Appellate Case: 21-4038 Document: 010110641803 Date Filed: 02/07/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 7, 2022 _________________________________ Christopher M. Wolpert Clerk of Court THOMAS RANDALL AINSWORTH,
Petitioner - Appellant,
v. No. 21-4038 (D.C. No. 2:17-CV-01205-RJS) ROBERT POWELL, Warden, (D. Utah)
Respondent - Appellee. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________
Before McHUGH, MORITZ, and ROSSMAN, Circuit Judges. _________________________________
Thomas Randall Ainsworth seeks a certificate of appealability (COA) to appeal
the judgment denying his 28 U.S.C. § 2254 habeas corpus petition and an order
dismissing his post-judgment motion as an unauthorized second or successive habeas
petition. We deny his request for a COA and dismiss this matter. We also deny his
request for authorization to file a second or successive § 2254 habeas petition.
I. BACKGROUND
This case concerns two criminal offense classifications under Utah law for
negligent operation of a motor vehicle causing serious bodily injury or death. The
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 21-4038 Document: 010110641803 Date Filed: 02/07/2022 Page: 2
offense could be a second-degree felony under the “measurable substance” statute if the
person had “any measurable amount of a [Schedule I or Schedule II] controlled
substance” in their body. Utah Code Ann. § 58-37-8(2)(g)(i); see also id.
§ 58-37-8(2)(h)(i) (second-degree felony if involving Schedule I or II controlled
substance). Or the offense could be a third-degree felony under the “DUI” statutory
scheme if the person was “under the influence of alcohol, any drug, or the combined
influence of alcohol and any drug to a degree that renders the person incapable of safely
operating a vehicle.” Id. § 41-6a-502(1)(b); see also id. §§ 41-6a-503(2)(a) (third-degree
felony if causing serious bodily injury), 76-5-207(2)(a)(ii) (same if causing automobile
homicide).
Ainsworth was charged in Utah state court with, among other things, three
second-degree felony counts under the measurable-substance statute stemming from a
motor vehicle accident that occurred when he drove across a median and hit another car.
Two adults in the other car were seriously injured and their eighteen-month-old son was
killed. Ainsworth told police he lost control of his car when he reached for his cell phone
on the floorboard of the car. A blood test showed Ainsworth had 0.2 mg/L of
methamphetamine in his system. Methamphetamine is a Schedule II substance. See id.
§ 58-37-4(2)(b)(iii)(B).
Ainsworth moved to amend the information to charge him with third-degree
felonies under the DUI statutory scheme on the ground that the measurable-substance
statute violated the Utah Constitution’s Uniform Operation of Laws Clause and the due
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process clauses of the Utah and United States Constitutions. 1 He argued the
measurable-substance statute imposed a harsher penalty for what he viewed as
less-culpable conduct—the DUI offense requires proof the driver was impaired but the
measurable-substance offense does not. The trial court denied the motion. Ainsworth
then pled guilty to the three measurable-substance offenses but reserved his right to
appeal, among other things, the denial of his motion to amend the information. He was
sentenced to three consecutive prison sentences of three to fifteen years.
Ainsworth was successful on direct appeal to the Utah Court of Appeals, which
agreed with his argument that the measurable-substance statute violated the Uniform
Operation of Laws Clause. Accordingly, the Court of Appeals vacated Ainsworth’s
convictions and remanded for entry of third-degree felony convictions and for
resentencing. It did not reach Ainsworth’s due process argument.
The State then obtained review in the Utah Supreme Court (USC), which reversed.
See State v. Ainsworth, 423 P.3d 1229, 1231 (Utah 2017). The USC concluded that the
measurable-substance “provisions do not define a ‘lesser crime’” than the DUI
provisions, and that “offenders under [the measurable-substance] provisions are not ‘less
culpable.’” Id. at 1233. The USC explained: “Schedule I and II drugs are those viewed
1 The Uniform Operation of Laws Clause states: “All laws of a general nature shall have uniform operation.” Utah Const. art. 1, § 24. The Fourteenth Amendment’s Due Process Clause prohibits states from depriving “any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. The Utah Constitution’s Due Process Clause provides that “[n]o person shall be deprived of life, liberty or property without due process of law.” Utah Const. art. 1, § 7.
