Appellate Case: 23-5069 Document: 010111051595 Date Filed: 05/17/2024 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
May 17, 2024
UNITED STATES COURT OF APPEALS
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_______________________________________
KIMBERLY GRAHAM,
Petitioner - Appellee,
v. No. 23-5069
TAMIKA WHITE, Warden,
Respondent - Appellant.
__________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. No. 4:23-CV-00164-CVE-SH)
_________________________________
Jennifer L. Crabb, Assistant Attorney General, Office of the Attorney
General for the State of Oklahoma (Gentner F. Drummond, Attorney
General for the State of Oklahoma, with her on the briefs), Oklahoma City,
Oklahoma, for Respondent-Appellant.
T. Richard O’Carroll, O’Carroll & O’Carroll, Tulsa, Oklahoma, for
Petitioner-Appellee.
_________________________________
Before TYMKOVICH, MATHESON, and BACHARACH , Circuit Judges.
_________________________________
BACHARACH, Circuit Judge.
_________________________________
This appeal addresses due process when a state district court
modifies an order after the controlling precedent changes. Here a state
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district court relied on existing precedent to vacate a defendant’s
convictions. But the state appellate court then overruled that precedent.
With this change in precedent, could the state district court modify its
prior ruling and reinstate the convictions without violating the defendant’s
right to due process? The state appeals court answered yes, but the federal
district court answered no and granted habeas relief to the defendant.
We reverse the grant of habeas relief. Regardless of whether the state
appeals court had erred, its rejection of the due process claim was at least
reasonable based on the facts and Supreme Court precedent.
Background
1. The state district court vacates the defendant’s convictions based
on existing precedent.
This appeal grew out of Ms. Kimberly Graham’s state convictions for
committing first-degree manslaughter and leaving the scene of a fatal
accident. See Okla. Stat. tit. 21, § 711;
Okla. Stat. tit. 47, § 10-102.1.
After the convictions became final, Ms. Graham applied for post-
conviction relief on grounds that she was a Native American and the events
took place on a reservation. While this application was pending, the
Supreme Court held in McGirt v. Oklahoma that
• Congress had not disestablished the reservation and
• the State of Oklahoma lacked jurisdiction to prosecute crimes
committed by Native Americans within this reservation.
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140 S. Ct. 2452, 2459 (2020). 1
But did McGirt apply to defendants (like Ms. Graham), whose
convictions had already become final? The Oklahoma Court of Criminal
Appeals initially answered yes in Bosse v. State, 484 P.3d 286 (Okla. Crim.
App. 2021). The day after Bosse took effect, 2 the state district court
granted post-conviction relief to Ms. Graham and vacated her convictions.
2. The state district court reinstates the convictions after the state
appeals court changes its precedent.
The next day, the Oklahoma Court of Criminal Appeals recalled its
mandate in Bosse. Appellant’s App’x vol. 1, at 90–91. Despite recall of the
Bosse mandate, the State declined to appeal the vacatur of Ms. Graham’s
convictions. After the appeal deadline expired, the Oklahoma Court of
Criminal Appeals overruled Bosse and decided that McGirt didn’t apply
1
First-degree manslaughter is punishable in federal court under the
Major Crimes Act, 18 U.S.C. § 1153(a). See United States v. Budder,
76
F.4th 1007, 1009 (10th Cir. 2023) (“Under the Major Crimes Act,
18
U.S.C. § 1153, . . . manslaughter allegedly committed by an Indian in
Indian country (which includes Indian reservations . . .) in Oklahoma must
be tried in federal court rather than state or tribal court.”). The charge of
leaving the scene of a fatal accident is punishable in federal court under
the Assimilative Crimes Act,
18 U.S.C. § 13, and the Indian Country
Crimes Act,
18 U.S.C. § 1152. See United States v. Langford,
641 F.3d
1195, 1196–97 (10th Cir. 2011) (explaining that state crimes committed in
Indian country are assimilated into federal law).
2
The court’s opinion could be used as authority upon issuance of the
mandate or placement of the court’s seal upon filing with the clerk. Okla.
Crim. App. R. 3.13(B). The mandate in Bosse was issued on April 7, 2021.
See Appellant’s App’x vol. 1, at 88.
3
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retroactively to convictions that had become final. State ex rel. Matloff v.
