Stewart v. Morgan ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0343n.06
Filed: May 11, 2007
No. 05-5177
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ROY YOUNG STEWART, )
)
Petitioner-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE WESTERN
) DISTRICT OF KENTUCKY
JAMES MORGAN, Warden, )
) OPINION
Respondent-Appellee. )
_______________________________________)
Before: KENNEDY, MOORE, and McKEAGUE, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Petitioner-Appellant Roy Young Stewart
(“Stewart”) appeals from the district court’s judgment denying his petition for a writ of habeas
corpus. The district court rejected three intertwined claims: that Stewart’s trial counsel was
ineffective; that the state courts erred by refusing to hold a retrospective competency hearing; and
that Stewart’s guilty plea was not entered voluntarily, intelligently, and knowingly. The district court
adopted in full a report and recommendation from the magistrate judge, who reasoned that Stewart’s
ineffective-assistance-of-trial-counsel claim was procedurally defaulted and that his other two claims
failed on the merits. Although our reasoning differs markedly from that of the district court, we
AFFIRM the judgment of the district court because Stewart has not demonstrated that the state
courts’ failure to hold a retrospective competency hearing was an unreasonable application of clearly
established federal law and has not shown by clear and convincing evidence that the state courts
erred by concluding that his guilty plea was entered voluntarily, intelligently, and knowingly.
I. BACKGROUND
In the fall of 1979, Stewart was discharged from a psychiatric hospital in Philadelphia,
Pennsylvania. Soon thereafter, he moved to Louisville, Kentucky. In December 1979, Stewart
robbed a woman at knife point, and in March 1980, while on bond awaiting trial for the December
robbery, Stewart raped and robbed another woman. He was charged for crimes relating to these two
incidents, but before trial, a psychiatrist determined that Stewart suffered from a mental illness
requiring medication and psychiatric supervision, and he was confined in a correctional psychiatric
facility. After a short period of treatment, Stewart’s mental illness went into remission, and he was
declared competent to stand trial. On October 6 and November 18, 1980, Stewart pleaded guilty to
charges relating to the two incidents and was sentenced to a total of nineteen years in prison.
In September 1987, Stewart was released on parole. In July 1988, he allegedly attempted to
murder a woman, and in August 1988, he allegedly raped and robbed a woman at knife point. He
was indicted on charges related to these two incidents, and on January 25, 1990, Stewart pleaded
guilty (while maintaining his innocence, pursuant to North Carolina v. Alford, 400 U.S. 25 (1970))
to first-degree burglary, first-degree robbery, terroristic threatening, and two counts of fourth-degree
assault, and was sentenced as a persistent felony offender in the second degree. Stewart was
sentenced to a total of twenty-two years in prison. Five days later, he filed a motion to set aside his
conviction pursuant to Kentucky Rule of Criminal Procedure 11.42, and on February 5, 1990, the
state trial court denied his motion.
2
On November 25, 1992, Stewart filed a second motion to vacate his conviction pursuant to
Kentucky Rule of Criminal Procedure 11.42. He argued that his guilty plea was not entered
voluntarily, intelligently, and knowingly, and that his counsel was ineffective for failing to
investigate legal issues arising from his mental condition.1 On January 6, 1993, the state trial court
denied Stewart’s motion, concluding that Stewart had pleaded guilty voluntarily, intelligently, and
knowingly. Stewart appealed, and the Kentucky Court of Appeals concluded that, because of
Stewart’s “history of mental problems, his evident misunderstanding of an Alford plea, and his
possibly compulsive criminal behavior,” it was not apparent from the record that Stewart’s counsel
had performed adequately by failing to investigate Stewart’s psychological condition. Joint
Appendix (“J.A.”) at 57 (Stewart v. Commonwealth (Stewart I), No. 93-CA-0435-MR, slip op. at
4 (Ky. Ct. App. Mar. 10, 1995)). The Kentucky Court of Appeals vacated the order of the state trial
court and remanded the case “so that appellant may, with the assistance of counsel, elaborate at an
evidentiary hearing the claim that his trial attorney unreasonably neglected legal issues arising from
his psychological condition.” J.A. at 57-58 (Stewart I, No. 93-CA-0435-MR, slip op. at 4-5).
