Tracey Brown v. Attorney General for the State of Nevada

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TRACEY L. BROWN, No. 23-15594

Petitioner-Appellant, D.C. No.

v. 2:19-cv-02000-

JAD-DJA

ATTORNEY GENERAL FOR THE

STATE OF NEVADA; RONALD

OLIVER, OPINION

Respondents-Appellees.

Appeal from the United States District Court

for the District of Nevada

Jennifer A. Dorsey, District Judge, Presiding

Argued and Submitted May 14, 2025

San Francisco, California

Filed June 12, 2025

Before: Carlos T. Bea and Ana de Alba, Circuit Judges, and

Jeffrey Vincent Brown,* District Judge.

Opinion by Judge Brown

*

The Honorable Jeffrey Vincent Brown, United States District Judge for

the Southern District of Texas, sitting by designation.

2 BROWN V. ATTORNEY GEN. FOR THE STATE OF NEVADA

SUMMARY**

Habeas Corpus

The panel affirmed the district court’s denial of Tracey

Brown’s 28 U.S.C. § 2254 habeas corpus petition in a case

in which the panel addressed whether juror misconduct, in

the form of an ex parte contact among a witness for the

prosecution, her friend, and several jurors, deprived Brown

of due process and a fair trial.

A Nevada jury found Brown guilty of multiple offenses.

Brown moved for a new trial based on juror misconduct,

which the trial court denied. The Nevada Supreme Court

affirmed the convictions on direct appeal, relying on Meyer

v. State, 80 P.3d 447 (Nev. 2003), to conclude that though

juror misconduct had occurred, Brown failed to show

prejudice.

The panel explained that the juror misconduct in this

case—an unplanned encounter among a witness, an

interested third party, and jurors during the trial—is neither

prosaic nor egregious but falls squarely within the middle-

ground of trial error.

Because the jury misconduct here was trial error, Brecht

v. Abrahamson, 507 U.S. 619, 630 (1993), dictates a federal

court’s review of the Nevada Supreme Court’s decision:

whether the trial error had a substantial and injurious effect

or influence on the verdict. Relief is proper only if the court

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

BROWN V. ATTORNEY GEN. FOR THE STATE OF NEVADA 3

has grave doubt about whether the error had that effect. The

defendant must show the error resulted in actual prejudice.

The panel noted that this court has already held that

Meyer does not violate clearly established Supreme Court

precedent. Both Meyer and Brecht place the burden to show

prejudice for non-egregious errors on the defendant.

Accordingly, habeas relief is not warranted under 28 U.S.C.

§ 2254(d)(1) because the trial court complied with clearly

established precedent when it (1) held a hearing where

Brown could show prejudice and (2) denied Brown a new

trial after evaluating the error, as developed at the hearing,

in the context of the issues and evidence presented at trial.

Nor is habeas relief warranted under 28 U.S.C. § 2254(d)(2),

as the Nevada Supreme Court’s decision was not the product

of an unreasonable determination of facts based on the

record before it.

COUNSEL

Mark D. Eibert (argued), Law Office of Mark D. Eibert, Half

Moon Bay, California, for Petitioner-Appellant.

Elsa Felgar (argued), Deputy Attorney General; Aaron D.

Ford, Attorney General; Nevada Office of the Attorney

General, Carson City, Nevada; for Respondents-Appellees

4 BROWN V. ATTORNEY GEN. FOR THE STATE OF NEVADA

OPINION

BROWN, District Judge:

Defendant-Appellant Tracey Brown appeals the denial

of his petition for writ of habeas corpus under 28 U.S.C.

§ 2254. The issue is whether juror misconduct, in the form

of an ex parte contact among a witness for the prosecution,

her friend, and several jurors, deprived Brown of due process

and a fair trial. We have jurisdiction under 28 U.S.C.

§§ 1291 and 2253(a) and (c), and we affirm.

I.

From July 18–24, 2011, eight convenience-store

robberies occurred in Las Vegas. In each instance,

employees allege a black man with a half-covered face

robbed them at gunpoint for cash and cigarettes, made them

lie down, and fled the scene by car. A woman joined him in

three of the robberies.

