* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted without ora l argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court g enerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 26 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STEPHEN CRAIG BURNETT, Petitioner-Appellant, v. STEVE HARGETT, Respondent-Appellee. No. 97-5156 (D.C. No. 96-CV-334-H) (Northern District of Oklahoma)

ORDER AND JUDGMENT *

Before BRORBY , EBEL and KELLY , Circuit Judges.

In this habeas petition under 28 U.S.C. § 2254 (199 4), attacking the petitioner’s Oklahoma conviction for malicious inju ry to property, we conclude that the petitioner’s claim involving the effective ness of his court-appointed counsel is not barred by the exhaustion doctrine be cause it would be futile to require him to submit this claim in the Oklahoma st ate courts. Therefore, we1 The office of the Attorney General of the state of Oklahoma, counsel for

the appellee, initially declined to file a brief in this appeal on the grounds that no such brief was required under the new provisions of 28 U.S.C.A. § 2254 (West 1997 Supp.) until Burnett was issued a “certificate of appealability.” However, in an order filed December 13, 1997, we noted that Bur nett had filed his federal habeas petition before the April 24, 1996, effectiv e date of the Antiterrorism and Effective Death Penalty Act (AEDPA). As a result, under our decision in United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997) (footnot e circulated en banc), Burnett’s habeas petition is not controll ed by the “new” provisions of the habeas statute, and he was not required to appl y for a certificate of appealability. In the same order, we issued a cert ificate of probable cause under the standards of the “old” section 2254.

2 The statute under which Burnett was prosecuted prov ides in relevant part, A. Every person who maliciously injures, defaces o r destroys any real or personal property not his own. . . is guilty of: (continued...) - 2 - must remand this case to the district court for further consideration.

I. Stephen Craig Burnett filed a federal petition for a writ of habeas corpus under 28 U.S.C. § 2254 (1994) on February 13, 1996. 1 Burnett sought to challenge the constitutionality of his incarceratio n following his conviction in Tulsa County, Oklahoma, for maliciously spray-paint ing the walls and mirrors of the home where Burnett’s then-wife, Elizabeth Ann B urnett, lived. (See R., Tab A, “Petition for a Writ of Habeas Corpus.”) Burnett was charged with this crime in a criminal information alleging that this vandal ism was committed against property that was “not the property of said defendant.” 2 (See R., Tab E,2 (...continued)

. . . 2. a felony, if the damage, defacement or destruction causes a loss which is valued at . . . $2,500 or more. Okla. Stat. Ann. tit. 21, § 1760 (West 1998 Supp.) (emphasis added). This statute has been construed by Oklahoma’s courts as inapplic able to a case where a person has defaced or destroyed property belonging to hims elf. See McGlassen v. Oklahoma , 130 P. 1174 (Okla. Crim. App. 1913). We have bee n unable to locate any case construing this statute in the context of property that is owned in a joint tenancy between a husband and wife, where one of th e spouses has caused the damage.

3 The sentence in this case, CF-93-2277, was ordered to run consecutively with Burnett’s life sentence in a separate case, CF -93-3131. (See R., Tabs G & I.) In that separate case, Burnett had pleaded gui lty to murdering his wife some three months after the malicious injury to propertycharged in CF-93-2277. (See R., Tab A, at 5-A.) Burnett’s habeas petition in this case focuses sole ly on his conviction for malicious injury to property in Case CF-93-2277. ( See id. ) Burnett has specifically disclaimed any claim for relief in thi s habeas petition for any constitutional infirmities in his murder convictionin Case CF-93-3131, noting that he reserves the right to file a federal habeas challenge to that conviction at a (continued...) - 3 - “Information.”) This criminal information made no reference to the fact that under the general warranty deed for this property, Burnett and his wife owned their home as joint tenants with the right of survi vorship. (See R., Tab D, “General Warranty Deed.”) Nevertheless, Burnett pl eaded guilty to the charge in the criminal information after affirmatively tellin g the court that there was no legal cause for why he should not be found guilty. (See R., Tab G, “Judgment & Sentence on Plea of Guilty - Felony.”) Tulsa County District Judge Clifford E. Hopper then sentenced Burnett to five years in pris on. 3 (See id. )3 (...continued)

