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

No. 09-70029

JESSE JOE HERNANDEZ, Petitioner–Appellant,

v. RICK THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:06-CV-846

Before GARZA, CLEMENT, and OWEN, Circuit Judges. PRISCILLA R. OWEN, Circuit Judge: * Jesse Joe Hernandez (Hernandez) re q u e sts a certificate of appealability (COA) on his claim that the pr osecution violated the Fifth Amendment during his state court trial by remarking on his failure to testify on his own behalf. For the following reasons, we deny the COA. I In July 2002, a Texas jury found Hernandez guilty of capital murder after it determined that Hernandez murdered ten-month-old Karlos Borja on or about 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 

### F I L E D Sep tem ber 1 2, 2 011 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court has det erm inedthat thi s op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 09-70029 Document: 00511600010 Page: 1 Date Filed: 09/12/2011No. 09-70029

April 11, 2001. The facts surrounding Karlos’s death, as r e c i t e d by the Texas Court of Criminal Appeals, are as follows:

The evidence at trial showed that at the time Karlos and Melodi were assaulted, Misty Leverett, [ten-month-old] Karlos, and [four-year-old] Melodi, were living with appellant [Hernandez], his wife Mary Rojas, their young son, Joshua, and Gilbert Gomez. On the day of the assaults, Leverett went to work and left the children in the care of appellant and Rojas. Rojas testified tha t after Leverett left for work around noon, she stayed home with the children while appellant and G o mez left to run errands. When appellant and Gomez returned about two hours later, Rojas left for her sister-in-law’s house and was gone approximately th i r t y to forty-five minutes. Rojas testified that when she got home, she heard appellant screaming at Joshua. She picked him up and took him to the room she shared with appellant. Rojas asked where Karlos and M e l o d i were, and appellant replied that they were sleeping in the ne x t r o o m
. Rojas then went into her room and relaxed with Joshua. Later, when she heard appellant preparing a bottle, she told appellant she w a s g o ing to go into the room where Karlos and Melodi were sleeping. Appellant instructed Rojas not to enter the room for fear she woul d w a k e them up. Despite having
seen blood stains on ap pellant’s shirt, Rojas waited until Leverett got home from work to check on the children. Leverett testified that when she arrived home, she went into t h e dark room she shared with her children and found Melod i complaining that her head hurt. Rojas and Leverett took Melodi out into the kitchen and saw that her head was swollen wit h “red spl o t c h e s .” Alarmed, Leverett decided to take Melodi to the hospital. After they left, Rojas checked on Karlos a nd noticed his lips were swollen. She determined Karlos was badly hurt and took Karlos and Josh u a d o w n the street to her sister-in-law’s house to call an ambulance. When Leve r e t t and Melodi arrived at the hospital, hospital workers ask e d L e v e rett if she had any other children. When she replied that she did , t h e h ospital workers instructed her to return home and get her son immediately. Leverett testified that when she returned home, appellant was alone and he told her that Karlos was at his sister’s house. Leverett asked appellant to take her there but he refused. Moments later, police arrived and i n formed Leverett that Karlos had been rushed to Children’s Hospital by ambulance.
2 Case: 09-70029 Document: 00511600010 Page: 2 Date Filed: 09/12/2011No. 09-70029 In addition to this evidence, appellant stated in his voluntary written statement that he was babys i tting Melodi and Karlos and “they were being v e r y b a d by crying a lot for nothing.” Appellant continued that he “just exploded and hit them with the back of my hand not realizing I was hurting them[.]” 1 Karlos died approximately one week after the beating. 2 During th e guilt phase of Hernandez’s trial, the prosecution introduced evidence that Hernandez ’ s right hand appeared swollen during the hours following the time when Karlos and Melodi were beat e n
. Mary Rojas, Hernandez’s wife, testifi e d that she noticed the swelling in his right hand and told a police officer about it. The jury also heard testimony from t w o different detectives who also noticed swelling in Hernandez’s hand. Detective Lesher, one of the officers who intervi e w e d Hernandez, testified that the back of one of Hernandez’s hands “was swollen more t h a n t he other hand was.” Detective Breedlove, who interviewed Hernandez on two occasions—once the morning of the incident and then later that afternoon—testifie d t h at, although he did not notice any swelling in Hernandez’s hand during the morning interview, he did notice t h e swelling that afternoon. Hernandez was jailed between these interviews, and Hernandez’s attorney asked Detective Breedlove on crossexamination whether Detectiv e B r e e dl ov e r e c alled being told by one of the jailers that, in between the interviews, Hernandez was “beating on the cell in there or causing a ruckus.” Detective Breedlove did not recall any such statement. During closing arguments, the parties offered competing theories on the origin of Hernandez’s swollen hand. The defense, during its closing statement, made the following comments:

