### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-30665

BOBBY SMITH, Petitioner – Appellant
v. BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY, Respondent – Appellee

Appeal from the United States District Court for the Middle District of Louisiana

Before JOLLY, BENAVIDES, and HIGGINSON, Circuit Judges. E. GRADY JOLLY, Circuit Judge: This federal habeas ap p e al arises from underlying proceedings in the state courts of Louisiana, in which Bobby Smith was convicted in a 2001 jury trial of armed robbery and conspiracy to commit armed robbery. He was sentenced by the Louisiana court t o 58 years in prison without the possibility of probation, parole, or suspension of sentence. Afte r e xh a u s ting his habeas claims in the state c o u rt s , h e seeks federal habeas relief. Smith argues that the jury that

c o nvi c t ed him was tainted by racial prejudice through the prosecution’s discriminatory use of peremptory strikes in violation of Batson v. Kentucky , 476 U.S. 79 (1986). The district court determined that the state courts legally erred in addressing his Batson claim, granted him a federal evidentiary hearing on the U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

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merits of his habeas claim, and ultimately denied relief on his substantive claim. We granted Smith a Certificate of Appealability (“COA”) on the limited issue of comparative juror analysis required by Miller-El v. Dretke , 545 U.S. 231 (2005). After the COA was granted, the Suprem e Court decided Cullen v. Pinholster , 131 S. Ct. 1388 (2011), which called into question wh e th er the district court could properly grant Smith an evidentiary hearing on his Batson claim–a major issue in this appeal. We hold that Pinholster’s restriction does not bar the federal evidentiary hearing conducted in this case because the district court first concluded, solely

on the basis of the state court record, that the state courts committed legal error,

as r e quired under 28 U.S.C. § 2254(d)(1), through the state courts’s “unreasonable application of, clearly established Federa l l a w .” Thus, the evidentiary hearing was committed to the district court’s discretion, subject to section 2254(e)(2). Because the district court did not abuse its discretion in conducting the hearing, we will review Smith’s substantive Batson claim in the light of the federal evidentiary record. After reviewing the record, we hold that Smith has failed to carry his burden of proving that the prosecutor’s race-neutral
exp l a n at i o ns for striking the two black panelists at issue were a pretext for purposeful discrimination, and thus AFFIRM the judgment of the district court. I. A. Smith’s Batson claim is premised on the state’s use of peremptory strikes

on black members of the third jury panel in his armed robbery trial before the Louisiana s t a te court. During voir dire, the prosecutor struck three black panelists in a row. Although defense counsel did not r a i s e a Batson objection 1

Sm ith as se rts errorwit h res pec t to thepere mp tory strik e usedon Flowe rs , but s he 1
wa s not inclu dedint he COA. 2 Case: 10-30665 Document: 00512140454 Page: 2 Date Filed: 02/11/2013No. 10-30665

to the prosecutor’s peremptory challenges, Smith himself engaged in an 2 extended colloquy with the trial judge , who treated the discussion as a Batson challenge. In response to Smith’s remarks, the trial judge stated:

3 Well, I understand what you are saying and we have made a record of your objection. And that is the best that we can do. I f y o u ’ re objecting that the state has attem p t e d to exclude blacks from[,] systematically attemp t e d to exclude blacks from the jury[,] I will accept that as a Batson challenge, and I will do what I am supposed to do. And what I am supposed to do is first determine whether or not I b elieve there has been a systematic exclusion by race or gender. I d o n o t believe there is any showing of a systematic exclusion based upon the order in which the strikes were made, and who w as left on the jury at which time.

. . . Because of that I am going to deny the motion. Neither party disputes that the trial judge incorrectly applied the Batsontest. The trial judge also did not ask the prosecutor to explain her use of peremptory strikes or otherwise expand the record on the Batsonissue. The voir dire record, however, is informative with respect to the questions posed to the struck panelists and the breakdown in both sides’ use of peremptory

s t ri k es. The venire initially was composed of 48 individuals, of which 3 7 appeared for voir dire. Of the 3 7 potential jurors, 27 were white and 10 were black. Each side was allocated 12 peremptory strikes. Smith used his to strike two white males, nine white females, and one black female. The state struck five white females, four black m a l e s, and three black females. The jury was empaneled with 11 white jurors and one black juror.