later time. (See id. ) Although the record does not specifically indicate so, we presume that Burnett currently is serving his five-year sentence for the malicious-injury-toproperty conviction. At no point in these proceedi ngs has the appellee suggested that Burnett is not in custody on the particular co nviction he is challenging here. (See R., Tab I, at 1.) - 4 - Following his conviction, Burnett did not file a di rect appeal, nor did he file a motion seeking to withdraw his guilty plea. (See R., Tab B, “Application for Post-Conviction Relief,” at 2.) Instead, on Ju ly 27, 1995, almost fifteen months after his conviction, Burnett filed an appli cation for post-conviction relief under Okla. Stat. Ann. tit. 22, § 1080 (West 1986). (See id. at 1.) In this application, Burnett alleged that he was factually innocent of the charge for which he was convicted because he was a joint owner of th e property that was damaged. (See id. at 4.) In a separate allegation under the heading “Entry of Plea,” Burnett also claimed that he was not informed by his appointed counsel from the Tulsa County Public Defender’s office that his offense of conviction required the state to prove that the property at issue was not owned b y him. (See id. ) Burnett said, “Had counsel properly informed petitioner of the pr inciples of 21 O.S. 1760 (A)(2) or had counsel informed the sentencing courtthat petitioner was the owner/co-owner of the property, the entry of the pl ea would have been prohibited by the sentencing Judge.” (Id. ) Burnett’s application for post-conviction relief wa s handled in the first- 5 -

instance by the state district judge who sentenced him, Judge Hopper. (See R., Tab I, “Order Denying Application for Post-Convicti on Relief.”) In a two-page order, the court did not address Burnett’s claims r egarding the legal scope of Oklahoma’s malicious injury to property statute. ( See id. at 1.) Instead, the court held that Burnett had failed to show that his guilty plea was not voluntarily and knowingly made. (See id. at 2.) The court also ruled, apparently as an alt ernative ground of decision, that Burnett’s failure to file a direct appeal waived all of the issues that he raised in his application because al l of these issues could have been raised on direct appeal. (See id. at 3.) Burnett appealed the Tulsa County decision to the O klahoma Court of Criminal Appeals, asserting that because he was a j oint owner of the property that was damaged, there could have been no crime under O kla. Stat. Ann., tit 21, § 1760, and as a result, the state court lacked juris diction to try the criminal charges. (See R., Tab K, “Brief in Support of Petition in Error, ” at 3.) Burnett also asserted that the trial court had failed to de termine the factual basis for his guilty plea, and this failure was a “fundamental er ror.” (See id. at 4.) In the course of making this argument, Burnett reiterated the claim he had made in his Tulsa County application that the entry of his guil ty plea had been tainted by the improper conduct of his counsel. (See id. at 5.) Burnett contended, “Petitioner was not informed by counsel or the sentencing courtthat ownership or co-- 6 -

ownership of the property would prohibit prosecutio n. . . . Petitioner pled without being properly and accurately informed of the appro priate legal principles, and after misleading and inaccurate information was pre sented to the Magistrate.” (Id. ) Following the state’s response to his brief, Burnett filed a motion with the Oklahoma Court of Criminal Appeals for permission t o file a supplemental brief. (See R., Tab M, “Motion to File Supplemental Brief & Me morandum of Law in Support.”) This motion reiterated his contention that his counsel was aware at the time of his guilty plea that he was the joint ownerof the property that had been damaged. (See id. at 1.) Burnett also argued in this motion that ce rtain other cases supported his application for post-convictionrelief, citing United States v. Galloway , 56 F.3d 1239 (10th Cir. 1995) (en banc), and Schl up v. Delo , 513 U.S. 298 (1995). The Gallowaydecision involved this circuit’s en banc ruling th at claims of ineffective assistance of counsel in fede ral habeas petitions under 28 U.S.C. § 2255 (1994) nearly always should be brought in collateral proceedings, and that there should be no procedural bar against raising a claim of ineffective assistance of counsel based on facts that might hav e been known at the time of a direct appeal. See Galloway , 56 F.3d at 1240-41. The Schlup decision involved the Supreme Court’s ruling on the proper standard f or considering a claim of actual innocence in a procedurally barred habeas pe tition when the claim of actual4 Burnett initially filed his federal habeas petition in the Western District of

