The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JORDAN HICKS CIVIL ACTION
VERSUS NO. 22-5113
TIMOTHY HOOPER, WARDEN SECTION: “B” (4)
ORDER AND REASONS
Before the Court are state court prisoner Jordan Hicks’s (Petitioner or Hicks) petition
seeking habeas corpus relief (Rec. Doc. 1), the Magistrate Judge’s Report and Recommendation
(R&R) dismissing the petition (Rec. Doc. 13), and petitioner’s objections to the R&R (Rec. Doc.
14). For the reasons discussed below,
IT IS ORDERED that petitioner’s objections are OVERRULED and the Report and
Recommendation (Rec. Doc. 13) are ADOPTED as the opinion of the Court; and
IT IS FURTHER ORDERED that the petition seeking issuance of a writ of habeas
corpus is DISMISSED WITH PREJUDICE.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On May 19, 2017, petitioner was convicted after jury trial of two counts of second degree
murder; his jointly tried co-defendant was found guilty of two counts of manslaughter. Rec. Doc.
13. at 1-3. The state appellate court did not provide a factual summary in its opinion issued in
petitioner’s direct appeal. The facts are taken from the joint trial of petitioner and his co-defendant
Ernest Payne’s direct appeal. See State v. Payne, 258 So. 3d 1015, 1016-18 (La. App. 5th Cir.
2018); Rec. Doc. 9 (State Court Record); below referenced excerpts from the R&R. Rec. Doc. 13
at 1-2; and parties’ briefings.
On August 12, 2012, Jefferson Parish Deputy Christopher Lewis responded to a shooting
near the intersection of Julie Street and Second Zion Avenue where he observed a car riddled with
bullet holes. Id. at 2. Delanta McCall a/k/a Dig, was dead in the passenger’s seat. Id. Martin Harry
a/k/a Marty was in the driver’s seat semi-conscious but was later declared dead at the hospital. Id.
Kira Carter, as well as other witnesses, advised Deputy Lewis that a white pick-up truck
had sped away from the scene shortly before his arrival. Id. Carter relayed that before the shooting,
she was on the front porch of her home with her friends and their children. Id. Carter retrieved an
item from her car and was approached by a man (later identified as petitioner’s co-defendant) who
was driving a white truck. Id. Carter observed two other vehicles pull up to the intersection and
exchange words with the women on her porch before Carter heard gunshots. Id.
The lead car that pulled up to the intersection was driven by Jacobee Goff, who asked the
women on the porch for “Lil Kevin.” Id. The second car contained Harry and McCall, with Nakia
Williams in the backseat. Id. Williams advised that when the gunshots were heard, Harry tried to
drive off but was blocked by Goff’s car. Id. Williams then observed someone approach the driver’s
side and shoot at the car. Id. at 2-3. Williams also observed the co-defendant standing by the white
truck while other people (one later identified as petitioner) shot from the back of the truck. Id. at
3. Williams ducked down in the backseat of the car before later running away from the scene. Id.
Petitioner was initially represented by an appointed public defender, John Benz. Id. at 28.
Several months later, Aiden Shah, an associate with Martin Regan’s law firm filed omnibus
motions for petitioner and made a first appearance for petitioner. Id. A year later, Shah was granted
leave to withdraw from representation because petitioner’s family stopped making payments. Id.
Appointed counsel again began to represent petitioner for almost three years. Id. In 2017,
Regan and his associate appeared at an in court status conference to announce intent to enroll on
petitioner’s behalf after petitioner’s mother made a payment on delinquent account. Id. The state
trial judge advised that the case will go forward in two weeks because of the long delay and advised
Regan that if he enrolls, knowing there are scheduling conflicts, the case will go forward. Id. at
28-29. Until Regan enrolled, Benz would continue as petitioner’s attorney. Id. at 29.
Approximately five years later, petitioner and co-defendant were jointly tried before a jury.
Id. at 3. During petitioner’s trial, the state introduced Darlene Hicks’s prior statement to the police
despite her claiming not being able to recall because of her lifelong alcohol and drug abuse. Id. at
14. In addition, she claimed to have used cocaine hours before trial. Id. Petitioner and co-defendant
were found guilty on both counts of manslaughter. Id. at 3. Petitioner’s appointed counsel filed a
motion for a new trial on the basis that the verdict was contrary to law and evidence and that the
state trial court denied petitioner of his right to counsel of choice when the court did not grant a
continuance to allow petitioner’s private counsel to enroll. Id. The state trial court denied the
motion as meritless. Id.
