Appellate Case: 21-5027 Document: 010110708541 Date Filed: 07/11/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 11, 2022 _________________________________ Christopher M. Wolpert Clerk of Court PAUL OWEN HAMILTON,
Petitioner - Appellant,
v. No. 21-5027 (D.C. No. 4:17-CV-00664-TCK-CDL) JIMMY MARTIN, Warden, (N.D. Okla.)
Respondent - Appellee. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________
Before MATHESON, BACHARACH, and MORITZ, Circuit Judges. _________________________________
Oklahoma prisoner Paul Owen Hamilton filed an opening brief challenging the
district court’s denial of his 28 U.S.C. § 2254 application for habeas relief. Because he
cannot appeal without obtaining a certificate of appealability (“COA”), see 28 U.S.C.
§ 2253(c)(1)(A), we construe his notice of appeal and brief as a request for a COA,
see Fed. R. App. P. 22(b)(2); United States v. Chang Hong, 671 F.3d 1147, 1148
(10th Cir. 2011). Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny
the request for a COA and dismiss this matter.
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 21-5027 Document: 010110708541 Date Filed: 07/11/2022 Page: 2
I. BACKGROUND
A. State Court Proceedings
A jury convicted Mr. Hamilton of one count of distribution of child pornography
and one count of aggravated possession of child pornography. The state court sentenced
him to 10 years in prison (5 years suspended) for the distribution conviction and 25 years
for the aggravated-possession conviction, to be served consecutively.
Mr. Hamilton appealed to the Oklahoma Court of Criminal Appeals (“OCCA”).
He asserted that (1) the evidence was insufficient to support a conviction for distribution
of child pornography, (2) the evidence was insufficient to support a conviction for
aggravated possession of child pornography, (3) the state trial court misinterpreted
Oklahoma’s aggravated-possession statute, and (4) the sentence was excessive. Hamilton
v. State, 387 P.3d 903, 905 (Okla. Crim. App. 2016). The OCCA rejected his arguments
and upheld the convictions and sentences. Id. at 905-06.
Mr. Hamilton then filed a pro se application for post-conviction relief. He claimed
that (1) his appellate counsel was ineffective; (2) his trial counsel was ineffective; (3) the
prosecution failed to disclose exculpatory evidence in violation of Brady v. Maryland,
373 U.S. 83, 87 (1963); and (4) the trial court committed fundamental error resulting in a
miscarriage of justice. Mr. Hamilton also filed several motions, including a motion for
transcripts at government expense and a motion to defer briefing until after he received
the transcripts. The state post-conviction court denied the post-conviction application
and the motions. It rejected on the merits Mr. Hamilton’s claim that his appellate counsel
was ineffective, and it held the remaining claims were procedurally defaulted because he
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had not raised them on direct appeal. In addition, even though the Brady claim was
procedurally defaulted, the court held that Mr. Hamilton failed to show the prosecution
had suppressed evidence. It said, “The State of Oklahoma could not have provided a
copy of the CD with child pornography on it to defense counsel, as that act is a crime.
Instead, the State made available the CD to the defense attorney to view within the
District Attorney’s office.” ROA, Vol. 1 at 190. It also stated that he failed to show how
the CD was exculpatory.
Mr. Hamilton appealed the denial of his post-conviction application. The OCCA
affirmed. It agreed with the grounds for the post-conviction court’s decision. It further
held that Mr. Hamilton was not entitled to transcripts at public expense without making a
showing of need and a genuine issue of material fact and that his claims of ineffective
assistance by appellate and trial counsel were meritless.
B. Federal District Court Proceedings
Proceeding pro se, Mr. Hamilton filed this action in federal district court,
challenging his convictions and sentences under 28 U.S.C. § 2254. 1 His application
asserted eight claims for habeas relief:
1. the evidence was insufficient to support a conviction for distribution of child pornography;
2. the evidence was insufficient to support a conviction for aggravated possession of child pornography;
3. the state courts misinterpreted Oklahoma’s aggravated-possession statute;
1 “Although he is represented by counsel in this appeal, we review [Mr. Hamilton’s] pro se [district court filings] liberally.” United States v. Herring, 935 F.3d 1102, 1107 n.2 (10th Cir. 2019). 3 Appellate Case: 21-5027 Document: 010110708541 Date Filed: 07/11/2022 Page: 4
4. the sentence was excessive;
5. his appellate counsel was ineffective;
6. his trial counsel was ineffective;
7. the prosecution failed to disclose exculpatory evidence; and
8. fundamental trial errors resulted in a miscarriage of justice.