When the st ate exerc ise d its per em pt ory chall enge agains t the thr ee black pane lis ts , 2 def ens e couns el st ated , “That doe sn’ t sur prise me ,” to wh ich the pr os ecut or rep lied , “I wo uldn ’t think .”
Du ring his exten ded conver sat ion wi th the tri al j u d g e , Sm ith st ated : “We got one

3 black juror on [t he jury]. Ou t of all the juries [s ic] you got you got one black juror of my pee rs only that you ke pt and you we nt thr ough at leas t five black s and you just dis cri mi nate d all of them .” 3 Case: 10-30665 Document: 00512140454 Page: 3 Date Filed: 02/11/2013No. 10-30665

Specifically at issue in this appeal are Ethel Norman and Ben Williams, two of the three black panelists that the state struck from the third panel. With respect to Wi lliams, the trial judge, during the initial questioning of the third panel, asked if anyone knew a member of law enforcement. Williams raised his h a n d s i gn aling that he did. The judge then questioned Williams, who stated that he had been friends with, coached the son of, and served as an honorary pall bearer for a murdered Louisiana police officer. Williams, however, said that he did not associate that event with Smith’s case. At the conclusion of the trial judge’s questions to the third pane l , the prosecutor began questioning Norman. Norman did not self-identify as having

a problem with the law, but the prosecutor stated that Norman had been sitting in the courtroom throughout voir di re and that she “happen[ed] to be sitting first.” As such, the prosecu t o r p r o c e e ded to question Norman on the law that would be applicab l e t o Smith’s case. With respect to armed robbery, Norman stated s h e di d not understand the law, even after the prosecutor defined it for her again. When asked about conspiracy, Norman expressly acknowledged that she did not know the legal concept. After th e p r o s e c utor provided her an example and asked if she th e n u nderstood the concept, Norman replied, “Uhhuh.” Lastly, the prosecutor gave Norman an example involving th e law of principals and asked her if she u n derstood the example, to which Norman stated, “No.” Furthe r c o nversation between Norman and the prosecutor demonstrated that Norman had an issue with convicting a defendant under the law of principals. The prosecutor then questioned Willi a m s , because he self-identified as having an issue with the law of principals. When asked whether he had dif f i c u l ty with the law of principals, Williams stated, “Yes. I have a problem with it because it’s – to me it seems like it is clustered with everybody in it. And it is just one guilty party, the one that committed the murder. Whether he acted

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with someone or not[,] the one that did the crime should pay the penalty.” After further discussion, Williams said that his disagreement was not “instilled,” and that he could follow the judge’s instructions. But, he also st a t e d th a t he disagreed in principle with multiple murder convictions for individuals involved i n the death of his friend, the police officer, since not all of the convi c t e d i n dividuals actually shot her. Williams also noted that he understood th e concepts of armed robbery and conspiracy. B. Following his conviction , S mith un s ucc e s s f ully p ur s u e d s t ate h ab e a s reli ef ; the courts of Louisiana denied relief. Once his state remedies were exhausted, he sought a writ of habeas c orpus in federal district court under 28 U.S.C. § 2254. Smith raised seven issues as part of his federal habeas claim, including his Batson challenge. The magistrate judge’s report, which was adopted by the di s trict court, denied six of the claims, but recommended appointing S m i th counsel f

o r an evidentiary hearing on the Batson issue. At the hearing, the district court concluded that Smith had made the initial prima facie showing of racial discrimination in the voir dire. The court then heard testimony from the state prosecutor on the reasons for her use of peremptory strikes. The prosecutor stated that she struck Norman because she did not understand or agree with the law of principals. In addition, the prosecutor noted that she takes account of many factors in her use of peremptory strikes, and that Norman further troubled her because she had been sitting in the courtroom all day during the questioning of prior panels but appeared not to have listened or unde r s t o o d what was previously discussed. The prosecutor also testified that the record reflected Norman’s confusion over th e various legal issues. With
resp e c t t o Williams, the prosecutor simply noted that, “He thought that if you held a gun during the robbery you should be much more culpable than – than if you had not. So that was the reason that I had struck him.”