On October 14, 1996, the state trial court held a hearing on Stewart’s motion to vacate his
conviction and again denied the motion on the ground that he had entered his guilty plea knowingly
and voluntarily. Stewart appealed, and the Kentucky Court of Appeals again vacated the order and
1
In the first opinion of the Kentucky Court of Appeals, the court mentioned only the
ineffective-assistance-of-counsel claim, Joint Appendix (“J.A.”) at 56 (Stewart v. Commonwealth
(Stewart I), No. 93-CA-0435-MR, slip op. at 3 (Ky. Ct. App. Mar. 10, 1995)), but in the third
opinion of the Kentucky Court of Appeals, the court also mentioned the invalid-plea claim, J.A. at
69 (Stewart v. Commonwealth (Stewart III), No. 1999-CA-001933-MR, slip op. at 2 (Ky. Ct. App.
Jan. 12, 2001)). Thus, it is unclear from the record before us whether Stewart raised an independent
claim that his guilty plea was not entered voluntarily, intelligently, and knowingly, or merely made
this assertion in support of his ineffective-assistance-of-counsel claim.
3
remanded the case, again instructing the state trial court to hold a hearing to determine whether
Stewart’s counsel unreasonably neglected legal issues arising from his psychological condition.
Stewart v. Commonwealth (Stewart II), No. 1996-CA-003291-MR, slip op. at 5 (Ky. Ct. App. Oct.
23, 1998), available at http://162.114.92.72/COA/1996-CA-003291.pdf.
On April 26, 1999, the state trial court held a hearing on Stewart’s motion to vacate his
conviction. Stewart introduced evidence that he had been under psychiatric care in the past, had
been hospitalized in the past, had been hospitalized in 1980 while facing criminal charges, and had
been evaluated at that time for his competency to stand trial. Wallace Rogers (“Rogers”), Stewart’s
trial counsel, “testified that he was unaware of Stewart’s prior mental health history and that he
would have moved for a competency hearing prior to the guilty pleas had he known about it.” J.A.
at 70-71 (Stewart v. Commonwealth (Stewart III), No. 1999-CA-001933-MR, slip op. at 3-4 (Ky.
Ct. App. Jan. 12, 2001)). Dr. Victoria Yunker (“Yunker”) performed a competency evaluation at
the state trial court’s request, and her report concluded that Stewart was “competent when he entered
his guilty pleas and when the offenses were committed.” J.A. at 71 (Stewart III, No. 1999-CA-
001933-MR, slip op. at 4). On the basis of this evidence, the state trial court concluded that, because
of Rogers’s failure to investigate Stewart’s mental condition, his performance “‘may well have been
outside the range of professionally competent assistance.’” Id. (quoting the state trial court’s
opinion). The state trial court also concluded, however, that because Dr. Yunker determined that
Stewart would have been found competent to stand trial had a competency hearing been held prior
to his guilty plea, because the evidence against Stewart on the charges against him was “‘damning,’”
and because he pleaded to reduced charges as a result of his plea agreement, Stewart had “‘failed to
show that there is a reasonable probability he would have gone to trial facing the above charges
4
instead of taking the deal offered by the Commonwealth.’” J.A. at 72 (Stewart III, No. 1999-CA-
001933-MR, slip op. at 5 (quoting the state trial court’s opinion)). The state trial court accordingly
concluded that Stewart had failed to show prejudice from his counsel’s allegedly deficient
performance and once again denied Stewart’s motion to vacate his conviction.
Stewart appealed, arguing that the state trial court erred by relying on Dr. Yunker’s report
without holding a retrospective competency hearing. The Kentucky Court of Appeals concluded that
the state trial court had not erred and affirmed the state trial court’s decision, finding “no abuse of
discretion” in the state trial court’s determination that Stewart had not been prejudiced by his
counsel’s allegedly deficient performance. J.A. at 74 (Stewart III, No. 1999-CA-001933-MR, slip
op. at 7).
