According to the petitioner (and his father) the petitioner’s 1

name is Freddie Byers, III, and his father’s is Freddie Byers, Jr.

Given that the parties on appeal refer to petitioner as “Jr.” and

the caption is officially “Jr.,” we use “Jr.” in this opinion.

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1833

FREDDIE L. BYERS, JR.,

Petitioner-Appellant,

v.

JAMES BASINGER, Superintendent

of the Wabash Valley Correctional Facility,

Respondent-Appellee.

Appeal from the United States District Court 

for the Northern District of Indiana, South Bend Division.

No. 08 CV 240—Allen Sharp, Judge.

ARGUED FEBRUARY 25, 2010—DECIDED JULY 9, 2010

Before CUDAHY, EVANS, and SYKES, Circuit Judges.

CUDAHY, Circuit Judge. After a jury trial, the petitioner,

Freddie Byers, Jr., was convicted of two counts of first- 1

degree murder, one count of attempted murder and one
2 No. 09-1833

count of robbery. The Supreme Court of Indiana

affirmed on direct appeal, Byers v. Indiana, 709 N.E.2d

1024 (Ind. 1999), and, after the Indiana Court of Appeals

denied his petition for post-conviction relief, 878

N.E.2d 542, 2007 WL 4531828 (Ind. App. Ct. Dec. 27,

2007), the Indiana Supreme Court denied transfer,

891 N.E.2d 41 (Ind. 2008). The district court denied

Mr. Byers’ habeas petition, in which Mr. Byers argued

that his trial counsel performed deficiently. Byers v.

Superintendent, No. 3:08 cv 0240 AS, 2009 WL 537662

(N.D. Ind. Mar. 4, 2009). We granted Mr. Byers a certificate of appealability on the question whether he had

been denied effective assistance of counsel. We affirm

the district court’s denial because, even if Mr. Byers

successfully exhausted his claim, it lacks merit.

I. Background

Mr. Byers was convicted based on the following events.

On January 30, 1997, James Edison, a guest at Bennie

Spears and Almeka Dodds’ house in South Bend, opened

the door to “Flint” (a/k/a petitioner Mr. Byers) and “Gill.”

Banter among the men quickly turned serious. Dodds, in

the next room, heard Spears warning Flint not to point his

gun at Spears and then heard it discharge. She entered

to see Flint, who had visited their home a “whole bunch

of times,” holding a gun and Spears shot and wounded

on the ground. Flint grabbed Dodds by the hair and

demanded she tell him where the money was, while Gill

locked Dodds’ children in the bathroom. Flint instructed

Gill to cut Edison’s neck with a kitchen knife and to
No. 09-1833 3

take Dodds to the basement and shoot her in the head.

Luckily for Dodds, Gill was unskilled at his first task,

and Edison attempted an escape out the window. Both

Flint and Gill pursued Edison and shot him. Back in

the home, they fired bullets into the basement where

Dodds hid, but did not hit her. She ran to a neighbor’s

house once she thought her house was clear. The police

arrived to find Dodds’ children locked in the bathroom,

unharmed. Edison and Spears died of their wounds.

Dodds told the police the shooter she called Flint or Fred

had crooked teeth and a scar on his face. Dodds also

suggested that the police already had a picture of Flint

from an incident at Flint’s girlfriend’s house on the

evening of a prize fight. They did have such a photo,

and Dodds identified Flint in an array.

At trial, Dodds was the prosecution’s main witness.

No physical evidence or usable fingerprints linked

Mr. Byers to the offense. To demonstrate the errors in

Dodds’ initial description of Flint, Mr. Byers walked in

front of the jurors to show them that his teeth were

straight and his face scarless. During a test run of this

walk before the jury entered, the trial judge asked:

“What’s [Mr. Byers’] anklet thing? Is that visible?

Mr. Byers, come over here please. 

It’s okay. That’s not so bad. Okay.”

At an evidentiary hearing in post-conviction proceedings, Mr. Byers contended that this “anklet thing”

was a shackle or restraint. At trial, the court made no

findings about Mr. Byers’ need for shackles or restraints
4 No. 09-1833

in the courtroom. Indeed, there was no discussion of

Mr. Byers’ wearing restraints in court apart from the

anklet-related comments of the trial judge.

