Marshall McDaniel v. Zach Roeckeman

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Filed opinion of the court by Judge Kanne. AFFIRMED. Joel M. Flaum, Circuit Judge; Michael S. Kanne, Circuit Judge and Jane E. Magnus-Stinson, Chief District Court Judge. [6817842-1] [6817842] [15-3638]

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Case: 15-3638 Document: 41 Filed: 02/09/2017 Pages: 15 In the United States Court of Appeals For the Seventh Circuit ____________________ No. 15‐3638 MARSHALL MCDANIEL, Petitioner‐Appellant, v. CECIL POLLEY, Warden, Respondent‐Appellee. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10 C 7375 — Joan H. Lefkow, Judge. ____________________ ARGUED NOVEMBER 4, 2016 — DECIDED FEBRUARY 9, 2017 ____________________ Before FLAUM and KANNE, Circuit Judges, and MAGNUS‐ STINSON, District Judge. KANNE, Circuit Judge. In 2001, police oﬃcers arrested Marshall McDaniel while investigating his girlfriend’s mur‐ der. McDaniel confessed during postarrest interrogation. Af‐ ter pleading not guilty, McDaniel unsuccessfully attempted The Honorable Jane Magnus‐Stinson, of the United States District Court for the Southern District of Indiana, sitting by designation. Case: 15-3638 Document: 41 Filed: 02/09/2017 2 Pages: 15 No. 15‐3638 to suppress his confession. He was convicted in Illinois state court; on direct appeal, the Illinois Appellate Court aﬃrmed. After his state petition for postconviction relief was de‐ nied, McDaniel petitioned the federal district court for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied the petition. McDaniel now argues that appellate counsel was ineﬀective for failing to argue that his initial ar‐ rest was unlawful and that his confession was inadmissible as fruit of the unlawful arrest. On appeal, we review the Illinois Appellate Court’s deci‐ sion to deny McDaniel’s petition for postconviction relief. People v. McDaniel, No. 1‐06‐3283, slip op. (Ill. App. Ct. Sept. 30, 2009). Because McDaniel was not prejudiced by appellate counsel’s failure to raise his Fourth Amendment claim, we aﬃrm. I. BACKGROUND On January 16, 2001, at 9:15 a.m., Officers found DeAn‐ gular Moore’s body in a high school parking lot. Moore’s body was lying next to a bloodied garbage can marked 8055 South Harvard. Because she did not have identification with her at the time of her death, Detective Brownfield sought to identify Moore by showing community members her photo. At 5 p.m., before Moore was identified, Detective Brownfield received a call from Officer Blackman. Officer Blackman told Detective Brownfield that he had seen a black male, 6’1”, 185 pounds, and in his forties, pulling a garbage can at 2 a.m. that morning. Officer Blackman said that the man pulled the garbage can into the high school parking lot and then exited empty handed. Case: 15-3638 Document: 41 No. 15‐3638 Filed: 02/09/2017 Pages: 15 3 After Detective Brownﬁeld talked to Oﬃcer Blackman, a woman identiﬁed Moore. The woman told Detective Brownﬁeld that Moore lived with her boyfriend— McDaniel—and described him as a black male, 6’3”, 185 pounds, and in his late forties. The woman took Detective Brownﬁeld to a man called “Radio.” Radio identiﬁed Moore and then took Detective Brownﬁeld and several other oﬃc‐ ers to McDaniel’s house—four doors from the address marked on the bloodied garbage can. McDaniel was not home, so the oﬃcers left. Four oﬃcers returned about an hour later, at 8:30 p.m. They did not have a search or arrest warrant. At trial, two of the oﬃcers testiﬁed that they did not think that they had probable cause to arrest McDaniel at that time. The oﬃcers testiﬁed that they went to McDaniel’s house only to investi‐ gate Moore’s death. When the oﬃcers knocked, McDaniel answered and consented to the oﬃcers’ request to come in‐ side. Once inside, the oﬃcers asked McDaniel if he knew why they were there, and he allegedly responded, “[B]ecause my girlfriend was murdered.” (R. 17‐1 at 81); (R. 17‐2 at 96).1 At the oﬃcers’ request, McDaniel allowed the oﬃcers to search his house. When McDaniel began acting nervous and ﬁdg‐ ety, an oﬃcer put McDaniel in handcuﬀs. The oﬃcer told McDaniel that he was not under arrest and removed the handcuﬀs