Wallace, 497 P.3d 686, 689 (Okla. Crim. App. 2021). 3
Given the new decision, could the state district court modify its initial
order and reinstate Ms. Graham’s convictions? The State thought so and
asked the state district court to
• rescind the initial order (vacating the convictions) and
• reinstate the convictions.
Appellant’s App’x vol. 1, at 150–60. The state district court granted these
requests. Id. at 82–85.
With the convictions reinstated, Ms. Graham asked the Oklahoma
Court of Criminal Appeals for a writ of prohibition, arguing that a liberty
interest had arisen from the order vacating her convictions. Id. at 80; see
Boutwell v. Keating, 399 F.3d 1203, 1212 (10th Cir. 2005) (“[A] liberty
3
After deciding Matloff, the Oklahoma Court of Appeals abrogated its
prior opinion in Bosse and upheld the denial of post-conviction relief
because McGirt no longer applied retroactively. Bosse v. State, 499 P.3d
771, 774–75 (Okla. Crim. App. 2021).
4
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interest inherent in the Due Process Clause arises upon an inmate’s release
from confinement.”). The resulting question was whether the State could
deprive her of that liberty interest based on the state appellate court’s
change in precedent. Ms. Graham urged the state appeals court to answer
no, arguing that reinstatement of her convictions would arbitrarily deprive
her of a liberty interest.
The Oklahoma Court of Criminal Appeals disagreed with Ms. Graham
and denied her request for a writ of prohibition. Graham v. Priddy, No.
PR-2021-1332, slip op. at 4 (Okla. Crim. App. Apr. 18, 2023)
(unpublished). In denying the request, the court reasoned that
• the new precedent had prevented application of McGirt to
convictions that had already become final and
• the initial order (vacating the convictions) had been
“unauthorized under Oklahoma law.”
Id. at 3–4.
3. The federal district court concludes that reinstatement of
Ms. Graham’s convictions was an arbitrary deprivation of her
liberty interest.
Ms. Graham sought habeas relief, claiming that
• the initial order (vacating the convictions) had created a liberty
interest and
• the reinstatement of her convictions had arbitrarily stripped her
of that liberty interest.
The federal district court agreed with Ms. Graham and granted habeas
relief. The State appeals, arguing that
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• habeas relief isn’t available because the alleged defects involve
only state law and post-conviction procedures and
• the federal district court should have deferred to the state
appeals court because it had acted reasonably.
We reject the State’s arguments about the availability of a habeas
claim. Ms. Graham is asserting federal claims, not state-law claims, and
she’s challenging the reinstatement of her convictions rather than defects
in post-conviction procedures. But we agree with the State on the
reasonableness of the state appellate court’s decision. Because that
decision rested on a reasonable application of the facts and Supreme Court
holdings, the federal district court should have deferred to the state appeals
court. With that deference, we reverse the grant of habeas relief.
Availability of Habeas Relief
The State argues that Ms. Graham couldn’t obtain habeas relief even
if she were right on the merits because the claim involves only a violation
of state law and misapplication of post-conviction procedures. We disagree
with the State.
1. Ms. Graham alleged a violation of the Fourteenth Amendment,
not just state law.
Habeas relief is available for a violation of the federal constitution,
but not for a violation of state law. Estelle v. McGuire, 502 U.S. 62, 67–68
(1991). The State points out that Ms. Graham alleges a misapplication of
Oklahoma law. If Ms. Graham had stopped there, her claim wouldn’t
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support habeas relief. But Ms. Graham also alleges a denial of due process
from the misapplication of state law. These allegations involve a violation
of not only state law but also the federal constitution.
Granted, the theories involving state law and the federal constitution
are intertwined. But “in rare circumstances, a determination of state law
can be so arbitrary or capricious as to constitute an independent due
process violation.” Cummings v. Sirmons, 506 F.3d 1211, 1237 (10th Cir.
2007) (alterations and quotation marks omitted) (quoting Lewis v. Jeffers,
497 U.S. 764, 780 (1990)).
Ms. Graham not only labels her claim as constitutional, but also
alleges that it was arbitrary for the state court to jettison the initial order
(vacating the convictions). Though this allegation turns on an antecedent
question of state law, an arbitrary application of state law could impinge
on the right to due process. See id. So the claim isn’t confined to a
violation of state law.