On direct appeal to the Louisiana Fifth Circuit Court of Appeal, petitioner asserted: (1) the
state trial court erred by denying the motion for new trial for denial of counsel of choice; (2) the
state trial court erred by denying petitioner’s right to proceed to trial with counsel of choice; and
(3) state trial court erred by denying petitioner’s retained attorney’s require for a continuance so
he could represent his client. Id. at 4.
The Louisiana Fifth Circuit affirmed the convictions and sentences finding no merit in the
claims. Id. Petitioner’s related writ application was subsequently denied by the Louisiana Supreme
Court without stated reasons. Id.
Petitioner with current retained counsel filed an application for post-conviction relief in
state trial court. Id. Petitioner asserted four claims: (1) general averments; (2) ineffective assistance
and abandonment of trial counsel by retained counsel who failed to appear at trials; (3) ineffective
appellate counsel and the insufficiency of evidence and (4) non-unanimous jury verdict. Id. at 4-
5.
A supplement was filed asserting a fifth claim challenging the use and admissibility of
witness Darlene Hicks’s pretrial statement and trial testimony during which she claimed was under
the influence of drugs. Id. at 5. Petitioner argued that the prosecution used Darlene Hicks for the
sole purpose of creating a hearsay exception to admit her pretrial statements to police. Id.
The state trial court denied petitioner’s application. Id. at 6. The court found that the first
claim failed to comply with procedural requirements pursuant to La. Code Crim. P. art 926 and
failed to meet the burden under La. Code Crim. P. art 930.2. Id.
The second claim was found to be repetitive of matters addressed on appeal and thus barred
from further review under La. Code Crim. P. art 930.4(A). Id. Any new allegations associated
therewith that could have been raised sooner under La. Code Crim. P. art 930.4(B) were also barred
from review. Id.
On the third claim, the court found petitioner failed to establish ineffective assistance of
appellate counsel. Id. The underlying claim of insufficiency was barred from review pursuant to
La. Code Crim. P. art. 930.4(c), because it was not raised on direct appeal. Id. The claim was also
found to be without merit under Jackson v. Virginia, 443 U.S. 307 (1979). Id.
On the fourth claim, the court denied the claim because the verdict was unanimous, but
also because Ramos v. Louisiana, 140 S. Ct. 1390 (2020), did not apply retroactively on collateral
review to final convictions. Id.
The court finally held that for the supplemental fifth claim, the prosecutorial misconduct
was procedurally barred pursuant to La. Code Crim. P. art. 930.4(B), because the basis for the
alleged misconduct was known at the time of the trial and appeal. Id. at 7. The claim was also
meritless, because La. Code Evid. art. 801(D)(1) allowed use of prior inconsistent statements at
trial as substantive evidence of guilt. Id.
Petitioner then sought review by the Louisiana Fifth Circuit. Id. at 7. He asserted only three
claims: (1) petitioner’s retained private counsel acted ineffectively when he abandoned petitioner
at trial; (2) appellate counsel was ineffective for failing to assert a claim of insufficient evidence;
and (3) state’s knowing use of drug-addicted Darlene Hick violated petitioner’s due process rights.
Id.
The Louisiana Fifth Circuit denied the writ application. Claim one was procedurally barred
from review pursuant to La. Code Crim. P. art. 930.4(A). Id. Petitioner also failed to meet burden
under Strickland v. Washington, 466 U.S. 668 (1984). Id.
Petitioner also failed to meet his burden under Strickland for the second claim. Id. at 8. The
court also noted that it would have as a matter of course reviewed sufficiency of evidence on
appellate review. Id. Petitioner could not establish that he was prejudiced by counsel’s failure to
assert the claim. Id. Petitioner also could have raised the claim himself but failed to file a brief
despite being granted leave to file. Id.
Finally, the prosecutorial misconduct claim was barred pursuant to La. Code Crim. Art.