about ﬁve minutes later once McDaniel calmed down. At around 9 p.m., the oﬃcers asked McDaniel if he 1 McDaniel denied making this statement, but he testified at trial that he knew Moore was dead before the officers arrived because Radio had told him as much earlier in the day. Case: 15-3638 Document: 41 4 Filed: 02/09/2017 Pages: 15 No. 15‐3638 would come to the police station for further questioning. McDaniel acquiesced, and the oﬃcers drove him back to the station in a police car. While on their way to the station, one of the oﬃcers called Detective Brownﬁeld to update him. Detective Brownﬁeld told the oﬃcer that Oﬃcer Blackman had just identiﬁed McDaniel in a photo‐array lineup. Detective Brownﬁeld directed the oﬃcers to bring McDaniel to a par‐ ticular station. McDaniel arrived at the station at 10:30 p.m. At midnight, Oﬃcer Blackman identiﬁed McDaniel in a cor‐ poral lineup. At the police station, McDaniel was placed in an interro‐ gation room, read his Miranda rights, and then questioned three separate times over twenty‐four hours. During the third round of questioning, McDaniel confessed to the mur‐ der and signed a written confession prepared by an Assis‐ tant State’s Attorney.2 Despite his confession, McDaniel pled not guilty. McDaniel moved to suppress his confession on the ground that it and any related evidence was fruit of his arrest, which he argued violated the Fourth Amendment. The trial court ruled that the officers arrested McDaniel when they hand‐ cuffed him at his home and later drove him to the police sta‐ tion. But the trial court imputed Officer Blackman’s photo‐ array identification to the arresting officers, which gave them probable cause to arrest McDaniel at that time. With 2 Despite devoting significant time in his brief to describing the improper tactics that the investigating officers allegedly used during the custodial interrogation, on appeal, McDaniel does not argue that his confession was improperly coerced. Case: 15-3638 No. 15‐3638 Document: 41 Filed: 02/09/2017 Pages: 15 5 his confession deemed admissible, a jury convicted McDan‐ iel of murdering Moore. On direct appeal, McDaniel’s appointed appellate coun‐ sel argued only one issue—that the prosecution’s reference to McDaniel’s refusal to take a polygraph while in custody denied him due process of law. Appellate counsel, ignoring McDaniel’s prodding, made no argument about the arrest or the admissibility of his confession. The appellate court aﬃrmed the conviction. McDaniel subsequently ﬁled a petition for postconviction relief in Cook County Circuit Court. In that petition, McDan‐ iel argued that he had been denied eﬀective assistance of appellate counsel because appellate counsel had not argued that his confession should have been suppressed as fruit of an unlawful arrest. The circuit court denied the petition. The Illinois Appellate Court aﬃrmed. Applying the Su‐ preme Court’s two‐pronged test for ineﬀective‐assistance‐of‐ counsel claims deﬁned in Strickland v. Washington, 466 U.S. 668 (1984), the court held that appellate counsel was not in‐ eﬀective in failing to raise the Fourth Amendment claim be‐ cause the oﬃcers had probable cause to arrest McDaniel when they went to his house. The court held that Oﬃcer Blackman’s description of the man pulling the garbage can— which Detective Brownﬁeld relayed to the arresting oﬃc‐ ers—created probable cause justifying the arrest. The court cited Illinois case law for the proposition that “a defendant is not prejudiced by counsel’s failure to raise” a nonmeritori‐ ous claim on appeal and concluded that “appellate counsel was not ineﬀective for electing not to raise the legality” of the arrest. (R. 17‐5 at 43–44.) Case: 15-3638 Document: 41 Filed: 02/09/2017 6 Pages: 15 No. 15‐3638 McDaniel petitioned the district court for a writ of habeas corpus under 28 U.S.C. § 2254. The district court held that the Illinois Appellate Court erred in holding that the arrest‐ ing oﬃcers had probable cause to arrest McDaniel. Never‐ theless, the district court held that McDaniel had not shown prejudice as Strickland requires. A signiﬁcant intervening cir‐ cumstance, that is, Oﬃcer Blackman’s identiﬁcation of McDaniel in the