2. The claim involves a challenge to convictions rather than post-conviction procedures.
Habeas corpus generally involves challenges to the fact or duration
of confinement. Preiser v. Rodriguez, 411 U.S. 475, 484 (1973); McIntosh
v. U. S. Parole Comm’n,
115 F.3d 809, 812 (10th Cir. 1997). These
challenges typically involve defects in the underlying conviction.
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From time to time, however, prisoners seek habeas relief based on
perceived errors in a state’s corrective processes. Many states, like
Oklahoma, provide post-conviction remedies even though they’re not
constitutionally required. See Pennsylvania v. Finley, 481 U.S. 551, 556–
57 (1987) (concluding that states have no constitutional obligation to
provide post-conviction relief). Given the availability of these remedies, a
defendant might seek habeas relief based on a state court’s errors in the
post-conviction proceedings. But habeas relief is unavailable when the
error involves only the post-conviction procedures rather than the
imposition of the conviction or sentence. See Sellers v. Ward,
135 F.3d
1333, 1339 (10th Cir. 1998) (“[B]ecause the constitutional error [the
petitioner] raises focuses only on the State’s post-conviction remedy and
not the judgment which provides the basis for his incarceration, it states no
cognizable federal habeas claim.”).
The State characterizes Ms. Graham’s claim as a challenge to post-
conviction procedures. But Ms. Graham isn’t complaining about those
procedures. She is instead complaining about the reinstatement of her
convictions through the state district court’s grant of post-conviction relief
to the State.
Typically, a conviction comes after a trial or guilty plea. Here the
convictions were reinstated through post-conviction relief to the State. But
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the impact on Ms. Graham was the same. With the convictions reinstated,
Ms. Graham could seek habeas relief just like any other prisoner. 4
Error in Granting Habeas Relief
Though a writ of habeas corpus could be available for a
constitutional violation, we must determine whether the federal district
court was correct in issuing the writ. In issuing the writ, the court
concluded that it could decide in the first instance whether reinstatement of
the convictions had violated the Constitution. The State argues that the
federal district court should have deferred to the state appeals court’s
conclusions. We agree with the State.
1. Federal law restricts the availability of habeas relief when the
state appeals court rejects a constitutional claim on the merits.
If a state appeals court has not ruled on the merits of a constitutional
claim, a federal district court must conduct de novo review over the claim.
Johnson v. Williams, 568 U.S. 289, 303 (2013). Ms. Graham thus urges
de novo review, contending that the state appeals court never grappled with
the constitutional aspect of her claim. We disagree.
4
In its reply brief, the State argues that Ms. Graham is challenging
only the process for reinstating her judgment. But Ms. Graham challenges
reinstatement of the judgment itself as arbitrary.
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As noted above, Ms. Graham’s constitutional claim is intertwined
with a state-law claim: In the Oklahoma Court of Criminal Appeals,
Ms. Graham alleged a deprivation of due process involving
• “a liberty interest protected by a clear, specific, and exclusive
method under Oklahoma law for the State to seek relief from
the district court’s order freeing her” and
• “a substantial and legitimate expectation [that the Oklahoma
Court of Criminal Appeals] will follow its own rules and laws.”
Appellant’s App’x vol. 1, at 80. The Oklahoma Court of Criminal Appeals
rejected these allegations. But the court’s opinion didn’t refer to the
Constitution or the right to due process. We thus consider whether the state
appeals court overlooked the constitutional aspect of Ms. Graham’s claim.
In answering that question, we generally presume that the state
appeals court considered the constitutional claim. Harrington v. Richter,
562 U.S. 86, 99 (2011). The petitioner can rebut that presumption by
showing that some other explanation was more likely.
Id. at 99–100. But
the petitioner can’t satisfy that burden by pointing to
• an ambiguity in the state appeals court’s opinion or
• the state appeals court’s failure to mention the federal basis of
her claim.
See Murphy v. Royal, 875 F.3d 896, 925–26 (10th Cir. 2017) (ambiguity);
Fairchild v. Trammell,
784 F.3d 702, 712 (10th Cir. 2015) (failure to
mention the federal basis of the claim). To the contrary, the petitioner must
rebut the presumption with evidence that “very clearly” shows the state
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appeals court’s failure to consider the constitutional claim. Johnson v.
