Read them. They don’t have anything to do with the facts in
this case, they’re just there, and that’s it for the complicity instructions.
It’s just as to that one count.
Trial Transcript, Vol. 5, p. 118.
The trial court denied Sam’s motion for a mistrial based on these
comments. On appeal, the CCA recognized that pursuant to Colorado law, it is
improper for a court to indicate that jury instructions offered by the defendant are
less worthy of the jury’s consideration. Sam I at 8 (citing People v. Coria, 937
P.2d 386 (Colo. 1997)). The CCA chose not to grant relief, however, noting that
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it was the prosecution who had commented on the instructions, not the court, and
that in any event the instructions had not been labeled as defense instructions. Id.
at 9. The district court, guided by Donnelly v. DeChristoforo, 416 U.S. 637, 642-
48 (1974), and Darden v. Wainwright, 477 U.S. 168, 181-82, concluded that the
CCA’s adjudication was reasonable because the prosecutor’s comments were not
so egregious that they rendered the entire trial fundamentally unfair. Sam IV at
13-16.
In Darden, the Supreme Court noted that in assessing this type of
prosecutorial conduct in the habeas corpus context, “[t]he relevant question is
whether the prosecutor’s comments so infected the trial with unfairness as to
make the resulting conviction a denial of due process.” 477 U.S. at 181 (citing
Donnelly, 416 U.S. at 643). In concluding that the prosecutor’s comments in
Darden did not so infect the trial, the Court noted that the prosecutor’s argument
“did not manipulate or misstate the evidence, nor did it implicate other specific
rights of the accused such as the right to counsel or the right to remain silent.”
Id. at 181-82. The Court also noted that the “[t]he trial court instructed the jurors
several times that their decision was to be made on the basis of the evidence
alone, and that the arguments of counsel were not evidence,” and also mentioned
that the heavy weight of the evidence against the petitioner reduced the likelihood
that the jury’s decision was influenced by argument. Id. at 182.
Given that the challenged comments were made by the prosecutor and not
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the trial court, and given the weight of the evidence against Sam, we conclude
that reasonable jurists would not debate the district court’s conclusion that the
CCA reasonably applied relevant federal law. As such, Sam’s fourth claim
cannot serve as the basis for the granting of a COA.
(5). Jury Instructions on Theft
In his fifth claim, Sam argues that his constitutional right to due process
was violated because the trial court failed to properly instruct the jury on the
elements of theft, the crime underlying Sam’s burglary charge. Specifically, he
objects to the fact that although the trial court properly instructed the jury as to
the elements of burglary, it failed to instruct the jury as to the elements of the
theft, thereby permitting the jury to convict him of burglary without specifically
finding each element of the crime.
As Sam did not raise this argument before the trial court, on direct appeal
the CCA reviewed the issue only for plain error. Sam I at 9. The CCA concluded
that there was no plain error because, in light of the fact that the jury had
convicted Sam of aggravated robbery, it had already found that he took something
of value from his victims. Id. at 9-10. Thus, the only element of theft that had
not been found was the intent to permanently deprive the victims of this property.
Id. According to the CCA, it would be “antithetical to the facts of this case” for
the jury to have concluded that Sam did not intend to permanently deprive the
victims of their money. Id. at 10. The district court, guided by the Supreme
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Court’s decisions in Estelle v. McGuire, 502 U.S. 62 (1991) and Henderson,
concluded that the CCA’s adjudication was a reasonable application of federal
law because the erroneous instruction did not so infect the entire trial so as to
violate due process. Sam IV at 16-19.
We agree that the trial court erred when it failed to instruct the jury on the
elements of theft. But, as the district court correctly noted, the Supreme Court
has held that “the fact that [an] instruction was allegedly incorrect under state law
is not a basis for habeas relief.” Estelle, 502 U.S. at 71-72. Rather, the Court has
held that collateral relief is available only if “the ailing instruction by itself so
infected the entire trial that the resulting conviction violates due process.”
Henderson, 431 U.S. at 154. Finally, the Court has also mentioned that “[a]n
omission, or an incomplete instruction, is less likely to be prejudicial than a
misstatement of the law.” Id. at 155.
Given that by convicting Sam of aggravated robbery, the jury found each
element of theft except the intent to permanently deprive, and given that Sam is
entitled to relief only if “the ailing instruction by itself so infected the entire trial
that the resulting conviction violates due process,” Henderson, 431 U.S. at 154,
we conclude that reasonable jurists would not debate the district court’s
conclusion that the CCA’s adjudication was a reasonable application of federal
law. As such, Sam’s fifth claim provides no basis for the issuance of a COA.
