Hicks v. Baker et al

Filing 54

ORDERED that the petition for a writ of habeas corpus (ECF No. 2 ) is denied. The Clerk of the Court will enter judgment accordingly and close this action. It is further ordered that a certificate of appealability will not issue. Signed by Judge Miranda M. Du on 9/28/2018. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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BRANDON M. HICKS,

Case No. 3:15-cv-00215-MMD-WGC
Petitioner,

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ORDER

v.
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RENEE BAKER, et al.,
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Respondents.
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I.

SUMMARY

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Before the Court are the petition for a writ of habeas corpus pursuant to 28 U.S.C.

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§ 2254 (“Petition”) (ECF No. 2), Respondents’ answer (ECF No. 37), and Petitioner’s reply

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(ECF No. 52). Petitioner is not entitled to relief, and the Court denies the Petition.

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II.

BACKGROUND

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The Court has reviewed the record, including the transcript of the preliminary

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hearing in the state justice court and the transcript of the post-conviction evidentiary

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hearing in the state district court. (See Exh. 5 (ECF No. 16-5); Exh. 57 (ECF No. 17-24).)

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The state district court’s summary of the facts and the court proceedings is accurate, and

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the Court reproduces it here:

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Petitioner was charged by Criminal Complaint on March 24, 2011, with one
count of Kidnapping in the First Degree, two counts of Battery With Intent to
Commit Sexual Assault Committed by Strangulation, and three counts of
Sexual Assault, all category A felonies. The crimes occurred on October 17,
2010, and on November 26, 2010, and involved two unrelated victims. A
preliminary hearing was held on April 14, 2011, at which both victims
testified. Petitioner was bound over on all charges.
With respect to the October 17, 2010 incident, victim A.D. told investigators
that Petitioner offered to drive her home from a party. Instead of driving her

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home, he drove her to the Carson River and tried to kiss her. He then shoved
her to the ground and placed his forearm across her throat, constricting her
breathing. Petitioner then sexually assaulted A.D. Detectives interviewed
Petitioner, but he denied having sex with the victim. [Exh. 47 (ECF No. 1714 at 16-19) (Exhibit 1 to state’s return to petition and supplemental
petition).] DNA results later confirmed that Petitioner did in fact have sexual
intercourse with the victim. [Exh. 47 (ECF No. 17-14 at 21-22) (Exhibit 2 to
state’s return to petition and supplemental petition).]

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With respect to the November 26, 2011 incident, victim S.V. told
investigators that she had tried to obtain the controlled substance “ecstasy”
through a drug dealer referred to her by Petitioner. The drug dealer, “Little
Chris,” took S.V.’s money but never provided any drugs. Petitioner told S.V.
that he had a gun and instructed her to come to his house under the pretext
of confronting “Little Chris” and getting her money back. While at Petitioner’s
house, Petitioner asked S.V. to lie down on his bed. Petitioner tried to kiss
S.V. When S.V. tried to resist him, Petitioner put his hands around her throat
causing her to have difficulty breathing. Petitioner then sexually assaulted
S.V. [Exh. 47 (ECF No. 17-14 at 24-27) (Exhibit 3 to state’s return to petition
and supplemental petition).]

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On June 11, 2011, petitioner pled guilty to a Third Amended Criminal
Information charging a single count of Sexual Assault naming both victims.
All other counts were dismissed. It was further agreed that a third case of
sexual assault . . . would not be filed against petitioner in exchange for his
plea. On July 19, 2011, petitioner was sentenced to a term of life
imprisonment with parole eligibility after 10 years.

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(Exh. 65 at 1-2 (ECF No. 18 at 2-3) (citations omitted or modified).) The sentence that

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Petitioner received was the only possible sentence. NRS § 200.366(2)(b). Petitioner did

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not appeal the judgment of conviction.