Williams, 568 U.S. 289, 303 (2013).
At most, an ambiguity existed in the state appeals court’s opinion.
Ms. Graham had based her constitutional claim on the finality of her relief
when the State failed to appeal. Appellant’s App’x vol. 1, at 80. The
Oklahoma Court of Criminal Appeals rejected that claim, reasoning that
Oklahoma law allowed reinstatement of the convictions even though the
State hadn’t appealed. Graham v. Priddy, No. PR-2021-1332, slip op. at 3–
4 (Okla. Crim. App. Apr. 18, 2023) (unpublished).
Ms. Graham points out that this reasoning didn’t refer to the
Constitution or due process. But Ms. Graham premised her constitutional
claim on the state court’s inability to modify its earlier order (vacating the
convictions) based on a subsequent change in the law. The state appeals
court rejected that premise without referring to the Fourteenth
Amendment’s Due Process Clause. By rejecting the premise, the court
presumably rejected the entirety of the constitutional claim. See Bell v.
Uribe, 748 F.3d 857, 863–64 (9th Cir. 2014) (concluding that the petitioner
didn’t rebut the presumption when the state-law claim had been intertwined
with a constitutional claim).
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2. The state appeals court didn’t unreasonably apply the facts or a
Supreme Court holding.
Because the state appeals court presumptively rejected the
constitutional claim on the merits, the federal district court couldn’t
consider granting habeas relief unless the state appeals court had acted
unreasonably in determining the facts or in applying a Supreme Court
holding. 28 U.S.C. § 2254(d). Ms. Graham argues that the state appeals
court acted unreasonably in both ways.
a. The state appeals court didn’t unreasonably determine the
facts.
In rejecting Ms. Graham’s claim, the state appeals court said that the
initial order (vacating the convictions) had been “unauthorized under
Oklahoma law.” Graham v. Priddy, No. PR-2021-1332, slip op. at 4 (Okla.
Crim. App. Apr. 18, 2023) (unpublished). This statement led to different
interpretations of the phrase unauthorized under Oklahoma law.
Ms. Graham has argued that this language reflects a factual mistake about
the timing of the mandate in Bosse, and the federal district court credited
this argument when declining to stay its grant of habeas relief. 5
For this ruling, we conduct de novo review. Byrd v. Workman, 645
F.3d 1159, 1165 (10th Cir. 2011). For purposes of that review, Ms. Graham
5
The State did not appeal the denial of a stay. But Ms. Graham
continues to argue that the state appeals court made an unreasonable
determination of fact.
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bears the burden to show that the state appeals court based its decision on
an unreasonable determination of fact. Hancock v. Trammell, 798 F.3d
1002, 1012 (10th Cir. 2015). That burden is “‘daunting’” and “will be
satisfied in relatively few cases.” Byrd,
645 F.3d at 1172 (quoting Taylor
v. Maddux,
366 F.3d 992, 1000 (9th Cir. 2004)).
To determine whether Ms. Graham has satisfied this burden, we
consider “the context and language” in the state appellate opinion.
Hancock, 798 F.3d at 1012. The context involved a disagreement over the
state court’s power to modify the initial order (vacating the convictions)
based on a later change in precedent. Given that context, the state appeals
court’s phrase (unauthorized under Oklahoma law) was ambiguous.
This phrase could refer to the timing of the mandate in Bosse. That
mandate was in place when the state district court vacated Ms. Graham’s
convictions. The vacatur of the convictions was thus arguably valid under
Oklahoma law in effect at the time. So the state appeals court’s statement
(that the vacatur was “unauthorized under Oklahoma law”) could reflect a
factual mistake about the timing of the mandate in Bosse.
But that’s not necessarily what the state appeals court meant. The
court might have been referring to its later conclusion that Bosse had been
incorrectly decided. See State ex rel. Matloff v. Wallace, 497 P.3d 686, 694
(Okla. Crim. App. 2021). After all, the state appeals court ultimately
concluded that the state district court could modify an order based on a
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subsequent change in case law. Graham v. Priddy, No. PR-2021-1332, slip
op. at 3–4 (Okla. Crim. App. Apr. 18, 2023) (unpublished). So the term
Oklahoma law (in the phrase unauthorized under Oklahoma law), might
have referred to the new opinion overruling Bosse (Matloff). Under this
interpretation, the state appeals court made a legal determination rather
than a factual mistake.
