Bailey v. Nagle

Henry C. BAILEY, Petitioner-Appellant,

v.

John E. NAGLE, Warden, Jeff Sessions, Attorney General for the State of Alabama, Respondents-
Appellees.

No. 96-6770.

United States Court of Appeals,

Eleventh Circuit.

April 20, 1999.

Appeal from the United States District Court for the Middle District of Alabama. (No. CV-95-T-262-N),
Myron H. Thompson, Judge.

Before HATCHETT, Chief Judge, CARNES, Circuit Judge, and FARRIS*, Senior Circuit Judge.

PER CURIAM:

Henry C. Bailey, an Alabama prisoner, appeals the district court's denial of his petition for a writ of

habeas corpus under 28 U.S.C. § 2254. Bailey was convicted in 1991 of one count of illegal distribution of

crack cocaine. Pursuant to the Alabama Habitual Felony Offender Act ("AHFOA"), Ala.Code § 13A-5-9,

the court enhanced his sentence to life imprisonment because of three prior drug-related convictions in 1982,

and he is currently serving that term. Bailey filed the instant petition for a writ of habeas corpus in district

court on February 25, 1995.1 A magistrate judge recommended that Bailey's petition be denied,

supplementing that recommendation on June 21, 1996 to include consideration of two subsequent

amendments to Bailey's petition, but adhering to the original recommendation of denial. The district court

adopted the magistrate's judge's recommendation and ordered the petition dismissed on July 11, 1996.2

*
Honorable Jerome Farris, Senior U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
1
Because the petition was filed before April 24, 1996, the Anti-Terrorism and Effective Death Penalty
Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), does not govern this appeal.
2
This case was previously before this court sitting en banc for purposes of analyzing the limited issue
of whether a district court has authority to grant a certificate of appealability under the AEDPA. Hunter
v. United States, 101 F.3d 1565 (11th Cir.1996) (en banc), cert denied, 520 U.S. 1211, 117 S.Ct. 1695,
137 L.Ed.2d 822 (1997), overruled in part by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138
L.Ed.2d 481 (1997). The issue litigated in the previous appeal has no relevance to the issues presently
 This case has a long history. Prior to filing the instant petition, Bailey took a direct appeal of his

conviction and on two separate occasions sought post-conviction relief pro se in the Alabama courts pursuant

to Ala. R.Crim. P. 32. The Alabama Court of Criminal Appeals affirmed the direct appeal in a memorandum

order, dated November 15, 1991, Bailey v. State, 595 So.2d 915 (Ala.Crim.App.1991) (Table), and the

Alabama Supreme Court denied certiorari on February 21, 1992, Ex parte Bailey, 628 So.2d 1078 (Ala.1992)

(Table). Bailey filed his first post-conviction Rule 32 petition on March 13, 1992 ("1992 Rule 32 Petition"),

and the Alabama circuit court denied it on April 15, 1992, after an evidentiary hearing. Bailey did not appeal

from this April 15, 1992 denial within the requisite time period, allegedly because he did not timely receive

a copy of the court's order. When Bailey moved for an out-of-time appeal of the denial of the 1992 Rule 32

Petition, he was informed that the proper vehicle for obtaining such review under Alabama law was simply

to file another Rule 32 petition.3

Attempting to follow this instruction, Bailey filed additional pro se Rule 32 petitions on April 28,

1993 and June 24, 19934 (collectively, "1993 Rule 32 Petitions"). The court denied the 1993 Rule 32

Petitions on February 11, 1994 under the authority of Ala. R.Crim. P. 32.2(b), which forbids successive Rule

32 appeals, except for good cause or to prevent a miscarriage of justice. The Alabama Court of Criminal

Appeals affirmed the denial of the 1993 Rule 32 Petitions, adding as an additional ground for denial the fact

before the Court.
3
Bailey apparently tried to amend the 1992 Rule 32 Petition on June 5, 1992, unaware that it had
already been denied; the court construed the purported amendment as a new, separate Rule 32 petition
and denied it on June 10, 1992.
4
The April 28 petition simply explained the circumstances that allegedly excused Bailey's failure to
appeal the denial of the 1992 Rule 32 Petition, but did not contain any substantive grounds for relief from
the underlying conviction. The June 24 petition added substantive grounds. Although the two documents
are styled as two separate petitions, the Alabama courts apparently construed the June 24 petition as
merely an amendment of the April 28 petition, and treated them together as a single petition. We do the
same.