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Upon completion of the evidentiary hearing, the parties filed memoranda

w i th the district court based on the now-expanded record. Smith argued tha t any race-neutral reasons for the p e r emptory challenges were negated by evidence that the two black panelists had been subjected to more extensive and in-depth questioning o n th eir un derstanding of the law than any white panelists. The district court, however, concluded that Smith did not ca rry his burden of proving purposeful discrimination and denied his applicatio n f or a writ of habeas
corpus. Smith then applied to this court for a COA in order to appeal the district court’s judgment. We granted the COA, but limited it to the specific question: whether the district court e rr e d i n finding that Smith had failed to carry his burden of showing that the prosecutor’s race-neutral explanatio n s for striking venire panel members Nor m a n and Williams were a pretext for purposeful discrimination, in the light of the comparative juror analysi s of Miller-El v. Dretke , 545 U.S. 231, 240-41 (200 5). After the COA was granted, but before oral argument was presented in the

c a se, the Supreme Court decided Pinholster

. Because Pinholster address e d evidentiary hearings in section 2254(d) cases, we ordered supplemental briefing on whether the Pinholsterlimitation applied to Smith’s case. II. We first address Pi nho ls te r , an d it s p ote ntial application to the evidentiary hearing held by the district court. In Pinholster , the Supreme Court discussed whether federal district courts are permitted to hold supplementary evidentiary hearings when evaluating habeas claims under 28 U.S.C. § 2254(d)(1). Section 2254(d) states: An application for a w ri t of habeas corpus on behalf of a person in custody pursuant to th e judgment of a State court shall not be grante d w ith respect to any claim that was adjudicated on the merits in S tate court proceedings unless the adjudication of the claim--

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(1) resulted in a decision that was contrary to, or involved an unreasonable application of, c l early established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that w a s b a s e d on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. Based on the statutory text, the Court held “that review u n d e r § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim

on the merits.” Pinholster , 131 S. Ct. at 1398. The Court found this result compelled because the “backward-looking language requires an examination of the state-court decision at the time it was made.” Id. Cognizant of the deference traditionally given to state court decisions in habeas p r o c e e dings, the Court further concluded that, “It would be contrary to

. . . allow a petitioner to

overcome an adverse state-court decision with new evidence introduced in a federal habeas court and reviewed by that court in the first instance effectively de novo .” Id. at 1399. Smith argues that the district court erred in conducting a n evidentiary hearing because Pinholster limits federal habeas review to the evidence at the disposal of the state court. Under his argument, although the state court did not reach the second and third Batsonprongs, or develop an evidentiary record on th e i s s u e , Pinholster limited the district court to the evidence that was in the state court record. But Smith recognizes, of course, that the state trial court did not reasonably apply Batson when it ruled against him at the prima facie stage of his claims; thus, in his view, he should be entitled to federal habeas relief in the form of a remand to the state trial court. His argument, however, fails because we think that the district court did what section 2254(d)(1) allows, and what Pinholster does not f o rbid. The magistrate judge determined on the basis of the state court record that the state courts’s Batson analysis “was contrary to, or at least involved an unreasonable

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application of, clearly established Federal law.” After making this finding, the magistrate judge recommended to the district judge that relief be granted in the form of an evidentiary hearing on Smith’s Batson claim. The dis t ri c t c o u rt adopted the magistrate judge’s recommendation. The Batson t e s t is clearly established federal law, as determined by the Supre m e Court, for the purpose of addressing claims of racial discrimination in jury selection. Smith was entitled to have the proper legal standard applied in determining whether his jury was the product of a racially discriminatory voir dire process. Because the district court appropriately and correctly concluded that the state court had unreasonably applied Batson under section 2254(d)(1) based solely on the state court record, Pinholster i s inapplicable. Thus, the hearing was in error only if Smith failed to develop the basis of his c l ai m as required under 28 U.S.C. § 2254(e)(2), or if the district judge otherwise abused his discretion in conducting the hearing. Section 2254(e)(2) states: “If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court sha l l n o t hold an evidentiary hearing on the claim unless