Brown was arrested for the robberies, and the State of

Nevada charged him with 20 counts, including robbery,

burglary, and kidnapping with use of a deadly weapon. Four

victims identified Brown as the male assailant in a photo

lineup. Seven victims identified the assailants in surveillance

videos. At trial, eight victims testified. Two identified

Brown in the courtroom as the male assailant. Two described

Brown’s eyes as distinctive. Surveillance videos revealing

the assailants’ uncovered faces were shown to the jury and

admitted as evidence. Brown’s girlfriend and co-defendant,

Teshae Gallon, testified as the prosecution’s final witness

pursuant to a plea agreement. Gallon admitted to committing

three of the robberies with Brown. She identified him in the

courtroom and testified to his guilt in those three robberies.

BROWN V. ATTORNEY GEN. FOR THE STATE OF NEVADA 5

After Gallon’s testimony, the court released the jury for

the weekend and told them not to discuss the case with

outside parties. Eight jurors rode the elevator out of the

courthouse. The door opened mid-ride to Gallon and her

friend, who both recognized the jurors. They got on the

elevator and had a brief but loud conversation between

themselves.

Two jurors reported the ex parte contact with Gallon and

her friend, and the court held a hearing to determine the

conversation’s substance, who heard it, and whether it would

affect juror impartiality moving forward. Each juror was

questioned individually. Their recollections varied. Several

remembered the following: Gallon said, “Oh, that’s the jury”

when the doors opened; a juror told them it was okay to get

on; the women entered reluctantly; and the friend told

Gallon, “It doesn’t matter, we’re talking amongst ourselves,”

while Gallon remained silent. Juror #2 reported the incident

and remembered it with the most detail. She testified that

after the women got on the elevator, the friend said all the

jury had to do was “look at the tapes and you’ll see who it

is” and that Gallon “told the truth.” Juror #4 remembered

Gallon’s friend mentioning the video tapes. Six jurors

recalled only that the friend talked about something Gallon

wore on her head. The remaining jurors heard nothing, could

not recall anything specific, or were not present. All jurors

stated the incident would not affect their deliberations or

verdict. The court found all jurors testified truthfully.

After the hearing, Brown moved for a mistrial. Everyone

agreed juror misconduct had occurred, but the prosecution

argued the misconduct did not prejudice Brown.1 The court

1

Brown makes much of the prosecution’s initial statement that the

incident prejudiced Juror #2 against Brown and it would be “wise to

6 BROWN V. ATTORNEY GEN. FOR THE STATE OF NEVADA

agreed with the prosecution, finding that: (1) before the

incident, the jury had already seen the surveillance videos

referred to by the friend, (2) there was sufficient evidence to

support the convictions apart from Gallon’s testimony, and

(3) most jurors heard nothing. Still, the trial court gave

Brown a choice: keep the jury as-is or dismiss two jurors—

Jurors #2 and #4—and swap in the alternates. Brown chose

the former.

Trial continued. The court submitted the case to the jury

with an instruction to disregard the conversation between

Gallon and her friend. An hour later, the jury found Brown

guilty on all counts. The court sentenced Brown to life with

the possibility of parole after ten years.

Brown moved for a new trial by written motion. The

court denied the request, citing Brown’s “strategic decision

not to use the alternates” that left the allegedly prejudiced

jurors on the panel. The Nevada Supreme Court affirmed his

convictions on direct appeal, relying on Meyer v. State, 80

P.3d 447 (Nev. 2003), to conclude that though juror

misconduct had occurred, Brown failed to show prejudice.

After exhausting his state habeas petitions, Brown filed

a petition for writ of habeas corpus in federal court under 28

U.S.C. § 2254. The district court denied the petition, and he

appealed. We granted a certificate of appealability on the

issue of whether juror misconduct deprived Brown of due

process and a fair trial.

remove her from the jury.” Trial counsel’s legal conclusions, however,

are not entitled to any deference from this court. And, in any case, the

prosecution affirmed its position that the incident did not prejudice

Brown several times throughout the trial record.

BROWN V. ATTORNEY GEN. FOR THE STATE OF NEVADA 7

II.

We review a district court’s denial of habeas relief de

novo. Caliendo v. Warden of Cal. Men’s Colony, 365 F.3d

691, 694 (9th Cir. 2004). Allegations of juror misconduct

and prejudice in habeas cases are also reviewed de novo. Id.