Stewart filed a motion for discretionary review in the Kentucky Supreme Court. The
Kentucky Supreme Court vacated the Kentucky Court of Appeals’s decision and remanded the case
back to the Court of Appeals for further consideration in light of Thompson v. Commonwealth, 56
S.W.3d 406 (Ky. 2001), a then-recent Kentucky Supreme Court decision regarding when a trial court
should or must hold a competency hearing. On remand, the Kentucky Court of Appeals concluded
that the state trial court did not err by refusing to hold a competency hearing because “there were no
reasonable grounds to question Stewart’s competency and no harm resulted from the absence of a
competency hearing” and affirmed the decision of the state trial court. J.A. at 91 (Stewart v.
Commonwealth (Stewart IV), No. 1999-CA-001933-MR, slip op. at 8 (Ky. Ct. App. Aug. 30, 2002)).
On August 13, 2003, the Kentucky Supreme Court denied Stewart’s motion for discretionary review.
J.A. at 83 (Stewart v. Commonwealth, 2002-SC-0989-D (Ky. Aug. 13, 2003)).
5
On February 11, 2004, Stewart filed a petition for a writ of habeas corpus in the federal
district court. Stewart ostensibly raised two claims: that the state trial court erred by refusing to hold
a competency hearing; and that he was denied the effective assistance of counsel. On April 12, 2004,
the state filed an answer, and on June 16, Stewart filed a response to the state’s answer. The case
was referred to a magistrate judge, and on June 29, 2004, the magistrate judge filed a report and
recommendation. The magistrate judge construed Stewart’s habeas petition as raising a third claim
as well: that his guilty plea was not entered voluntarily, intelligently, and knowingly. The magistrate
judge recommended that the district court dismiss Stewart’s ineffective-assistance-of-counsel claim
as procedurally defaulted and dismiss Stewart’s other claims on the merits. On September 3, 2004,
Stewart filed objections to the magistrate judge’s report and recommendation, but on January 5,
2005, the district court adopted the report and recommendation in full, denied Stewart’s petition for
a writ of habeas corpus, and denied Stewart a certificate of appealability on all issues. Stewart timely
filed a notice of appeal, and on August 25, 2005, we granted Stewart a certificate of appealability
on all issues.
II. ANALYSIS
We review de novo a district court’s decision in a habeas proceeding. Souter v. Jones, 395
F.3d 577, 584 (6th Cir. 2005). We review the district court’s factual findings for clear error. Id.
Title 28 U.S.C. § 2254(d) sets forth the familiar standard that guides our analysis of a petition for
a writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act of 1996:
An application for a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings unless the adjudication of
the claim—
6
(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). “[A] determination of a factual issue made by a State court shall be presumed
to be correct. The applicant shall have the burden of rebutting the presumption of correctness by
clear and convincing evidence.” Id. § 2254(e)(1).
A. Ineffective Assistance of Counsel
Because ineffective-assistance-of-counsel claims present mixed questions of law and fact,
we review such claims de novo. United States v. Wagner, 382 F.3d 598, 615 (6th Cir. 2004). We
analyze ineffective-assistance-of-counsel claims under the familiar two-prong test set forth in
Strickland v. Washington, 466 U.S. 668 (1984). “First, the defendant must show that counsel’s
performance was deficient.” Id. at 687. “Second, the defendant must show that the deficient
performance prejudiced the defense.” Id.
In order to show that deficient performance prejudiced the defense when a defendant pleads
guilty, “the defendant must show that there is a reasonable probability that, but for counsel’s errors,
he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474
U.S. 52, 59 (1985). A defendant can meet this burden by showing, for example, that there was an
“affirmative defense,” such as an insanity defense, that “likely would have succeeded at trial,” id.,
or by showing that he or she was not competent to plead guilty, see Jermyn v. Horn, 266 F.3d 257,
283 (3d Cir. 2001); Eddmonds v. Peters, 93 F.3d 1307, 1317 (7th Cir. 1996), cert. denied, 520 U.S.