2
that none of Bailey's contentions stated a claim, Ala. R.Crim. P. 32.7(d). Bailey v. State, 668 So.2d 926

(Ala.Crim.App.1994) (Table).5

Because the issue of procedural default is paramount in this case, it is important to identify precisely

what issues were raised in the various Alabama proceedings and when. On direct appeal, Bailey raised the

following issues: (1) whether he had been denied a speedy trial; and (2) whether the three 1982 convictions

used as predicates for the sentence enhancement under the AHFOA should have been treated as a single

conviction due to their closeness in time. (Neither of these grounds are relevant to the instant case.)

In the 1992 Rule 32 Petition, Bailey raised the following issues: (1) whether trial counsel was

ineffective for failing to object to the racial composition of his jury; and (2) whether trial counsel was

ineffective for failing to object to the AHFOA enhancement on the ground that the state had insufficiently

proven the voluntariness of his guilty pleas in the three 1982 predicate convictions.

In the 1993 Rule 32 Petitions, Bailey raised the following issues: (1) a chain-of-custody problem

with cocaine evidence used to convict him; (2) ineffective assistance of trial counsel for failure to investigate

the chain-of-custody; (3) police alteration of evidence; and (4) that his failure to appeal the 1992 Rule 32

Petition in time resulted from lack of timely receipt of the Rule 32 court's order.

In this case, Bailey's petition (incorporating amendments filed on November 21, 1995 and February

26, 1996) alleges the following grounds for relief: (1) the prosecution failed to prove an unbroken

chain-of-custody of crucial evidence; (2) ineffective assistance of appellate counsel for (a) not investigating

or objecting to the admission of the evidence allegedly tainted by chain-of-custody problems, (b) failing to

raise the chain-of-custody issue on direct appeal, and (c) not allowing him to testify concerning the

chain-of-custody; (3) alleged government alteration of evidence; (4) the fact that his failure to appeal the

denial of the 1992 Rule 32 Petition was not his fault; and (5) the prior convictions used to enhance his

5
Bailey actually filed a notice of appeal in July 1993 because he apparently was under the impression
from the Rule 32 judge's remarks at a hearing on July 9, 1993 that his claims were being denied. The
Alabama Court of Criminal Appeals dismissed this interlocutory appeal as premature, and Bailey re-filed
his appeal once the 1993 Rule 32 Petitions actually were denied in a written order.

3
sentence under the AHFOA were not valid for enhancement purposes due to (a) the fact that they were

drug-related, (b) the fact that his guilty please were uncounseled, and (c) the fact that no "Ireland forms"

showing the voluntariness of his predicate convictions were executed at the time of those convictions.

The magistrate judge and district court concluded that Bailey's claims regarding the improper

enhancement of his sentence under the AHFOA and ineffective assistance of trial counsel were procedurally

barred because they had never been presented properly to any state court. They did not articulate why they

viewed these claims as never properly presented. Whether Bailey is procedurally barred from raising

particular claims is a mixed question of law and fact that we review de novo. Agan v. Vaughn, 119 F.3d 1538,

1541 (11th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1305, 140 L.Ed.2d 470 (1998).

