                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0166n.06

                                            No. 09-2154                                     FILED
                                                                                        Mar 22, 2011
                           UNITED STATES COURT OF APPEALS                         LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


DUSTIN WIECEK,                                     )
                                                   )
        Petitioner-Appellee,                       )
                                                   )
v.                                                 )    ON APPEAL FROM THE UNITED
                                                   )    STATES DISTRICT COURT FOR THE
BLAINE LAFLER, WARDEN,                             )    EASTERN DISTRICT OF MICHIGAN
                                                   )
        Respondent-Appellant.                      )
                                                   )




Before: SILER, CLAY, and GIBBONS, Circuit Judges.

        JULIA SMITH GIBBONS, Circuit Judge. Petitioner-appellee Dustin Wiecek filed a

petition for a writ of habeas corpus in the district court pursuant to 28 U.S.C. § 2254 following his

state court conviction for first-degree criminal sexual conduct. The district court granted the petition

based upon Wiecek’s claim that the state court violated his Sixth Amendment Confrontation Clause

rights by excluding a journal entry written by the victim, which Wiecek sought to use during her

cross-examination. Warden Blaine Lafler appeals. Because the state court’s exclusion of the

victim’s poem did not abridge Wiecek’s Confrontation Clause rights, we reverse the district court’s

decision granting habeas relief.
No. 09-2154
Wiecek v. Lafler

                                                 I.

       Following a sexual encounter with victim, D.R., on June 18, 1999, Wiecek was charged in

state court with wilfully mingling gamma-Hydroxybutyric acid (GHB) with a drink he knew might

be ingested, first-degree criminal sexual conduct during the commission of a felony or poisoning,

and first degree criminal sexual conduct while he knew or should have known that D.R. was

physically helpless. Before trial, Wiecek’s defense counsel filed a motion in limine seeking to admit

a handwritten poem by D.R., contained in a journal she left at his home after the sexual encounter.

The poem read:

               I woke up confused                        With somebody else’s
               I woke up drunk                           clothes on and no bra
               I woke up and hit my head                 I didn’t think this
               on my nightstand                          would happen again
               Wait a second                             Drinking is just for
               that’s not my nightstand                  those who have nothing else
               Where the hell am I?                      to do
               And who’s that sleeping
               next to me?                               I guess I did plenty
               I better run                              and now I [k]now whom
               I better hide                             Knocking at the window
               ‘cause I don’t know                       told me I wasn’t allowed
               What I did last night                     to be here anymore
               ...                                       So I went inside
               I woke up confused                        and ended up naked again
               I didn’t know where I was                 At least it was
               except that I had                         a familiar face this time
               gone to an apartment complex              At least I know his last name
               Too bad I woke up                         I guess that makes it okay
               in a car                                  to do it again[.]




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The trial court denied admission of the poem under Michigan Rule of Evidence (MRE) 404(a) as

improper character evidence and found that it did not satisfy the exceptions set forth in MRE

404(a)(3).1 Evidence of D.R.’s prior experiences with drinking or sexual conduct with other men

was therefore inadmissible to show her conduct in conformity on the occasion.

       D.R. testified at trial about the June 18 sexual encounter. She and Wiecek were high school

students who became friends through their work at a local restaurant. Although Wiecek was

romantically interested in her, D.R. had made clear on several occasions that she did not wish to have

sexual intercourse with him. On June 18, D.R. visited Wiecek’s home for the purposes of using his

hot tub and drinking; they shared a half-filled bottle of rum and drank several beers apiece, at which

point D.R. felt slightly intoxicated. Wiecek then brought her a glass of wine. D.R. stated that, after

drinking the wine, she “felt . . . very out of it,” began acting in a sexual manner, and removed her

bathing suit bottom, allowing the hot tub jet to strike her vaginal area. She next remembered

awakening on Wiecek’s bed. At that point, Wiecek stated that he had lost his virginity to her.