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(6). Cumulative Error
In his sixth claim, Sam argues that he was denied his constitutional right to
due process because of cumulative trial error. The CCA concluded that “the
errors combined did not prevent [Sam] from receiving a fair trial.” Sam I at 10.
The district court concluded that “the CCA’s rulings do not constitute an
unreasonable application of the cumulative-error doctrine, nor were they
unreasonable determinations of the facts presented in the state court proceedings.”
Sam IV at 20.
In the context of habeas relief, cumulative error is reviewed under the same
standard as individual error. Thornburg v. Mullin, 422 F.3d 1113, 1137 (10th Cir.
2005). Thus, relief is warranted only if the errors alleged by Sam cumulatively
“infected the trial with unfairness as to make the resulting conviction[s] a denial
of due process.” Donnelly, 416 U.S. at 643. Based on our analysis of the alleged
errors, we conclude that reasonable jurists would not debate the district court’s
conclusion that the CCA’s adjudication of the cumulative error issue was a
reasonable application of federal law. As such, Sam’s sixth claim cannot serve as
the basis for the issuance of a COA.
(7). Ineffective Assistance of Counsel
In his final claim, Sam alleges that he was denied his constitutional right to
the effective assistance of both trial counsel and postconviction counsel. In
support of his position, Sam points to the following six errors he alleges trial
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and/or postconviction counsel made: (a) failure to object when the elements of
theft were omitted from the jury’s burglary instructions; (b) failure to offer a
“mere presence” jury instruction; (c) failure to object to the introduction of two
guns at trial; (d) objection to the introduction of a ski mask; (e) failure to
investigate numerous aspects of Sam’s case; and (f) failure of postconviction
counsel to investigate trial counsel’s failure to attack the credibility of a victim.
Because “[t]he ineffectiveness or incompetence of counsel during Federal
or State collateral post-conviction proceedings shall not be a ground for relief in a
proceeding arising under section 2254,” see 28 U.S.C. § 2254(i), we consider only
Sam’s claims of ineffective assistance of trial counsel. Under Strickland v.
Washington, 466 U.S. 668 (1984), Sam may establish the ineffectiveness of his
trial counsel only by demonstrating that counsel’s performance fell below an
objective standard of reasonableness and that this deficiency resulted in prejudice
to his defense. 466 U.S. at 687-88. There is a strong presumption that counsel’s
performance falls within the range of reasonableness and it is Sam’s burden to
overcome this presumption. Id. at 689. Finally, in order to establish prejudice,
Sam must demonstrate that there is “a reasonable probability that, but for
counsel’s unprofessional errors, the resulting proceedings would have been
different.” Id. at 694. We address the CCA and district court’s application of
this standard to each of Sam’s allegations.
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(a) Burglary Instructions
In addressing Sam’s ineffective assistance claim with respect to trial
counsel’s failure to object to the trial court’s erroneous burglary instruction, the
CCA concluded that even if this constituted error, there was no prejudice to Sam
because the CCA had already concluded that the erroneous instruction did not
warrant a vacation of Sam’s convictions. Sam II at 2-3. The district court then
concluded that the CCA had reasonably applied Strickland. Sam IV at 22-23. In
light of the fact that the erroneous instruction did not prejudice Sam, we agree
with the district court that counsel was not ineffective in failing to object to it.
(b) “Mere Presence” Instruction
In response to Sam’s claim that his trial counsel was ineffective because he
failed to offer a theory of defense jury instruction based on “mere presence” due
to his lack of preparation for trial, the CCA first noted that defense counsel did
tender such an instruction. Sam II at 4. The CCA went on to find that in light of
the fact that it had already held that the omission of this instruction did not
prejudice Sam, Sam had no claim to ineffective assistance on these grounds. Id.Finally, the CCA concluded by finding that defense counsel had, in fact,
developed a theory of defense during trial. Id. at 4-5.
On habeas review, the district court concluded that in light of the fact that
Sam had offered no evidence either rebutting the CCA’s factual finding that
defense counsel had developed a theory of the case or indicating that counsel was
15
not prepared for trial, the CCA had reasonably applied Strickland. Sam IV at 23-
24. We conclude that no reasonable jurist would debate the district court’s
conclusion.
(c) Failure to Object
In addressing Sam’s claim that he received ineffective assistance because
trial counsel failed to object to the prosecution’s introduction of two guns brought
to the police by the victims two days after the crime, the CCA found that there
had been no prejudice because Sam had not provided any facts or legal authority
to support a claim that the guns should have been suppressed. Sam II at 9-10.
The district court noted that the Supreme Court has observed that “counsel may
disserve the interests of his client by attempting a useless charade,” Sam IV at 25
(citing United States v. Cronic, 466 U.S. 648, 657 n.19 (1984) (alterations
omitted)), that it was not in a position to second guess the tactical decisions of
trial counsel, and that the CCA had reasonably applied Strickland. Id. We
conclude that no reasonable jurist would debate this conclusion.