The district court addressed the first five claims on the merits, holding that
(1) Claims 1, 2, 4, and 5 failed because Mr. Hamilton had not shown that the OCCA’s
decisions were contrary to or an unreasonable application of clearly established Supreme
Court precedent or were based on an unreasonable determination of the facts, and
(2) Claim 3 challenged the OCCA’s interpretation of state law, which is not a ground for
federal habeas relief. The court further held that Claims 6, 7, and 8 were procedurally
barred because they were defaulted under Oklahoma law, and Mr. Hamilton failed to
show cause and prejudice or a fundamental miscarriage of justice to excuse the default.
The district court therefore denied the § 2254 application. It also denied a COA.
II. DISCUSSION
A. Legal Background
1. COA and AEDPA Standards
Mr. Hamilton must obtain a COA for this court to review the district court’s denial
of his § 2254 application. See 28 U.S.C. § 2253(c)(1)(A). To do so, he must make
“a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). For
claims denied on the merits, Mr. Hamilton “must demonstrate that reasonable jurists
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would find the district court’s assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). For the claims denied on
procedural grounds, he must demonstrate “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 Mr. Hamilton’s request for a COA must account for the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), which requires “deferential
treatment of state court decisions.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).
Under AEDPA, when a state court has adjudicated the merits of a claim, a federal district
court cannot grant habeas relief on that claim unless the state court’s decision “was
contrary to, or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or
“was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding,” id. § 2254(d)(2). When the district court has
denied § 2254 habeas relief on the merits, we must determine as part of our COA analysis
whether reasonable jurists would debate the court’s decision in light of AEDPA
deference to the state court. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
2. Procedural Default
“In all cases in which a state prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule, federal habeas review of
the claims is barred unless the prisoner can” overcome the default. Coleman v.
Thompson, 501 U.S. 722, 750 (1991); see also Bunton v. Atherton, 613 F.3d 973, 989
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(10th Cir. 2010) (“Federal habeas courts are prohibited from reviewing a question of
federal law decided by a state court if the decision of that court rests on a state law
ground that is independent of the federal question and adequate to support the judgment.”
(brackets and quotations omitted)). “A state procedural default is ‘adequate’ if it is
firmly established and regularly followed.” Smith v. Workman, 550 F.3d 1258, 1274
(10th Cir. 2008). “A state procedural default is ‘independent’ if it relies on state law,
rather than federal law.” Id.
To overcome a procedural default, an applicant must either “demonstrate cause for
the default and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a fundamental miscarriage of
justice.” Coleman, 501 U.S. at 750; see Harmon v. Sharp, 936 F.3d 1044, 1060
(10th Cir. 2019). “‘[C]ause’ under the cause and prejudice test must be something
external to the petitioner, something that cannot fairly be attributed to him.” Coleman,
501 U.S. at 753. To show prejudice, “a petitioner must demonstrate actual prejudice
resulting from the alleged constitutional violation” of which he complains. Johnson v.
Champion, 288 F.3d 1215, 1227 (10th Cir. 2002) (quotations omitted).
The fundamental miscarriage of justice exception to the procedural default rule “is
a markedly narrow one, implicated only in extraordinary cases where a constitutional
violation has probably resulted in the conviction of one who is actually innocent.”
Magar v. Parker, 490 F.3d 816, 820 (10th Cir. 2007) (brackets and quotations omitted).
A claim of actual innocence must be based on new evidence suggesting “factual
innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623
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(1998); see also Calderon v. Thompson, 523 U.S. 538, 559 (1998) (“The miscarriage of
justice exception is concerned with actual as compared to legal innocence. . . . To be
credible, a claim of actual innocence must be based on reliable evidence not presented at
trial.” (brackets and quotations omitted)).
B. Analysis
Mr. Hamilton has failed to establish that reasonable jurists would debate whether
the district court correctly decided any of the issues he seeks to appeal.
1. Claims Denied on Procedural Grounds
The district court denied relief on claims 6, 7, and 8 on procedural grounds.
Mr. Hamilton did not raise these claims in his direct appeal to the OCCA. Under
Oklahoma law, they were waived. See id.; Logan v. State, 293 P.3d 969, 973
(Okla. Crim. App. 2013) (“[I]ssues that were not raised previously on direct appeal, but
which could have been raised, are waived for further review[.]”). After determining the
claims were waived and therefore procedurally defaulted on an independent and adequate
state ground, the district court concluded that Mr. Hamilton had shown neither cause and
prejudice nor a fundamental miscarriage of justice to excuse the default.