Although she did not feel intoxicated—and had previously consumed an equivalent amount of

alcohol in a hot tub without passing out—D.R. did not recall having sex and testified that she would

not have consented to doing so. That evening, D.R. experienced vaginal pain and noticed bruising

on her arms, legs, and back. She also received a phone call from Wiecek, who explained that they

had made a mistake and inquired as to whether D.R. thought she had been raped. On June 19, D.R.


1
 MRE 404(a)(3) provides: “Evidence of a person’s character . . . is not admissible for the purpose
of proving action in conformity therewith . . . except: (3) In a prosecution for criminal sexual
conduct, evidence of the alleged victim’s past sexual conduct with the defendant and evidence of
specific instances of sexual activity showing the source or origin of semen, pregnancy or disease.”

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sought treatment at a nearby hospital where she also spoke with police officers about her sexual

encounter with Wiecek.

          The defense argued that D.R. was neither unconscious nor physically helpless on June 18 but

rather had suffered an alcoholic blackout that clouded her memory. The jury heard testimony from

defense expert witness, Dr. Bernard Eisenga, who stated that individuals experiencing an alcoholic

blackout “may appear to be awake and coherent but, in reality, they are not. . . . They basically have

an amnesic period of time where they don’t remember what’s going on.” The defense also cross-

examined D.R. extensively with respect to her sexual behavior in the hot tub and her history of

alcohol consumption, eliciting testimony that she drank regularly and had experienced alcoholic

blackouts after the date of the sexual encounter with Wiecek. Remarking that D.R. filed charges

only after learning she had tested positive for GHB, the defense argued that she “seized on the belief

she was poisoned” as an excuse for her behavior.

          Following the jury trial, Wiecek was convicted of first-degree criminal sexual conduct,

acquitted of the remaining charges, and sentenced to twenty-seven months to fifteen years of

imprisonment. People v. Wiecek, No. 247596, 2005 WL 292193, at *1 (Mich. Ct. App. Feb. 8,

2005) (per curiam) (unpublished). He appealed his conviction as of right, arguing that the trial court

violated his Sixth Amendment Confrontation Clause rights by excluding D.R.’s journal. However,

the Michigan Court of Appeals affirmed the trial court, holding the journal inadmissible under MRE

404 and under Michigan’s rape shield law2 because the poem did not concern D.R.’s past sexual


2
    Michigan’s rape-shield law is codified at Michigan Compiled Laws 705.520j(1), which provides:


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Wiecek v. Lafler

conduct with Wiecek and was not offered to show the source or origin of semen, pregnancy or

disease. Id. at *5–6. While acknowledging that the Confrontation Clause sometimes mandates the

admission of otherwise-barred evidence, the court noted that “‘absent extraordinary circumstances,

a [victim’s] . . . past sexual conduct with third persons is ordinarily irrelevant and inadmissible to

show consent.’” Id. at *6 (quoting People v. Hackett, 365 N.W.2d 120, 128 (Mich. 1984)). The

court resolved that Wiecek failed to make the requisite showing of relevancy and that the poem,

which did not necessarily reflect an autobiographical event, evidenced neither a motive to falsely

accuse Wiecek nor consent to his sexual advances. Thus, the court concluded that “the exclusion

of the journal excerpts neither abridged [his] right of confrontation, nor constituted an abuse of

discretion by the trial court.” Id. Thereafter, the Supreme Court of Michigan denied Wiecek’s

application for leave to appeal the decision of the Michigan Court of Appeals. People v. Wiecek, 707

N.W.2d 207 (Mich. 2005) (table).

       After exhausting his state court remedies, Wiecek filed a petition for a writ of habeas corpus

in federal district court, arguing that the poem’s exclusion violated his Confrontation Clause rights.

A magistrate judge issued a detailed report and recommendation denying the petition on the grounds



       “Evidence of specific instances of the victim’s sexual conduct, opinion evidence of
       the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct
       shall not be admitted under sections 520b to 520g unless and only to the extent that
       the judge finds that the following proposed evidence is material to a fact at issue in
       the case and that its inflammatory or prejudicial nature does not outweigh its
       probative value: (a) Evidence of the victim’s past sexual conduct with the actor[,]
       [and] (b) Evidence of specific instances of sexual activity showing the source or
       origin of semen, pregnancy, or disease.”
Mich. Comp. Laws Ann. § 750.520(j) (West 2004).