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Petitioner filed a post-conviction habeas corpus petition in the state district court on

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April 27, 2012. (Exh. 37 (ECF No. 17-4).) The state district court appointed counsel, who

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filed a supplemental petition. (Exh. 46 (ECF No. 17-13).) The state district court held an

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evidentiary hearing. (Exh. 57 (ECF No. 17-24).) The state district court then denied the

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petition. (Exh. 65 (ECF No. 18).) Petitioner appealed. The Nevada Court of Appeals

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affirmed. (Exh. 88 (ECF No. 18-23).) The Nevada Supreme Court denied a petition for

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review. (Exh. 95 (ECF No. 18-30).)

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Petitioner then commenced this action. As written, the Petition (ECF No. 2) contains

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three grounds for relief. However, grounds 1 and 2 actually contain multiple, distinct

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claims. Respondents have subdivided grounds 1 and 2, and the Court has adopted

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Respondents’ subdivisions. (ECF No. 26 at 1-2.)
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Respondents filed a motion to dismiss. (ECF No. 15.) The Court granted the motion

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in part, finding that Petitioner had not exhausted his state-court remedies for some of his

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claims. (ECF No. 26.) Petitioner filed a motion to stay the proceedings while he exhausted

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his claims in state court, and in the alternative he asked the Court to dismiss the

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unexhausted claims. (ECF No. 29.) The Court denied the stay, and the Court dismissed

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the unexhausted claims.1 (ECF No. 35.)

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Grounds 1B, 1D, 2E, 2F, 2G, and 3 are the remaining claims. The ground 1 claims

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are claims of trial-court error. The ground 2 claims are claims of ineffective assistance of

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counsel. Ground 3 is a claim that Petitioner did not enter his guilty plea knowingly and

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voluntarily.

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III.

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LEGAL STANDARD
Congress has limited the circumstances in which a federal court can grant relief to

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a petitioner who is in custody pursuant to a judgment of conviction of a state court.

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An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.

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28 U.S.C. § 2254(d). “By its terms § 2254(d) bars relitigation of any claim ‘adjudicated on

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the merits’ in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).”

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Harrington v. Richter, 562 U.S. 86, 98 (2011). To obtain relief, a petitioner must show that

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“the earlier state court’s decision ‘was contrary to’” federal law then clearly established in

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the holdings of this Court, § 2254(d)(1); … or that it “involved an unreasonable application

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of” such law, § 2254(d)(1); or that it ‘was based on an unreasonable determination of the

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facts’ in light of the record before the state court, § 2254(d)(2).” Richter, 562 U.S. at 100.

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In this context “an unreasonable application of federal law is different from an incorrect

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jurists would not find the Court’s conclusions regarding the
unexhausted claims to be debatable or wrong, and the Court will not issue a certificate of
appealability for them.
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application of federal law.’” Id. (citation omitted). “A state court’s determination that a claim

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lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’

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on the correctness of the state court’s decision.” Id. (citation omitted).

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determining the reasonableness of a rule application necessary requires considering the

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rule’s specificity. Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). “The more general

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the rule, the more leeway courts have in reaching outcomes in case-by-case

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determinations.” Id. A court reviewing a habeas petition “must determine what arguments

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or theories supported or, as here, could have supported, the state court’s decision; and

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then it must ask whether it is possible fairminded jurists could disagree that those

Moreover,

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arguments or theories are inconsistent with the holding in a prior decision of this Court.”

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Richter, 562 U.S. at 102. To obtain relief, “a state prisoner must show that the state court’s

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ruling on the claim being presented in federal court was so lacking in justification that there

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was an error well understood and comprehended in existing law beyond any possibility for

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fairminded disagreement.” Id. at 103.