A state habeas corpus petitioner who fails to raise his federal claims properly in state court is

procedurally barred from pursuing the same claim in federal court absent a showing of cause for and actual

prejudice from the default. Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

Such procedural default can arise in two ways. First, where the state court correctly applies a procedural

default principle of state law to arrive at the conclusion that the petitioner's federal claims are barred, Sykes

requires the federal court to respect the state court's decision. Atkins v. Singletary, 965 F.2d 952, 956 (11th

Cir.1992), cert. denied, 515 U.S. 1165, 115 S.Ct. 2624, 132 L.Ed.2d 865 (1995); Meagher v. Dugger, 861

F.2d 1242, 1245 (11th Cir.1988). Second, if the petitioner simply never raised a claim in state court, and it

is obvious that the unexhausted claim would now be procedurally barred due to a state-law procedural default,

the federal court may foreclose the petitioner's filing in state court; the exhaustion requirement and

procedural default principles combine to mandate dismissal. Snowden v. Singletary, 135 F.3d 732, 737 (11th

Cir.), cert. denied, --- U.S. ----, 119 S.Ct. 405, 142 L.Ed.2d 329 (1998); see also 28 U.S.C. §

2254(b)(1)(A)(1994)(pre-AEDPA) ("An application for writ of habeas corpus ... shall not be granted unless

it appears that the applicant has exhausted the remedies available in the courts of the State....").

4
 Our analytic task first involves dividing the claims Bailey makes in this petition into two categories:

(1) those that were actually presented to the Alabama courts, and (2) those that were not presented to the

Alabama courts. As to the former, we ask whether the last state court rendering judgment clearly and

expressly stated that its judgment rested on a procedural bar, i.e., an adequate and independent state ground.

Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). As to the latter, we ask whether

any attempt Bailey now makes to exhaust his claims in the Alabama courts would be futile under Alabama

procedural default doctrine. Snowden, 135 F.3d at 737 ("Federal courts may apply state rules about

procedural bars to conclude that further attempts at exhaustion would be futile.").

A. CLAIMS ACTUALLY RAISED IN STATE COURT

The first category includes Bailey's claims regarding (1) the argument that the prosecution failed to

prove an unbroken chain-of-custody of the cocaine evidence; (2) ineffective assistance of counsel for failing

to investigate the chain-of-custody issue;6 (3) alleged police alteration of evidence; and (4) the fact that his

failure to appeal the denial of the 1992 Rule 32 Petition was not his fault, because all of these claims were

raised in the 1993 Rule 32 Petitions. The first category can ignore Bailey's direct appeal because no overlap

exists at all between the claims made in this case and the claims made in those proceedings. Also, the first

category can ignore the 1992 Rule 32 Petition because Bailey's failure to appeal the denial of that petition

meant that the claims were never exhausted. See 28 U.S.C. § 2254(c) ("An applicant shall not be deemed to

have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State

to raise, by any available procedure, the question presented."); Coleman v. Thompson, 501 U.S. 722, 740,

111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (failure to take timely appeal of state postconviction court's denial

6
The first category does not include Bailey's two other ineffective-assistance-of counsel claims,
regarding the failure to raise the chain-of-custody issue on appeal and not allowing Bailey to testify
regarding the chain-of-custody. Those particular issues were never presented to the state courts. While
they are related to ineffective assistance of counsel for failure to investigate the chain-of-custody of the
cocaine evidence, which was raised in state court, "a habeas petitioner may not present instances of
ineffective assistance of counsel in his federal petition that the state court has not evaluated previously."
Footman v. Singletary, 978 F.2d 1207, 1211 (11th Cir.1992). We will consider the other two
ineffective-assistance claims using the analysis for claims that were never raised in state courts.

5
of petition constituted procedural default); Bufalino v. Reno, 613 F.2d 568, 570 (5th Cir.1980)7 ("[T]he

exhaustion doctrine requires that the federal claim must have been presented to the highest court of the State,

either on direct review or in a post-conviction attack."). Even if we treat the claims in the 1992 Rule 32

Petition as exhausted due to the lack of fault on Bailey's part for not timely appealing, no overlap exists

between those claims and the claims made in this petition.8

We are satisfied that the Alabama courts denied the 1993 Rule 32 Petition on the adequate and

independent state procedural ground of successiveness. See generally Ala. R.Crim. P. 32.2(b) ("A second

or successive [Rule 32] petition on different grounds shall be denied unless the petitioner shows both that

good cause exists why the new ground or grounds were not known or could not have been ascertained through

reasonable diligence when the first petition was heard, and that failure to entertain the petition will result in

a miscarriage of justice."). In its February 11, 1994 order, the Rule 32 court found that "[t]he Petitioner has

failed to show good cause why the grounds raised in the instant petitioner were not known or could not have

been ascertained through reasonable diligence at the time his first and second petitions were heard. Further,

the Petitioner has failed to show that failure to entertain this petition will result in the miscarriage of justice."