930.4(B), and otherwise without merit under La. Code Evid. art. 801(D)(1)(a) as an exception to
the hearsay rule. Id.
The Louisiana Supreme Court denied petitioner’s writ application because of the failure to
meet his burden under Strickland for the assistance of counsel claims, failure to meet the burden
under La. Code Crim. P. art. 930.2, and/or the claims were repetitive under La. Code Crim. P. art.
930.4. Id.
On December 7, 2022, petitioner filed a federal petition for habeas relief in which he
asserted three grounds for relief: (1) petitioner’s Sixth Amendment right to counsel was violated
by ineffective assistance and abandonment of retained private counsel, (2) his Sixth Amendment
right to counsel on direct appeal was violated by counsel’s failure to raise an insufficient evidence
claim; and (3) his Fifth Amendment rights were violated when State knowingly used drug-addicted
Darlene Hicks as a witness who testified under the influence of narcotics. Id. at 8-9; Rec. Doc. 1.
While acknowledging a timely filing of the petition, the State contends in opposition the
petition failed to properly exhaust the third claim. As such, according to the State, it must be
considered technically exhausted and defaulted and thus barred from review based on the
procedural bar imposed by the state courts. Rec. Doc. 8 at 4, 36-42; Rec. Doc. 13 at 9. Additionally,
the State argues all three claims lack merit, and the denial of relief by the state courts was not
contrary to or an unreasonable application of federal law. Rec. Doc. 8 at 8-48.
Petitioner’s counsel-filed reply stated he properly exhausted state court review of his
claims because he sufficiently asserted the prosecutorial misconduct as a constitutional claim in
the state courts. Rec. Doc. 12. He argues the state courts denied his claims on the merits and not
on procedural grounds. Id. He further reasserted summaries of his arguments in support of the
merits of his three claims. Id.
LAW AND ANALYSIS
A. General Standard of Review
A District Court may designate a magistrate judge to conduct evidentiary hearings if
necessary and issues proposed Report and Recommendation. 28 U.S.C. § 636(b)(1)(2022). A
petitioner may file and objection within fourteen days, at which point a judge shall make a de novo
determination on the findings. Id. A judge may accept, reject, or modify any part of the Report and
Recommendation. Id.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) controls the
review of a 28 U.S.C. § 2254 habeas corpus petition. See Poree v. Collins, 866 F. 3d 235, 245 (5th
Cir. 2017). The questions on habeas review are whether the petition is timely and whether the
claim was adjudicated on the merits in state court. 28 U.S.C. § 2254(b), (c).
B. Claim Three (Prosecutorial Misconduct)
1. Exhaustion
As timeliness is not an issue in this case, the focus is on whether the petitioner’s claims
were adjudicated on the merits in state court, i.e., the petitioner must have exhausted state court
remedies and must not be in “procedural default” on a claim. Nobles v. Johnson, 127 F.3d 409,
419-20 (5th Cir. 1997)(citing 28 U.S.C. § 2254(b), (c)); see also Whitehead v. Johnson, 157 F.3d
384, 387 (5th Cir. 1998)(citing Rose v. Lundy, 455 U.S. 509, 519-20 (1982)); Rhines v. Weber, 544
U.S. 269, 273 (2005).
The exhaustion requirement requires the federal habeas claim to be “fairly presented to the
highest state court” in a procedurally proper manner. Whitehead, 157 F.3d at 387 (citing Picard v.
Connor, 404 U.S. 270, 275-78(1971)(emphasis added). The state courts must have “one full
opportunity to resolve any constitutional issues by invoking one complete round of the State’s
established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). The
federal claim must be the “substantial equivalent” of the claims brought in the state courts to meet
the “fairly presented requirement.” Whitehead, 157 F.3d at 387 (citing Picard, 404 U.S. at 275-
78).
Here, there is no conflict regarding petitioner’s first and second claim being properly
exhausted. Rec. Doc. 13 at 10. The issue remains with whether the third claim of prosecutorial
misconduct was properly exhausted.