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that the poem implied neither consent nor motive to falsely accuse Wiecek. In particular, the

magistrate judge observed that “[t]he poem is equally indicative of a prior sexual assault based on

[D.R.’s] physical incapacitation as it is of consensual sex” and, in any event, did not pertain to a

sexual encounter with Wiecek. Wiecek v. Lafler, No. 2:06-CV-12233, 2009 WL 2616441, at *12

(E.D. Mich. Jan. 14, 2009). Moreover, the report stated that “nothing in the poem . . . suggests any

motive . . . to ‘run’ from her alcohol problem by falsely accusing [Wiecek].” Id.

       Wiecek filed objections to the magistrate judge’s report, which the district court sustained,

concluding that the poem supported Wiecek’s defense theories of consent, motive, and D.R.’s

inability to accurately recall the circumstances of the June 18 sexual encounter. Wiecek v. Lafler,

693 F. Supp. 2d 723, 729 (E.D. Mich. 2009). Specifically, the district court determined that the

statements, “I better run/ I better hide/ ‘cause I don’t know/ What I did last night,” were evidence of

D.R.’s shame regarding her past alcohol consumption and sexual behavior, which supported

Wiecek’s theory of her motive to falsely accuse him. Id. at 731 (noting that the excluded poem

“showed that [D.R.] had a motive to accuse [Wiecek] of sexually assaulting her because of her

shame over her actions of getting intoxicated and engaging in sex with [him]”). The district court

further concluded the statements, “I woke up confused/ I woke up drunk/ with somebody else’s

clothes on and no bra,” would have bolstered Wiecek’s defense that D.R. “had consensual sex with

him while in an alcoholic blackout.” Id. at 730. The district court thus granted Wiecek a conditional

writ of habeas corpus based upon a Confrontation Clause violation.

                                                  II.



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        Because Wiecek filed his habeas petition after the effective date of the Antiterrorism and

Effective Death Penalty Act (AEDPA), we review de novo the district court’s conclusions on issues

of law and on mixed questions of law and fact, and we review its factual findings for clear error.

Armstrong v. Morgan, 372 F.3d 778, 781 (6th Cir. 2004.) Pursuant to AEDPA, a federal court shall

not grant a habeas petition with respect to any claim that was adjudicated on the merits in the state

court unless the adjudication resulted in a decision that: (1) was contrary to, or involved an

unreasonable application of, clearly-established federal law as determined by the Supreme Court;

or (2) was based on an unreasonable determination of the facts in light of the evidence presented to

the state courts. 28 U.S.C. § 2254(d); Irick v. Bell, 565 F.3d 315, 319–20 (6th Cir. 2009). “Under

the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court arrives at a

conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court

decides a case differently than [the Supreme Court] has on a set of materially indistinguishable

facts.” Williams v. Taylor, 529 U.S. 362, 412–13 (2000). Under the unreasonable application

clause, a federal habeas court may grant the writ if the state court’s application of clearly established

federal law to the facts of the prisoner’s case was objectively unreasonable. Id. at 409–11.

        As to the determination of unreasonableness, “[t]he question under AEDPA is not whether

a federal court believes the state court’s determination was incorrect but whether that determination

was unreasonable—a substantially higher threshold.” Schiro v. Landrigan, 550 U.S. 465, 473

(2007). In analyzing whether a state court decision is contrary to or an unreasonable application of

clearly established Supreme Court precedent, we may consider only the holdings of the Supreme

Court’s decisions at the time the relevant state court rendered its decision. See Lockyer v. Andrade,

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538 U.S. 63, 71–72 (2003); Williams, 529 U.S. at 412. Yet, this court’s decisions “may be

informative to the extent [they] have already reviewed and interpreted the relevant Supreme Court

case law to determine whether a legal principle or right had been clearly established by the Supreme

Court.” Hill v. Hofbauer, 337 F.3d 706, 716 (6th Cir. 2003).