photo‐array lineup, “would have probably led the appellate court to sustain the trial court’s denial of the motion to suppress.” (R. 34 at 18.) Consequently, the dis‐ trict court denied McDaniel’s petition. The district court is‐ sued a certiﬁcate of appealability as to McDaniel’s ineﬀec‐ tive‐assistance‐of‐counsel claim. This appeal followed. II. ANALYSIS We review de novo a district court’s denial of a habeas pe‐ tition. Dansberry v. Pﬁster, 801 F.3d 863, 866 (7th Cir. 2015). As we have repeatedly said, the Antiterrorism and Eﬀective Death Penalty Act of 1996 (“AEDPA”) circumscribes our re‐ view of a claim for habeas relief that a state court has already adjudicated on the merits. E.g., King v. Pﬁster, 834 F.3d 808, 813 (7th Cir. 2016). When the state court applies the correct rule as estab‐ lished by Supreme Court precedent to a claim, the petitioner must show that the state court’s decision was an “unreason‐ able application” of that precedent to the facts of the case. Emerson v. Shaw, 575 F.3d 680, 684 (7th Cir. 2009) (quoting Bell v. Cone, 535 U.S. 685, 694 (2002)). The qualiﬁer “unrea‐ sonable” often controls our review: unreasonable means more than ordinary disagreement with the state court’s deci‐ sion. McManus v. Neal, 779 F.3d 634, 649 (7th Cir. 2015). A state court’s decision is reasonable, even if incorrect in our Case: 15-3638 No. 15‐3638 Document: 41 Filed: 02/09/2017 Pages: 15 7 independent judgment, so long as “‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Quintana v. Chandler, 723 F.3d 849, 855 (7th Cir. 2013) (quot‐ ing Harrington v. Richter, 562 U.S. 86, 101 (2011)). “If this standard is diﬃcult to meet, that is because it was meant to be.” Harrington, 562 U.S. at 102. Here, the Illinois Appellate Court applied the correct rule, the Supreme Court’s two‐pronged test for ineﬀective‐ assistance‐of‐counsel claims from Strickland, 466 U.S. 668. To prove ineﬀective assistance of counsel, the petitioner must show that: (1) counsel’s performance “fell below an objective standard of reasonableness”; and (2) there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been diﬀerent.” King, 834 F.3d at 813 (quoting Strickland, 466 U.S. at 687–88). When applying Strickland to the facts of a particular case, “there is no reason for a court … to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insuﬃcient showing on one.” Strickland, 466 U.S. at 697. The goal of ineﬀective‐ assistance‐of‐counsel claims “is not to grade counsel’s per‐ formance,” so when “it is easier to dispose of an ineﬀective‐ ness claim on the ground of lack of suﬃcient prejudice … that course should be followed.” Id. That is the case here, so we move immediately to the prejudice prong of the analysis. The Illinois Appellate Court aﬃrmed the trial court’s de‐ nial of McDaniel’s petition for postconviction relief because he was not be prejudiced by appellate counsel’s failure to raise a nonmeritorious claim. The court held that Oﬃcer Blackman’s description of the man pulling the garbage can created probable cause to arrest McDaniel. The district court Case: 15-3638 8 Document: 41 Filed: 02/09/2017 Pages: 15 No. 15‐3638 disagreed, and we agree with its analysis: “Oﬃcer Black‐ man’s description … would surely have described a substan‐ tial number of men living in the area.” (R. 34 at 17.) The de‐ scription alone did not create an individualized suspicion that McDaniel killed Moore, and thus, did not create proba‐ ble cause. City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000). The state points to additional evidence that it argues cre‐ ated probable cause: (1) how close the address on the gar‐ bage can lying next to Moore’s body was to McDaniel’s ad‐ dress; (2) that McDaniel knew why the oﬃcers were at his house; and (3) that McDaniel acted nervous and ﬁdgety when the police entered his house. Whether the combined evidence creates probable cause is debatable. Probable cause is not a question we need to address here, however, because McDaniel’s confession would be admissible even if we as‐ sume that his arrest was unlawful. Evidence obtained as the result of an unlawful search or seizure is often inadmissible under the Supreme Court’s ex‐ clusionary rule, Wong