However, the Alabama Court of Criminal Appeals complicated matters slightly, by stating in its November

10, 1994 memorandum affirmance of the Rule 32 trial court's order,

7
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this Court adopted as binding
precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on
September 30, 1981. Id. at 1209.
8
Bailey did argue in the 1992 Rule 32 Petition that his counsel rendered ineffective assistance in
failing to object to the sufficiency of the State's proof that his guilty pleas in the 1982 convictions used as
predicates under the AHFOA were voluntary. In this petition, he makes a similar claim (amendment
dated November 25, 1991), stripped of the ineffective-assistance cloak, raising the issue "whether the
priors used [to] bring the accused under the provision of the habitual offender statute must have consisted
of Ireland forms," and implying that the failure to use such forms rendered the predicate convictions
involuntary. An ineffective-assistance claim is analytically distinct from the substantive claim underlying
it. Therefore, whether or not Bailey exhausted his ineffective-assistance claim regarding the
voluntariness of his predicate convictions, his current substantive claim was not presented to the Alabama
courts. Cf. Levasseur v. Pepe, 70 F.3d 187, 192 (1st Cir.1995) (finding that prior court's treatment of
petitioner's underlying substantive claims in the context of ruling on his ineffective assistance claim did
not preserve substantive claims themselves for review on collateral attack).

6
 The appellant's argument, that the trial court erred in denying his Rule 32, A.R.Cr.P. petition as
successive because it was a vehicle for an out-of-time appeal of his original petition, is without merit.
Summary disposition of the petition was proper on another procedural ground, as the appellant failed
to state a claim. Rule 32.7(d), A.R.Cr.P. The appellant did not show that his attorney was ineffective
according to the standards of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984).

Whether Bailey's claims that were raised in the 1993 Rule 32 Petitions are now procedurally barred turns on

interpretation of the above language.

In Harris v. Reed, 489 U.S. at 260, 109 S.Ct. 1038 (1989), the United States Supreme Court was

confronted with the situation of a section 2254 habeas corpus petitioner whose ineffective-assistance claims

in a state post-conviction relief proceeding had been rejected by the state appellate court in an unpublished

opinion. That opinion stated that the petitioner had waived those claims through not presenting them on

direct appeal (i.e., a state-law procedural default), but proceeded to analyze the claims on the merits and reject

them. The question was whether the federal court in the section 2254 proceeding should refuse to review the

claims because state procedural default rules barred them due to the ambiguity in the state appellate court's

decision about the ground it was relying upon. The Court held that "[a] procedural default does not bar

consideration of a federal claim on ... habeas review unless the last state court rendering a judgment in the

case clearly and expressly states that its judgment rests on a procedural bar." Id. at 263, 109 S.Ct. 1038

(internal quotations omitted). In Harris, the state appellate court had "laid the foundation" for a holding based

on waiver noting the petitioner's failure to raise his claims on direct appeal, but never stating clearly and

expressly its reliance on that ground. Id. at 266, 109 S.Ct. 1038. Consequently, federal habeas review was

not precluded.

Under Harris v. Reed, we must determine whether the Alabama Court of Criminal Appeals' opinion

rested on independent and adequate state procedural grounds. We believe that although the Alabama Court

of Criminal Appeals could have been more explicit, its opinion rested on procedural default and failure to

state a claim as alternative grounds and therefore fits within the exception reserved in footnote 10 of the

Supreme Court's opinion in Harris: "[A] state court need not fear reaching the merits of a federal claim in