See He rna ndez v. State , No. 74401, 2004 WL 3093221 , at *3- 4 (Tex. Crim

. App

. May 1 26, 2004) ( foo tnot e o mi tte d)

. Id. at*1 n. 2. 2
3 Case: 09-70029 Document: 00511600010 Page: 3 Date Filed: 09/12/2011No. 09-70029 Then the swollen hand, the magic swollen h a n d

. There’s another beauty. The swollen hand. Really. What do you remember from c ross-examination on this? They’re investigating someone that’s allegedly abused a child. Hasn’t been a death yet, but guess what? Nothing in the police reports, any of them. I asked Hernandez, Chacon, Lesher, Breedlove. Anything in there about M a r y saying something at the house about look at his hands or the s h i r t i n volved or the exchanges that Mary allegedly had with Jesse? No. Asked the police officer. You remember that? No. Look in the police report. Nothing. You know Breedlove huddled with the officers right before he brought Jesse Hernandez at 5 : 0 0 o’clock and that’s crucial, important stuff. You know that Breedlove interrogated him for two h o u r s where he was sitting distance from here to here. Ne v e r no t i c e d a swollen hand ever. Nothing. For two hours. Even watched him write the affidavit. Said it took him an hour. I asked, “When you got him out of jail, do you remember a jailer saying he hit his hands on the wall pounding the cell?” “No, I don’t remember that.” All of a sudden, everybody sees a swollen hand. Oh, there it is. Must have been from what happe ned out there. Really. You might think this is kind of Oliver Stone or conspiracy theories. Take
a good look at Mary’s statement, the one she gave here. Look at her handwriting. Look through all o f t h e m, it’s the same. Same handwriting. Nothing changes. All of a sudden at the very end look at the different spelling that says “that was when I noticed his hand was swollen.” Thereafte r , the prosecution, in its rebuttal argument, also addressed the swollen hand: Look, we haven’t come in here and made promises that we can’t back up. We presented evidence to you that shows him guilty. We haven’t come in with innuendo. You know, where is this proof about him striking something over in the jail ca u s i n g h i m to swell his hand? Where is that proof there? You have n ’ t h e ard it from any witness. We’re not the ones coming in here making these promises that we can’t back up.

4 Case: 09-70029 Document: 00511600010 Page: 4 Date Filed: 09/12/2011No. 09-70029

The jury ultimat e ly f

o u n d H e r n andez guilty and recommended a death sentence, which the trial court imposed. Hernandez filed a direct appeal to the Texas Court of Criminal Appeals in which he raised a number of claims, including the claim that th e p r o s e c u tion impermissibly commented on his failur e t o t estify when it made the aboveexcerpted statement addressing the swollen hand. The Texas Court of Criminal Appeals concluded Hernandez had forfeited this claim by failing to object to the prosecutor’s statement at trial. The court also rejected Hernandez’s other 3 claims and affirmed his conviction and sentence. 4 Subsequently, Hernandez filed an application for a writ of habeas corpus in state court. That application included a claim that Hernandez’s trial counsel

was ineffective for failing to obj e c t t o the comment that Hernandez characterized

as a commentary on his failur e t o t e s t i f y. The state court determined that Hernandez’s trial counsel did not act unreasonably in failing to object and that,

e v e n if the failure to object was unreasonable, it was not prejudicial to Hernandez. Additionally , th e s t at e c o u rt c o n c l u d e d th at H e r n andez’s underlying claim lacked merit. In the state court’s opinion, the contested comment referred not to Hernandez’s failure to testify but to Hernandez’s “failure to call a witness who would support his theory t h a t h e i njured his hand pounding on his cell”—specifically, the unnamed jailer that Hernandez implied could have te s t i f i e d that Hernandez spent all day pounding his hands on his jail cell. Hernandez appealed to the Texas Court of Criminal Appeals, which adopted the findings and conclusions of the trial court. 5