1172 (1997); Theriot v. Whitley, 18 F.3d 311, 313-14 (5th Cir. 1994). A defendant is competent if
7
he or she “has sufficient present ability to consult with his lawyer with a reasonable degree of
rational understanding” and “has a rational as well as factual understanding of the proceedings
against him [or her].” Dusky v. United States, 362 U.S. 402, 402 (1960). Notably, a state court’s
determination of competency is a factual finding entitled to a presumption of correctness on federal
habeas review, rebuttable only by clear and convincing evidence. See Mackey v. Dutton, 217 F.3d
399, 413 (6th Cir. 2000), cert. denied, 531 U.S. 1087 (2001); see also 28 U.S.C. § 2254(e)(1).
The state trial court concluded that Stewart’s trial counsel’s performance “‘may well have
been outside the range of professionally competent assistance.’” J.A. at 71 (Stewart III, No. 1999-
CA-001933-MR, slip op. at 4 (quoting the state trial court’s opinion)). On appeal in this court,
Stewart further argues that his trial counsel’s performance was deficient because even a cursory
review of the sentencing and plea transcripts from Stewart’s previous convictions—part of the
discovery materials provided by the state to Stewart’s trial counsel prior to his guilty plea in this
case—would have revealed serious mental health concerns warranting further investigation. The
state does not counter this argument on appeal. The parties instead focus their arguments on whether
Stewart can establish prejudice because of his trial counsel’s deficient performance.2
To the extent that Stewart now argues that he has established on the record as it stands that
he was prejudiced by his trial counsel’s deficient performance, his claim clearly fails. Dr. Yunker’s
report concluded that Stewart was competent when he committed the crimes and when he pleaded
2
The magistrate judge sua sponte dismissed Stewart’s ineffective-assistance-of-counsel claim
as procedurally defaulted, but that decision raises concerns. See Howard v. Bouchard, 405 F.3d 459,
476 (6th Cir. 2005), cert. denied, --- U.S. ---, 126 S. Ct. 1032 (2006) (“The main concern with
raising procedural default sua sponte is that a petitioner not be disadvantaged without having had an
opportunity to respond.”). Accordingly, we exercise our discretion to dismiss this claim on the
merits rather than address the issue of procedural default. See Lyons v. Stovall, 188 F.3d 327, 333
(6th Cir. 1999), cert. denied, 530 U.S. 1203 (2000).
8
guilty, and Stewart’s only evidence to the contrary is that he required psychiatric care at various
points in the past and that he expressed some hesitancy when pleading guilty. Stewart has not
introduced any evidence countering Dr. Yunker’s report and showing affirmatively that he was
incompetent when he pleaded guilty or would have had a valid insanity defense to the crimes, much
less showing by clear and convincing evidence that he was incompetent. Accordingly, Stewart has
failed to meet his burden of establishing that he was prejudiced by his trial counsel’s deficient
performance, and the state trial court’s decision was, at the very least, a reasonable application of
clearly established federal law. Cf. United States v. Branham, 97 F.3d 835, 855 (6th Cir. 1996)
(concluding on direct review that a district court’s finding that a defendant was competent to stand
trial was not clearly erroneous where the district court relied on its own observations and credited
one expert opinion over another).
However, Stewart consistently argued in state court that he would be able to establish that
he was prejudiced by his trial counsel’s deficient performance if the state trial court held a
retrospective competency hearing, and that the state trial court erred by refusing to hold such a
hearing. See, e.g., J.A. at 92 (Stewart IV, No. 1999-CA-001933-MR, slip op. at 9) (stating that
Stewart did not argue that he had established ineffective assistance of trial counsel on the record as
it stands, but instead “argued that the trial court should not have made its decision on the ineffective
assistance of counsel claim without first holding a competency hearing”). The crux of Stewart’s
ineffective-assistance claim, then, is his claim that he was entitled to a retrospective competency
hearing, the claim to which we now turn.
9
B. Retrospective Competency Hearing
“[W]here there is substantial evidence of a defendant’s incompetence at the time of trial a
trial judge has the duty to order a hearing sua sponte.” Pate v. Smith, 637 F.2d 1068, 1071 (6th Cir.