Sun v. United States, 371 U.S. 471, 484– 85 (1963), but not always. The attenuation doctrine is an exception to the exclusion‐ ary rule. “A confession obtained through custodial interro‐ gation after an illegal arrest must be excluded from evidence unless the confession is attenuated enough from the illegal arrest that the confession is ‘suﬃciently an act of free will to purge the primary taint.’” United States v. Reed, 349 F.3d 457, 463 (7th Cir. 2003) (quoting Brown v. Illinois, 422 U.S. 590, 602 Case: 15-3638 Document: 41 Filed: 02/09/2017 No. 15‐3638 Pages: 15 9 (1975)). So long as the confession is voluntary,3 our analysis focuses on “whether the confession is obtained by exploita‐ tion of an illegal arrest.” Brown, 422 U.S. at 603. To determine whether a confession is free from the taint of an unlawful arrest, we consider “[t]he temporal proximity of the arrest and the confession, the presence of intervening circumstanc‐ es, and, particularly, the purpose and ﬂagrancy of the oﬃcial misconduct … .” Brown, 422 U.S. at 603–04 (internal citations omitted). 1. Temporal Proximity Both sides agree that McDaniel confessed over twenty‐ four hours after being arrested. If we were to view temporal proximity in isolation, we would hold that the confession was temporally disconnected from the arrest. Twenty‐four hours far exceeds the length of time that most courts have held disconnects a confession from an illegal arrest. Reed, 349 F.3d at 463–64 (collecting cases). The time gap is not dispositive here, however, because McDaniel was in custody the entire twenty‐four hours, did not talk to a lawyer, was questioned multiple times, and was subjected to a corporal lineup. Taylor v. Alabama, 457 U.S. 687, 691 (1982). In such a situation, a lengthy period of time be‐ tween an arrest and confession does not serve to attenuate the arrest; we could hardly say that an illegal arrest had no eﬀect on a confession just because the suspect was kept in interrogation for over twenty‐four hours. United States v. Conrad, 673 F.3d 728, 738 (7th Cir. 2012) (noting that not only 3 We assume that the confession was not coerced because McDaniel does not argue that he was coerced into confessing. See footnote 2. Case: 15-3638 Document: 41 10 Filed: 02/09/2017 Pages: 15 No. 15‐3638 is the “time elapsed” important but also “the quality of that time”). Therefore, the ﬁrst factor favors suppression. 2. Intervening Circumstances There are two intervening events that attenuate McDan‐ iel’s confession from his arrest. First, the interrogating oﬃc‐ ers read McDaniel his Miranda rights before they questioned him. Although Miranda warnings do not per se remove the scourge of an unlawful arrest, they “are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest.” Brown, 422 U.S. at 603. So even though the warnings are not dispositive, they are a factor in our analysis and tend to support attenuation. Second, the arresting oﬃcers had probable cause to arrest McDaniel before they began interrogating him. See Utah v. Strieﬀ, 136 S. Ct. 2056, 2062–63 (2016) (holding that an inde‐ pendent arrest warrant served as an intervening event be‐ tween an unlawful stop and search incident to arrest). At some point between the time the oﬃcers left to question McDaniel and the time they left his house for the police sta‐ tion, Oﬃcer Blackman identiﬁed McDaniel in a photo‐array lineup. While the arresting oﬃcers were on their way back to the station with McDaniel, they were informed of Oﬃcer Blackman’s identiﬁcation.4 A single, credible eyewitness 4 Although we analyze potential intervening circumstances from the de‐ fendant’s perspective in this context, McDaniel does not deny that he was made aware of Officer Blackman’s photo identification. See Reed, 349 F.3d at 463 (noting that the question is whether the confession is attenu‐ ated enough from the illegal arrest that the confession is sufficiently an act of defendant’s free will to purge the primary taint) (quoting Brown, 422 U.S. at 602); see also United States v. Gregory, 79 F.3d 973, 980 (10th Cir. 1996) (“In applying the second factor in Brown, we look only from the Case: 15-3638 No. 15‐3638 Document: 41 Filed: 02/09/2017 Pages: 15 11 identiﬁcation can create probable cause. Hart v. Mannina, 798 F.3d 578, 587 (7th Cir. 2015).5 Had the oﬃcers not put McDaniel in handcuﬀs brieﬂy and waited minutes to put him in the police car, they would have had probable cause for the arrest. Importantly, Oﬃcer Blackman’s identiﬁcation was whol‐ ly independent of the arrest. In Taylor, the Supreme Court held that an arrest warrant ﬁled after an illegal arrest but be‐ fore the confession was not an intervening circumstance. 