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“[T]he right to counsel is the right to the effective assistance of counsel.” McMann

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v. Richardson, 397 U.S. 759, 771 & n.14 (1970). A petitioner claiming ineffective

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assistance of counsel must demonstrate (1) that the defense attorney’s representation “fell

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below an objective standard of reasonableness,” Strickland v. Washington, 466 U.S. 668,

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688 (1984), and (2) that the attorney’s deficient performance prejudiced the defendant

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such that “there is a reasonable probability that, but for counsel’s unprofessional errors,

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the result of the proceeding would have been different,” id. at 694. “[T]here is no reason

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for a court deciding an ineffective assistance claim to approach the inquiry in the same

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order or even to address both components of the inquiry if the defendant makes an

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insufficient showing on one.” Id. at 697. In a guilty-plea case, “in order to satisfy the

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‘prejudice’ requirement, the defendant must show that there is a reasonable probability

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that, but for counsel’s errors, he would not have pleaded guilty and would have insisted

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on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

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Strickland expressly declines to articulate specific guidelines for attorney

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performance beyond generalized duties, including the duty of loyalty, the duty to avoid

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conflicts of interest, the duty to advocate the defendant’s cause, and the duty to

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communicate with the client over the course of the prosecution. 466 U.S. at 688. The Court

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avoided defining defense counsel’s duties so exhaustively as to give rise to a “checklist

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for judicial evaluation of attorney performance. . . . Any such set of rules would interfere

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with the constitutionally protected independence of counsel and restrict the wide latitude

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counsel must have in making tactical decisions.” Id. at 688-89.

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Review of an attorney’s performance must be “highly deferential,” and must adopt

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counsel’s perspective at the time of the challenged conduct to avoid the “distorting effects

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of hindsight.” Id. at 689. A reviewing court must “indulge a strong presumption that

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counsel’s conduct falls within the wide range of reasonable professional assistance; that

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is, the defendant must overcome the presumption that, under the circumstances, the

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challenged action ‘might be considered sound trial strategy.’” Id. (citation omitted).

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The Sixth Amendment does not guarantee effective counsel per se, but rather a

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fair proceeding with a reliable outcome. Id. at 691-92; see also Jennings v. Woodford, 290

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F.3d 1006, 1012 (9th Cir. 2002). Consequently, a demonstration that counsel fell below

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an objective standard of reasonableness alone is insufficient to warrant a finding of

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ineffective assistance. The petitioner must also show that the attorney’s sub-par

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performance prejudiced the defense. Strickland, 466 U.S. at 691-92. There must be a

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reasonable probability that, but for the attorney’s challenged conduct, the result of the

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proceeding in question would have been different. Id. at 694. “A reasonable probability is

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a probability sufficient to undermine confidence in the outcome.” Id.

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Establishing that a state court’s application of Strickland was unreasonable
under § 2254(d) is all the more difficult. The standards created by Strickland
and § 2254(d) are both “highly deferential,” . . . and when the two apply in
tandem, review is “doubly” so . . . . The Strickland standard is a general one,
so the range of reasonable applications is substantial. Federal habeas
courts must guard against the danger of equating unreasonableness under

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Strickland with unreasonableness under § 2254(d). When § 2254(d) applies,
the question is not whether counsel’s actions were reasonable. The question
is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.

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Richter, 562 U.S. at 105 (citations omitted).

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IV.

DISCUSSION

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A.

Ground 1B

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Ground 1B is a claim that the sentencing judge’s comments in the judgment of

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conviction interfered with the prerogatives of the Nevada Legislature and of the parole

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board. The judge stated:

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The Defendant accepts no responsibility and feels no remorse for sexually
assaulting two young women. Several months ago I sentenced him on a
gross misdemeanor for threatening to shoot a police officer in the head. The
Defendant is dangerous. He should serve at least 20 years before he is
paroled.