Mr. Byers’ trial was interrupted by several spectators’

outbursts. In a sidebar prior to his opening statement, the

prosecutor noted comments from the gallery—possibly

by the victims’ families, although the exact words or the

identities of the speakers do not appear in the trial

record—while the court read the preliminary instructions. The prosecutor suggested that the court admonish

the spectators to be respectful; Mr. Byers’ trial counsel

agreed and the court did so after excusing the jury. At

his post-conviction hearing, Mr. Byers testified that, at

this point in the trial, Dodds’ mother and sister said “you

guilty mother fucker, I hope you fry. We shouldn’t be

having a trial anyway, you know you’re guilty, you

know you did it. Things of that nature.” Mr. Byers

testified that the jury heard Dodds’ relatives but that he

was paying attention to his lawyer at the time and not

looking at the jury. Later, during Dodds’ testimony,

authorities removed Dodds’ brother from the courtroom,

possibly for outstanding warrants. Dodds’ mother,

Ms. Jeannie Dunlap, reacted by apparently shouting and

making a scene and, after excusing the jury, the trial court

addressed her and eventually jailed her overnight for

contempt of court. Mr. Byers testified that he knew the

jurors heard this incident because their heads turned.

After these interruptions and at various points during the

trial, after excusing the jury, the judge admonished the

spectators to maintain proper courtroom decorum out of

respect for the jury’s difficult job. At his post-conviction
No. 09-1833 5

Mr. Byers’ trial and appellate counselors testified via 2

affidavits that they had no recollection of the proceedings

or their strategy independent of the record evidence.

hearing, Mr. Byers described a third incident, although

there is no record of it, when two girls taunted “you

are going to get found guilty, you gonna get found

guilty.” Mr. Byers testified that he wasn’t sure that the

jury heard them. Defense counsel never objected, nor

requested jury questioning nor moved for a mistrial

based on the disruptions.

Mr. Byers had not testified at his trial. His lawyer

argued that, on the day in question, Mr. Byers was with

his very-pregnant girlfriend, where they were watching

movies at Mr. Byers’ father’s house in Chicago. Mr. Byers’

father and girlfriend corroborated this story. The jury

convicted Mr. Byers on all counts, and he was sentenced

to the maximum 200 years’ imprisonment. As noted, the

conviction and sentence were affirmed on direct appeal.

See Byers v. Ind., 709 N.E.2d 1024 (Ind. 1999).

Mr. Byers collaterally attacked his conviction based

on ineffective assistance of counsel and other grounds.

At all levels of state post-conviction review, he asserted

an ineffective-assistance-of-counsel claim based on the

failure of trial counsel to address the outbursts at trial

(the outbursts ground). The post-conviction courts

denied relief on this ground because he failed to show

that some of the outbursts occurred or that any juror or

prospective juror heard the spectators’ statements, and,

therefore, he failed to prove deficient performance.2

2007 WL 4531828, at *6. In federal habeas proceedings,
6 No. 09-1833

the district court held that Mr. Byers’ claim failed

because the outbursts did not call into question

Mr. Byers’ guilt and because there was no evidence

that the jury was prejudicially affected. 2009 WL 537662,

at **3-4.

Unlike his outbursts ground, Mr. Byers was less consistent in his attempt to exhaust his claim based on trial

counsel’s failures to object to Mr. Byers’ purported restraints at trial and to demand that the trial judge

make findings before allowing Mr. Byers to appear

before the jury in restraints (the restraints ground). At

an evidentiary hearing before the state post-conviction

trial court, Mr. Byers submitted a list, including the

simple word “restraints,” of issues his post-conviction

counsel had inadequately addressed. Mr. Byers also

testified that he was in restraints during trial, that his

trial counsel didn’t address his request to remove the

restraints and that the judge made no findings that restraints were necessary. Mr. Byers claimed that the

trial judge and jury knew he was restrained because he

had to walk in front of them when he showed them

his teeth. Mr. Byers, however, did not testify explicitly

that the jury saw the restraints. The post-conviction

trial court ordered Mr. Byers’ post-conviction counsel

to file a supplemental amended petition to address

Mr. Byers’ list. In complying, counsel argued that no

further evidentiary hearing was warranted and argued

that Mr. Byers’ “restraints” issue had no merit:

In this case defendant was required to wear ankle

restraints throughout the trial and on at least one

occasion, appeared before the jury in those re-
No. 09-1833 7

Mr. Byers styled this filing “Motion to Proceed with Post- 3

Conviction Relief Evidentiary Hearing,” but did not request

an evidentiary hearing in the body of the Motion. He concluded: “Wherefore the Petitioner prays that this Court will

Grant this Motion to Proceed With the Post-Conviction Relief

Evidentiary Hearing’s portion of Findings of Fact and Con-

(continued...)

straints. Trial counsel could, and probably should

have requested a mistrial based upon the ankle restraint observation by the jury. Which is deficient

performance on the part of counsel. However, it

would be difficult to show any resulting harm at

the time it occurred and certainly near impossible

at this point in time. Such a showing would

necessitate contemporaneous voir dire of the jury

for existence of any prejudice to the defendant’s

fair trial rights prior to establishing grounds for a

mistrial request. Such an inquiry cannot be made at

the present later date. . . . The general rule precludes

presenting a defendant to the jury in handcuffs or

shackles, but a court may need to do so in certain

exceptional circumstances when restraint is necessary to prevent the escape of the prisoner, to protect

those in the courtroom, or to maintain order.

Mr. Byers, not satisfied, moved the court to strike the

supplemental amended petition and asked for time to

find a new counsel. Mr. Byers failed to find substitute

counsel and requested that his post-conviction counsel

continue representation, which had the effect of abandoning his motion. His post-conviction petition was 3
8 No. 09-1833

(...continued) 3

clusions of Law; and any other pleading that this Court deems

to be just and proper in the Premises.”

denied. Byers v. Indiana, No. 71DO4-9701-CF-0059 (St.

Joseph County Ct. Feb. 6, 2007). Before the state postconviction appellate court Mr. Byers, acting pro se,

attacked post-conviction counsel’s performance based

on his restraints at trial (although he cited caselaw discussing federal law relating to trial counsel and restraints:

Roche v. Davis, 291 F.3d 473, 483 (7th Cir. 2002); Wrinkles

v. Indiana, 749 N.E.2d 1179, 1195 (Ind. 2001)). The

appellate court denied his petition based on Mr. Byers’

non-constitutional claim of ineffective assistance of postconviction counsel without discussing his trial counsel’s

performance regarding his restraints. 2007 WL 4531828,

at *5-8. After the Supreme Court of Indiana denied

transfer, Byers v. State, 891 N.E.2d 41 (Ind. 2008),

Mr. Byers filed a federal habeas petition. The district

court found that Mr. Byers had procedurally defaulted

(by failing to exhaust) his restraints ground because Mr. Byers proceeded with post-conviction counsel

knowing that his counsel would argue against his restraints ground. See 2009 WL 537662, at *3.

II. Discussion

A. Mr. Byers did not exhaust his claim on the restraints ground. 

We cannot review a habeas petitioner’s constitutional

issue unless he has provided the state courts with an
No. 09-1833 9

opportunity to resolve it “by invoking one complete

round of the state’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see

28 U.S.C. § 2254(b)(1)(A). A petitioner must fairly present

his federal claims to the state courts by arguing both

the law and the facts underlying them. Baldwin v. Reese,

541 U.S. 27, 29, 32 (2004) (explaining that, to comply

with the requirement that the claims assert violations of

the federal constitution, the petitioner may simply label

his claim “federal” or cite cases that decide the claim on

federal grounds); Stevens v. McBride, 489 F.3d 883, 894

(7th Cir. 2007); Anderson v. Benik, 471 F.3d 811, 815 (7th

Cir. 2006). “[T]he burden is on the petitioner to raise

his federal claim in the state court at a time when state

procedural law permits its consideration on the merits,

even if the state court could have identified and

addressed the federal question without its having been

raised.” Bell v. Cone, 543 U.S. 447, 451 n. 3 (2005) (citing

Baldwin). We use four factors to evaluate whether a petitioner has “fairly presented” his claim: “1) whether the

petitioner relied on federal cases that engage in a constitutional analysis; 2) whether the petitioner relied on

state cases which apply a constitutional analysis to similar

facts; 3) whether the petitioner framed the claim in terms

so particular as to call to mind a specific constitutional

right; and 4) whether the petitioner alleged a pattern of

facts that is well within the mainstream of constitutional

litigation.” See White v. Gaetz, 588 F.3d 1135, 1139 (7th

Cir. 2009).