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as having a greater potential for abuse and a greater risk of dependence than other
controlled substances.” Id. at 1234. And “[t]hat concern can certainly sustain a rational
decision by the legislature to punish the use of these substances more harshly than the use
of other substances.” Id. The USC added that “the legislature apparently . . . considered
the use of a Schedule I or II drug a sufficient concern that it deemed the mere presence of
such a substance adequate to trigger a second degree felony—even without proof of
impairment. And that is its prerogative.” Id. at 1235. The USC stated it was “in no
position to second-guess that decision by concluding that we think the element of
impairment a more significant aggravator than the presence of a particular drug.” Id.
Accordingly, the USC concluded that there was no violation of the Uniform Operation of
Laws Clause. The USC considered Ainsworth’s argument that the measurable-substance
statute violated his due process rights “a mere restatement of the uniform operation
challenge” and rejected it for the same reasons. Id. at 1233 n.3. 2
Ainsworth then pursued § 2254 relief pro se, arguing the measurable-substance
statute’s second-degree felony designation, as compared with the third-degree felony
DUI designation, violated his substantive due process rights because it is not rationally
related to a legitimate state interest. The district court denied his habeas petition because
Ainsworth had “not met his burden of finding on-point United States Supreme Court
precedent and arguing that the Utah Supreme Court unreasonably applied it.” R., Vol. II
2 A substantive due process analysis also involves a rational-basis test, at least where fundamental liberty interests are not at stake. See Washington v. Glucksberg, 521 U.S. 702, 728 (1997). 4 Appellate Case: 21-4038 Document: 010110641803 Date Filed: 02/07/2022 Page: 5
at 39. The district court itself searched for any such precedent and found none. See id.
The court also denied a COA.
Ainsworth moved for relief under Federal Rule of Civil Procedure 60(b), raising
multiple issues. The district court determined that the motion was an unauthorized
second or successive § 2254 petition and denied it after determining it was not in the
interests of justice to transfer the successive petition to this court. The district court again
denied a COA.
Ainsworth has filed a pro se combined COA application and opening brief (COA
Application) seeking review of both rulings.
II. COA STANDARD
To appeal the denial of a § 2254 petition or the dismissal 3 of an unauthorized
second or successive § 2254 petition, a petitioner must first obtain a COA. See 28 U.S.C.
§ 2253(c)(1)(A); cf. United States v. Harper, 545 F.3d 1230, 1233 (10th Cir. 2008)
(holding that the “dismissal of an unauthorized § 2255 motion is a final order in a
proceeding under [§] 2255 such that § 2253 requires [a] petitioner to obtain a COA
before he or she may appeal” (internal quotation marks omitted)). To obtain a COA on
claims the district court denied on the merits, a petitioner must make “a substantial
showing of the denial of a constitutional right,” § 2253(c)(2), such “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). For claims the district court
3 Although the district court said it was denying the post-judgment motion, we construe its ruling as a dismissal. 5 Appellate Case: 21-4038 Document: 010110641803 Date Filed: 02/07/2022 Page: 6
denied on a procedural ground without reaching the merits, the petitioner must show “that
jurists of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and . . . whether the district court was correct in its
procedural ruling.” Id.
