United States Court of Appeals
Fifth Circuit
F I L E D
REVISED AUGUST 23, 2006
January 9, 2006
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
______________________
No. 05-70004
______________________
JUSTIN CHAZ FULLER
Petitioner-Appellant
versus
DOUG DRETKE, DIRECTOR, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
Respondent-Appellee
___________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(1:03-cv-01416-TH)
___________________________________________________
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:*
Fuller was convicted of capital murder on March 4, 1998 and
subsequently sentenced to death in the 241st District Court of
Smith County, Texas. Fuller’s direct appeal was denied by the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
Texas Court of Criminal Appeals, as was his first state application
for post-conviction relief. Fuller filed an application for a writ
of habeas corpus in the U.S. District Court for the Eastern
District of Texas, but dismissed the application in order to return
to state court. His second state application was denied and Fuller
once again filed a habeas application in district court. Again, he
dismissed the federal application and returned to state court a
third time. Fuller’s third state application for post-conviction
relief was dismissed and Fuller subsequently filed a third
application in district court, raising twenty six claims.
The district court denied Fuller’s habeas petition, but later
granted Certificate of Appealability (“COA”) on four issues: (1)
whether the trial court erred in not allowing Fuller to present
evidence of the relative culpability of a co-perpetrator during the
punishment determination phase of his trial; (2) whether the trial
court erred in refusing to allow a witness to discuss future
dangerousness in the context of life in prison; (3) whether the
prosecution improperly excluded venirepersons on the basis of their
race; and (4) whether the district court’s refusal to consider the
merits of Fuller’s fourteenth through twenty-sixth claims because
they are procedurally defaulted resulted in a miscarriage of
justice. We AFFIRM the district court’s denial of Fuller’s
petition for habeas corpus relief.
2
BACKGROUND
On April 21, 1997, Petitioner Justin Fuller and three friends
kidnaped Donald Whittington from his apartment, made him withdraw
money from an ATM, then drove him to a wooded area and shot him
once in the arm and twice in the head, killing him. That evening,
Fuller took two high school students to see Whittington’s body and
told them what had happened. Those two students invited Kevin
Ballard, Kevin’s brother, and three other youths to view the body
the next day. Later, Kevin saw on a television broadcast that
Whittington’s body had been discovered, and he contacted the police
and led them to the body. The police interviewed the youths and
were told what Fuller had said about killing Whittington. After
searching Fuller’s dwelling, the police found Whittington’s ATM
card in Fuller’s wallet and his watch in Fuller’s living room.
After being arrested, Fuller confessed to being involved in the
crime, but denied being the trigger man. Fuller was subsequently
convicted of capital murder and sentenced to death. He brings this
habeas petition to challenge several happenings during the pre-
trial, trial, and punishment phases of his case.
STANDARD OF REVIEW
This Court applies the same standard of review to the state
court’s decision as does the district court. In reviewing Fuller’s
constitutional claims that have been adjudicated on the merits by
state court, habeas relief may not be granted unless the state
3
court decision was “contrary to, or involved an unreasonable
application of, clearly established federal law as determined by
the United States Supreme Court, or resulted in a decision 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)(1)-
(2). A state court decision is contrary to Supreme Court precedent
“if the state court applies a rule that contradicts the governing
law set forth” in Supreme Court cases or if it “confronts a set of
facts that are materially indistinguishable from a decision of [the
Supreme Court] and nevertheless arrives at a result different from
[Supreme Court] precedent.” Williams v. Taylor, 529 U.S. 362, 405-
06 (2000). “[A]n unreasonable application of federal law is
different from an incorrect or erroneous application of federal
law.” Id. at 412.
DISCUSSION
I. Evidence of Co-Perpetrator’s Moral Culpability
During the trial and the punishment phase, Fuller’s defense
counsel repeatedly attempted to introduce evidence of the moral
culpability of separately tried co-perpetrator Samhermendre
Wideman. Fuller wanted to demonstrate Wideman’s propensity to
violence and that Wideman was the organizer of the crime, thus
diminishing Fuller’s role in the offense. The trial court excluded
the evidence because it had no probative value. Fuller argues that
he was denied the opportunity to present a co-defendant’s relative
4
culpability as a mitigating factor in the punishment phase of
trial, in violation of Penry v. Lynaugh.1 We disagree.