                                                III.

       The State contends that the Michigan Court of Appeals did not unreasonably apply clearly

established federal law by upholding the trial court’s exclusion of D.R.’s journal, as the poem did

not advance Wiecek’s defense theories of consent or improper motive. Moreover, the State

maintains that Wiecek presented his defense theory—that D.R. engaged in consensual sex with him

but could not recall the event due to an alcoholic blackout—through expert testimony and through

D.R.’s admissions on cross-examination that she had been sexually aroused while in the hot tub, had

significant experience with drinking, and had suffered subsequent alcoholic blackouts. Wiecek,

however, contends that D.R.’s journal was substantially probative of his defense theory, as it

demonstrated that she had experienced prior alcoholic blackouts and reinforced his argument that

D.R.’s accusation was motivated by guilt stemming from “her unseemly behavior on the night in

question.”

       The Sixth Amendment guarantees the right of a criminal defendant in a state or federal

prosecution “to be confronted with the witnesses against him.” U.S. Const. amend. VI; see also

Pointer v. Texas, 380 U.S. 400, 407 (1965). Cross-examination is a “primary interest” secured by

the Confrontation Clause; indeed, it “is the principal means by which the believability of a witness

and the truth of his testimony are tested.” Davis v. Alaska, 415 U.S. 308, 315–16 (1974) (internal

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quotations omitted). However, “the Constitution entitles a criminal defendant to a fair trial, not a

perfect one.” Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986).

        The Supreme Court has recognized that “the exposure of a witness’ motivation in testifying

is a proper and important function of the constitutionally protected right of cross-examination.”

Davis, 415 U.S. at 316–17. Thus, “a criminal defendant states a violation of the Confrontation

Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination

designed to show a prototypical form of bias on the part of the witness, and thereby ‘to expose to the

jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of

the witnesses.’” Van Arsdall, 475 U.S. at 680 (quoting Davis, 415 U.S. at 318). Yet, the Supreme

Court has likewise stated that a criminal defendant’s confrontation rights are not limitless; rather

“trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose

reasonable limits on such cross-examination based on concerns about, among other things,

harassment, prejudice, confusion of the issues, . . . or interrogation that is repetitive or only

marginally relevant.” Id. at 679; see also Michigan v. Lucas, 500 U.S. 145, 149 (1991). Therefore,

“[g]enerally speaking, the Confrontation Clause guarantees an opportunity for effective cross-

examination, not cross-examination that is effective in whatever way, and to whatever extent, the

defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985).

        We have stated that, as here, when “it is merely the extent of cross-examination that is

limited, the trial judge retains a much wider latitude of discretion. Once cross examination reveals

sufficient information to appraise the witnesses’ veracity, confrontation demands are satisfied.”

Boggs v. Collins, 226 F.3d 728, 743 (6th Cir. 2000) (quoting Dorsey v. Parke, 872 F.2d 163, 167

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(6th Cir. 1989)) (internal quotation marks omitted). Thus, when the trial court limits the extent of

cross-examination, our inquiry is “whether the jury had enough information, despite the limits placed

on otherwise permitted cross-examination, to assess the defense theory.” Stewart v. Wolfenbarger,

468 F.3d 338, 347 (6th Cir. 2006) (quoting Dorsey, 872 F.2d at 167) (internal quotation marks

omitted). If, however, the jury did not have adequate information, such that “there is indeed a denial

or significant diminution of cross-examination that implicates the Confrontation Clause, the Court

applies a balancing test, weighing the violation against the competing interests at stake.” Boggs, 226

F.3d at 739 (citation omitted).

       In this case, because the trial court permitted defense counsel to cross-examine D.R., we must

determine whether the jury had adequate information to assess the defense theories of consent and

improper motive and to evaluate D.R.’s credibility, despite the exclusion of D.R.’s journal. We

conclude that it did and that Wiecek has therefore failed to state a Confrontation Clause violation.