When a petitioner has not properly asserted his

federal claims at each level of review and it is clear that
10 No. 09-1833

the state courts would now hold those claims procedurally barred, federal courts may not address those

claims unless the petitioner demonstrates cause and

prejudice or a fundamental miscarriage of justice if the

claims are ignored. See McGee v. Bartow, 593 F.3d 556,

565 (7th Cir. 2010); Woods v. Schwartz, 589 F.3d 368, 373

(7th Cir. 2009). Mr. Byers argues that he exhausted the

factual basis for his restraints claim by arguing it in

(a) his attorney’s post-conviction supplemental amended

petition, (b) his pro se Verified Motion to Strike and

(c) his pro se appellate brief.

1. Post-conviction proceedings.

Even though Mr. Byers presented his restraints ground

to the trial court through his supplemental amended

petition, he did not present it on appeal. Mr. Byers, appearing pro se, presented an ineffective-assistance-ofpost-conviction-counsel claim rather than an ineffectiveassistance-of-trial-counsel claim. At different levels of

post-conviction or habeas proceedings a “petitioner may

reformulate [his] claims so long as the substance of the

claim remains the same.” Sweeney v. Carter, 361 F.3d 327,

333 (7th Cir. 2004) (finding exhaustion because all claims

focused on counsel’s advice regarding a use-immunity

agreement even though he asserted varying amendments as the basis for the claim); see also United States

v. Fairman, 707 F.2d 936, 940 (7th Cir. 1983). But, we have

held that an ineffective-assistance-of-post-convictioncounsel claim does not exhaust an ineffective-assistance-oftrial-counsel claim because the claims are more than a
No. 09-1833 11

variation in legal theory. See Howard v. O’Sullivan, 185

F.3d 721, 724-26 (7th Cir. 1999) (explaining that there is

no constitutional guarantee of post-conviction trial counsel); see also Spreitzer v. Schomig, 219 F.3d 639, 645-47

(7th Cir. 2000) (holding that petitioner did not present

his ineffective-assistance-of-sentencing-counsel claim to

the Illinois Supreme Court when he raised an ineffectiveassistance-of-post-conviction-counsel claim).

Howard and Spreitzer’s petitioners, however, were

represented by counsel. See Spreitzer, 219 F.3d at 645;

Howard, 185 F.2d at 725. Mr. Byers, as noted, appealed

his post-conviction petition pro se, and a court should be

willing to construe more liberally a pro se litigant’s

claims than those of a counseled litigant. See Haines v.

Kerner, 404 U.S. 519, 520 (1972). For example, we have

excused the error of a pro se petitioner who simply mislabeled his claim. See Lewis v. Sternes, 390 F.3d 1019, 1027

(7th Cir. 2004) (holding that a pro se post-conviction

petition making a claim labeled ineffective assistance of

trial counsel for failure to make a Brady claim could be

interpreted as simply making a Brady claim, based on

the actual language of the petition).

Applying these standards, we find that Mr. Byers

did not exhaust his restraints claim. In his pro se state

post-conviction appellate brief, Mr. Byers raised

several claims: ineffective assistance of post-conviction

counsel for failure to represent petitioner in a manner

that comports with due process of law, and ineffective

assistance of both trial and appellate counsel for failure

to adequately address the outbursts at trial. Mr. Byers’
12 No. 09-1833

There is no question that Mr. Byers subsequently addressed

4

the claim in his appeal to the Supreme Court of Indiana.

arguments about his restraints at trial are tightly couched

in an argument about the ineffective assistance of postconviction counsel. Even with the liberal trend marked

by Baldwin and the generous construction we give to

pro se petitioners’ claims, Mr. Byers did not meet his

burden of fair presentment on appeal given the variation in legal theories between his post-conviction proceedings and his state appeal, namely his presentment

of his restraints claim only as representing ineffectiveness of post-conviction counsel.4

2. Cause and prejudice.

Alternatively, Mr. Byers claims he demonstrated cause

and prejudice to excuse his default because his postconviction counsel, acting as Mr. Byers’ agent, failed to

satisfy his duties to his principal by ignoring Mr. Byers’

directives to raise the restraints claim. Wainwright v.