Our consideration of Ainsworth’s request for a COA must incorporate the
“deferential treatment of state court decisions” mandated by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). Dockins v. Hines, 374 F.3d 935, 938
(10th Cir. 2004). We therefore “look to the District Court’s application of AEDPA to
[Ainsworth’s] constitutional claims and ask whether that resolution was debatable
amongst jurists of reason.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
We liberally construe Ainsworth’s pro se filings, but we may not act as his
advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
III. DISCUSSION
A. Denial of § 2254 petition
Ainsworth first argues that in denying his § 2254 petition, the district court did not
afford his pro se filings a liberal construction when it said that because Ainsworth “did
not acknowledge the standard of review, he did not even begin to meet his burden to
show that the Utah Supreme Court applied the wrong United States Supreme Court
precedent and/or unreasonably applied that precedent.” R., Vol. II at 37. Ainsworth
contends he was not required to cite any legal authorities in the district court because this
court’s instructions to pro se litigants seeking a COA state that such litigants are
encouraged, but not required, to cite legal authorities.
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This argument fails for several reasons. First, the district court did not deny the
petition because of any failure to cite cases regarding the standard of review. Rather, the
court observed only that Ainsworth had not properly framed his argument by identifying
any United States Supreme Court precedent the USC might have misapplied. The district
court made this clear later in its decision when it stated it was “den[ying] habeas-corpus
relief” because Ainsworth had “not met his burden of finding on-point United States
Supreme Court precedent and arguing that the Utah Supreme Court unreasonably applied
it.” Id. at 39. Second, our instructions to pro se litigants seeking a COA do not apply in
the district court, and Ainsworth has not suggested the district court instructs pro se
habeas petitioners that they need not cite any legal authorities. Third, even if pro se
habeas petitioners are not required to cite legal authority in the district court, the district
court in this case reported that it had “searched for on-point United States Supreme Court
precedent to assess whether [the] Utah Supreme Court unreasonably applied the
rational-basis analysis” and had “found nothing on-point.” Id. Hence, reasonable jurists
would not debate whether the district court afforded Ainsworth’s pleadings the liberal
construction to which they were entitled.
Ainsworth also argues that the USC did not rule on the merits of his substantive
due process claim when it declined to treat the claim separately but instead considered it
“a mere restatement of the uniform operation challenge.” Ainsworth, 423 P.3d at 1233
n.3. He therefore posits that § 2254(d)’s deferential review does not apply. We conclude
reasonable jurists would not debate the district court’s interpretation of the USC’s
statement to mean the USC rejected any due process claim for the same reasons it
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rejected his uniform-operation challenge and therefore was a merits adjudication. The
USC expressly stated it was doing so when it explained that although Ainsworth
“vaguely asserts a due process basis for his [rational basis] challenge[,] . . . he does not
identify a distinct basis in the Due Process Clause for his constitutional challenge.” Id.
The USC determined Ainsworth had “just recast[] his uniform operation arguments in
due process terms,” arguing “that the measurable substance classification falls short
under the Due Process Clause because there is no rational basis for punishing the
(purportedly lesser) measurable substance offense more harshly than the DUI offense.”
Id. For these reasons, the USC elected not to “treat the due process claim separately in
[its] opinion,” but instead “treat[ed] it as Ainsworth does—as a mere restatement of the
uniform operation challenge—and reject[ed] it for [the] reasons set forth” in its
discussion of the uniform-operation challenge. Id. (emphasis added). Clearly, the USC
considered and rejected the due process argument on the merits. And contrary to
Ainsworth’s argument, the district court did the same.
Ainsworth next advances a semantic argument that does not withstand
examination. In describing the DUI and measurable-substance offenses, the district court
characterized them as “analogous.” R., Vol. II at 33. Ainsworth contends the court’s
recognition of the two offenses as “analogous” contradicts its conclusion that the USC’s
rational-basis analysis is constitutional. We disagree. The district court did not rule that
the USC’s rational-basis analysis was constitutional. It held that Ainsworth failed to
show that the USC’s analysis was unconstitutional. Furthermore, “analogous” does not
mean “identical”; it means “similar or comparable to something else either in general or
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in some specific detail.” Merriam-Webster.com Dictionary, “analogous,”
https://www.merriam-webster.com/dictionary/analogous (last visited Jan. 26, 2021). The
district court’s use of “analogous” does not contradict its denial of Ainsworth’s § 2254
petition.