7
an alternative holding. Through its very definition, the adequate and independent state ground doctrine

requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even

when the state court also relies on federal law." Harris, 489 U.S. at 264 n. 10, 109 S.Ct. 1038 (emphasis in

original). See also Alderman v. Zant, 22 F.3d 1541, 1549-51 (11th Cir.) (where a Georgia habeas corpus

court found that the petitioner's claims were procedurally barred as successive, but also noted that the claims

lacked merit based on the evidence, "[t]his ruling in the alternative did not have the effect ... of blurring the

clear determination by the [Georgia habeas corpus] court that the allegation was procedurally barred"), cert.

denied, 513 U.S. 1061, 115 S.Ct. 673, 130 L.Ed.2d 606 (1994). The presence of alternative holdings in the

state appellate court's opinion distinguishes this case from Thomas v. Harrelson, 942 F.2d 1530, 1531-32

(11th Cir.1991), where we held that "[t]here is no procedural bar" where "the Alabama Court of Criminal

Appeals, the last state court to consider this case, addressed on the merits the issue [raised in the § 2254

petition]."

Thus, the district court was correct that it was precluded from hearing those of Bailey's claims that

had been declared procedurally defaulted during the state-court litigation of the 1993 Rule 32 Petitions.

Again, these claims are (1) the argument that the prosecution failed to prove an unbroken chain-of-custody

of incriminating evidence; (2) ineffective assistance of counsel for failing to investigate the chain-of-custody

issue; (3) police alteration of evidence; and (4) the argument that Bailey's failure to appeal the denial of the

1992 Rule 32 Petition was not his fault.

B. CLAIMS NOT RAISED IN STATE COURT

The other claims in this petition were not presented to the Alabama courts in the 1993 Rule 32

Petitions, nor in Bailey's direct appeal or 1992 Rule 32 Petition. Failure to raise those claims until now means

that Bailey deprived the state courts of "the first opportunity to hear the claim[s] sought to be vindicated in

a federal habeas proceeding." Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971).

As to these newly made claims, we apply the familiar principle that federal courts may treat unexhausted

8
claims as procedurally defaulted, even absent a state court determination to that effect, if it is clear from state

law that any future attempts at exhaustion would be futile. Snowden v. Singletary, 135 F.3d 732, 737 (11th

Cir.), cert. denied, --- U.S. ----, 119 S.Ct. 405, 142 L.Ed.2d 329 (1998). This precept readily disposes of

Bailey's remaining ineffective-assistance-of-counsel claims, as well as his claim concerning the validity of

the predicate convictions for purposes of the AHFOA. Alabama law is clear that a successive petition "shall

be denied unless the petitioner shows both that good cause exists why the new ground or grounds were not

known or could not have been ascertained through reasonable diligence when the first petition was heard, and

that failure to entertain the petition will result in a miscarriage of justice." Ala. R.Crim. P. 32.2(b). Bailey

has shown no cause why his remaining ineffective-assistance-of-counsel claims and his AHFOA claim could

not have been raised in the 1992 Rule 32 Petition. The Alabama circuit court's denial of the 1993 Rule 32

petitions on successiveness grounds in 1994 provides further support that the claims newly made in this case

would similarly fail Rule 32.2(b). Further, if brought at the present time in state court, the two-year statute

of limitations would bar these unexhausted claims (two years after the mandate issued in the direct appeal

of Bailey's conviction). See Ala. R.Crim. P. 32.2(c)(1).

C. EXCEPTIONS TO PROCEDURAL DEFAULT

A habeas petitioner can escape the procedural default doctrine either through showing cause for the

default and prejudice, Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), or

establishing a "fundamental miscarriage of justice," Schlup v. Delo, 513 U.S. 298, 324-27, 115 S.Ct. 851, 130

L.Ed.2d 808 (1995). Bailey has not shown any cause for not applying the procedural bar. He claims that his

inability to effect a timely appeal of the April 14, 1992 denial of the 1992 Rule 32 Petition, due to his never

receiving notice of the circuit court's order, constitutes cause excusing his procedural default. This argument

is meritless. The most it could do is to excuse Bailey's failure to exhaust claims made in the 1992 Rule 32

Petition (that is, his failure to appeal the denial of the 1992 Rule 32 Petition to the state court of last resort

in Alabama, see 28 U.S.C. § 2254(c); Rose v. Lundy, 455 U.S. 509, 516-18, 102 S.Ct. 1198, 71 L.Ed.2d 379

9
(1982)), and thereby resurrect those claims. The only claims made in the 1992 Rule 32 Petition concerned

(1) ineffective assistance of counsel for not objecting to the racial composition of Bailey's jury, and (2)

ineffective assistance of counsel for not objecting to the sufficiency of the State's proof that the guilty pleas

in the predicate convictions used to sentence Bailey under the AHFOA were voluntary. Bailey apparently

has abandoned these clams as he did not raise them in this petition.