Petitioner asserted that under prosecutorial misconduct his Fifth Amendment rights were
violated when the State knowingly used a drug-addicted witness who testified under the influence
of narcotics. Id. at 13. The Magistrate Judge notes that petitioner claims the prosecution
“strongarmed” Darlene Hicks to adopt her pretrial statement, despite her claiming she was unable
to recall the statement and that she was unreliable due to her alcohol and drug abuse. Id. Petitioner
argued that this testimony was all done to force hearsay statements into the record. Id. These same
arguments were made through his state court post-conviction pleadings and appears to have argued
that the prosecution denied him due process. Id. at 14. Although petitioner claims for the first time
that the prosecution knowingly used an incapacitated witness to recite her “drug-addled
recollection,” petitioner made sufficient arguments to all state courts about the trial fairness. Id. at
15. The Magistrate Judge did not err in concluding petitioner properly exhausted his claims in state
court.
2) Procedural default
A claim can be in procedural default under La. Code Crim. P. art. 930.4. Procedural default
bars federal court review of a federal habeas claim when the last state court to render a judgment
in the case has clearly and expressly indicated that its judgment is independent of federal law and
rests on a state procedural rule that bars review. Harris v. Reed, 489 U.S. 255, 263 (1989); Glover
v. Cain, 128 F.3d 900, 902(5th Cir. 1997).
A dismissal is independent of federal law when the last state court “clearly and expressly”
indicated that its judgment rests on state procedural grounds that bar review of the claim. Amos v.
Scott, 64 F.3d 333, 338(5th Cir. 1995). The state law ground may be a substantive rule dispositive
of the case or a procedural bar to adjudication of the claim on the merits. See Wainwright v. Sykes,
433 U.S. 72, 81-82, 90 (1977).
It is well settled that imposition of a prevailing state procedural bar prevents federal court
review over any alternative discussion of the merits of the claim by a state court. Rhoades v. Davis,
914 F.3d 357, 372 (5th Cir. 2019)(citing Harris, 489 U.S. at 263); Robinson v. Louisiana, 606 F.
App’x 199, 204 (5th Cir. 2015)(citing Woodfox v. Cain, 609 F.3d 774, ,796 (5th Cir. 2010)). A
reference to Article 930.2 that does not include reference to another ground for dismissal is a
decision on the merits. See, e.g., Woodfox, 609 F.3d at 796(state court’s dismissal citing La. Code
Crim. P. art. 930.2 is, in the absence of evidence to the contrary, an adjudication on the merits for
AEDPA purposes).
The Magistrate Judge correctly opines that a federal habeas court does not correct errors
made by state courts in interpreting and applying state law. Id. at 17 (citing Narvaiz v. Johnson,
134 F.3d 688, 695 (5th Cir. 1998)). The Louisiana Supreme Court was the last court to rule on
petitioner’s prosecutorial misconduct claim and petitioner’s writ was denied based on failure to
meet the burden of Strickland. Id. It also denied the petition due to a failure to meet his “post-
conviction burden and/or the claims are repetitive” under La. Code Crim. P. art. 930.2 and La.
Code Crim. P. art. 930.4. Id. Since there was a reference to Article 930.2 and the other ground for
dismissal under La. Code Crim. P. art. 930.4, the Magistrate Judge concluded the procedural bar
prevails over the alternative merits discussion.
Alternatively, the Magistrate Judge used a three-part test to determine if the reference to
Article 930.2 was a merits review and if federal courts could not easily discern whether it is a
merits or procedural denial. Id. at 19; Woodfox v. Cain, 772 F. 3d 358, 371(5th Cir. 2014)(citing
Mercadel, 179 F.3d at 274). The Woodfox test consists of: (1) what state courts have done in similar
cases; (2) whether the history of the case suggests that the state court was aware of any ground for
not adjudicating the case on the merits; and (3) whether the state courts’ opinions suggest reliance
upon procedural grounds rather than a determination on the merits. Id. at 371.
The Magistrate Judge conducted the test and noted the first step is not definitive either way,
as Louisiana Supreme Court and other state courts have cited La. Code Crim. P. art. 930.2 in
different ways. Rec. Doc. 13 at 19-20. The second and third steps suggest that the claim is barred
from review because all state courts reference La. Code Crim. P. art. 930.4 for procedural bar. Id.
Importantly, the courts only discuss why the claims were meritless in the alternative. Id. The
Magistrate Judge determined that the procedural bar under La. Code Crim. P. art. 930.4 was
independent of federal law and adequate to bar review, unless petitioner established one of the
exceptions. Id.