Ainsworth also takes issue with the USC’s merits analysis. He argues that because
Schedule I and II drugs are necessarily included in the DUI scheme’s reference to “any
drug,” Utah Code Ann. § 41-6a-502(1)(b), “[t]here is no rational basis, or legitimate
governmental objective, for punishing individuals who have ‘any measurable amount’ of
a controlled substance in their body more harshly than individuals who have an
incapacitating amount of a controlled substance in their bodies,” COA Appl. at 21
(emphasis omitted).
This argument misses the § 2254(d)(1) target. In the absence of “a fundamental
liberty interest protected by the Due Process Clause,” the Constitution requires only that a
law “be rationally related to legitimate government interests.” Washington v.
Glucksberg, 521 U.S. 702, 728 (1997). 4 But the substantive-due-process question in
federal habeas is not, as Ainsworth appears to argue, whether the Utah legislature had a
rational basis for increasing the penalty for drivers who negligently cause serious bodily
harm or death with a measurable amount of a Schedule I or II substance in their bodies,
4 In the district court, Ainsworth argued only that his due process rights were violated because the measurable-substance statute “is not rationally related to a legitimate state interest.” R., Vol. I at 196; see also id. at 207-10 (additional rational-relationship argument). He repeats that argument here and does not suggest any form of heightened scrutiny applies.
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regardless of impairment. The question is whether the USC’s decision that the legislature
had a rational basis for doing so “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of
the United States,” § 2254(d)(1). 5
As recounted above, the USC explained why the distinction drawn between DUI
and measurable-substance offenses has a rational basis. The first step in determining
whether the USC’s determination was contrary to or an unreasonable application of
United States Supreme Court precedent is to identify the relevant Supreme Court
precedent. See House v. Hatch, 527 F.3d 1010, 1018 (10th Cir. 2008) (“The absence of
clearly established federal law is dispositive under § 2254(d)(1).”). Ainsworth has never
identified, nor are we aware of, a Supreme Court case indicating that the USC’s decision
is contrary to clearly established federal law, which occurs when (1) “the state court
applies a rule that contradicts the governing law set forth in Supreme Court cases” or
(2) “the state court confronts a set of facts that are materially indistinguishable from a
decision of the Supreme Court and nevertheless arrives at a result different from that
precedent.” Id. (brackets and internal quotation marks omitted).
5 The alternative basis for granting habeas relief under § 2254(d), that a state court’s decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” § 2254(d)(2), applies to matters of “historical fact,” not “mixed question[s] of law and fact” or “legal determination[s],” Gilson v. Sirmons, 520 F.3d 1196, 1233-34 (10th Cir. 2008). Section 2254(d)(2) is inapplicable here because the underlying issue in this case—whether the differing penalties established by the DUI and measurable-substance provisions violate substantive due process—is a constitutional question, not solely a matter of historical fact. 10 Appellate Case: 21-4038 Document: 010110641803 Date Filed: 02/07/2022 Page: 11
Nor has Ainsworth identified any Supreme Court precedent that the USC might
have unreasonably applied. “A state court decision involves an unreasonable application
of clearly established federal law when it identifies the correct governing legal rule from
Supreme Court cases, but unreasonably applies it to the facts.” Id. Arguably, the only
“governing legal rule” here is the rational-basis test, but it is “one of the most deferential
formulations of the standard for reviewing legislation,” United States v. Comstock,
560 U.S. 126, 151 (2010) (internal quotation marks omitted) (Kennedy, J., concurring in
judgment). To satisfy that test, a “‘law need not be in every respect logically consistent
with its aims to be constitutional. It is enough that there is an evil at hand for correction,
and that it might be thought that the particular legislative measure was a rational way to
correct it.’” Id. (quoting Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 487-88
(1955)).
When encountering a general rule such as the rational-basis test, courts have
“more leeway . . . in reaching outcomes in case-by-case determinations.” Harrington v.