Penry held that the “Constitution limits a State’s ability to
narrow a sentencer’s discretion to consider relevant evidence that
might cause it to decline to impose the death sentence.” 492 U.S.
at 327. As the district court correctly noted, the trial court did
not prohibit Fuller from introducing evidence of Wideman’s
culpability for the crime at issue. Rather, the trial court
refused to admit evidence of Wideman’s character and background
during Fuller’s punishment phase. Certainly, Penry holds that a
“jury must be able to consider and give effect to any mitigating
evidence relevant to a defendant’s background and character or the
circumstances of the crime.” Id. at 328. However, Penry’s holding
is based on a general evidentiary standard of relevance, and, under
such a standard, information about Wideman’s character and
background have little, if any, relevance to Fuller’s character and
background. See Tennard v. Dretke, 542 U.S. 274, 284 (2004).
Therefore, the state court’s rejection of this claim was not
contrary to, or an unreasonable application of, the Supreme Court’s
precedent concerning mitigating evidence and the death penalty.
II. Future Dangerousness and Life in Prison
During the punishment phase, Fuller sought to introduce the
1
492, U.S. 302 (1989).
5
testimony of Larry Fitzgerald, the Director of Information for the
Texas Department of Criminal Justice, Institutional Division, to
speak to the future dangerousness special issue. In prohibiting
Fitzgerald from testifying, the trial court determined that
Fitzgerald would only have testified to the details and procedures
of an actual execution, which the trail court deemed irrelevant to
the Texas special issues. Fuller maintains that to exclude
Fitzgerald’s testimony in this way denied his right to due process
and a fair trial.
The record demonstrates that the trial court’s determination
about the substance of Fitzgerald’s testimony was correct. The
trial court allowed the defense to summarize the content of
Fitzgerald’s testimony in order to determine whether that testimony
was relevant. The defense explained that Fitzgerald would describe
the days leading up to the execution date, the execution itself,
and what happens afterwards. Defense counsel also said that
Fitzgerald would offer into evidence a standard press release that
goes along with executions. In light of the evidence before it,
the trial court made a reasonable determination of the facts.
Given the court’s factual determination (that Fitzgerald would be
testifying about how an execution is carried out), the state court
did not apply the law unreasonably when it ruled that such
testimony was not relevant to the special issues. The method used
in executing prisoners, though it may turn some jurors against the
6
death penalty, does not have any relevance as to whether Fuller
would be dangerous in the future, whether he acted deliberately, or
to any mitigating circumstance of the crime or Fuller’s character.2
The defendant hasn’t shown any unreasonableness on the part of the
trial court regarding this issue that would warrant habeas relief.
III. The Merits of Fuller’s Batson Challenge
Fuller claims that the prosecutor impermissibly exercised his
peremptory challenges on the basis of race, in violation of Batson
v. Kentucky.3 In United States v. Seals4, this Court reiterated the
three-step process for Batson challenges:
First, the defendant [or any litigant] must make a prima
facie showing that the prosecution [or other party]
exercised peremptory challenges on the basis of a juror’s
cognizable racial background. Second, the burden shifts
to the prosecution [or challenged party] to articulate a
race-neutral explanation for removing the juror in
question. Finally, the trial court must determine
whether the defendant has met his burden of proving
purposeful discrimination.
2
See Fed. R. Evid. 401 (“‘Relevant evidence’ means evidence
having a tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence.”).
3
476 U.S. 79, 89 (1986).
4
987 F.2d 1102, 1108 - 09 (5th Cir. 1993).
7
Here, The trial court held that the defense established a prima
facie case of racial discrimination by objecting to the
prosecutor’s striking of six of the seven black potential jurors.
The prosecution then articulated race-neutral reasons for
challenging the black venirepersons. Defense counsel cross-
examined the prosecutor about his questioning of minority jurors,
and the trial court ultimately denied the Batson motion. The Texas
Court of Criminal Appeals affirmed the decision.