Petitioner argued that every court addressed the prosecutorial misconduct claim on the
merits. Rec. Doc. 14 at 3. Petitioner notes that the Louisiana Supreme Court dismissed by stating
“As to his remaining claims, he fails to meet his postconviction burden of proof and/or the claims
are repetitive.” Id. 4-5. However, the Magistrate Judge correctly relied on several cases imposing
procedural bar while referencing La. Code Crim. P. art. 930.2. Harris v. Vannoy, No. 16-10938,
2017 WL 5599504, at *4-5 (E.D. La. Nov. 21, 2017); R&R adopted by 2018 WL 6523144, at *1
(E.D. La. Dec. 12, 2018), aff’d, 799 F. App’x 302 (5th Cir. 2020).
The Magistrate Judge’s application of the state procedural bar has not been shown to be
unreasonable or contrary to law. See Rec. Doc. 8; Rec. Doc. 14. Petitioner’s claim is procedurally
barred based on our review of above-cited jurisprudence and the instant record.
3. Exceptions
A federal habeas petitioner may be excluded from the procedural default rule only if he can
show “cause” for his default and “prejudice attributed thereto,” or demonstrate that the federal
court’s failure to review the defaulted claim will result in a “fundamental miscarriage of justice.”
Glover, 128 F.3d at 902(citing Coleman, 504 U.S. at 731-32). To establish a fundamental
miscarriage of justice, petitioner must provide this court with evidence that would support a
“colorable showing of factual innocence.” Kuhlmann v. Wilson, 477 U.S. 436, 454(1986).
The Magistrate opined that petitioner points to nothing that actually impeded his efforts to
properly present his prosecutorial misconduct claim. Rec. Doc. 13. At 23. There is no argument
and nothing in the record that establishes cause for his failure to bring his claim to the state courts
in a procedurally proper manner. Id. There is then no need to look at prejudice. Id. Additionally,
petitioner presents no suggestion of his actual innocence. Id.
Petitioner did not discuss exceptions to procedural bar in his objection because he argued
that the procedural bar did not prevent his claim in the first place. Id. For those reasons, he failed
to overcome the procedural bar to his prosecutorial misconduct claim, and the Magistrate Judge
did not err by finding the claim should be dismissed with prejudice.
C. Effective Assistance of Counsel (Claims 1 and 2)
A state court’s determinations of questions of fact are presumed correct and the Court must
give deference to the state court findings unless they were based on an unreasonable determination
of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. §
2254(d)(2)(2006); see Hill v. Johnson, 210 F.3d 481, 485(5th Cir. 2000). Petitioner has the burden
to overcome a presumption of correctness by clear and convincing evidence. 28 U.S.C. §
2254(e)(1). A state court’s determination of questions of law and mixed questions of law and fact
are reviewed under § 2254(d)(1). This standard grants deference be given to the state court’s
decision unless the decision was “contrary to or involved an unreasonable application of clearly
established federal law” as determined by the United States Supreme Court. Hill, 210 F.3d at 485.
A state court’s decision can be “contrary to” federal law if: (1) the state court arrives at an
opposite conclusion to that reached by the Supreme Court on a question of law; or (2) the state
court decides a case differently than the Supreme Court on a set of “materially indistinguishable
facts.” Williams, 529 U.S. at 405-06, 415-13. A state court’s decision can involve an “unreasonable
application” of federal law if it correctly identifies the governing rule but then applies it
unreasonably to the facts. Id. At 406-08.
Strickland established a two-part test for evaluating claims of ineffective counsel.
Strickland, 466 U.S. at 687. A petitioner must demonstrate that “counsel’s representation fell
below an objective standard of reasonableness.” Id. at 687-88. In order to prove prejudice, a
petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Bell, 535 U.S. at 695 (quoting
Strickland, 466 U.S. at 694). This standard requires a “substantial,” not just “conceivable,”
likelihood of different result. Harrington, 562 U.S. at 112. An attorney’s representation must
amount to incompetence under “prevailing professional norms.” Id. At 105(citing Strickland, 466
U.S. at 690).