Congress limits federal habeas relief to two scenarios: where

the adjudicated state claim (1) contradicts or unreasonably

applies “clearly established” Supreme Court precedent—not

circuit court precedent—or (2) is based on an unreasonable

determination of the facts presented in the state court

proceeding. 28 U.S.C. § 2254(d); Shoop v. Twyford, 596

U.S. 811, 818–19 (2022). In doing so, the federal court

reviews the “last reasoned opinion” of the highest-level state

court. Williams v. Johnson, 840 F.3d 1006, 1009, 1011 (9th

Cir. 2016).

Under § 2254(d)’s first prong,

A state court decision is contrary to Supreme

Court precedent if the state court arrives at a

conclusion opposite to that reached by the

Supreme Court on a question of law or if the

state court decides a case differently than the

Supreme Court has on a set of materially

indistinguishable facts.

Von Tobel v. Benedetti, 975 F.3d 849, 854 (9th Cir. 2020)

(cleaned up) (quoting Williams v. Taylor, 529 U.S. 362, 412–

13 (2000)). In other words, federal habeas relief is

unavailable if “fairminded jurists could disagree” on

whether the state court was correct in its views and

application of the Supreme Court’s treatment of an issue of

law. Harrington v. Richter, 562 U.S. 86, 101 (2011) (citation

omitted). And under the second prong, federal courts must

8 BROWN V. ATTORNEY GEN. FOR THE STATE OF NEVADA

give substantial deference to state courts’ factual

determinations. 28 U.S.C. §§ 2254(d)(2), (e)(1). Absent

clear and convincing evidence, federal courts presume state

court findings on the substance of an ex parte

communication, the communications’ effect on the juror,

and juror credibility are correct. Rushen v. Spain, 464 U.S.

114, 120 (1983); Patton v. Yount, 467 U.S. 1025, 1036

(1984). But whether juror misconduct was prejudicial is a

mixed question of federal law and fact reviewed de novo.

Dickson v. Sullivan, 849 F.2d 403, 405–06 (9th Cir. 1988).

III.

A.

Brown argues that juror misconduct violated his Fifth,

Sixth, and Fourteenth Amendment rights. Due process

afforded by the Fifth and Fourteenth Amendments “means a

jury capable and willing to decide the case solely on

evidence” developed at trial, and a trial judge who guards

against prejudicial occurrences and determines their effect.

Smith v. Phillips, 455 U.S. 209, 217 (1982). The Sixth

Amendment guarantees a criminal defendant a fair trial by a

panel of impartial jurors who can “lay aside [their]

impression[s] or opinion[s] and render a verdict based on the

evidence presented in court.” Irvin v. Dowd, 366 U.S. 717,

723 (1961); Turner v. Louisiana, 379 U.S. 466, 472 (1965).

The presence of just one biased juror violates the Sixth

Amendment. Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir.

1988) (en banc).

Because the Constitution does not require automatic

reversal when constitutional error occurs, we must first

classify the type of constitutional error that may have

occurred. Brecht v. Abrahamson, 507 U.S. 619, 630 (1993).

That classification will supply the clearly established

BROWN V. ATTORNEY GEN. FOR THE STATE OF NEVADA 9

Supreme Court precedent governing our review. Only then

may we decide whether the state court applied the law or

determined the facts unreasonably under § 2254(d). Because

the parties disagree at every juncture, we take each question

in turn.

First, classifying the error below. Everyone agrees some

level of juror misconduct happened here. But how severe

was it? As we explain below, misconduct such as this—an

unplanned encounter among a witness, an interested third

party, and jurors during the trial—is neither “prosaic” nor

“egregious” but falls squarely within the middle-ground of

“trial error.” To understand why requires explanation of each

category of misconduct.

On one end of the spectrum are prosaic errors which are

“so unimportant and insignificant” to be “deemed harmless.”

Brecht, 507 U.S. at 630 (citation omitted). Indeed, the

Constitution “does not require a new trial every time a juror

has been placed in a potentially compromising situation

because it is virtually impossible to shield jurors from every

contact or influence that might theoretically affect their

vote.” Rushen, 464 U.S. at 118 (cleaned up) (citation

omitted); see, e.g., id. at 121 (juror’s ex parte contact with

judge not concerning “any fact in controversy or law

applicable to the case”); United States v. Dutkel, 192 F.3d

893, 895 (9th Cir. 1999) (silent alternate jurors in

deliberations, juror’s job application with prosecutor, and

juror’s friends’ encouragement to convict defendant); Godoy

v. Spearman, 861 F.3d 956, 967 (9th Cir. 2017) (“chance

contacts between witnesses and jury members” like “passing

in the hall or crowded together in an elevator” (citation

omitted)).