Id. at*7

. 3
Id. at*8

. 4
Ex pa rte He rna ndez , No

. WR-62 840- 01, 2006 WL 1174307 , at *1 (Tex. Crim

. App

. 5 May 3, 2006)

. 5 Case: 09-70029 Document: 00511600010 Page: 5 Date Filed: 09/12/2011No. 09-70029

Hernandez then filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Texas. Hernandez’s petition raised seven claims, one of which was that the prosecution violated Hernandez’s Fifth Amendment right against self-incrimination by allegedly commenting on Hernandez’s failure to testify to explain the swelling i n his hand. The district court determined that Hernandez’s Fifth Am e n d m e nt claim was procedurally defaulted, due to Hernandez’s failure to object to the prosecution’s statement at trial, and that Hernandez had not at t e m p t ed to establish any of the various exceptions to the procedural default rule. Accordingly, the district court dismissed this claim on procedural grounds. The court rejected the rest of Hernandez’s claims on the meri t s
. Hernandez subsequently requested a COA with respect to his Fifth Amendment claim, which the distric t court denied. Hernandez now requests a COA from this court. II

“ [A] state prisoner seeking a writ of habeas corpus has no abso l u t e entitlement to appeal a district court’s denial o f h i s petition.” Instead, the 6 prisoner must first obtain a COA from a circuit justice or judge. “[U]ntil a COA 7 has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.” 8 A COA “may issue

. . . on l y i f t h e a pplicant has made a substantial showing of the den i a l o f a constitutional right.” An applicant makes such a 9 “substantial showing of the denial of a constitutional ri gh t” w h en he demonstrates “that reasonable jurists could debate whether (or, for that matter,

Mi ll er- El v. Coc kre ll , 537 U. S. 322 , 335 (200 3) (c itin g 28 U. S. C. § 2 253)

. 6
Id. at335 -36. 7
Id. at336

. 8
28 U .S .C. § 2253( c) (2)

. 9
6 Case: 09-70029 Document: 00511600010 Page: 6 Date Filed: 09/12/2011No. 09-70029

agree that) the petition should have been resolved in a different manner or that the issues presented were adeq u ate to deserve encouragement to proceed further.” The “issuance of ‘a COA does not require a showing that the appeal

1 0 will succeed,’” however, and we should not decline an applicant’s requ e s t f o r a COA merely because we believe that the applicant will ultimately f a i l to establish h is entitlement to habea s r e l i e f

. When, as here, an applicant faces 1 1

a death sentence, we will resolve any doubts as to whether a COA should issue in his favor. 1 2 III The district court dismissed Hernandez’s Fifth Amendment c l aim on p rocedural grounds. Thus, in order to show his entitlement to a COA , Hernandez must demonstrate two things: (1) “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling” and (2) “that jurists of reason would find it debatable whether” he states a valid Fifth Am e n d m e nt c l aim. Hernandez has failed to make the necessary d e m o n s tr ati o n 1 3 with respect to both inquiries. A We begin with the district court’s procedu r al ruling—that Hernandez’s Fifth Amendment claim was procedurally defaulted becau s e of his failure to object to the prosecutor’s statements during trial. Hernandez does not dispute that he did not ra i se his Fifth Amendment objection during his trial in state court. Rather, he claims we can use the plain error standard of review to

Mi ll er- El , 537 U. S. at336 ( inte rnal quot atio n m ark s om itt ed)

. 1 0
Wil li am s v. Tha le r , 602 F.3d 291, 301 (5t h Cir. 2010) ( q u o t i n g Mi ll er- El , 537 U. S. 1 1 at 337)

. Id. ( cit ing Ma rtine z v. D retke , 404 F.3d878 , 884 (5t h Cir

. 2005) ).