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(Exh. 34 at 2 (ECF No. 17-1 at 3).) The Nevada Court of Appeals considered this claim in

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the context of effective assistance of counsel, and held:

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First, appellant claims that trial counsel was ineffective for failing to object to
a statement made by the district court at sentencing, and in the judgment of
conviction, that the district court wanted appellant to serve at least 20 years
before being paroled. Appellant fails to demonstrate that trial counsel was
deficient or that he was prejudiced. First, the district court’s statements made
at the sentencing hearing were not improper. Second, the district court’s
recommendation in the judgment of conviction that appellant serve at least
20 years before being paroled was just that, a recommendation. It is not
binding on the parole board and, therefore, did not violate the separation of
powers doctrine as appellant contends. Further, nothing in NRS 176.105
prohibits the district court from adding information to the judgment of
conviction. Therefore, the district court did not err in denying this claim.

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(Exh. 88 at 2 (ECF No. 18-23 at 3).)

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Respondents correctly note that the Supreme Court of the United States has not

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clearly established “a substantive federal right in every citizen to have a state government

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that honors separation of powers principles.” Murtishaw v. Woodford, 255 F.3d 926, 960-

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61 (9th Cir. 2001); see also Hughes v. Superior Court, 339 U.S. 460, 467 (1949).

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Consequently, the Nevada Supreme Court’s decision was not contrary to, or an

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unreasonable application of, clearly established federal law as determined by the
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Supreme Court of the United States. Carey v. Musladin, 549 U.S. 70, 77 (2006). To the

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extent that ground 1B alleges violations of state law, Respondents are correct that errors

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of state law are not addressable in federal habeas corpus. Pulley v. Harris, 465 U.S. 37,

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41 (1989); see also 28 U.S.C. § 2254(a). Ground 1B is without merit.

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B.

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Ground 1D is a claim that the sentencing judge’s reliance on suspect evidence—a

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substance-abuse evaluation from another case—deprived Petitioner of due process. The

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Nevada Court of Appeals considered this claim in the context of effective assistance of

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counsel, and held:

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Ground 1D

Second, appellant claims that trial counsel was ineffective for failing to object
that the district court relied on suspect evidence when sentencing appellant.
Specifically, he claims that the district court relied on a report that was
provided in another case that the district court had previously sentenced
appellant in. Appellant fails to demonstrate that trial counsel was deficient or
that he was prejudiced. The record indicates, and appellant concedes, that
this report was not provided to the district court in the instant case. Further,
the charge in this case, sexual assault, had a mandatory sentence of life in
prison with a minimum of 10 years before eligibility for parole, which
appellant received. Appellant’s argument that the district court relied on this
report to include the recommendation regarding parole in the judgment of
conviction is mere speculation, and the district court did not err in denying
this claim.
(Exh. 88 at 2-3 (ECF No. 18-23 at 3-4).)

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Petitioner never provided any evidence that the state district court actually used

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this substance-abuse evaluation—he simply speculates that the state district must have

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used it. (ECF No. 2 at 4.) Additionally, as the Nevada Supreme Court noted, Petitioner

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received the only possible sentence for this crime. See NRS § 200.366(2)(b). If there was

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an error, then it was completely harmless. The Nevada Supreme Court’s decision on this

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issue was reasonable, and ground 1D is without merit.

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C.

Ground 2E

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Ground 2E is a claim that counsel provided ineffective assistance because counsel

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did not object to, first, the judge’s comments and desire that Petitioner spend at least

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twenty years in prison, and, second, the judge’s use of the substance-abuse evaluation.

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The Nevada Supreme Court’s decisions on these issues are quoted above. Ultimately, the
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Nevada Supreme Court reasonably concluded that counsel did not perform deficiently and

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that Petitioner suffered no prejudice from any lack of objection because the state district

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court imposed the only sentence that it could have imposed. Petitioner has not

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demonstrated a reasonable likelihood that an objection would have led to a different

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outcome because no possible different outcome existed, and nothing counsel could have

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done would have changed anything. Ground 2E is without merit.

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D.