10 BROWN V. ATTORNEY GEN. FOR THE STATE OF NEVADA

On the other end of the spectrum are egregious errors,

which “infect the entire trial process” and defy harmless-

error review. Brecht, 507 U.S. at 629–30; Arizona v.

Fulminante, 499 U.S. 279, 290, 308–11 (1991) (coerced

confessions, denial of counsel, and partial judges are among

the “structural defects” that “transcend the criminal

process”). For example, jury tampering—“an effort to

influence the jury’s verdict by threatening or offering

inducements”—is egregious. Dutkel, 192 F.3d at 895; see,

e.g., Parker v. Gladden, 385 U.S. 363, 363–65 (1966)

(bailiff telling jurors defendant was wicked and guilty);

Turner, 379 U.S. at 473 (deputies’ continuous association

with jurors before testifying); Remmer v. United States, 347

U.S. 227, 228–29 (1955) (bribing juror to find defendant not

guilty). Egregious errors raise a presumption of prejudice,

but not a conclusive one. Remmer, 347 U.S. at 229. The

defendant’s remedy is a hearing where the prosecution must

establish the misconduct was harmless. Id. at 229–30.

Somewhere in the middle are “trial errors.” Brecht, 507

U.S. at 629; see, e.g., Fulminante, 499 U.S. at 307–08

(improper comments, erroneous admission of evidence,

restriction on cross examination, charge error). Trial errors

are “quantitatively assessed in the context of other evidence

presented.” Brecht, 507 U.S. at 629 (citation omitted). The

reviewing court determines whether the extrinsic

information the jury received had a “substantial and

injurious effect or influence in determining the jury’s

verdict.” Brecht, 507 U.S. at 637 (citation omitted). This

approach “focus[es] on the underlying fairness of the trial

rather than on the virtually inevitable presence of immaterial

error.” Fulminante, 499 U.S. at 308 (citation omitted).

Brown complains of (1) jurors sharing an elevator with

the witness and her friend, (2) several jurors’ failure to report

BROWN V. ATTORNEY GEN. FOR THE STATE OF NEVADA 11

it, (3) Brown’s inability to cross-examine the friend, and

(4) the jurors with the most detailed memories remaining on

the panel that convicted him. He argues this amounts to jury

tampering—egregious misconduct that should have raised a

presumption of prejudice and required the government to

show harmlessness. The government responds that only

innocuous, prosaic misconduct occurred and it was Brown’s

burden to show prejudice. Neither is quite right.

What happened goes beyond prosaic misconduct. The

jurors did not merely crowd together or shuffle by interested

parties. See Godoy, 861 F.3d at 967. They invited a witness

and her friend onto the elevator during trial, promised not to

tell anyone about it, and allowed the women to openly

converse. And not just any witness—Gallon was the sole co-

defendant whose testimony the prosecution considered

important enough to cut a deal for. Gallon was silent in the

elevator, but the friend encouraged the jurors to believe

Gallon and rely on the video evidence. Most jurors failed to

report the incident as required by the court. Not ideal.

But it is not egregious either. Brief commentary from a

stranger about evidence jurors had already seen does not

“infect the entire trial process.” Brecht, 507 U.S. at 629–30.

The friend’s statements regarding Gallon’s testimony,

emphasis on the videos, and comment about a head covering

concerned facts which were duplicative of Gallon’s

testimony; jurors are presumed to ignore such statements.

See Rushen, 464 U.S. at 121; Dutkel, 192 F.3d at 895

(presuming “jurors will disregard the advice of friends and

ignore other ex parte contacts”). Neither Gallon nor her

friend bribed or threatened any juror; in other words, no

tampering occurred. See Dutkel, 192 F.3d at 895.

12 BROWN V. ATTORNEY GEN. FOR THE STATE OF NEVADA

Thus, this type of error is best classified as trial error.