Richter, 562 U.S. 86, 101 (2011) (internal quotation marks omitted). Thus, “[a]n
application of Supreme Court law may be incorrect without being unreasonable.”
Stouffer v. Trammell, 738 F.3d 1205, 1221 (10th Cir. 2013). Importantly, a decision is
objectively unreasonable “only if all fairminded jurists would agree that the state court
got it wrong.” Id. (internal quotation marks omitted); see Williams v. Taylor, 529 U.S.
362, 409-10 (2000) (determining whether there has been an unreasonable application of
clearly established federal law is an objective inquiry).
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Having examined the USC’s reasoning and taking into account the leeway the
general rational-basis test affords courts, we conclude that not all fairminded jurists
would agree that the USC “got it wrong” when it concluded that “Schedule I and II drugs
are those viewed as having a greater potential for abuse and a greater risk of dependence
than other controlled substances,” Ainsworth, 423 P.3d at 1234, and that the Utah
“legislature apparently . . . considered the use of a Schedule I or II drug a sufficient
concern that it deemed the mere presence of such a substance adequate to trigger a
second degree felony—even without proof of impairment,” id. at 1235. The fact that
negligently operating a motor vehicle and causing serious bodily injury or death with an
impairing amount of a Schedule I or II controlled substance in the body could be a
third-degree felony under the DUI scheme’s reference to “any drug” is not an
inconsistency that renders irrational the decision to increase the penalty to a
second-degree felony based on any measurable amount of such a substance. Fairminded
jurists could not disagree with the USC’s conclusion that it was the Utah legislature’s
prerogative to view the presence of a Schedule I or II controlled substance as a more
significant aggravator than impairment.
For the foregoing reasons, we conclude that reasonable jurists would not debate
the correctness of the district court’s denial of Ainsworth’s § 2254 petition. Accordingly,
we deny a COA to appeal the judgment denying the petition.
B. Post-judgment motion and request for authorization under § 2244(b)
The remainder of Ainsworth’s COA Application either concerns the district
court’s denial of his post-judgment motion or reiterates substantive habeas claims he
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asserted in that motion. The court determined that the motion, nominally filed under
Federal Rule of Civil Procedure 60(b), was an unauthorized second or successive § 2254
petition. See 28 U.S.C. § 2244(b)(2)-(3) (setting out requirements and authorization
procedures for filing second or successive § 2254 petitions).
In his COA Application, Ainsworth effectively concedes his “Motion For Relief”
(i.e., his post-judgment motion) was a successive habeas petition, because he asks us to
“grant him authorization to proceed with his Motion For Relief (‘new issues’).” COA
Appl. at 41. And our own review confirms that his post-judgment motion was not a true
Rule 60(b) motion. Ainsworth’s motion did not raise any “defect in the integrity of the
federal habeas proceedings,” which is not subject to the authorization requirement for
second or successive § 2254 petitions. Gonzalez v. Crosby, 545 U.S. 524, 532 (2005).
He instead advanced “new ground[s] for relief” or “attack[ed] the federal court’s previous
resolution of a claim on the merits,” which do require prior authorization. Id. (emphasis
omitted). Specifically, Ainsworth asserted federal constitutional claims regarding his
conviction and sentence under the Equal Protection, Due Process, and Privileges and
Immunities Clauses. He asked the district court to apply the rule of lenity. He argued
that the blood draw that detected methamphetamine in his system violated his Fourth
Amendment rights. He asserted that his guilty plea was not knowing and voluntary. And
he contended that his counsel was ineffective. 6 Because these claims presented new
6 He also alleged he had inadequate access to a law library and sought relief under the Utah Constitution. The district court informed Ainsworth that his access claim must be asserted in a separate action under 42 U.S.C. § 1983 and that federal habeas relief is available only for errors of state law. 13 Appellate Case: 21-4038 Document: 010110641803 Date Filed: 02/07/2022 Page: 14
grounds for habeas relief or took issue with the district court’s previous merits resolution,
reasonable jurists would not debate the correctness of the district court’s denial of the
post-judgment motion as an unauthorized second or successive § 2254 petition.