The state court was not unreasonable in its determination that
the prosecution’s race neutral reasons were not pretextual and used
to mask discriminatory intent. The state court found that:
The prosecution struck Juror Pace because she opposed the
death penalty, Juror Nichols because of his opposition to
the death penalty and for his relationship to a known
drug dealer, Juror Campbell because of her opposition to
the death penalty, Juror Dixon because he thought the
death penalty should never be invoked and because
[Fuller] mentioned Dixon’s brother in a letter, Juror
Busby because he stated that he believed youthful
offenders could not grasp the effect of their conduct,
and Juror Gossett because of opposition to the death
penalty and his friendship with a convicted
murderer...The State articulated plausible race related
neutral explanations for its peremptory elimination of
8
the six black venire members: none seemed patently
contrived or disingenuous.5
Fuller claims that the State’s reasons were not honest given the
history of Smith County prosecutors questioning minority potential
jurors differently from white ones. However, the record supports
the state court’s factual determination regarding the State’s race-
neutral reasons for striking the jurors at issue. The prosecutors’
reasons are supported by the verbal and written answers given by
the potential jurors during voir dire. Therefore, the state
court’s factual determination that the prosecutors’ reasons were
not pretext for racial discrimination was reasonable given the
evidence before the court.
Fuller also argues that the Texas Court of Criminal Appeals
made a decision contrary to federal law because the court used the
phrase “patently contrived or disingenuous” in denying the Batson
challenge. Fuller contends that this is a higher standard than the
“dishonest” standard required by federal law. However, as the
district court noted, it is not convincing that “‘disingenuous’ has
a significantly different meaning from ‘dishonest’”. The state
court applied the correct legal standard, and there is no reason to
warrant habeas relief on this issue.
IV. Procedurally Defaulted Claims
5
Fuller v. State, No. 73, 106 (Tex. Crim. App. Dec. 20, 2002)
Slip op. p. 13.
9
Fuller brought a 26-claim habeas petition before the district
court in which claims fourteen through 26 were raised for the first
time in a successive state court habeas petition. Because the
claims were not raised in Fuller’s first state court post-
conviction petition, the state court held that claims fourteen
through twenty-six were procedurally barred and dismissed them as
an abuse of the writ. The district court granted COA on the
procedurally defaulted claims for this court to determine whether
the district court’s refusal to consider the merits of those claims
resulted in a miscarriage of justice. However, Fuller only
addresses five of those procedurally defaulted claims in his
petition before this court, therefore, his other claims are deemed
abandoned.6 Those remaining claims are: (1) his trial counsel
rendered ineffective assistance by serving under a conflict of
interest; (2) his attorney rendered ineffective assistance by
failing to communicate a plea offer to him; (3) the trial court’s
error in finding that Fuller had a right to competent habeas
counsel now entitles Fuller to bring an ineffective assistance
claim against his habeas counsel ; (4) the prosecutors presented
false and misleading testimony in explaining their use of
peremptory strikes during the Batson hearing, following a pattern
6
See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999); see
also Fed.R.App. P. 28(a)(9); see also Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
10
of discrimination against Black jurors in Smith County that goes
beyond the issues raised on direct appeal; and (5) Fuller’s actual
innocence.
Claims that are defaulted at the state level are barred from
review on the federal level unless the defendant shows “cause for
the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate[s] that failure to
consider the claims will result in a fundamental miscarriage of
justice.”7 “Cause is defined as ‘something external to the
petitioner, something that cannot be fairly attributed to him’ that
8
impedes his efforts to comply with the [state] procedural rule.”
To establish a “miscarriage of justice” exception, Fuller must
demonstrate actual innocence.9
The district court only granted COA on whether its refusal to
consider the merits of Fuller’s defaulted claims resulted in a
miscarriage of justice. It did not grant COA on whether Fuller
demonstrated cause for default and actual prejudice resulting the
violations. However, in his appellate brief, Fuller does address
7
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
8
Matchett v. Dretke, 380 F.3d 844, 848 (5th Cir. 2004), citing,
Moore v. Roberts, 83 F.3d 699, 704 (5th Cir. 1996).