Sykes, 433 U.S. 72 (1977). Mr. Byers cites Clemmons v. Delo,

for this agency-law-based argument. See 124 F.3d 944, 947-

49 (8th Cir. 1997) (finding petitioner exhausted his

claims when he moved the state supreme court to

allow him to raise them when his counsel refused to).

But, as Mr. Byers acknowledges in explicitly declining to

make this argument, ineffectiveness of post-conviction

counsel does not supply “cause” in the cause-and-prejudice formula. See Coleman v. Thompson, 501 U.S. 722, 753
No. 09-1833 13

Mr. Byers does not argue that a fundamental miscarriage 5

of justice excuses his default.

(1991); Szabo v. Walls, 313 F.3d 392, 397 (7th Cir. 2002).

Mr. Byers has not demonstrated “cause” sufficient to

excuse his default.5

3. Evidentiary hearing.

Mr. Byers also requests an evidentiary hearing. A

federal court is precluded from holding an evidentiary

hearing on a habeas claim if the petitioner “failed to

develop the factual basis of [the] claim in State court

proceedings.” 28 U.S.C. § 2254(e)(2); see also Williams v.

Taylor, 529 U.S. 420, 437 (2000); Allen v. Buss, 558 F.3d 657,

664 (7th Cir. 2009). In the present case, the post-conviction

trial court asked the parties to request an additional

evidentiary hearing if necessary after Mr. Byers’ postconviction counsel investigated Mr. Byers’ claims, including the restraints ground. Mr. Byers then proceeded

with counsel whose supplemental amended petition

argued that there was no need for a further evidentiary

hearing. Accordingly, under 28 U.S.C. § 2254(e)(2), we

are precluded from providing Mr. Byers an evidentiary

hearing on this claim.

B. Mr. Byers did not establish a violation of his right

to effective assistance of counsel.

Mr. Byers’ ineffective-assistance-of-counsel claim

related to the outbursts at trial fails on the merits. To
14 No. 09-1833

prevail on an ineffective-assistance-of-trial-counsel claim,

the petitioner must demonstrate that (a) his counsel’s

performance fell below an objective standard of reasonableness and (b) the counsel’s errors so prejudiced his

defense that it deprived him of a fair trial. Strickland

v. Wash., 466 U.S. 668, 687-88 (1984); Starkweather v. Smith,

574 F.3d 399, 402 (7th Cir. 2009). To show prejudice,

Mr. Byers must prove “that there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S.

at 694.

The Indiana Court of Appeals addressed Mr. Byers’

outbursts ground on the merits, and we review that

court’s decision under the limitations imposed by the

Antiterrorism and Effective Death Penalty Act (AEDPA).

Under the AEDPA, a federal court may grant habeas

relief only if the state court’s adjudication of the petitioner’s constitutional claims was based on unreasonable

fact-finding or was contrary to, or involved an unreasonable application of, clearly established federal law or

an unreasonable determination of the facts. 28 U.S.C.

§ 2254(d). Whether a state ruling runs afoul of these

AEDPA standards is a legal determination we review

de novo, but the district court’s factual determinations

are reviewed for clear error. See Smith v. Grams, 565

F.3d 1037, 1043 (7th Cir. 2009).

Mr. Byers first argues that the state court wrongly

rejected his claim that additional outbursts, absent from
No. 09-1833 15

the record, also occurred at trial. The trial record

reveals two disturbances: spectator’s comments as

noted by the prosecutor before opening argument and

Ms. Dunlap’s commotion. Mr. Byers testified at his evidentiary hearing that during the first recorded disturbance

and during a third, unrecorded disturbance, the victim’s

family or other gallery members made comments

about his guilt. The state appellate court reasonably

concluded that there was no factual basis for finding

that the spectators’ outbursts occurred in the manner

Mr. Byers claimed they had. See 2007 WL 4531828, at *6;

28 U.S.C. § 2254(e); Rever v. Acevedo, 590 F.3d 533, 537

(7th Cir. 2010) (“Section 2254(e)(1)’s text makes . . . clear:

‘a determination of a factual issue made by a State

court shall be presumed to be correct.’ ”).