Ainsworth also argues that the district court erred in refusing to transfer the
motion to this court for authorization. See In re Cline, 531 F.3d 1249, 1252 (10th Cir.
2008) (“When a second or successive § 2254 . . . claim is filed in the district court
without the required authorization from this court, the district court may transfer the
matter to this court if it determines it is in the interest of justice to do so . . . .”). But he
does not address the district court’s reason for refusing to do so, which was that all of the
claims advanced in his motion were subject to anticipatory procedural bar. 7 He argues
only that when the district court characterized the DUI and measurable-substance
provisions as “analogous,” it “opened the door” for him to raise new issues because the
court’s statement constitutes “newly discovered evidence” for Rule 60(b)(2) purposes.
COA Appl. at 28-29. But the statement is not “evidence,” so this argument is meritless,
even if construed as an attempt to satisfy § 2244(b)(2)(B), which allows the filing of a
second or successive § 2254 claim based on a previously undiscoverable “factual
predicate.” And to the extent this argument is an attempt to satisfy § 2244(b)(2)(A),
which allows the filing of a second or successive § 2254 claim if a petitioner “shows that
the claim relies on a new rule of constitutional law, made retroactive to cases on
7 “Anticipatory procedural bar occurs when the federal courts apply procedural bar to an unexhausted claim that would be procedurally barred under state law if the petitioner returned to state court to exhaust it.” Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007) (internal quotation marks omitted). 14 Appellate Case: 21-4038 Document: 010110641803 Date Filed: 02/07/2022 Page: 15
collateral review by the Supreme Court, that was previously unavailable,” the argument
necessarily fails, because Ainsworth relies on the district court’s statement in this case,
not on any Supreme Court precedent.
We conclude that Ainsworth has not met his burden to show reasonable jurists
could debate the correctness of the district court’s refusal to transfer the motion to this
court. We need not elaborate on the specific grounds the district court gave for doing so.
See Reedy v. Werholtz, 660 F.3d 1270, 1275 (10th Cir. 2011) (explaining that when an
“opening brief does not challenge the [district] court’s reasoning on [a] point[,] . . . [w]e
. . . do not address the matter”). But we note that a more fundamental reason dooms
Ainsworth’s challenge to the district court’s refusal to transfer the motion and his request
in this court that we grant authorization—his wholesale failure to address the
§ 2244(b)(2) requirements for authorization of a successive petition. Even if Ainsworth
had attempted to address those requirements, he would have failed, because none of the
claims in his motion rely on a new rule of constitutional law that the Supreme Court has
made retroactively applicable on appeal, § 2244(b)(2)(A), or on any factual predicate he
could not have previously discovered “through the exercise of due diligence,”
§ 2244(b)(2)(B)(i). Accordingly, reasonable jurists would not debate whether the
interests of justice required the district court to transfer the post-judgment motion to this
court for authorization.
For the foregoing reasons, we deny a COA to appeal the dismissal of the
post-judgment motion. We also deny Ainsworth’s express request that we authorize
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filing of his post-judgment motion as a second or successive § 2254 petition because he
fails to meet the standards for authorization in § 2244(b)(2).
IV. CONCLUSION
We deny a COA and dismiss this matter. We also deny authorization to file the
post-judgment motion as a second or successive § 2254 petition. The denial of
authorization “shall not be appealable and shall not be the subject of a petition for
rehearing or for a writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E). We grant Ainsworth’s
IFP motion but remind him that he is required to pay the full amount of the appellate
filing and docketing fees immediately. See 28 U.S.C. § 1915(a)(1) (excusing only
“prepayment of fees” (emphasis added)).
Entered for the Court
Nancy L. Moritz Circuit Judge