1981). We agree with the Kentucky courts that on direct review of a trial court’s decision not to hold
a competency hearing at the time of trial, the standard of review is “whether a reasonable judge,
situated as was the trial court judge whose failure to conduct an evidentiary hearing is being
reviewed, should have experienced doubt with respect to competency to stand trial.” Id. at 1072
(internal quotation marks omitted); see also J.A. at 90 (Stewart IV, No. 1999-CA-001933-MR, slip
op. at 7). We assume, without deciding, that the same standard applies when reviewing a trial
court’s decision not to hold a retrospective competency hearing as part of an ineffective-assistance-
of-counsel claim.3 Thus, we must decide whether the Kentucky Court of Appeals’s conclusion that
“there were no reasonable grounds to question Stewart’s competency and no harm resulted from the
absence of a competency hearing,” J.A. at 91 (Stewart IV, No. 1999-CA-001933-MR, slip op. at 8),
was an unreasonable application of that standard. See 28 U.S.C. § 2254(d)(1).
The Supreme Court has determined that a competency hearing was required in two cases.
In Pate v. Robinson, the Court noted that the “uncontradicted testimony of four witnesses called by
the defense revealed that [the petitioner] had a long history of disturbed behavior,” including in the
3
Although there is at trial a due process right to a hearing when the circumstances establish
a doubt with respect to competency, see Drope v. Missouri, 420 U.S. 162, 179-82 (1975); Pate v.
Robinson, 383 U.S. 375, 384-86 (1966); Smith, 637 F.2d at 1070-72, it is unclear whether that same
standard applies when a defendant attempts to show that he or she was prejudiced by trial counsel’s
deficient performance. When raising an ineffective-assistance-of-counsel claim, it is the defendant’s
burden to establish that he or she was prejudiced because he or she was actually incompetent at the
time of trial, see supra Section II.A, and thus due process may perhaps not require an evidentiary
hearing unless the defendant makes some greater showing. Because Stewart’s claim fails even under
the direct-review standard, however, we decline to resolve this issue.
10
weeks and days leading up to the commission of the crime at issue. Id. at 378 (footnote omitted).
The petitioner exhibited normal behavior at trial, id. at 385-86, and the state introduced into evidence
a stipulation that an expert would, if called, testify that the petitioner “knew the nature of the charges
against him and was able to cooperate with counsel when [the expert] examined him two or three
months before trial,” id. at 383. Notably, the stipulation did not reflect the expert’s conclusion
regarding whether or not the petitioner was competent to stand trial.4 Id. at 383; cf. Dusky, 362 U.S.
at 402 (concluding that a defendant is competent if he “has sufficient present ability to consult with
his lawyer with a reasonable degree of rational understanding” and “has a rational as well as factual
understanding of the proceedings against him”). The Court concluded that due process required that
the trial court hold a competency hearing because this evidence raised sufficient doubt as to the
petitioner’s competence to stand trial. Robinson, 383 U.S. at 385-86.
Nine years later, the Court revisited this issue in Drope v. Missouri. In that case, the
petitioner submitted before trial a report of a psychiatric evaluation indicating that he had significant
mental problems, including potential diagnoses of “Sociopathic personality disorder, sexual
perversion,” “Borderline mental deficiency,” and “Chronic Anxiety reaction with depression.”
Drope, 420 U.S. at 165. At trial, the petitioner’s wife recounted a history of bizarre behavior. Id.
at 165-66. Finally, in the midst of trial, petitioner attempted suicide. Id. at 166. The Court
concluded that the trial court, faced with this evidence, erred by not holding a competency hearing.
Id. at 180.
4
The Court actually stated that “the stipulation did not include a finding of sanity,” Robinson,
383 U.S. at 383 (emphasis added), but the Court made clear elsewhere in its opinion that relevant
state law at the time used the term “sanity” to describe both competency to stand trial and legal
insanity, id. at 384 n.6.