Grounds 2F and 2G

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Grounds 2F and 2G are related. In ground 2F, Petitioner claims that counsel

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provided ineffective assistance because he did not recommend an appeal based on the

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judge’s language included in the judgment of conviction. In ground 2G, Petitioner claims

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that counsel’s failure to file an appeal falls below the standard of care.

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The analysis of whether ineffective assistance of counsel denied a defendant a

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direct appeal has four steps. First, has the defendant instructed counsel to file an appeal

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or asked not to take an appeal?

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[A] lawyer who disregards specific instructions from the defendant to file a
notice of appeal acts in a manner that is professionally unreasonable. . . . At
the other end of the spectrum, a defendant who explicitly tells his attorney
not to file an appeal plainly cannot later complain that, by following his
instructions, his counsel performed deficiently.

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Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). Second, if the defendant did not give

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instructions, has counsel consulted with the defendant about a direct appeal?

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We employ the term “consult” to convey a specific meaning—advising the
defendant about the advantages and disadvantages of taking an appeal, and
making a reasonable effort to discover the defendant’s wishes. If counsel
has consulted with the defendant, the question of deficient performance is
easily answered: Counsel performs in a professionally unreasonable
manner only by failing to follow the defendant’s express instructions with
respect to an appeal.

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Id. at 478 (emphasis added). Third, if counsel did not consult with the defendant about the

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direct appeal, was that deficient performance by counsel?

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[C]ounsel has a constitutionally imposed duty to consult with the defendant
about an appeal when there is reason to think either (1) that a rational
defendant would want to appeal (for example, because there are
nonfrivolous grounds for appeal), or (2) that this particular defendant
reasonably demonstrated to counsel that he was interested in appealing. In
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making this determination, courts must take into account all the information
counsel knew or should have known.

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Id. at 480 (citation omitted). Fourth, if the lack of consultation was deficient performance,

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was the defendant prejudiced?

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[T]o show prejudice in these circumstances, a defendant must demonstrate
that there is a reasonable probability that, but for counsel’s deficient failure
to consult with him about an appeal, he would have timely appealed.
Id. at 484.

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On this issue, the Nevada Court of Appeals held:

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Fourth, appellant claims that trial counsel was ineffective for failing to file a
direct appeal on his behalf. He claims that counsel should have appealed
because of the recommendation by the district court regarding parole
eligibility in the judgment of conviction. He claims that this claim had a
reasonable likelihood of success on appeal. Appellant fails to demonstrate
that trial counsel was deficient or that he was prejudiced. Appellant was
informed of his limited right to appeal in his guilty plea agreement and trial
counsel sent him a letter a few days after sentencing which explained how
and when to appeal. Appellant never responded to the letter or expressed
dissatisfaction regarding his sentence. Therefore, trial counsel had no duty
to file a notice of appeal on appellant’s behalf. . . . Further, appellant did not
request information regarding an appeal and, as stated previously, this claim
did not have a reasonable probability of success on appeal. Accordingly,
counsel had no duty to consult with appellant about an appeal. . . . Thus, the
district court did not err in denying this claim.

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(Exh. 88 at 3-4 (ECF No. 18-23 at 4-5) (citations omitted).)
Petitioner did not initially instruct counsel to file a notice of appeal. Counsel did send
a letter to Petitioner, as the Nevada Supreme Court noted. Counsel wrote:
Enclosed is a copy of the judgment of conviction, which was entered on July
19, 2011. In my opinion, there are no grounds for a successful appeal
because you pleaded guilty and received the sentence prescribed by law.
Nevertheless, I want to inform you that you still have the right to appeal from
the conviction by filing a notice of appeal in writing with the clerk of the district
court within thirty (30) days after the entry of the judgment. If the notice if
filed after the 30-day deadline, the appeal will be dismissed. Therefore, the
notice of appeal must be filed no later than Thursday, August 18, 2011.

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If you wish to appeal or if you would like more information about the appeal
process, please notify me at your earliest convenience. A notice of appeal
will not be filed unless you request it.