. . . .” Here, it was not Smith who failed to develop the factual record; Smith made a Batson objection, but the state court failed to provide him the opportunity to develop the factual basis of his cl a i m through its misapplication of the Batson standard. Under the circumstances, section 2254(e)(2) does not bar a federal evidentiary hearing. And, when section 2254(e)(2) does not preclude the hearing, we review the district court’s decision to conduct one for an abuse of discretion. See Clark v. Johnso n , 2 0 2 F

. 3 d 760, 765 (5th Cir. 2000) (“[T]he district court retains discretion over the decision to grant an evidentiary hearing once a petitioner overcomes the barriers presented by § 2254(e)(2).”); see also McDonald v. Johnson , 139 F.3d 1056, 1059-60 (5th Cir. 1998). Based on this record, the district court did not abuse its discretion.

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This analysis follows our recent holding in Blue v . T h a ler , in which we addressed Pinholster in the Atkins v. Virginia context. 665 F.3d 647 (5th Cir. 4 2011). In Blue , the appellant challenged the district court’s refusal to conduct an evidentiary hearing, requiring us to discuss the application of Pinholsterto evidence introduced for the first time at the federal level. See id. at 655-57. We stated: [I]f a state court dismisses a prima facie valid Atkins claim without having afforded the petitioner an adequate opportunity to develop the claim, it has run afoul of the Due Process Clause, and that due process violation constitutes an unreasonable application of clearly established federal law that is sufficient to deprive the state court’s decision of AEDPA deference. Id. at 657. Under those circumstances, “a district court abuses its discretion if it does not conduct an evidentiary hearing on an Atkins claim.” I d

. W e th us found that Pinholster’s limitation on federal evidentiary hearings does not apply

once the district court conclud e d , s o l e ly on the basis of the state court record, that the state trial court unreasonably applied federal law. Because the state court decision is no longer entitled to d e f e r e nce, the federal court is free to properly address the claim and grant appropriate relief. See id. ; see also Wiley

v. Epps , 625 F.3d 199, 207 (5th Cir. 2010) (“When a state court’s adjudication of

a claim is dependent on an antecedent unreasonable application of federal law, the requirement set forth in § 2254(d)(1) is satisfied. A federal court must then resolve the claim without th e deference AEDPA otherwise requires.” (quoting P anetti v. Quarterman , 551 U.S. 930, 944 (2007)) (internal quotation m a rk s omitted)). Consequently, the district court did not err in any respect in conducting the evidentiary hearing.

536 U. S. 304 (200 2). Atki ns held that the Eighth Ame ndm ent pr ohibit s the im pos itio n 4 of the dea th pena lty agains t any in divid ual wh o i s me ntall y re tar ded

. Id. at321

. 9 Case: 10-30665 Document: 00512140454 Page: 9 Date Filed: 02/11/2013No. 10-30665 III. A. We turn now to the merits of Smith’s Batson claim. There are three steps in the Batson analysis. E.g., Reed v . Q u a r t e r m a n , 555 F.3d 364, 368 (5th Cir. 2009). “First, a defendant must present a prima facie case that the prosecution exercised its peremptory challenges on the basis of race. ” Id. “Second, if the defendant meets thi s initial burden, the burden shifts to the prosecutor to present a race-neutral explanation for striking the jurors in questi o n . ” I d