Before this court, Mr. Hamilton does not acknowledge the district court’s
determination that he procedurally defaulted these claims, let alone argue that the district
court erred in finding an independent and adequate state ground for the default or in
concluding that he failed to show cause and prejudice or a fundamental miscarriage of
justice to excuse the default. Instead, he focuses on the merits of the underlying claims.
By failing to address the grounds for the district court’s decision in his opening
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brief/application for a COA, he has waived any potential challenge to them here, see
Davis v. McCollum, 798 F.3d 1317, 1320 (10th Cir. 2015). It follows he has failed to
establish that reasonable jurists would debate the district court’s decision. We thus deny
a COA on Claims 6, 7, and 8.
2. Claims Denied on the Merits
a. Claims 1 and 2 – Sufficiency of the evidence
Claims 1 and 2 alleged there was insufficient evidence to convict Mr. Hamilton of
the crimes charged. The controlling Supreme Court authority regarding sufficiency of
the evidence is Jackson v. Virginia, 443 U.S. 307 (1979). Under Jackson, the evidence is
sufficient when a court determines, “after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. at 319. “Review of sufficiency of
the evidence under AEDPA adds an additional degree of deference, and the question
becomes whether the OCCA’s conclusion that the evidence was sufficient constituted an
unreasonable application of the Jackson standard.” Simpson v. Carpenter, 912 F.3d 542,
592 (10th Cir. 2018) (quotations omitted); see also Coleman v. Johnson, 566 U.S. 650,
651 (2012) (per curiam) (“Jackson claims face a high bar in federal habeas proceedings
because they are subject to two layers of judicial deference.”).
After reviewing the evidence, the OCCA determined that
[g]iven the distribution of obscene material originating from [Mr. Hamilton’s] IP address, the discovery of the same type of material on [his] computer, the suspicious log of Internet search queries on that computer, and [Mr. Hamilton’s] statements to police, a rational juror could conclude, beyond a
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reasonable doubt, that [Mr. Hamilton] knowingly possessed the obscene material and willfully made it available online.
Hamilton, 387 P.3d at 905. On § 2254 review, the district court summarized the evidence
presented at trial and held that the OCCA’s decision was not contrary to Jackson.
On appeal, Mr. Hamilton raises the same challenges to the OCCA’s decision that
he raised in the district court. He attempts to identify weaknesses and infirmities in the
evidence and suggests the possibility of jury confusion. But when the state courts have
decided the evidence was sufficient, § 2254(d) limits federal habeas review to
determining whether the state court’s decision was contrary to or an unreasonable
application of Jackson, § 2254(d)(1), or was based on an unreasonable determination of
the facts, § 2254(d)(2). And Jackson calls for “viewing the evidence in the light most
favorable to the prosecution” to decide whether any reasonable jury could have
convicted. 443 U.S. at 319. Mr. Hamilton’s arguments view the evidence in the light
most favorable to him, rather than to the prosecution.
After reviewing the evidence introduced at trial, the OCCA concluded that a
reasonable jury could have found the elements of distribution of child pornography and
aggravated possession of child pornography beyond a reasonable doubt. Mr. Hamilton
fails to show that reasonable jurists would debate the district court’s conclusion that the
OCCA’s decision was not contrary to Jackson. We deny a COA on Claims 1 and 2.
b. Claim 3 – Interpretation of state statute
Claim 3 alleged that the OCCA misinterpreted the Oklahoma statute regarding
aggravated possession of child pornography by holding that images on one computer hard
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drive could be counted separately, rather than as one unit, to establish the 100 images
required for aggravated possession. See Okla. Stat. tit. 21, § 1040.12a. The district court
rejected this claim, stating that a challenge to a state court’s interpretation of state law
generally provides no ground for federal habeas relief. See Bradshaw v. Richey, 546 U.S.
74, 76 (2005) (per curiam) (“We have repeatedly held that a state court’s interpretation of
state law, including one announced on direct appeal of the challenged conviction, binds a
federal court sitting in habeas corpus.”); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)
(“[I]t is not the province of a federal habeas court to reexamine state-court determinations
on state-law questions.”); Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998)
(“[F]ederal habeas corpus relief does not lie for errors of state law[.]” (quotations
omitted)).