9
Coleman, 501 U.S. at 748, citing, Murray v. Carrier, 477 U.S.
478, 496 (1986) (“[W]here a constitutional violation has probably
resulted in the conviction of one who is actually innocent, a
federal habeas court may grant the writ even in the absence of a
showing of cause for the procedural default.”).
11
the cause and prejudice standard. Though Fuller has not
specifically asked this Court for a COA on the issue of cause and
prejudice on his procedurally defaulted claims, we construe his
appeal raising these issues as such a request.10 A COA may issue
“only if the applicant has made a substantial showing of the denial
of a constitutional right.”11 In death penalty cases, “any doubts
as to whether COA should be issued must be resolved in the
petitioner’s favor.”12 Fuller’s case, being a death penalty case
in which he raises constitutional issues that were procedurally
barred, satisfies the requirements for a COA regarding whether
Fuller has fulfilled the cause and prejudice standard of the
procedurally defaulted claims that he has not abandoned.
Therefore, we grant COA to determine whether cause for the
procedural defaults exist and whether Fuller was prejudiced by the
alleged violations.
(1) Ineffective Assistance of Counsel: Conflict of Interest
The district court did not address whether Fuller met the
10
See Allen v. Musgrove, 96 Fed.Appx. 957 (5th Cir. 2004)
(“Although [defendant] has not requested COA to appeal the
dismissal of his habeas corpus claims, this court may construe his
notice of appeal as such a request.); see also Mosley v. Johnson,
192 F.3d 126 (5th Cir. 1999) (“We construe [defendant’s] notice of
appeal as a motion for COA.”).
11
28 U.S.C. § 2253(c)(2).
12
Matchett, 380 F.3d at 848, citing, Bigby v. Cockrell, 340 F.3d
259, 265-66 (5th Cir. 2003).
12
cause and prejudice standard for the procedurally defaulted claims
because it held that Fuller’s “cause” for the default was the
ineffective assistance of habeas counsel. The district court was
correct in holding that ineffective assistance of habeas counsel
cannot constitute cause to overcome procedural default.13 However,
Fuller also raises claims of ineffective assistance of trial
counsel. Therefore, we will apply the usual ineffective assistance
of counsel analysis to this first procedurally defaulted claim.
“[A]bsent unusual circumstances, ineffective assistance of
counsel, if shown, is sufficient to establish the cause and
prejudice necessary to overcome a procedural default.”14 However,
to show ineffective assistance of counsel, Fuller must prove: (1)
that his counsel’s performance was deficient (cause); and (2) that
the deficient performance prejudiced his defense (prejudice).15 “An
attorney’s performance, which employs a strong presumption of
adequacy, is deficient if it is objectively unreasonable.”16
Further, counsel’s deficient performance prejudiced the
petitioner’s defense if “counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
13
See Matchett, 380 F.3d at 849; Beazley v. Johnson, 242 F.3d
248, 271 (5th Cir. 2001).
14
United States v. Walker, 68 F.3d 931, 934 (5th Cir. 1995),
citing, United States v. Aklen, 47 F.3d 739, 742 (5th Cir. 1995).
15
See Strickland v. Washington, 466 U.S. 668 (1984).
16
Aklen, 47 F.3d at 742.
13
reliable.”17
Fuller explains that Donald Killingsworth was appointed to
represent him in his state criminal trial. Killingsworth enlisted
the assistance of James Volberding, an attorney who had little to
no significant criminal law experience and was not on the approved
list of second chair counsel for capital cases. On October 1,
1997, prior to jury selection, Killingsworth was suspended from the
practice of law for failure to pay dues to the State Bar of Texas.
Volberding took over as lead counsel on Fuller’s case until
Killingsworth was re-instated on October 21, 1997. Volberding
drafted a letter to Fuller explaining that Killingsworth had a
potential conflict of interest because he would be defending Fuller
against David Dobbs, a prosecutor who was also enlisted against
Killingsworth regarding his practice without a license. The letter
advises that, because the situation regarding Killingsworth’s
practice without a license was likely to be resolved without
prosecution, Fuller did not need to seek appointment of new counsel
and should waive the conflict. Fuller claims that the letter was
never sent to him.