As to consent, the jury heard witness testimony during both direct- and cross-examination, which

supported Wiecek’s theory that D.R. appeared lucid and consented to sex while experiencing an

alcoholic blackout. On direct-examination, D.R. acknowledged that she had consumed rum, several

beers, and some wine while in the hot tub with Wiecek, and that she felt slightly intoxicated. She

further admitted to “acting in a way that . . . could only be described as sexual,” such that she

removed her bathing suit bottom and allowed “the hot tub jet . . . [to] strike [her] vaginal area.”

During cross-examination, Wiecek elicited testimony that D.R. drank regularly as a teenager and had

experienced alcoholic blackouts subsequent to the sexual assault on June 18, 1999. Dr. Eisenga also

testified as an expert witness for the defense, explaining that individuals experiencing alcoholic

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blackouts “may appear to be functioning normally” to those around them, a point that defense

counsel reiterated during closing arguments.

       Furthermore, during both D.R.’s cross-examination and closing arguments, defense counsel

repeatedly highlighted the close friendship between D.R. and Wiecek in order to suggest that they

were romantically involved. Specifically, defense counsel argued that D.R. “wants us to believe she

can begin a friendship . . . with someone in June of 1998, continue seeing that person, not date

anybody else . . . and not call it a relationship.” Defense counsel stated to the jury, “you go that

amount of time, you’re that age and you’re going to try to convince me that you . . . didn’t kiss and

. . . hug and . . . have your little play, whatever you do at that age. I’m not going to believe it.”

Based upon these arguments and the foregoing witness testimony, we conclude that the jury was

well-apprised of the defense theory of consent.

       The jury was likewise informed of the defense theory of improper motive—namely, that D.R.

“grasped [GHB poisoning] as her excuse for her behavior rather than having to deal with the fact she

has a drinking problem.” Wiecek, 2005 WL 292193, at *6 (internal quotations omitted). During

cross-examination, Wiecek’s defense counsel highlighted the fact that D.R. had not decided to

pursue prosecution of the case until the end of July 1999, a month after the alleged assault. Defense

counsel also questioned D.R. regarding her testimony on direct-examination that she felt euphoric

while drinking wine in the hot tub. On this point, counsel elicited testimony that D.R. had not

described a sensation of euphoria in her earlier statements to detectives, had been educated as to the

effects of GHB before trial, and had learned that it can induce a state of euphoria. That defense



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counsel effectively disputed the charge of GHB poisoning is abundantly clear; indeed, Wiecek was

acquitted of both charges involving the drug.

       To support his argument that the exclusion of D.R.’s journal violated his Confrontation

Clause rights, Wiecek directs our attention to Lewis v. Wilkinson, 307 F.3d 413 (6th Cir. 2002), in

which we granted a petitioner’s habeas application based upon a Confrontation Clause violation.

As here, Lewis involved a rape prosecution in which certain statements from the victim’s journal

were barred under the state’s rape-shield law. The relevant journal excerpt read:

       I can’t believe the trial’s only a week away. I feel guilty (sort of) for trying to get [the
       petitioner] locked up, but his lack of respect for women is terrible. . . . He was trying
       to get with Holly and me, and all the while he had a girlfriend. I think I pounced on
       [the petitioner] because he was the last straw. That, and because I’ve always seemed
       to need some drama in my life. Otherwise, I get bored. That definitely needs to
       change. I’m sick of men taking advantage of me . . . and I’m sick of myself for
       giving in to them. I’m not a nympho like all those guys think. I’m just not strong
       enough to say no to them. I’m tired of being a whore. This is where it ends.