1 2
Sla ck v. M

cD ani el , 529 U. S. 473 , 484 (200 0). 1 3
7 Case: 09-70029 Document: 00511600010 Page: 7 Date Filed: 09/12/2011No. 09-70029

recognize the prosecution’s allegedly unconstitutional actions. The plain error standard of review allows us to remed y u n p reserved clear errors that affect a defendant’s su b s t a n t ial rights and the fairness, integrity, or public reputation of judicial proceedings. Hernandez argues that the error wa s c l ear and 1 4 obvious—“ t h e c o m ment by the prosecutor could only have been interpreted by the jury as a r e f

e r e nce to Hernandez’s failure to testify”—and affected a substantial right—“his Fifth Amendment privilege against self-incrimination.” He argues that “the error seriously affected the fairness of the proceedings and went to the heart of the integrity of the judicial system.” We reject Hernandez’s argument for the simple reason that the plain error sta n d a r d o f r e v iew is an instrument of direct review. It does not apply in the context of a collateral attack on the constitutional validity of a final conviction. 1 5 B e c a u s e H e r n a n d e z failed to preserve his Fifth Amendment objection in his s t at e court proceedi n gs and we are not engaged in a direct review of those proceedings, Hernandez’s claim implicates the rule of procedural default. Under the procedural default rule, federal habea s r e l i e f is generally not available “whe n a state court declined to address a prisoner’s federal claims because the prisoner

. . . failed to meet a state procedural requirement.” This 1 6 is so because in such cases “the state judgment rests on independent and

See Uni ted Sta tes v. Jua rez , 626 F.3d246 , 254 (5t h Cir

. 2010)

. 1 4 Engle v. Isaa c , 456 U. S. 107, 134- 35 (198 2) (“The fed eral cour ts apply a plai n-e rro r 1 5 rule f or dir ect revie w of fed eral convic tio ns. Fede ral habeas c hallen ges to st ate convic tio ns, how ever, enta il great er fina lity pr oblem s and sp ecia l com ity conc erns
. We rem ain convin ced that the burd en of just ifyin g fed eral habe a s reli ef for st ate pr iso ners is great er than the sho wi ng requ ired to es tabl ish plai n err or on dir ect app eal. ” (int erna l quot atio n mar ks
om itt ed) ); s ee also Scott v. Mi tchel l , 209 F.3d 854, 872 n.6 (6t h Cir. 2000) (r ejec t i n g the argum ent that a pr oce dur ally def aulte d clai m sho uld be revie w e d f o r plai n err or on habeas revie w)

. Cole ma n v
. Thom ps on , 501 U. S. 722 , 729- 30 ( 1991)

. 1 6
8 Case: 09-70029 Document: 00511600010 Page: 8 Date Filed: 09/12/2011No. 09-70029

adequate state procedural grounds.” Here, the Texas Court of Criminal 1 7 Appeals refused to consider Hernandez’s Fifth Amend m ent claim because Hernandez failed to comply with Texas’s contemporaneous objection rule—he failed to objec t t o t he purportedly unconstitutional statements when the prosecution made them. Texas’s contemporaneous objection rule is an adequate and independent state procedural ground. Hernandez’s failure to comply with 1 8 it means he has defaulted his Fifth Amendment claim. However, exceptions to the procedural default rule exist. There are two. First, the prisoner “can demonstrate cause for the default and actual prejudice

as a result of the alleged violation of federal law

. ” S econd, the prisoner can 19 “demonstrate that failure to consider the [federal ] c l aim[] will result in a fun d a m e n tal miscarriage of justice.” These exceptions present significantly 2 0 higher hurdles for a prisoner t o successfully navigate than the plain error standard that we apply to unpreserved issues on direct appeal. 2 1 Here, Hernandez does not argue that these exceptions warrant waiver of his procedural default. He d o e s not contend that cause and prejudice exist: although he argued in his state habeas petition that his trial attorney’s failure
t o object to the prosecutor’s statements constituted ineffective assista n c e o f counsel, a form of cause, he failed to repeat that argument to the district court 2 2 below and he does not repeat it here. Nor does he contend that application of the

Id. at730

. 1 7
See Turn er v. Qu ar term an , 481 F.3d 292, 301 (5t h Cir. 2007) (ho ldi ng that the Texas 1 8 cont em por aneous objec tio n rule is “an ade quate pr oce dur al bar” (quo ting Do wthi tt v. Johns on , 230 F.3d733 , 752 (5t h Cir

. 2000) ))

.