The record also contains various motions and memoranda in
which Volberding sought advice from the court as well as from other
attorneys as to what his role was in the defense of Fuller and what
17
Strickland, 466 U.S. at 687.
14
he should do about Killingsworth’s perceived conflict. The record
contains memos written by Volberding in which Volberding indicates
that he was being overwhelmed by picking up the slack for
Killingsworth and that he believed that Killingsworth was not
providing effective assistance. However, in a memo written to
himself on December 18, 1997, Volberding stated that
Killingsworth’s performance had improved and that the problem was
eliminated. On December 29, 1997, a few weeks before jury
selection, Killingsworth notified the court of the conflict and the
court received assurance from the prosecution that Killingsworth
was not facing indictment.
Fuller argues that his counsel rendered ineffective
assistance, thus violating his Sixth Amendment right, by not
disclosing to him the potential conflict and by leaving Volberding,
inexperienced in criminal trials, to act as both first and second
chair. While the record appears to show that Killingsworth’s
performance was deficient during a portion of the pre-trial phase
of Fuller’s case, Fuller has not demonstrated that the deficient
performance prejudiced his defense. Volberding’s own notes show
that Killingsworth’s performance improved after a short lapse.
Further, the potential conflict of interest was disclosed to the
trial court and was promptly resolved. Therefore, on this claim of
ineffective assistance of counsel, Fuller cannot prove that
Killingswoth’s deficiency and his conflict of interest were so
15
serious as to have deprived Fuller of a fair trial.
(2) Ineffective Assistance of Counsel: Failure to Disclose
Plea Agreement
Fuller claims that his trial counsel failed to relay a plea
agreement offer, thus violating his Sixth Amendment right to
effective counsel. The record contains a memorandum in which
Volberding states that, around January 29, 1998, the prosecutor
approached Killingsworth and Volberding and suggested that they
talk to Fuller about pleading to a life sentence. Both Volberding
and Killingsworth doubted the sincerity of the prosecutor’s offer,
nonetheless, Volberding advised Killingsworth to communicate the
plea offer to Fuller in writing. Volberding also advised that the
written communication to Fuller should make clear that the
prosecutor was not planning to make a real offer. The memo states,
“To my knowledge, as of this date, [Killingsworth] has not
discussed the matter with [Fuller], nor sent a letter.”18
Volberding concludes his notes by indicating that there had been no
further indication from the prosecutor that a plea was possible.
In Teague v. Scott, 60 F.3d 1167, 1171 (5th Cir. 1995), the
Court “agree[d] that failing to inform the defendant of a plea
offer could amount to ineffective assistance of counsel.” In
Fuller’s case, the evidence suggests that Killingsworth’s
18
Federal Court Record at 93.
16
performance may have been deficient in not discussion the plea
possibility with Fuller. However, it is less clear that Fuller
suffered any actual prejudice as a result of this failure. The
evidence suggests that the prosecutor never sincerely intended to
enter into any sort of plea bargain with Fuller for a life
sentence. The State provided the district court with affidavits of
Don Killingsworth (Fuller’s trial attorney) and David Dobbs (the
trial prosecutor), in which both assert that a plea for life was
never seriously offered. Therefore, there is sufficient evidence
to conclude that Fuller was not deprived of a fair trial by not
being told of a disingenuous mentioning of a plea for a life
sentence by a prosecutor who had no intention of agreeing to such
a plea. Consequently, Fuller is not entitled to habeas relief on
this issue
(3) Ineffective assistance of habeas counsel
Fuller contends that he was deprived the effective assistance
of habeas counsel to which the state court concluded he was
entitled. According to Fuller, under the law of the case doctrine,
state law guaranteed him the right to assistance of
constitutionally effective post-conviction counsel. However, even
if the state court did conclude that state law entitled Fuller to
effective habeas counsel, ineffective assistance of counsel during
post-conviction proceedings cannot constitute cause to excuse a
17
procedural default.19 Therefore, Fuller cannot overcome the cause
and prejudice requirements to revive this procedurally defaulted
claim.