. Third, “the court must determine whether the defendant has carried his burden

o f proving purposeful discrimination.” Id. “Implausible or fant a s t i c justifications may (and probably w i l l) be found to be pretexts for purposeful discrimination.” Id. (quoting Purkett v. Elem , 514 U.S. 765, 768 (1995)) (internal quotation marks omitted). “The ultimate burden of persua s ion lies with the defendant.” Woodward v. Epps , 580 F.3d 318, 335 (5th Cir. 2009). We will only

r e verse the district court’s factual findings if they are clearly erroneous. Se e Wright v. Harris Cnty. , 536 F.3d 436, 438 (5th Cir. 2008); United States v. Terrazas-Carrasco , 861 F.2d 93, 94 (5th Cir. 1988). It is Batson ’s third step that is the focus of this appeal. “When the process reaches this step, the ‘defendant may rely on all relevant circumstances to raise

an inference of purposeful discrimination.’” Fields v. Thaler , 588 F.3d 270, 274 (5th Cir. 2009) (quoting Miller-El , 545 U.S. at 240) (internal quot a t i on marks omitted). We ask whether th e s t a t e’s proffered, race-neutral explanations are

a pretext for purposeful discrimination based on a c o m p a r a t ive analysis of prospective jurors. See Miller-El , 545 U.S. at 240-41. In conducting the required comparative analysis, we are guided by the Supreme Court’s decision in MillerEl

. See 545 U.S. at 241, 246-47, 252; see also Reed , 555 F.3d at 376. “If the State asserts that it struck a black juror with a particular characteristi c , and it also accepted nonblack jurors with that same characteristic, this is evidence that the

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asserted justification was a pretext for discrimination.” Reed , 555 F.3d at 376. In addition, “if the S t a te asserts that it was concerned about a particular characteristic but did not engage in meaningful voir dire examination on that subject, then the State’s failure to question the juror on th a t t o pic is some evidence that the asserted reason was a pretext for discrimination.” Id. Lastly, “we must consider only the State’s asserted reasons for striking the black jurors and compare those reasons with its treatment of the nonblack jurors.” Id. B. The district court heard the state pro s ecutor’s testimony firsthand and concluded th a t th e reasons offered were not a pretext for purposeful discrimin a t i o n . The court reviewed the voir dire record and found that it supported the race-neutral reasons given for striking the panelists at issue: (1) Norman had an issue with the law of principals, and she had been sitting in the courtroom all day but remained confused about th e l e g al issues discussed indepth by prior panels; and (2) Williams self-identified his issue with the law of principals, even maintaining his disagreement in the context of the murder o f his close friend. Furthermore, the district court conducted a comparative analysis of white and black jurors to ascertain any disparities in their treatment. The court determined that there had been no purposeful discrimination in the voir dire; the record showed that prior panels al s o had discussed and been questioned on th e l e g a l concepts at issue. Lastly, the district court noted that Smith had failed to specify panelists who were similarly situated but were not questioned or struck like Norman and Williams. C. Based on our own review of the record, we hold that the district court did not clearly err in its factual determinations, and that Smith has not carried his burden of proving purposeful discrimination. On appeal, Smith has asserted essentially the same arguments that he advanced before the district court. His

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main argument remains that the voir dire was tainted by an undercurr e n t o f racial bias, demonstrated by the exchange between defense c o u n s e l and the prosecutor after she struck Norman a n d Wi lliams. Defense counsel stated, “That doesn’t surprise me,” and the prosecutor responded, “ I w o uldn’t think.” His specific argument with respect to Norman and Williams is that other jurors

were not subject to the same, in-depth questioning that they w e re required to undergo. As to Williams, Smith states that he was close friends with a p o l i ce officer, and that he was able to grasp the legal concepts as the questioning went

on. With respect to Norman, Smith argues that she was the only juror subjected to a “pop quiz” on the law o f a r m e d robbery, conspiracy, and principals. He concludes that the use of p e r e m p t o ry strikes on both individuals was racially motivated. But this a r gu ment fails because Smith has not pointed to any similarly situated jurors for the purpose of c omparative analysis. Although the prosecutor struck three black panelists in a row from the third panel, the use of peremptory strikes over all three panels demonstrate s that there is no evidence of general racial bias at work during the voir dire. From the first panel, the state exercised

seven peremptory challenges , s triking four white panelists and three black panelists. From the second panel, the state struck one white panelist and one black pane l i s t