Cole ma n , 501 U. S. at750

. 1 9
Id. 2 0
See Uni ted Sta tes v. Sha id , 937 F.2d228 , 232 (5t h Cir

. 1991) ( en banc)

. 2 1
Cole ma n , 501 U. S. at753 -54. 2 2
9 Case: 09-70029 Document: 00511600010 Page: 9 Date Filed: 09/12/2011No. 09-70029

procedural bar will result in a fundamental miscarriage of justice. He does not attempt to show, “as a f a c t u a l matter, that he did not commit the crime of conviction.” B e c a u se Hernandez fails to present an argument for the

2 3 application of either of the exceptions to the procedural default rule, no jurist could reasonably argue that the district court erred in finding Hernandez’s claim procedurally defaulted. Accordingly, Hernandez is not entitled to a COA on his Fifth Amendment claim. B W e a l s o deny Hernandez a COA on his claim for the alternative reaso n that, even if Hernandez could demonstrate that jurists of reason would find debatable the correctness of the district court’s procedural ruling, he still has not shown that reasonable jurists would find it debatable whether he has alleged a valid Fifth Amendment claim. The Fifth Amendment not only affords a criminal defendant the right not to testify at his trial, but also bars prosecutors from commenting on a criminal defendant’s exercise of that right. We ask two questions to determine whether 2 4

a prosecutor’s remarks were constitutionally impermissible. An affirmative

answer to either means that they were. First, we ask “whether the prosecutor’s manifest intent was to comment on the defendant’s silence.” “The prosecutor’s 2 5 intent is not manifest i f there is some other, equally plausible explanation for the remark.” Alternatively, we ask “whether the character of the remark was

2 6

Cantu v. Tha le r , 632 F.3d 157, 166- 67 (5t h Cir. 2011) (quo ting Fai rm an v. Ande rso n , 2 3 188 F.3d635 , 644 (5t h Cir

. 1999) ).

See Gr if fi n v. Cal if

orni a , 380 U. S. 609, 614- 15 (196 5); Uni ted States v. Gr osz , 76 F.3d 2 4 1318, 1326 (5t h Cir. 1996) (“ It is, of cour se , im pr ope r for a pr os ecut or t o c o m me nt on a def enda nt' s exerc ise of

hi s Fift h Am endm ent right s. ”)

. Grosz , 76 F.3d at 1326 (quo ting Uni ted States v. Coll ins , 972 F.2d 1385, 1406 (5t h Cir. 2 5 1992) ).
Id. ( cit ing Coll ins , 972 F.2dat140 6).

2 6
10 Case: 09-70029 Document: 00511600010 Page: 10 Date Filed: 09/12/2011No. 09-70029

such that the jury would naturally and necessarily construe it as a comment on the defendant’s silence.” With respect to this second inquiry, “the question is 2 7
not whether the jury possibly or even p r o b ab l y would view the challenged remark in this manner, but whether the jury necessarily would have done so.” 2 8 In answering these questions, we consider a prosecutor’s remarks “in the context of the case in which they are made.” 2 9 During closing arguments, Hernandez’s attorney asserted the following to the jury: You know Breedlove huddled with the officers right before he brought Jesse Hernandez at 5:00 o’clock a n d that’s crucial, important stuff. You know that Breedlove interrogated him for two hours w h e r e h e was sitting distance from here to here. Never noticed a sw o l l e n h and ever. Nothing. For two hours. Even watched him write the affidavit. Said it took him an hour.
I asked, “When you got him out of jail, do you remember a jailer saying he hit his hands on the wall pounding the cell?” “No, I don’t remember that.” Subsequently, on rebuttal, the prosecution remarked: Look, we hav en’t come in here and made promises that we can’t back up. We presented evidence to you that shows him guilty. We haven’t come in with innuendo. You know, where is this proof about him striking something over in the j a i l c a u s ing him to swell his hand? Where is that proof there? Yo u h a v en’t heard it from any