Oklahoma, because that is the district encompassing the prison where Burnett has been incarcerated. (See R., Doc. #1, “Report & Recommendation,” at 2.) However, the case was transferred without objectionto the Northern District of Oklahoma, the district encompassing Tulsa County, w here Burnett had been convicted. (See id. ) - 7 - innocence is linked to a claim of ineffective assis tance of counsel. See Schlup , 513 U.S. at 323-27. Without addressing Burnett’s references to ineffect ive assistance of counsel and actual innocence, the Oklahoma Court of Crimina l Appeals relied on the alternative grounds of decision presented by the Tu lsa County court and held that Burnett had waived all of the claims raised in his application for post-conviction relief because he had failed to take a direct appea l. (See R., Tab L, “Order Affirming Denial of Post-Conviction Relief,” at 1-2 .) Two months after this last decision by Oklahoma courts on Burnett’s state appl ication, he filed his federal petition for a writ of habeas corpus. 4 (See R., Tab A.) In this petition, Burnett for the first time discus sed his “extremely confused mental state of mind” at the time of his arrest and conviction. (See id. at 5-A.) Burnett said that he had been prescribed large dose s of an anti-depressant medication, and he was taking this drug at the time he entered his plea on the malicious injury to property charge. (See id. ) Burnett then recounted the advice he received from his court-appointed public defende rs, contending that these- 8 -

lawyers counseled him to lie about the ownership of his home and about whether he was under the influence of drugs at the time of his plea. (See id. at 5-B.) In the final page of his summary of his claims, Burnett raised his claim of “actual innocence” based on his joint ownership of the prop erty that was damaged. (See id. at 5-C.) Burnett also asserted, “My counsel was i neffective in that they encouraged me to plead guilty to something that was not even a crime and ‘coached me’ in how to present this to the judge atthe plea bargain proceeding on April 26, 1994.” (Id. ) Finally, Burnett also said he “would like to inc orporate all of my legal arguments made prior to this time in th is petition.” (Id. ) The district court applied the rule of liberal cons truction to Burnett’s federal habeas petition, see Haines v. Kerner , 404 U.S. 519, 520 (1972), and concluded that his petition raised two claims: ine ffective assistance of counsel and an involuntary plea arising from the influence of anti-depressant medication. (See R., Doc. #9, “Order,” at 2.) The district court h eld that neither of these claims had been “fairly presented” in Burnett’s pri or state proceedings, and as a result, Burnett had failed to fulfill the exhaustio n requirement of 28 U.S.C. § 2254. (See id. at 3.) Relying on the Seventh Circuit’s standard for whether a habeas petitioner’s claims have been “fairly presented” in state proceedings, see Momient-El v. DeTella , 118 F.3d 535 (7th Cir.), cert. denied , 118 S. Ct. 448 (1997), the district court concluded that Burnett h ad failed to meet the exhaustion- 9 -