The district court recognized, however, that “[h]abeas relief for claims of state-law
error are available . . . when the error ‘was so grossly prejudicial that it fatally infected
the trial and denied the fundamental fairness that is the essence of due process,’” Aplt.
App., Vol. 3 at 862 (quoting Hooks v. Workman, 689 F.3d 1148, 1180 (10th Cir. 2012)).
See Estelle, 502 U.S. at 67-68; Leatherwood v. Allbaugh, 861 F.3d 1034, 1043 (10th Cir.
2017) (“A prisoner may seek relief, however, if a state law decision is so fundamentally
unfair that it implicates federal due process.”). But the court held that Mr. Hamilton had
not satisfied that standard.
Before this court, Mr. Hamilton does not challenge the district court’s analysis.
He instead repeats that the OCCA misinterpreted Oklahoma law. He thus has waived any
arguments regarding the district court’s decision, see Davis v. McCollum, 798 F.3d
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at 1320, and necessarily has failed to establish that reasonable jurists would debate the
district court’s rejection of this claim. We deny a COA on Claim 3.
c. Claim 4 – Excessive sentence
Mr. Hamilton’s sentences are within the statutory maximums, but he alleged in
Claim 4 that they are excessive. The Supreme Court has held that the Eighth Amendment
“prohibits not only barbaric punishments, but also sentences that are disproportionate to
the crimes committed.” Solem v. Helm, 463 U.S. 277, 284 (1983). “But outside the
context of capital punishment, successful challenges to the proportionality of particular
sentences have been exceedingly rare.” Ewing v. California, 538 U.S. 11, 21 (2003)
(brackets and quotations omitted). “The Eighth Amendment does not require strict
proportionality between crime and sentence. Rather, it forbids only extreme sentences
that are grossly disproportionate to the crime.” Harmelin v. Michigan, 501 U.S. 957,
1001 (1991) (Kennedy, J., concurring) (quotations omitted); see also Ewing, 538 U.S.
at 23-24 (recognizing that “[t]he proportionality principles in our cases distilled in Justice
Kennedy’s concurrence [in Harmelin] guide our application of the Eighth Amendment”).
The OCCA upheld the sentences. The district court held that Mr. Hamilton failed
to show that the OCCA’s rejection of this claim was contrary to or an unreasonable
application of clearly established Supreme Court precedent. On appeal, Mr. Hamilton
again argues that his sentences are excessive. But he fails to show that reasonable jurists
would debate the correctness of the district court’s conclusion that the OCCA’s decision
was not contrary to or an unreasonable application of Solem or any other clearly
established Supreme Court law. We deny a COA on Claim 4.
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d. Claim 5 – Ineffective assistance of appellate counsel
Claim 5 alleged that Mr. Hamilton’s appellate counsel was ineffective.
i. Legal background
Under Strickland v. Washington, 466 U.S. 668 (1984), a defendant must show that
(1) counsel’s performance “fell below an objective standard of reasonableness,” id. at
688, and (2) the deficient performance prejudiced the defense, id. at 692. The deficient
performance prong requires a defendant to show “that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment.”
Id. at 687. The prejudice prong requires a showing that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. A court may address the Strickland’s two elements in any order
and need not address both if it concludes the defendant has failed to satisfy either one.
See id. at 697.
A court reviews ineffective assistance claims with “a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” Id. at 689 (quotations
omitted). As Strickland noted, “[t]here are countless ways to provide effective assistance
in any given case,” and “[e]ven the best criminal defense attorneys would not defend a
particular client in the same way.” Id. Further, the federal courts must review the
OCCA’s resolution of Mr. Hamilton’s ineffective assistance claims “through AEDPA’s
deferential lens.” Frost v. Pryor, 749 F.3d 1212, 1225 (10th Cir. 2014); see also Lockett
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v. Trammell, 711 F.3d 1218, 1248 (10th Cir. 2013) (“[W]e review [the OCCA’s] analysis
[of ineffective assistance of counsel claims] under the considerable deference required by
Strickland itself—in addition to AEDPA deference.”).
“[I]n evaluating an argument that appellate counsel performed deficiently in
failing to raise an issue on appeal, this court typically examines the merits of the omitted
issue. If the omitted issue is meritless, its omission will not constitute deficient
performance.” Davis v. Sharp, 943 F.3d 1290, 1299 (10th Cir. 2019) (brackets, footnote,
citation, and quotations omitted).
ii. Analysis
Mr. Hamilton asserted in his post-conviction petition that appellate counsel was
ineffective in failing to argue that trial counsel was ineffective and in failing to raise a
Brady claim. 2
1) Failure to argue ineffective assistance of trial counsel
To support his claim that appellate counsel was ineffective for failing to argue his
trial counsel’s ineffectiveness, Mr. Hamilton argued that trial counsel was ineffective in
failing to investigate the facts of the case, to prepare for trial, to make the technical
evidence clear to the jury, and to present exculpatory evidence. He also claimed that trial
counsel’s advice not to testify at trial was deficient.