Mr. Byers next contends that the Indiana Court

of Appeals misapplied Strickland when it held that he

did not prove the requisite prejudice at trial. “The bar

for establishing that a state court’s application of the

Strickland standard was ‘unreasonable’ is a high one,

and only a clear error in applying Strickland will support

a writ of habeas corpus.” Allen v. Chandler, 555 F.3d

596, 600 (7th Cir. 2009). While it is well established that

a defendant’s due process rights include a right to an

unbiased and impartial jury, it is equally clear that not

every outburst or disruption warrants a new trial. See

United States v. Olano, 507 U.S. 725, 738 (1993) (holding

that, because “[i]t is virtually impossible to shield jurors

from every contact or influence that might theoretically

affect their vote,” a new trial is only required where

there is discernible prejudice); Irwin v. Down, 366 U.S.

717, 728 (1961).
16 No. 09-1833

We have no record evidence of what was said, and

we cannot not find prejudice stemming from ambiguous

or innocuous comments. In Whitehead v. Cowan, we

found “innocuous” a victim’s mother’s outburst asking

petitioner why he had killed her daughter—an outburst

that occurred when the jury was seated but the judge

had stepped out. See 263 F.3d 708, 724-25 (7th Cir. 2001);

see also United States v. Al-Shahin, 474 F.3d 941, 949

(7th Cir. 2007). In our case, of course, the disturbances

occurred when the trial judge was able to monitor and

address them immediately—which he did by excusing

the jury and admonishing the spectators to maintain

proper etiquette. At the end of trial, the judge questioned the jury, and not one juror indicated that the

disturbances or any other event affected his or her ability

to render a fair verdict. See Whitehead, 263 F.3d at 726.

Lastly, Mr. Byers attempts to prove prejudice with a

juror’s affidavit in which she testifies that Ms. Dunlap’s

scene frightened her. The government contends that

Mr. Byers has not made the requisite showing, under

§ 2254(e)(2), to allow us to consider the affidavit because

it was first presented to the district court. Williams,

529 U.S. at 432. The district court, without deciding

whether Mr. Byers satisfied § 2254(e)(2), concluded that

the affidavit did not provide evidence that the juror was

incapable of making a fair or impartial decision. We

agree: the affidavit is irrelevant. We will not presume

that the juror was unable to follow instructions just because she was frightened by Ms. Dunlap’s commotion at

trial, and certainly not that Mr. Byers’ trial would

have ended with a not-guilty verdict. Mr. Byers did not
No. 09-1833 17

In addition, even if Mr. Byers had not procedurally defaulted

6

his restraints ground, he cannot prove prejudice, even under

the de novo review required because the state courts did not

reach this issue. See Rompilla v. Beard, 545 U.S. 374, 390 (2005);

Wiggins v. Smith, 539 U.S. 510, 534 (2003). As Mr. Byers notes,

a defendant may advance a Fifth Amendment due process

claim based on evidence that he was wearing visible restraints

at trial, Deck v. Missouri, 544 U.S. 622, 629, 635 (2005), but to

claim a violation of his Sixth Amendment right to counsel, he

must also prove prejudice. See Strickland, 466 U.S. at 692-93. Cf.

Marquard v. Sec’y for the Dep’t of Corr., 429 F.3d 1278, 1313 (11th

Cir. 2005) (explaining that Deck did not affect the Strickland

analysis). Mr. Byers argues that his case turned on the credibility

of Dodds, and, therefore, any erosion of the presumption of

innocence prejudiced him. But Dodds’ credibility was wellestablished: she led police to Mr. Byers through her personal

knowledge of him, of his nickname and of his girlfriend, and she

positively identified Mr. Byers in a photographic array. Cf.

Strickland, 466 U.S. at 696 (“[A] verdict or conclusion only

weakly supported by the record is more likely to have been

affected by errors than one with overwhelming record support.”). Mr. Byers hasn’t shown prejudice because the trial

evidence against him is sufficiently robust. As a result, we

would also reject Mr. Byers’ restraints ground on the merits.

7-9-10

meet his burden of proving that, but for the outbursts or

disturbances, the result of his trial would have been

different.6

The judgment of the district court is AFFIRMED.