requirement of section 2254. The court found that Burnett had failed to meet the Seventh Circuit’s standard because “[p]etitioner di d not rely on pertinent federal cases to argue ineffective assistance of counsel, d id not rely on state cases applying constitutional analysis to a similar factu al situation, failed to assert the claim in terms so particular as to call to mind a s pecific constitutional right, and failed to allege a pattern of facts that is well wi thin the mainstream of constitutional litigation.” (R., Doc. #9, “Order,” at 4.) On appeal now, Burnett specifically disclaims any i ntent to raise a claim in his federal habeas petition involving the voluntari ness of his plea stemming from the medication he had been taking. (See Aplt. Opening Br., at 7.) In his brief, Burnett explains that his federal habeas petition w as intended to be focused on the “central problem . . . caused by the ineffective as sistance of Appellant’s two public defenders who encouraged him to lie in courtand coached him as to what to say. Appellant was only trying to further expla in this to the Federal District Court when he listed as one example of a lie he was told to tell regarding his taking of medication (doxepin) while in Tulsa County Jail.” (Id. ) Burnett also contends that any failure to exhaust his claim of i neffective assistance of counsel should be excused because of the futility of requir ing him to pursue the issue in Oklahoma state court. (See id. at 10.)- 10 - II. As a preliminary matter, we reiterate that Burnett’ s federal habeas petition is controlled by the standards under the “old” habe as statute prior to the passage of the Antiterrorism and Effective Death Penalty Ac t (AEDPA) because his petition was filed before the effective date of that statute. See Demarest v. Price , 130 F.3d 922, 931-32 (10th Cir. 1997). Nevertheles s, even under the “old” habeas provisions, a state prisoner bringing a fede ral habeas petition has the burden of showing that he has exhausted his state c ourt remedies. See Picard v.
Connor , 404 U.S. 270, 275 (1971). This requirement, codi fied in the habeas statute at 28 U.S.C. § 2254(b), “reflects a policy of federal-state comity, . . . ‘an accommodation of our federal system designed to giv e the State an initial opportunity to pass upon and correct alleged violat ions of its prisoners’ federal rights.’” Picard , 404 U.S. at 275 (quoting Wilwording v. Swenson , 404 U.S. 249, 250 (1971)) (other citations omitted). The Supreme Court has explained that a state prison er can fulfill the exhaustion requirement by demonstrating that he has “provide[d] the state courts with a ‘fair opportunity’ to apply controlling lega l principles to the facts bearing upon his constitutional claim. . . . It is not enou gh that all the facts necessary to support the federal claim were before the state cou rts, . . . or that a somewhat similar state-law claim was made. . . . In addition , the habeas petitioner must have5 We need not address the district court’s reliance o n the Seventh Circuit’s

standard for “fair presentation.” See Momient-El v. DeTella , 118 F.3d 535, 538- 39 (7th Cir.), cert. denied , 118 S. Ct. 448 (1997). Relying on the Tenth Circ uit’s own precedents, we reach the same conclusion as the district court, i.e., that Burnett did not fairly present his claim of ineffec tive assistance of counsel to the Oklahoma state courts. - 11 - ‘fairly presented’ to the state courts the ‘substan ce’ of his federal habeas claim.” Anderson v. Harless , 459 U.S. 4, 6 (1982) (per curiam). This “fair pr esentation” requirement, however, does not go so far as to requ ire a habeas petitioner to recite certain magic words to invoke a particular claim: “[W]e do not imply that respondent could have raised [his claim] only by ci ting ‘book and verse on the federal constitution.’ . . . We simply hold that th e substance of a federal habeas corpus claim must first be presented to the state c ourts.” Picard , 404 U.S. at 278 (quoting Daugherty v. Gladden , 257 F.2d 750, 758 (9th Cir. 1958)); see also Nichols v. Sullivan , 867 F.2d 1250, 1252 (10th Cir. 1989) (“[A] failur e to invoke talismanic language (cite ‘book and verse’ of the c onstitution) should not be the basis for a finding of nonexhaustion.”). We have applied this rule of “fair presentation” in any number of habeas cases in whic h we have held that the crucial inquiry is whether the “substance” of the p etitioner’s claim was presented to the state courts. 5 See, e.g. , Demarest , 130 F.3d at 932; Nichols , 867 F.2d at 1252; Jones v. Hess , 681 F.2d 688, 693 (10th Cir. 1982).- 12 - A. Applying the Picardrule for “fair presentation” to Burnett’s claim of ineffective assistance, we conclude that Burnett fa iled to give the Oklahoma courts a fair opportunity to pass on the legal issu es that would control the claim he now raises with us. Burnett’s factual allegatio n of attorney misconduct by his court-appointed counsel remained constant throughout Burnett’s pro se postconviction pleadings in the state courts. (Compare R., Tab B, at 4 withR., Tab K, at 5. See also R. Tab A, at 5-C.) Construing these factual alleg ations liberally, they normally would have suggested to a reviewing court that Burnett’s claim included an allegation of inappropriate and i neffective conduct by his courtappointed lawyers. However, Burnett couched his fa ctual allegations in legal claims relating to the trial court’s jurisdiction a nd the voluntariness of his plea. (See R., Tab B, at 4; R., Tab K, at 5.) It was only wh en he filed his Motion to File Supplemental Brief that Burnett came close to putting the Oklahoma Court of Criminal Appeals on notice that his post-convictioncase involved potential issues of ineffective assistance of counsel. (See R., Tab M, at 1 (citing Schlup v. Delo , 513 U.S. 298 (1995), and United States v. Galloway , 56 F.3d 1239 (10th Cir. 1995) (en banc)).) However, the Court of Criminal Appeals denied this motion, and we cannot construe Burnett’s stray citations ina motion that was denied as sufficient to meet the Picardstandard.- 13 -