1) Claim 1 Counsel of Choice
One element of the Sixth Amendment right to counsel is “the right of a defendant who does
not require appointed counsel to choose who will represent him.” United States v. Gonzalez-Lopez,
548 U.S. 140, 144(2006). Wrongful deprivation of this choice of counsel is a “structural error”
that “pervades the entire trial.” Id. at 150. However, the right to counsel of choice is not absolute.
Id. at 144. This violation of the right is limited to cases where the trial court unreasonably or
arbitrarily interfered with a defendant’s ability to choose his counsel. United States v. Mendoza-
Salgado, 964 F.2d 993, 1016 (10th Cir. 1992). A trial court has wide latitude in balancing the right
to counsel of choice against the needs of fairness . . . [and] against the demands of its calendar.”
Gonzalez-Lopez, 548 U.S. at 151-52(citing Wheat v. United States, 486 U.S. 153, 163-64(1988).
The Magistrate Judge opined that because petitioner needed an indigent defender precludes
a right to counsel of choice per. See Luis v. United States, 578 U.S. 5, 12 (2016). The judge stated
that petitioner’s complaints are ethical or contractual in nature, but not constitutional violations.
Rec. Doc. 13 at 36-37. Even if the constitutional protections were in place, petitioner would fail
Strickland because his appointed attorney of several years leading up to and through the trial was
effective. Id. at 39. Petitioner had competent counsel at all critical stages, he simply did not have
the counsel of his choice and cannot prove prejudice. Id. The Magistrate Judge properly concluded
that the state courts’ decision of the claim failing to meet Strickland was reasonable.
2) Claim 2 Appellate Counsel
To prevail on a claim that appellate counsel was constitutionally ineffective, a petitioner
must show that his appellate counsel unreasonably failed to discover and assert a nonfrivolous
issue and establish a reasonable probability that he would have prevailed on this issue on appeal
but for his counsel’s deficient representation. Briseno v. Cockrell, 274 F.3d 204, 207(5th Cir. 2001);
Smith, 528 U.S. at 285-86. However, effective appellate counsel is not required to assert every
nonfrivolous argument for appeal. Green v. Johnson, 160 F.3d 1029, 1043(5th Cir. 1998)(citing
Evitts, 469 U.S. at 394).
Petitioner argues that it was “irrational” for the jury to give credibility to two eyewitnesses
with allegedly conflicting statements. Rec. Doc. 13 at 40. One witness could identify both
petitioner and his co-defendant while the other witness could identify only the co-defendant among
the perpetrators, and his appellate counsel should have raised the issue. Id. Neither witness
excluded the possibility that both men were present and involved in the shooting.
A reviewing court is not authorized to substitute its interpretation of the evidence or its
view of the credibility of witnesses in place of the factfinder. Weeks v. Scott, 55 F.3d 1059, 1062
(5th Cir. 1995); Alexander v. McCotter, 775 F.2d 595, 598 (5th Cir. 1985). A reviewing court,
therefore, must “presume – even if it does not appear in the record - that the trier of fact resolved
any conflicts [in the evidence] in favor of the prosecution, and must defer to that resolution.”
McDaniel v. Brown, 558 U.S. 120, 133 (2010) (emphasis added) (quoting Jackson, 443 U.S. at
326). Furthermore, under state and federal law, the testimony of a single witness if believed by the
trier of fact, is sufficient to support a factual finding. See State v. Higgins, 898 So. 2d 1219, 1226
(La. 2005); Cameron v. Vannoy, No. 18-9502, 2020 WL 2520714, at *10 (E.D. La. May 18, 2020)
(“Under both federal and Louisiana law, when the key issue is the defendant's identity as the
perpetrator, rather than whether the crime was committed, the testimony of an eyewitness is
generally sufficient to support a conviction.”).
The Magistrate Judge opined and we find that a sufficiency evaluation was already
completed by Louisiana Fifth Circuit, even though the petitioner did not assert it. Id. at 43. So
even minor differences within the experiences of the witnesses could not be considered to meet
the standard of insufficient evidence. Id.
Accordingly, petitioner Hicks’s § 2254 petition for habeas corpus relief is denied and
dismissed with prejudice.
New Orleans, LA this 24th day of May 2024
________________________________________
SENIOR UNITED STATES DISTRICT JUDGE