. Lastly, the state struck three black panelists from the third panel. The defense, however, struck four white panelists and one black panelist from th e f

ir s t panel, six white panelists from the second panel, and one white panelist from the third panel. Thus, the actual use of peremptory strikes does not support a showing of the prosecutor’s general racial bias. Nor does a comparison of jury selection show that the prosecutor had one script for white panelists and another for black panelists. During voir dire, the panels initially were questioned by the trial judge about their basic personal information: name; occupa t i o n; marital status; number and ages of children;

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r a c e ; and gender. The trial judge also asked questions designed to r e v e a l possible bias: familiarity with the parties, witnesses, attorneys, or law enforcement; past arrests of panelists or family members; and past encounters with the police. The prosecutor, who questioned each pa n e l b e f o r e defense counsel, would then f

o l l o w up with each panel member individually, filling in gaps and asking a d di t i o nal questions where needed. After her initial questioning, the prosecutor then would di s c u s s the law of armed robbery, conspiracy, and principals, a l l o f which were applicable in Smith’s case. The prosecutor only deviated from this process with the third pane l , w here she

c o mb ined her questioning to ask both personal and legal questions of each panelist individually. I n s t e a d of racial motivation for the truncated questioning, however, the record indicates that the voir dire of the third panel occurred late in the day–questioning began after 7:15p.m.–and that all part i e s were attempting to shorten the process. Further m ore , in th e j ury s el e ctio n p roc e s s , th e p ro s ecutor routinely singled out individuals, both black and white, wh e n th e y self-identified in response to her open-ended question. For example Ms. Tynes, who is white and was on the first panel, was asked addi t i o n a l questions when she acknowledged that she watched legal television shows. The prosecutor also singled out individuals like Mr. Rathcke, a white male, when th e y g av e visual signs of confusion or disagreement, such as having a puzzled look on their face or furrowing their brow. Thus, the singling out of Williams over an issue was not restricted to him

or to black panelists ge n erally; it was a common characteristic of the prosecutor’s voir dire technique. To put a fine point on the questioning of Norman, however, it was different

w h e n c o mpared specifically to other panelists who sat first on their respective panels

. The prosecutor began with the same questions clarifying Norman’s personal information, but she then deviated from her prior practice and asked

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Norman to state the legal concepts in her own words. The district court credited the prosecutor’s te s t i m o ny that she struck Norman, in part, because she was confused even after the prosecutor offered further explanation. Indeed, our review of the record demonstrates that after Norman answered the question, the prosecutor restated the concepts in legal terms and asked her if she understood. Providing an explanation, and then asking whether the panelist understood, is in line with the prosecutor’s approach during the earlier panels. The record also shows that other members of the third panel were asked to state applicable legal concepts in their own words. For example, Mr. Brown, a white male, was asked to restate the concept of reasonab l e d o ubt. Additionally, Norman had been present in the courtroom all day, and the prosecutor was concerned that she had failed to understand any of the legal concepts relevant to the case, despite all the preceding discussions. In short, the district court did not commit clear error in crediting the prosecutor’s testimony with respect to Norman. Finally, we should note that the COA we granted was, in fact, limited to the issue of a comparison of white and black jurors who were struck or who were not struck, and, although Smith did not point to specific jurors for comparative analysis, we have conducted an in-depth review of the record, as indicated above. It is clear to us that he has not carried his burden of proving a case of purposeful discrimination. IV. In this opinion, we have concluded that the evidentiary hearing w a s not barred by Pinholster because the c o u rt d e t ermined that the state courts had violate d c learly established federal law through the misapplication of Batson , based solely on the state court record; the district c o urt therefore acted appropriately in granting Smith relief in the form of an evidentiary hearing to develop his claim, and then in determining in a f ederal forum the substantive merits of Smith’s federal claim. Furthermore, in the light of the federal

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evidentiary record, the district court did not err in holding that Smith failed to prove purposeful di s c ri m ination in the selection of the jury, as required under Batson ’s third step. The judgment of the district court, therefore, is AFFIRMED.

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