Burnett’s claim of ineffective assistance of counse l falls well below the level of “fair presentation” that we found sufficie nt in Nichols . See Nichols , 867 F.2d at 1252-53. In Nichols , this court found that a habeas petitioner had presented the “substance” of his due process claim of prosecutorial misconduct when the petitioner had cited the Fifth Amendment’s due process clause in his docketing statement before the New Mexico Court of Appeals. Id. at 1253. Although the habeas petitioner nowhere else labeledhis claim as one alleging a violation of due process, or ever correctly labeled his claim as one arising under the Fourteenth Amendment, the citation in the docke ting statement was sufficient to put the New Mexico courts on notice that the pet itioner wished the court to apply the legal standards for a due process claim. See id. In Burnett’s case, however, his stray citations to a pair of potentially relevant federal cases came at the very end of the state-court review process, in a motion that was denied. Although we do not require a habeas petitioner to recite the words “ineffective assistance of counsel” as so me kind of talismanic incantation, see Nichols , 867 F.2d at 1252, we do require that a claim of ineffective assistance of counsel not be camouflage d within a welter of other claims. As a result of our conclusion that Burnett did not adequately present his claim of ineffective assistance to the Oklahoma cou rts, we agree with the district- 14 -

court’s conclusion that Burnett failed to meet the exhaustion requirement of 28 U.S.C. § 2254. This conclusion, however, does not e nd our inquiry. Burnett has argued that an exhaustion requirement in his case w ould be futile. (See Aplt. Br. at 10.) If Burnett’s claim of futility is correct, then the district court erred in dismissing Burnett’s allegation of ineffective assi stance of counsel. The Tenth Circuit, along with many other courts, ha s recognized that the exhaustion requirements for a state prisoner’s habe as petition may be waived when the petitioner demonstrates that requiring himto bring his federal constitutional claim in the state courts would be “ futile.” See Wallace v. Cody , 951 F.2d 1170, 1171 (10th Cir. 1991); Goodwin v. Ok lahoma , 923 F.2d 156, 157 (10th Cir. 1991) (citing cases in the First, Seventh, Eighth, and Ninth circuits). The futility rule in Wallace and Goodwinwas applied in contexts where the Oklahoma state courts had recently issued decisions in other cases that were directly on point with the constitutional claims ra ised by the habeas petitioners.
See Wallace , 951 F.2d at 1170-71; Goodwin , 923 F.2d at 157-58. In that context, we concluded that it would be pointless to require the habeas petitioners to exhaust their state remedies when it was clear whatresult would obtain: “In such a case, resort to state judicial remedies would be futile.” Goodwin , 923 F.2d at
157. In addition to this rationale for waiving the exhau stion requirement -- i.e.,- 15 -

when there is a recent, adverse state court decisio n disposing of the precise point raised by the petitioner -- the Supreme Court also has approved the application of the futility exception in situations where a proced ural doctrine in the state courts would prevent a habeas petitioner from pursuing his unexhausted claim. See Harris v. Reed , 489 U.S. 255, 263 n.9 (1989) (“Of course, a feder al habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally b arred.”); see also Grey v. Hoke , 933 F.2d 117, 120 (2d Cir. 1990) (applying the futility rule in Harris to waive the exhaustion requirement of section 2254 be cause of a state procedural bar). As Justice O’Connor noted in her concurrence in Harris , one of the dangers in strictly applying the exhaustion requirement in cases where exhaustion would be futile is that a dismissal in such circumstances “would often result in a game of judicial ping-pong between the state and federal co urts, as the state prisoner returned to state court only to have the state proc edural bar invoked against him.” Harris , 489 U.S. at 270 (O’Connor, J., concurring). In Burnett’s case, we have no doubt that Oklahoma’s courts would refuse to consider his claim of ineffective assistance of cou nsel. A well-established line of cases in Oklahoma has made it clear that Oklahoma c ourts may not consider an allegation of ineffective assistance in a post-conv iction collateral attack when the petitioner knew the facts supporting his allegationat the time of his direct appeal.- 16 -