(d) Objection to Ski Mask
Sam next alleged that he received ineffective assistance because trial
counsel improperly objected to the prosecution’s introduction of a ski mask which
Sam contends supports his claim that there was a third, as yet unapprehended
person responsible for the crimes. The CCA rejected Sam’s claim finding that
counsel’s objection was a matter of trial strategy that was neither unreasonable
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nor prejudicial to Sam. See Sam II at 10-11. The CCA noted that counsel’s
objection to the ski mask came during the prosecution’s case-in-chief and related
to the prosecution’s failure to give notice of its existence during discovery. Id. It
further noted that counsel specifically requested that he be permitted to introduce
the evidence, if necessary, in his case-in-chief. Id. at 11.
In reviewing the CCA’s decision, the district court began by noting that we
have held that “where it is shown that a particular decision was, in fact, an
adequately informed strategic choice, the presumption that the attorney’s decision
was objectively reasonable becomes ‘virtually unchallengeable.’” Sam IV at 26
(citing United States v. Nguyen, 413 F.3d 1170, 1181 (10th Cir. 2005) (internal
quotations omitted)). It went on to conclude that in light of the fact that Sam had
produced no evidence that counsel’s decision was not such a strategic decision,
the CCA had reasonably applied Strickland. Id. We agree and conclude that no
reasonable jurist would debate the district court’s conclusion.
(e) Failure to Investigate
Sam next claims trial counsel was ineffective by failing to: (i) investigate
and endorse Berry as a witness prior to trial; (ii) interview Sam’s co-defendant;
(iii) investigate the identity of a third person allegedly also present at the crime
scene; and (iv) investigate the crime scene. In addressing the issue of counsel’s
failure to investigate in Strickland, the Supreme Court noted that “a particular
decision not to investigate must be directly assessed for reasonableness in all the
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circumstances, applying a heavy measure of deference to counsel’s judgments.”
466 U.S. at 691. It is with this Strickland standard in mind that we now analyze
the CCA’s and district court’s adjudications of these claims.
(i), (ii), (iii) Failure to Investigate Berry, Co-Defendant, and Third
Person
In concluding that counsel’s failure to investigate these individuals had not
prejudiced Sam, the CCA noted that at the evidentiary hearing on his first motion
to vacate, Sam conceded on cross-examination that he had failed to provide
counsel with contact information for Berry, had never told counsel that his co-
defendant had useful information and knew neither the name nor the whereabouts
of the alleged third person. Sam II at 6. The CCA further noted that Sam had
failed to produce evidence suggesting that any of the three were willing to testify
or offer any proof of the substance, credibility, or admissibility of their
anticipated testimony. Id. at 7.
In finding that the CCA had reasonably applied Strickland, the district
court noted that we have held that “a petitioner who challenges his counsel’s
effectiveness because counsel decided not to interview a potential witness, must
establish the decision not to interview was unreasonable from counsel’s
perspective at the time the decision was made.” Sam IV at 28 (citing Anderson v.
Att’y Gen. of Kan., 425 F.3d 853, 859 (10th Cir. 2005)). We conclude in light of
the facts noted by the CCA, that no reasonable jurist would debate this conclusion
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of the district court.
(iv) Failure to Investigate the Crime Scene
In concluding that trial counsel’s failure to investigate the crime scene had
not prejudiced Sam, the CCA found that “[Sam’s] argument that, had counsel
investigated the crime scene, counsel could have explained why [Sam] was at the
victims’ house and thereby rebutted the prosecution’s theory he broke into the
house, is speculative and conclusory, and thus does not support a claim of
ineffective assistance.” Sam II at 8-9. The district concluded that the CCA had
reasonably applied Strickland, noting that Sam had failed to show that an
additional investigation into the crime scene could have produced a different
result at trial. Sam IV at 29. As Sam has yet to make such a showing, we
conclude that no reasonable jurist would debate the district court’s conclusion.
(f) Failure to Attack Victim’s Credibility
In his final ineffective assistance claim, Sam alleges that his postconviction
counsel was ineffective for failing to investigate trial counsel’s failure to attack
the credibility of one of the victims on the grounds that the victim was an illegal
immigrant who had provided police with a false name. As previously noted,
however, we may not entertain this claim because “[t]he ineffectiveness or
incompetence of counsel during Federal or State collateral post-conviction
proceedings shall not be a ground for relief in a proceeding arising under section
2254.” 28 U.S.C. § 2254(i).
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III
Sam’s request for a Certificate of Appealability is DENIED and this matter
is DISMISSED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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