2 Mr. Hamilton also alleged that counsel was ineffective for failing to argue “Fundamental Error occurring at Trial which denied Petitioner a Fair Trial under the Equal Protection clause that resulted in a Wrongful Conviction was a ‘Fundamental Miscarriage of Justice’.” Aplt. Opening Br. at 37. We cannot identify, much less evaluate, the “appellant’s contentions and the reasons for them.” Fed. R. App. P. 28(a)(8)(A). We therefore do not consider this argument as a basis for issuing a COA. 13 Appellate Case: 21-5027 Document: 010110708541 Date Filed: 07/11/2022 Page: 14
The OCCA found no merit to this claim. Neither did the federal district court. It
said, “The Court has reviewed the entire trial transcript and finds Hamilton’s trial counsel
objectively did not err. He raised appropriate objections, filed pre-trial motions, and
effectively cross-examined the state’s witnesses.” Aplt. App., Vol. 3 at 865. The district
court also noted that Mr. Hamilton, after advisement by the trial court, knowingly and
voluntarily waived his right to testify. The court concluded that the OCCA’s ruling was
not contrary to or an unreasonable application of Strickland.
Before this court, Mr. Hamilton reargues that his appellate counsel was ineffective
for failure to raise on direct appeal that his trial counsel was ineffective. He has not
shown, however, that the OCCA’s evaluation of this claim was contrary to or an
unreasonable application of Strickland. Thus, reasonable jurists would not debate the
district court’s ruling that the OCCA’s rejection of this claim was not contrary to or an
unreasonable application of Strickland. See Davis v. Sharp, 943 F.3d at 1299.
2) Failure to raise a Brady claim
Mr. Hamilton claimed that appellate counsel was ineffective in not arguing that
the prosecution failed to turn over exculpatory evidence to the defense—namely, “child
pornography downloaded by detectives and preserved to a DVD/CD-ROM.” Aplt.
Opening Br. at 35. Under Brady, “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.” 373 U.S. at 87. The elements of a Brady claim are “(1) the prosecutor
suppressed the evidence; (2) the suppressed evidence was favorable to the accused, either
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because it is exculpatory or because it is impeaching; and (3) prejudice ensued because
the suppressed evidence was material.” Simpson, 912 F.3d at 569.
The state post-conviction court held that Mr. Hamilton had failed to show that the
prosecution suppressed the CD or that the CD was exculpatory. The OCCA agreed. The
federal district court likewise recognized that “[t]he trial record is sufficient to
demonstrate that no evidence was improperly withheld from the defense.” Aplt. App.,
Vol. 3 at 856.
Before this court, Mr. Hamilton contests the state courts’ determination that the
CD was not exculpatory. But he ignores their and the federal district court’s conclusion
that the prosecution did not suppress the CD within the meaning of Brady. Reasonable
jurists would not debate the district court’s decision that the OCCA’s rejection of this
claim was not contrary to or an unreasonable application of Strickland. See Davis v.
Sharp, 943 F.3d at 1299.
* * * *
In sum, reasonable jurists would not debate the district court’s determination that
the OCCA’s rejection of his claim that appellate counsel was ineffective was not contrary
to or an unreasonable application of Strickland. We therefore deny a COA on Claim 5. 3
3 In addition to his eight numbered claims, Mr. Hamilton’s § 2254 application argued he was denied due process when the state post-conviction court failed to decide his motions to defer briefing and for transcripts at government expense before deciding the merits of his application for post-conviction relief. The federal district court did not address this argument. Before this court, however, Mr. Hamilton does not assert that the court erred in overlooking the argument, so he has waived the issue. See Davis v. McCollum, 798 F.3d at 1320. 15 Appellate Case: 21-5027 Document: 010110708541 Date Filed: 07/11/2022 Page: 16
III. CONCLUSION
We deny Mr. Hamilton’s request for a COA and dismiss this matter. We grant his
motion to amend his brief to correct a factual misstatement.
Entered for the Court
Scott M. Matheson, Jr. Circuit Judge