(4) Smith County’s pattern of discrimination against Black
jurors
Fuller alleges that there is a history of purposeful racial
discrimination in the selection of juries in Smith County.
According to Fuller, the prosecutors in his case presented false
and misleading testimony in explaining their use of peremptory
strikes during the Batson hearing, following the pattern of
discrimination against Black jurors that has been used repeatedly
in Smith County. It is unclear from Fuller’s brief whether he is
bringing a claim against Smith County as a whole; or if he is
referring to the history of Smith County’s voir dire practices as
a way to bolster his previously-made claim that the prosecutors’
race neutral reasons for striking Black jurors were pretext.
However, in either scenario, Fuller has not addressed the cause and
prejudice standard for this procedurally defaulted claim. Even if
this Court were to reach the merits of this claim, a habeas
petition is not the proper forum in which to bring a claim of
discrimination against the county. If Fuller merely meant to
19
See Matchett, 380 F.3d at 849, citing Henderson v. Cockrell,
333 F.3d 592, 606 (5th Cir. 2003) and Martinez c. Johnson, 255 F.3d
229, 239-41 (5th Cir. 2001).
18
reiterate his Batson challenge against the prosecutors’ use of
peremptory challenges, then his claim fails for the reasons given
above in section III. However this issue is construed, it does not
warrant habeas relief.
(5) Actual Innocence
Because Fuller cannot show the requisite cause and prejudice
for his procedurally defaulted claims, he can only succeed on those
claims if he can show that failure to consider the claims will
result in a fundamental miscarriage of justice.20 To establish a
“miscarriage of justice”, Fuller must demonstrate actual
innocence.21 Fuller is entitled to relief only if he can show that
“it is more likely than not that no reasonable juror would have
found him guilty beyond a reasonable doubt.”22 Further, in the
context of a death penalty sentence, Fuller is only entitled to
relief if he can demonstrate by clear and convincing evidence that,
but for the error complained of, no reasonable juror would have
sentenced him to death.23
20
See Coleman, 501 U.S. at 750.
21
Id. at 748, citing Murray v. Carrier, 477 U.S. 478, 496 (1986)
(“[W]here a constitutional violation has probably resulted in the
conviction of one who is actually innocent, a federal habeas court
may grant the writ even in the absence of a showing of cause for
the procedural default.”).
22
Schlup v. Delo, 513 U.S. 298 (1995).
23
See Sawyer v. Whitley, 505 U.S. 333, 336 (1992).
19
Fuller argues that he is actually innocent and would not have
been sentenced to death had the jurors known that he was not the
triggerman. Fuller’s argument hinges on a newly obtained statement
made by Elaine Hays, a co-defendant, in which she asserts that,
after co-defendant Wideman and Fuller returned to the car following
the shooting, Wideman said that it felt good to shoot somebody.
Fuller’s claims that this statement proves his actual innocence.
His argument fails for two reasons.
First, under Texas law, the jurors could have convicted Fuller
of capital murder under the law of parties based upon his
participation in the criminal activity. Therefore, even if the
jury believed the statement of Hays - a statement given a co-
defendant serving prison time and based on the hearsay testimony of
another convicted co-defendant - they could have still convicted
Fuller of capital murder, making him eligible for the death
penalty. Second, as the district court pointed out, “Fuller has
produced no evidence whatsoever, much less clear and convincing
evidence, that reasonable jurors in Texas never sentence non-
triggerman to death...” Therefore, even if the jury believed that
Fuller was not the triggerman, they could have still sentenced him
to death as guilty of capital murder. Consequently, Fuller’s
evidence of innocence is not sufficient to result in a miscarriage
of justice for failing to consider the merits of his procedurally
defaulted claims.
20
CONCLUSION
For the foregoing reasons, Fuller has not demonstrated that he
is entitled to relief on any of the claims for which the district
court and this Court granted Certificate of Appealability.
Accordingly, the district court’s denial of Fuller’s petition for
habeas corpus relief is AFFIRMED. AFFIRMED.
21