As far as claims not made in the 1992 Rule 32 petition are concerned, whether good cause existed

for his failure to appeal the denial of that petition is irrelevant. In the proceedings on the 1993 Rule 32

Petition, the court found that the claims made in the 1993 Rule 32 Petitions were successive, they would be

made no less successive if Bailey had been granted leave to file an out-of-time appeal of the denial of the

1992 Rule 32 Petition. Claims are successive when they could have been, but were not, raised in an earlier

petition. See Ala. R.Crim. P. 32.2(b). The procedural default that is central to this case is not Bailey's failure

to appeal the denial of the 1992 Rule 32 Petition, but rather his failure to raise the presently made claims in

the 1992 Rule 32 Petition.

Consequently, Bailey has not shown the requisite cause to excuse his procedural default. Nor has

Bailey established a "fundamental miscarriage of justice." That alternative method of escaping procedural

default requires a colorable showing of actual innocence, which Bailey has not made. See Schlup v. Delo,

513 U.S. 298, 324-27, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). For the foregoing reasons, the district court's

dismissal of Bailey's petition for a writ of habeas corpus is AFFIRMED.

AFFIRMED.

CARNES, Circuit Judge, concurring specially:

I concur in this Court's affirmance of the district court's denial of the 28 U.S.C. § 2254 petition and

dismissal of the case with prejudice on procedural bar grounds, and I agree with almost all of the Court's

discussion. The reason I cannot join in the opinion without reservation is that some of its discussion seems

to me to confuse the doctrines of exhaustion of state remedies and procedural bar.

10
 Of course, those two doctrines are related. They are related in the sense that if it is futile for a

petitioner to return to state court because previous procedural defaults there will bar any relief, that futility

is an "exception" to the exhaustion of state remedies requirement. We call the futility rule an "exception" to

the exhaustion requirement, but in reality it is just a recognition that when there is a procedural bar that would

prevent a state court from granting relief on a claim, even if that claim is meritorious, there is no effective

state remedy left for the petitioner to exhaust. That is what we have in this case, so the exhaustion doctrine

is not applicable.

If the exhaustion doctrine were applicable, the proper result would be dismissal of the case without

prejudice in order to require the petitioner to seek relief by pursuing his remaining state court remedies. The

dismissal would be without prejudice, because if the petitioner were unsuccessful with his state remedies, he

could return to federal court with his claims. Instead of dismissing the case without prejudice, the district

court in this case denied the habeas petition and dismissed the case with prejudice. That disposition is the

correct one where a petitioner has no effective state remedies left to exhaust and the district court concludes

his claims are either meritless or, as in this case, procedurally barred.

Pages 2167-2169 of this Court's opinion is the part that appears to blur the distinction between and

confuse the doctrines or procedural bar and exhaustion. Consider, for example, the statement that: "if the

petitioner simply never raised a claim in state court, and it is obvious that the unexhausted claim would now

be procedurally barred due to a state law procedural default, the federal court may foreclose the petitioner's

filing in state court; the exhaustion requirement and procedural default principles combine to mandate

dismissal." Op. at 2167. That and other statements in the opinion at least imply that the result in this case is

based in part on the exhaustion requirement. It is not. The petitioner has no effective state court remedies

left to exhaust. His claims were all procedurally defaulted in one or another state court proceeding, and

accordingly, they are procedurally barred from consideration in federal court. This is a procedural bar case,

11
not an exhaustion of state remedies case. The result in this case would have been the same if there were no

exhaustion of state remedies doctrine.

12