11
In the case at hand, the evidence tending to show that Stewart was not competent to plead
guilty was not as strong as the evidence in either Robinson or Drope. Stewart had received
psychiatric treatment in the past, but there was no evidence introduced that Stewart had recent
psychiatric problems, and he had previously been found competent by a state court in criminal
proceedings. Cf. Splitt v. United States, 364 F.2d 594, 597 (6th Cir. 1966) (“[W]hen a person is sane
or has been adjudged to be sane he is presumed to be sane until he is proven insane.”), cert. denied,
385 U.S. 1019 (1967). The plea transcript shows that Stewart took two recesses during the plea
hearing and had some misgivings about pleading guilty, but does not reflect any bizarre behavior or
any other indications that Stewart was not competent at the time. Stewart’s lawyers testified that,
before pleading guilty, Stewart assisted them, provided relevant information, and appeared to
understand the proceedings against him. Finally, Dr. Yunker’s report, the only expert evidence in
this case, concluded that Stewart was competent when he pleaded guilty. Absent any affirmative
evidence showing that Stewart was not competent when he pleaded guilty, we conclude that the
Kentucky Court of Appeals’s determination that Stewart was not entitled to a retrospective
competency hearing was a reasonable application of clearly established federal law as set forth in
Robinson and Drope.
12
C. Guilty Plea
Finally, Stewart argues that his guilty plea was invalid.5 To be valid, guilty pleas “not only
must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the
relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748 (1970).
The validity of a plea must be based on an analysis of the totality of the circumstances. Id. at 749;
Garcia v. Johnson, 991 F.2d 324, 327 (6th Cir. 1993). A state court’s determination that a guilty
plea was valid is a factual finding entitled to a presumption of correctness on federal habeas review,
rebuttable only by clear and convincing evidence. Garcia, 991 F.2d at 326; see also 28 U.S.C.
§ 2254(e)(1).
Stewart argues that his plea was invalid because he had a history of psychiatric problems,
took two recesses during the plea hearing, answered some questions from the court untruthfully, and
had used marijuana immediately before the plea hearing. As discussed above, the record as it stands
does not reveal that Stewart’s history of psychiatric problems rendered him unable to enter a valid
plea, and the record does not reflect sufficient doubt regarding Stewart’s competency to warrant our
ordering a retrospective competency hearing. The recesses that Stewart took during the plea hearing
reveal that Stewart had some misgivings about pleading guilty to such a long sentence, but do not
show that he was unaware of the consequences of his plea or that he entered his plea involuntarily.
Stewart’s untruthful statements that he had never been treated for a mental illness and had never been
5
The state argues for the first time on appeal that this argument is procedurally defaulted
because Stewart did not present it to the Kentucky Court of Appeals. Because “procedural default
is normally a defense that the State is obligated to raise and preserv[e] if it is not to lose the right to
assert the defense thereafter,” Trest v. Cain, 522 U.S. 87, 89 (1997) (alteration in original) (internal
quotation marks omitted), we again exercise our discretion to dismiss this claim on the merits rather
than address the issue of procedural default, see Stovall, 188 F.3d at 333.
13
in a mental hospital do raise some concern, but nonetheless do not establish that he was unaware of
the consequences of his plea or that he entered his plea involuntarily. The state trial court engaged
in a full plea colloquy, and Stewart’s statements on the record that he understood the consequences
of his plea “provide strong evidence that [his] plea was intelligent and knowing.” Boyd v. Yukins,
99 F. App’x 699, 703 (6th Cir. 2004) (unpublished opinion). Stewart’s evidence of past psychiatric
problems and his self-serving, after-the-fact testimony that he had used marijuana before entering
his plea, testimony that was in contradiction with his statement at the plea hearing that he was not
currently under the influence of any drugs or alcohol, do not constitute the clear and convincing
evidence necessary to rebut the state trial court’s finding that Stewart entered his guilty plea
voluntarily, intelligently, and knowingly. Accordingly, we conclude that Stewart is not entitled to
habeas relief on this claim.
III. CONCLUSION
Because Stewart has not shown by clear and convincing evidence that the state courts erred
by concluding that his guilty plea was entered voluntarily, intelligently, and knowingly, because
Stewart has not demonstrated that the state courts’ failure to hold a retrospective competency hearing
was an unreasonable application of clearly established federal law, and because Stewart cannot
prevail on his ineffective-assistance-of-counsel claim unless he prevails on his retrospective-
competency-hearing claim, we AFFIRM the judgment of the district court.
14