Id. ( quot ing Coll ins , 972 F.2d at 1406) ; see also Jac kson v. Johns on , 194 F.3d641 , 2 7 652 (5t h Cir. 1999) (“ For ther e to have been a deni al of one’ s [ F]if th [A] me ndm ent right to rem ain sil ent, the pr os ecut or’ s man ife st int e n t i n mak ing the rem ark mus t have been to com me nt on the def

enda nt’ s sil ence , or the char act er of the rem ark mus t have been suc h that the jury wo uld natur ally and nece ss aril y cons tru e it as a co m m e n t o n the def enda nt’ s sil ence .” ).
Gr osz , 76 F.3d at 1326 (quo ting Coll ins , 972 F.2d at 1406) (int erna l quot atio n mar ks

2 8
om itt ed)

. Uni ted States v. Johns ton , 127 F.3d 380, 396 (5t h Cir. 1997) (c itin g Uni ted States v.

2 9 Mo ntoya -O rtiz , 7 F. 3d 1171, 117 9 ( 5th Cir. 199 3))

. 11 Case: 09-70029 Document: 00511600010 Page: 11 Date Filed: 09/12/2011No. 09-70029

witness. We’re not the ones coming in here making these promises that we can’t back up. Hernandez argues that the prosecutor’s remarks violated the Fifth Amendment because the prosecutor’ s s t a t e ment that “[y]ou haven’t heard it from any witness” necessarily referred to Hernandez’s failure to testify. He summarizes his claim as follows: The evidence adduced at trial conclusively demonstrated that only three persons could possibly have knowledge of and testify regarding Petitioner’s bruised and swollen hand, which according to the State’s theory had been caused by Petitioner striking the deceased victim. Two of those three witnesses were peace officers
w h o were in fact called by the State to testify about the injurie s
. The only remaining wit n e s s who could offer any explanation as to how the injury occurred was Petitioner himself, who had i nvo k e d his constitutional right to remain silent. It is true that a Fifth Am e n d m e n t violation occurs when a prosecutor refers to a lack of evidence in support of a defendant’s theory when the comment necessarily refers to the defendant’s fa i l u re to testify. In United States v. Johnston , for example, we held that a Fifth Amendment violation occurred when

a prosecutor, in r e s p o n se to a witness’s testimony that no other person could corroborate his testimony about a number of activities, inquired on redirect “[A]ren’t there some people in this courtroom that can back up what you say?” 3 0 The prosecutor also simultane o u s l y “made a sweeping arm gesture indicating the individuals seated at counsel tables.” As we explained, a violation occurred 3 1 because: In responding to the cross-examination to the effect that there were no witnesses who c o u ld corroborate [the witness’s] testimony, the prosecutor implied that there were such people i n t h e courtroom, obviously referring to the defendants. No one else in the court room

Id. at397

. 3 0
Id. 3 1
12 Case: 09-70029 Document: 00511600010 Page: 12 Date Filed: 09/12/2011No. 09-70029

could have witnessed the events; only the d e fendants could reasonably be thought to be capable of providing corroboration. 3 2 In this case, however, one could plausibly i n t e r pret the prosecutor’s remarks as referring to the l a c k of corroboration for Hernandez’s story in the testimony of o t h e r a ctual and potential witnesses. The prosecutor could have been commenting on the lack of corroboration for Hernandez’s the o r y i n the testimony of Detectives Breedlove and Lesher, for example. Or the prosecutor could have been remarking on the failure of the defense to present the testimony of the jailer who allegedly saw Hernandez pounding his hands o n t h e jail cell. Indeed, when considered in context, it is not debatable in this case “(1) whether the prosecutor’s man i fest intent was to comment on the defendant’s silence or (2) whether the character of the remark was such that the jury would naturally and necessarily construe it as a comment on the defendant’s silence.” We thus 3 3 deny Hernandez a COA on his Fifth Amendment claim for the separate reason that jurists of reason would not find it debatable whether he has alleged a valid Fifth Amendment claim. He has not. * * * For the above reasons, we DENY Hernandez’s motion for a COA.

Id. 3 2
Grosz , 76 F. 3d at 1326 (quo ting Coll ins , 972 F.2dat140 6). 3 3
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