The juror misconduct, committed before the close of

evidence and days before deliberations, is simply an error in

the trial process itself. Put simply, some jurors heard a few

comments they should not have. Accordingly, the trial court

could determine the harm, if any, resulting from this trial

error only after (1) conducting a hearing and (2) evaluating

the error alongside the issues and other evidence presented

at trial. Compare Smith, 455 U.S. at 215 (“[T]he remedy for

allegations of juror partiality is a hearing in which the

defendant has the opportunity to prove actual bias.”), and

Fulminante, 499 U.S. at 307–08 (analyzing error of the

“trial” type alongside the admissible evidence), with United

States v. Brande, 329 F.3d 1173, 1176 (9th Cir. 2003) (no

hearing required for prosaic misconduct).

Because the jury misconduct below is trial error, we can

answer the second question: Brecht dictates the court’s

review of the Nevada Supreme Court’s decision. See Brecht,

507 U.S. at 623, 638 (providing the standard the state habeas

petitioner must satisfy to set aside conviction for federal

constitutional error of the “trial type”). Brecht’s inquiry is

whether the trial error had a “substantial and injurious effect

or influence” on the verdict, and relief is proper only if the

court has “grave doubt” about whether the error had that

effect. Id. at 623 (citation omitted); Davis v. Ayala, 576 U.S.

257, 267–68 (2015) (citation omitted). The defendant must

show the trial error resulted in “actual prejudice.” Brecht,

507 U.S. at 637. This stringent standard recognizes “the

presumption of finality and legality that attaches to” state

convictions and that most constitutional errors are harmless.

Id. at 633 (citation omitted); Fulminante, 499 U.S. at 306.

The reviewing court does not summarily ask whether

adequate evidence supports the verdict despite the error;

BROWN V. ATTORNEY GEN. FOR THE STATE OF NEVADA 13

rather, it “quantitatively assesse[s]” the error in the context

of the whole case. Fulminante, 499 U.S. at 307–08. The state

court’s historical fact findings are presumed correct. Rushen,

464 U.S. at 120. Deep deference is given to findings on the

substance of an ex parte contact, its effect on a juror, and the

credibility of a juror’s declaration of impartiality. Id.;

Patton, 476 U.S. at 1036. The court presumes the jury will

disregard inadmissible evidence after proper instruction

from the court. Greer v. Miller, 483 U.S. 756, 766 n.8

(1987).

B.

Having determined that Brecht is the appropriate test for

this “trial error,” we now address whether the Nevada

Supreme Court’s decision (1) breaks with Brecht, the clearly

established Supreme Court precedent on this issue, or

(2) was based on an unreasonable determination of the facts

considering the record. 28 U.S.C. § 2254(d).

Congress permits habeas relief when a state court breaks

with well-settled Supreme Court precedent. Id. § 2254(d)(1).

Thus, the narrow question before us under the first prong is

whether the Nevada Supreme Court’s application of Meyer

violates Brecht. The Nevada Supreme Court denied Brown

a new trial because he failed to show the juror misconduct

prejudiced him. To prevail on a motion for new trial under

Meyer, the defendant must establish juror misconduct

occurred and was prejudicial. Meyer, 80 P.3d at 455. While

the court presumes prejudice for egregious misconduct, the

defendant bears the burden to show that milder misconduct

probably affected the verdict. Id. at 455–56.

Whether Meyer violates clearly established Supreme

Court precedent is a question we have already answered. Von

Tobel, 975 F.3d at 855 (holding Meyer does not violate

14 BROWN V. ATTORNEY GEN. FOR THE STATE OF NEVADA

§ 2254). Indeed, Meyer mirrors Brecht, as both place the

burden to show prejudice for non-egregious errors, i.e., trial

error, on the defendant. Accordingly, the trial court complied

with clearly established precedent when it (1) held a hearing

where Brown could show prejudice and (2) denied Brown a

new trial after evaluating the error, as developed at the

hearing, in the context of the issues and evidence presented

at trial. See Smith, 455 U.S. at 215; Fulminante, 499 U.S. at

307–08. Relief is not warranted under § 2254(d)(1).