Id. at 417. In particular, the trial court excluded the following language: “[A]nd I’m sick of myself

for giving in to them. I’m not a nympho like all those guys think. I’m just not strong enough to say

no to them. I’m tired of being a whore. This is where it ends.” Id. at 417–18. We concluded that

these statements, when read in context with admissible portions of the victim’s diary, could be

construed “as [the victim] pursuing rape charges against [the petitioner] as a way of taking a stand

against all the men who previously took advantage of her.” Id. at 421. We therefore held that “the

jury did not have adequate information to assess the defense theories of consent and improper

motive,” as the excluded statements “[had] substantial probative value as to both consent and the

victim’s motive in pressing charges against [the petitioner].” Id. at 420–22.


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          Although this case also involves the exclusion of the victim’s journal, Wiecek’s reliance

upon Lewis is inapt. Unlike the journal excerpts in Lewis—in which the victim acknowledged

“pounc[ing] on” the petitioner and stated her inability to “say no” to sexual advances—D.R.’s poem

does not, as Wiecek argues, bolster his defense theories of consent and improper motive. While

perhaps conveying shame, the poem neither states nor implies an intention to falsely implicate

Wiecek. Moreover, even assuming that the poem is autobiographical, it was written before June 18

and thus does not pertain to the sexual encounter at issue. In upholding the trial court’s exclusion

of the journal, the Michigan Court of Appeals stated that the poem “had little or no relevancy to the

issue of the victim’s consent with defendant with regard to the charged incident.” Wiecek, 2005 WL

292193, at *6. We agree. To the extent that the poem references actual past sexual experiences, it

does not speak to the issue of consent, much less to D.R.’s consent with Wiecek. See, e.g., Gordon

v. Morgan, 27 F. App’x 528, 529 (6th Cir. 2001) (concluding that evidence that a victim “had

consensual sex with her older boyfriend and that she intended to have sex with [the defendant] in

the future” was “not relevant or material to the question of whether [the defendant] committed

rape”).

          Finally, Wiecek, who accords great significance to D.R.’s statement that she had not

experienced an alcoholic blackout before June 18, contends that the poem was necessary to test her

credibility on the issue of prior blackouts. We find this argument unpersuasive, particularly because

D.R. acknowledged having experienced alcoholic blackouts on other occasions. Given D.R.’s

testimony, the jury was therefore aware that D.R. had suffered multiple alcoholic blackouts and was

entitled to infer that she had experienced such a blackout on June 18. Indeed, we “ha[ve] found ‘no

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authority for finding a constitutional violation where cross-examination of a key government witness

was only partially limited and where the questioning that was barred was not aimed at eliciting any

additional facts.’” Stewart v. Wolfenbarger, 468 F.3d 338, 348 (6th Cir. 2006) (quoting Dorsey, 872

F.2d at 166).

       Furthermore, we find that Wiecek’s counsel challenged D.R.’s credibility repeatedly

throughout trial, eliciting testimony on cross-examination that she drank regularly as a teenager, had

consumed various alcoholic beverages in the hot tub, felt slightly intoxicated, and behaved in a

sexual manner by removing her bathing suit bottom. When defense counsel asked whether her

alcohol consumption affected her memory of the events at issue, D.R. replied that she “[couldn’t]

make that call” but did not think it had. Thus, by virtue of D.R.’s own testimony on direct- and

cross-examination, the jury was aware that she was intoxicated on June 18, that her alcohol

consumption might have affected her memory, and that she had significant experience with alcohol

as a teenager. See Stewart, 468 F.3d at 348 (finding no Confrontation Clause violation when “the

information that Petitioner wished to use . . . was already before the jury, in the form of direct

testimony from the prosecution’s witnesses”).

       We conclude that, despite the exclusion of the journal, the jury had ample information

through the testimony of witnesses and through counsel’s arguments to assess the defense theories

of consent and improper motive and to evaluate D.R.’s credibility as a witness. We therefore hold

that the Michigan Court of Appeals did not unreasonably apply clearly established Supreme Court

precedent when it determined that the trial court’s exclusion of D.R.’s journal did not abridge

Wiecek’s Confrontation Clause rights.

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                                               IV.

       For the foregoing reasons, we reverse the district court’s decision granting habeas relief.




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