457 U.S. at 692–93. In that case, the arrest warrant was based on a ﬁngerprint match between the suspect and ﬁngerprints defendant’s perspective in determining whether any intervening event occurred which isolates the defendant from the coercive effects of the original illegal stop so as to render his subsequent consent voluntary in fact.”). 5 McDaniel argues throughout his brief that Officer Blackman’s photo‐ array identification was “tentative.” During the identification, Officer Blackman said that McDaniel’s photo “look[ed] like” the man he saw pulling the garbage can. Multiple officers testified that this was a tenta‐ tive identification. But that fact does not change our analysis. An officer has probable cause based on an eyewitness who “it seems reasonable to believe is telling the truth.” Gramenos v. Jewel Cos., Inc., 797 F.2d 432, 439 (7th Cir. 1986) (internal quotation marks omitted). Such an identification can create probable cause even if the officers know of other evidence that might lead a jury to conclude that the eyewitness had misidentified the suspect. Tangwall v. Stuckey, 135 F.3d 510, 516 (7th Cir. 1998) (citing Gramenos, 797 F.2d at 437). Officer Blackman’s identification was suffi‐ cient to create probable cause. There was no reason to doubt that Officer Blackman was telling the truth, and it was reasonable to rely on Officer Blackman’s statement that McDaniel “look[ed] like” the man pulling the garbage. The weight to give the “tentative” identification would have been for the jury to decide. United States v. Carter, 410 F.3d 942, 950 (7th Cir. 2005). Case: 15-3638 Document: 41 Filed: 02/09/2017 12 Pages: 15 No. 15‐3638 found at the crime scene. The ﬁngerprints used to match the ones at the crime scene were taken immediately after the il‐ legal arrest, making them fruit of the illegal arrest. The Court held that, as a result, the arrest warrant did not constitute an intervening event. Id. Here, Oﬃcer Blackman’s identiﬁcation did not rely on anything that stemmed from the arrest. The oﬃcers knew McDaniel’s name, knew that he ﬁt Oﬃcer Blackman’s gen‐ eral description of the man pulling the garbage can, and got his picture without relying in any way on the arrest. See Se‐ gura v. United States, 468 U.S. 796, 814 (1984) (“None of the information on which the warrant was secured was derived from or related in any way to the initial entry into petition‐ ers’ apartment; the information came from sources wholly unconnected with the entry and was known to the agents well before the initial entry.”). The second factor, the existence of intervening circum‐ stances, favors admissibility. 3. Flagrancy of Police Misconduct The ﬂagrancy of police misconduct is the most important element of our analysis because the exclusionary rule is aimed at deterring police misconduct. Reed, 349 F.3d at 464– 65 (citing Brown, 422 U.S. at 600). “The third factor of the attenuation doctrine reﬂects that rationale by favoring exclu‐ sion only when the police misconduct is most in need of de‐ terrence—that is, when it is purposeful or ﬂagrant.” Strieﬀ, 136 S. Ct. at 2063. When an oﬃcer’s conduct is negligent but not ﬂagrant or purposeful, the exclusionary rule’s objective is not served and strongly favors admissibility. Id. Good‐faith mistakes, Case: 15-3638 No. 15‐3638 Document: 41 Filed: 02/09/2017 Pages: 15 13 resulting from errors in judgment, “hardly rise to a purpose‐ ful or ﬂagrant violation of … Fourth Amendment rights.” Id. In Strieﬀ, an oﬃcer stopped Strieﬀ leaving a suspected drug house without reasonable suspicion of wrongdoing. The Court said that the oﬃcer violated Strieﬀ’s Fourth Amendment rights and instead should have asked Strieﬀ to talk instead of demanding that he do so. Notwithstanding