Nor was the Nevada Supreme Court’s decision the

product of an unreasonable determination of facts based on

the record before it. 28 U.S.C. § 2254(d)(2). The trial court

made detailed findings, and the Nevada Supreme Court

referred to and relied on them. This court presumes the trial

court’s factual findings are correct, and Brown has not

offered clear and convincing evidence suggesting otherwise.

First, what happened on the elevator. The court found the

following facts were corroborated: (1) the women hesitated

to board the elevator, which held eight jurors; (2) a juror told

them it was okay to get on; (3) the friend said she and Gallon

were just talking amongst themselves; (4) the friend

commented on something Gallon had worn on her head; and

(5) only the friend discussed the case, not Gallon. The jurors

did not discuss specifics with one another—only that they

had been in the elevator with Gallon and her friend. Because

the court found “[o]nly one juror recalled the statement

about truthfulness and telling the jurors to look at the video,”

it was “reluctant” to accept Juror #2’s uncorroborated

statements as true. But even if true, the court found the friend

was “[n]ot discussing something [new or] excluded from

evidence,” instead “commenting on something that was in

BROWN V. ATTORNEY GEN. FOR THE STATE OF NEVADA 15

the video that everybody else could’ve seen.”2 The court

found Gallon did not intend to interact with the jurors and

that it was more the friend “getting in the middle of it.”

Next, how the incident affected the jury. The court found

the jurors felt uncomfortable in the elevator with Gallon and

her friend, who was present in the courtroom at trial, and

they “knew something wrong had happened.” The court

found, however, the conversation’s “impact was pretty

innocuous” and “didn’t really impact them that much.”

Lastly, credibility. The court presumed all jurors would

testify truthfully and believed every juror who said the

incident would not affect their deliberations or verdict. The

court found Juror #2, who remembered the most troubling

comments, “very credible” and “somebody who had a good

-- very detailed memory.” The court noted, however, that

Juror #2’s memory of the comments on Gallon’s truthfulness

2

At oral argument, Brown advanced a different reading of Juror #13’s

testimony than that found by the trial court. He argues three jurors were

too tainted to remain on the panel—Juror #2, who recalled the friend

emphasizing the video tapes and Gallon’s credibility; Juror #4, who

recalled only the former; and Juror #13, who agreed when asked if the

friend had been “talking about the case” and thought she did so

“purposely.” In doing so, Brown maintains the trial court’s offer to

replace two jurors with alternates was insufficient. We cannot agree as

to Juror #13. At the hearing, Brown prompted Juror #13 to recall details

or agree that the friend discussed veracity and specific evidence. Time

and time again, Juror #13 confirmed he recalled nothing specific. His

testimony that the friend spoke loudly and purposefully without

remembering “exactly what was said” is insufficient to render him

prejudiced. Indeed, Juror #13 can hardly be prejudiced by a conversation

he “didn’t really focus” on and had “forgot[ten] happened” until

questioned. Assuming arguendo that removing Jurors #2 and #4 would

have been the better part of wisdom, it was Brown’s choice to keep them

on the panel.

16 BROWN V. ATTORNEY GEN. FOR THE STATE OF NEVADA

and the importance of videos was uncorroborated and

questioned whether she heard the conversation better or had

unintentionally embellished her memory.

The court ultimately found the misconduct would not

have an impact “beyond a reasonable doubt.” The comment

about Gallon’s head covering—the only corroborated

substantive remark—was not so “prejudicial . . . that it really

add[ed] anything.” The court found the “other evidence that

didn’t relate to Ms. Gallon, all of the testimony of the

witnesses and the victims in the case and the surveillance

videos that were shown” sufficient to support the verdict, so

the prosecution “didn’t even really need to call” Gallon.

The Nevada Supreme Court’s summary of these facts—

that most jurors did not remember what was said or

remembered only the head-covering comment; that the

information was vague, cumulative of the surveillance

videos, and not relevant to a material issue; and that all jurors

stated the misconduct would not affect their deliberations

and were properly admonished by the court—is indeed

supported by the trial court record. And Brown has failed to

offer evidence sufficient to show the juror misconduct

prejudiced him. Relief is not warranted under § 2254(d)(2).

Because the Nevada Supreme Court’s decision affirming

Brown’s conviction neither breaks with clearly established

Supreme Court precedent nor grounds itself in an

unreasonable determination of the facts, habeas relief is not

warranted.

AFFIRMED.