Given the ambiguity of the state appellate opinion, Ms. Graham has
not satisfied her burden to establish an unreasonable determination of fact.
See Hancock v. Trammell, 798 F.3d 1002, 1012–16 (10th Cir. 2015)
(concluding that the petitioner hadn’t satisfied his burden to show an
unreasonable determination of fact given the ambiguity in the state appeals
court’s opinion).
b. The state appellate court didn’t unreasonably apply a
Supreme Court holding.
Because Ms. Graham didn’t satisfy that burden, we must defer to the
state appellate court unless it had unreasonably applied a Supreme Court
holding. See 28 U.S.C. § 2254(d)(1). We gauge reasonableness based on
the specificity of the Supreme Court rule. Andrew v. White,
62 F.4th 1299,
1311 (10th Cir. 2023). The more general the Supreme Court’s rule, the
greater the leeway afforded the state appeals court.
Id. Even with a specific
rule, however, we regard a state appeals court’s conclusion as unreasonable
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“only if ‘every fairminded jurist’ would ‘reach a different conclusion.’” Id.
(quoting Brown v. Davenport,
596 U.S. 118, 144 (2022)).
For this argument, Ms. Graham relies on Hicks v. Oklahoma, 447
U.S. 343 (1980). Hicks applied a general rule on the arbitrariness of a state
court’s decision. So we afford leeway to the state appeals court on how it
applied this rule.
In Hicks, an Oklahoma trial court had imposed a mandatory minimum
sentence of 40 years; and the state appeals court concluded that the trial
court shouldn’t have applied the mandatory minimum of 40 years. Id. at
345. But the state appeals court affirmed the sentence anyway, reasoning
that the jury might have chosen to impose a sentence of 40 years.
Id.
The United States Supreme Court reversed because the state appeals
court had allowed the imposition of a 40-year sentence without a jury
deciding that this sentence would have been appropriate. Id. at 346–47.
The Supreme Court concluded that this outcome was arbitrary because state
law “ha[d] provided for the imposition of criminal punishment in the
discretion of the trial jury.”
Id. at 346. Given the state-law right for a jury
to determine the sentence, the Court reasoned that the state appeals court’s
affirmance had arbitrarily disturbed the defendant’s expectation that a jury
would select the sentence.
Id.
Here we’re not addressing the arbitrary deprivation of a state-law
right (like the one in Hicks); we’re instead addressing whether the
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Constitution prevents a state court from applying its own law to modify an
order after the appeal deadline expired. Neither the Supreme Court nor our
court has ever applied Hicks in a similar situation. See, e.g., Ross v.
Oklahoma, 487 U.S. 81, 90–91 (1988) (concluding that Hicks doesn’t
support a claim involving due process because the petitioner “received all
that Oklahoma allowed him”); Johnston v. Luebbers,
288 F.3d 1048, 1053
n.3 (8th Cir. 2002) (concluding that Hicks doesn’t support habeas relief
because the state supreme court concluded that the ruling hadn’t violated
state law).
The state appeals court concluded that Oklahoma law allowed a trial
court to modify an order when it had stemmed from a precedent later
abrogated. Graham v. Priddy, No. PR-2021-1332, slip op. at 3 (Okla. Crim.
App. Apr. 18, 2023) (unpublished). For this conclusion, the court relied on
In re Application of Anderson, 803 P.2d 1160, 1162–63 (Okla. Crim. App.
1990) and Harris v. Dist. Ct. of Okla. Cnty.,
750 P.2d 1129, 1130–31
(Okla. Crim. App. 1988).
In both cases, an Oklahoma district court ordered release of a
defendant and the State sought to vacate the release order. Harris, 750
P.2d at 1130–31; In re Application of Anderson, 803 P.2d at 1162–63. In
Harris, the Oklahoma Court of Criminal Appeals concluded that the state
district court had acted within its jurisdiction in vacating the release order.