See Walker v. State , 933 P.2d 327, 332 (Okla. Crim. App.) (“[T]his Cou rt may not review [petitioner’s] claims of ineffective ass istance of trial counsel if the facts generating those claims were available to [pe titioner’s] direct appeal attorney and thus either were or could have been us ed in his direct appeal.”), cert. denied , 117 S. Ct. 2524 (1997); Berget v. State , 907 P.2d 1078, 1084-85 (Okla. Crim. App. 1995) (criticizing the Tenth Circuit’s r ule under United States v. Galloway , 56 F.3d 1239 (1995) (en banc), requiring ineffect ive assistance claims to be brought on collateral review rather than dire ct attack, and noting that in Oklahoma’s courts, “[a]ppellants claiming ineffecti ve assistance of counsel are still required to raise the ineffective assistance claim on direct appeal”). Under Oklahoma’s procedural doctrines for post-convictionrelief, the only claim of ineffective assistance that may be heard is a claim based on facts that were not discoverable at the time the petitioner might have brought a direct appeal. See Hooker v. State , 934 P.2d 352, 354-55 (Okla. Crim. App. 1997) (dis missing claims of ineffective assistance of counsel broughtin a post-conviction collateral attack because the facts supporting the claims were known at the time of the petitioner’s direct appeal). Furthermore, Oklahoma’s procedural rules for claims of ineffective assistance would clearly prevent Burnett from raisi ng his particular claim in the Oklahoma courts now. The factual premise of Burnett ’s claim involves events that6 Also, Burnett’s federal habeas claim of ineffective assistance is not barred

in federal court by the state procedural default ar ising from Burnett’s failure to allege the ineffective assistance claim in a directappeal. The Tenth Circuit has refused to impose a procedural bar in federal courtagainst federal habeas claims of ineffective assistance under circumstances simil ar to those presented here, ruling that Oklahoma’s judicial doctrine that refus es to consider ineffective counsel claims on collateral review is not an “adeq uate” state-law ground creating a procedural bar in a federal court. See Brecheen v. Reynolds , 41 F.3d 1343, 1362 (10th Cir. 1994). Thus, Burnett’s failure to comply with Oklahoma’s judicial doctrine requiring him to raise his claim of ineffective assistance in a direct appeal will not procedurally bar him from ra ising the claim in a proper federal habeas petition. See id.

- 17 - were known to him at the time he could have broughta direct appeal, i.e., that his attorney encouraged him to lie and that his attorne y was aware he was a joint owner of his wife’s home. (See R., Tab A, at 5-B.) As a result, it would be futi le to require Burnett to exhaust his ineffective assis tance claim in the Oklahoma courts -- as the Oklahoma Court of Criminal Appeals already has noted in Burnett’s first state post-conviction proceeding, “ He has not raised any issues that he could not have raised in a motion to withdraw hi s guilty plea or in an appeal of his conviction. Therefore, the right to raise the issues has been waived.” (R., Tab L, at 2.) Because exhaustion would be futile, we hold that Burnett’s federal habeas claim of ineffective assistance of counsel i s not barred by the exhaustion requirement of 28 U.S.C. § 2254(c). 6- 18 - B. As for Burnett’s habeas claim regarding his use of prescription medication prior to his guilty plea, it seems clear that the d istrict court did not err in construing Burnett’s allegations on this issue as r aising a new claim for relief. However, in light of Burnett’s vigorous efforts on appeal to disclaim any intent to raise a new habeas claim, we conclude that Burnett has waived this potential claim for relief. As a result, we need not address this issue.

III. In summary, we hold that it would be futile to requ ire Burnett to exhaust his claim of ineffective assistance of counsel, and thus, we REVERSE the judgment of the district court and REMAND this case for further review.

The mandate shall issue forthwith.
ENTERED FOR THE COURT

David M. Ebel Circuit Judge