the Fourth Amendment violation, the Court concluded that the third prong of the Brown test was not satisﬁed because the oﬃcer made a good‐faith mistake and did not act pur‐ posefully or ﬂagrantly. The same rationale applies here. Two oﬃcers testiﬁed that they went to McDaniel’s house only to investigate Moore’s death and that they did not think that they had probable cause to arrest him at that time. At no point did the oﬃcers think that they were arresting McDaniel. McDaniel consented to all of the oﬃcers’ conduct: entry into his house, the initial questioning at his house, the search of his house, and going to the police station for further questioning. See United States v. Rahman, 805 F.3d 822, 831 (7th Cir. 2015). The trial court held that McDaniel was in custody for purposes of the Fourth Amendment when the oﬃcers handcuﬀed him at his house and later drove him to the police station. But the oﬃcers told McDaniel that he was not under arrest and took him out of the handcuﬀs ﬁve minutes later while still at his house. Further, McDaniel consented to going to the police station. Oﬃcers in future situations could scarcely hope to be more careful than the oﬃcers were here. These mistakes, if they were mistakes, constitute negligence. And as was the case in Strieﬀ, everything that occurred after the initial arrest was legal. 136 S. Ct. at 2063. Case: 15-3638 Document: 41 14 Filed: 02/09/2017 Pages: 15 No. 15‐3638 Although the oﬃcers acted in good faith, that is only part of the inquiry when analyzing the purpose and ﬂagrancy of the oﬃcers’ conduct. Reed, 349 F.3d at 465. The Supreme Court has held that an oﬃcer’s conduct is purposeful and ﬂagrant in absence of bad faith when the oﬃcers used the unlawful arrest as an investigatory method to discover evi‐ dence.6 Taylor, 457 U.S. at 693; Dunaway v. New York, 442 U.S. 200, 218 (1979); Brown, 422 U.S. at 605. McDaniel relies on the language in those cases to argue that his “arrest has a ‘quali‐ ty of purposefulness’ in that it was an ‘expedition for evi‐ dence’ admittedly undertaken ‘in the hope that something might turn up.’” (Appellant’s Reply Br. at 25 (quoting Duna‐ way, 442 U.S. at 218).) Of course, the oﬃcers went to McDaniel’s house to inves‐ tigate Moore’s death and hoped that their investigation would turn up evidence during questioning. But the similar‐ ities between our case and the Supreme Court cases end there. In the Supreme Court cases, the oﬃcers—regardless of their belief about probable cause—intended to arrest the suspect. Taylor, 457 U.S. at 688–89; Dunaway, 442 U.S. at 203; Brown, 422 U.S. at 592. Excluding evidence in those cases served to deter future oﬃcers from arresting an individual unless they were sure that they had probable cause. Here, the oﬃcers did not intend to arrest McDaniel. Excluding McDaniel’s confession would not deter this type of conduct: 6 The Court has held that the lack of coercion during the interrogation does not mean that an officer’s conduct was not flagrant or purposeful. Dunaway, 442 U.S. at 218–19. The officers’ conduct during interrogation is not at issue here. Accordingly, we do not address whether the officers’ conduct during McDaniel’s interrogation adds to the flagrancy of their conduct. Case: 15-3638 Document: 41 Filed: 02/09/2017 No. 15‐3638 Pages: 15 15 oﬃcers would still have to investigate crimes before they have probable cause and would continue to rely on various witnesses’ and suspects’ consent when doing so. To quote the Supreme Court, “[A]ll the evidence suggests that the [arrest] was an isolated instance of negligence that occurred in connection with a bona ﬁde investigation … .” Strieﬀ, 136 S. Ct. at 2063. The oﬃcers’ conduct was not ﬂa‐ grant or purposeful, and thus, application of the exclusion‐ ary rule is not warranted. That, in addition to the interven‐ ing events, attenuated the confession from the arrest. As a result, McDaniel cannot show prejudice because the confes‐ sion would have been admissible even if his arrest was un‐ lawful. III. CONCLUSION For the foregoing reasons, the district court’s denial of McDaniel’s petition for a writ of habeas corpus is AFFIRMED.

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