See Harris, 750 P.2d at 1130–31 (“If an order issued by a district court is
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clearly erroneous under a current statute the court can modify or vacate its
judgment.”). In Application of Anderson, a state district court reduced a
sentence and ordered release of the defendant. 803 P.2d at 1161–62. The
State didn’t appeal in time and failed to show a valid excuse for the delay.
Id. Despite the State’s failure to timely appeal, the Oklahoma Court of
Criminal Appeals reinstated the original sentence, reasoning that the state
district court had lacked authority to reduce the sentence.
Id. at 1163.
The state appeals court applied these precedents here, concluding
that they had allowed the state district court to modify its initial order
(vacating Ms. Graham’s convictions). Graham v. Priddy, No. PR-2021-
1332, slip op. at 3–4 (Okla. Crim. App. Apr. 18, 2023) (unpublished). We
generally lack authority to question the Oklahoma Court of Criminal
Appeals’s determination of the trial court’s authority under Oklahoma law.
Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). 6
6
Granting habeas relief, the federal district court criticized the state
appeals court for misapplying its own laws:
• “[T]he [Oklahoma Court of Criminal Appeals] arbitrarily
disregarded the crushing weight of the state law and its own
procedural rules governing postconviction review.”
• “[S]tate law created a substantial and legitimate expectation
that the [Tulsa County District Court’s] final judgment granting
postconviction relief would remain final absent a timely
postconviction appeal by the state.”
• “Bosse I was an authoritative decision on April 7, 2021, when
the mandate issued, and the [Tulsa County District Court] could
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A narrow exception exists, allowing a federal habeas court to
consider whether the state court’s application of state law results in a
denial of due process. See Lisenba v. California, 314 U.S. 219, 236 (1941)
(stating that California’s selection of an applicable rule doesn’t prevent
consideration of a possible denial of due process from the application of
that rule in a given case). For example, a state court’s determination of
state law might be arbitrary or capricious enough to create a denial of due
process. Cummings v. Sirmons,
506 F.3d 1211, 1237 (10th Cir. 2007).
Ms. Graham claims that the state appeals court arbitrarily deprived
her of the liberty interest created in the initial order (vacating the
convictions). The federal district court agreed with Ms. Graham, pointing
to the state district court’s reliance in the initial order on precedent that
had governed at the time (Bosse). The federal district court pointed out that
the State’s appeal time had expired before the state appeals court abrogated
Bosse. See State ex rel. Matloff v. Wallace, 497 P.3d 686 (Okla. Crim App.
2021).
rely on that decision on April 8, 2021, one day before the
[Oklahoma Court of Criminal Appeals] recalled the mandate.”
Graham v. White, No. 23-CV-0164-CVE-SH, 2023 WL 4141662, at *17
(N.D. Okla. June 22, 2023) (unpublished). But the federal district court
elsewhere acknowledged that it couldn’t “second-guess” the Oklahoma
Court of Criminal Appeals’s conclusion that state law had empowered the
trial court to vacate its initial order despite the State’s failure to appeal.
Id. at *17 n.20.
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The resulting constitutional issue is whether the state appeals court
acted arbitrarily under Oklahoma law in allowing the state district court to
modify the initial order after the State’s appeal time had expired.
Ms. Graham suggests that this application of state law was arbitrary.
The Court of Criminal Appeals might or might not have been right in
upholding the state district court’s power to reinstate the convictions. But
at least some fair-minded jurists could reasonably credit the state appeals
court’s application of Harris and Application of Anderson. So the state
appeals court had leeway to reject Ms. Graham’s characterization of its
approach as arbitrary. Given that leeway, “fairminded jurists could
disagree that the state court’s decision conflicts with [the Supreme]
Court’s precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011). So
we reverse the federal district court’s issuance of habeas relief. 7
Conclusion
The State presents two arguments for reversal of the federal district
court’s issuance of the writ of habeas corpus.
First, the State argues that Ms. Graham rested on state law and
defects in post-conviction procedures. We disagree, concluding that
Ms. Graham asserted a federal constitutional claim.
7
The State also argues that the federal district court’s application of
Hicks violated the retroactivity principles set forth in Teague v. Lane, 489
U.S. 288, 310 (1989). We need not address this argument because we
reverse on other grounds.
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Second, the State argues that the state appellate court acted
reasonably in determining the facts and applying Supreme Court holdings.
We agree and remand with instructions to deny habeas relief.
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