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(Exh. 46 (ECF No. 17-13 at 24).) At the state-court evidentiary hearing, counsel testified

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that he sent that letter. (Exh. 57 at 29 (ECF No. 17-24 at 30).) Counsel also testified that
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if Petitioner had asked counsel to appeal, then counsel would have filed a notice of appeal,

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even though counsel did not think that any viable grounds for appeal existed. (Id. at 36-37

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(ECF No. 17-24 at 37-38).) Finally, counsel testified that if he thought that viable grounds

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for appeal did exist, he either would have filed a notice of appeal himself, or at least told

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Petitioner about the viable grounds. (Id.)

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Counsel did everything that Flores-Ortega requires of him, and petitioner did not

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respond. The Nevada Court of Appeals reasonably applied Flores-Ortega, and grounds

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2F and 2G are without merit.

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E.

Ground 3

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Ground 3 is a claim that Petitioner’s plea was unknowing and involuntary. A

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defendant’s guilty plea must be entered knowingly and voluntarily, and the court record

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must reflect that fact. Brady v. United States, 397 U.S. 742, 748 (1970); Boykin v.

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Alabama, 395 U.S. 238, 242-43 (1969). On this issue, the Nevada Court of Appeals held:

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Finally, appellant claimed that his plea was not knowing or voluntary. A guilty
plea is presumptively valid, and a petitioner carries the burden of
establishing that the plea was not entered knowingly and intelligently. . . .
Further, this court will not reverse a district court’s determination concerning
the validity of a plea absent a clear abuse of discretion. . . . In determining
the validity of a guilty plea, this court looks to the totality of the
circumstances. . . .

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Appellant fails to demonstrate that his plea was invalid. He was thoroughly
canvassed by the district court regarding the consequences of the plea.
Further, he was given two opportunities to withdraw his plea prior to
sentencing. The first time occurred during the change of plea hearing when
appellant refused to admit his guilt. The district court would have allowed
him to withdraw then but appellant indicated he wanted to continue. The
second time occurred at the sentencing hearing. The district court had
previously forgotten to canvass appellant regarding lifetime supervision and
allowed him the opportunity to withdraw his plea. Appellant again chose to
continue with sentencing. Therefore, given the totality of the circumstances,
appellant fails to demonstrate that his plea was invalid, and the district court
did not err in denying this claim.

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(Exh. 88 at 4-5 (ECF No. 18-23 at 5-6) (citations omitted).)

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Counsel testified that up until the middle of May 2011, he planned to take the case

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to trial. Counsel was moving to sever the charges because Petitioner had different

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defenses for each incident. (Exh. 57 at 21-22 (ECF No. 17-24 at 22-23).) Counsel
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explained that when the prosecution offered a plea agreement, he explained to Petitioner

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what rights he would waive by pleading guilty. (Id. at 32 (ECF No. 17-24 at 33).) Counsel

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also explained what each of the charges meant and what potential penalties the state

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district court could impose. (Id. at 35 (ECF No. 17-24 at 36).) Finally, counsel testified that

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he remembered telling Petitioner that the state district judge presiding over his case had

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said on more than one occasion that if a defendant commits separate crimes against

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separate victims, as happened in Petitioner’s case, then the judge would impose

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consecutive sentences. (Id. at 46 (ECF No. 17-24 at 46).)

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At the change-of-plea hearing, the trial court canvassed Petitioner about the

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consequences of pleading guilty. (Petitioner’s Exh. 5 at 3-10 (ECF No. 52 at 42-49).) When

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Petitioner was reluctant to admit that he had committed the crime, he was given the

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opportunity to withdraw his plea. (Id. at 10-15 (ECF No. 52 at 49-54).) In the state-court

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evidentiary hearing, Petitioner acknowledged that the state district court gave him the

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opportunity to withdraw his plea at the sentencing hearing because that court had not

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canvassed Petitioner about the special sentence of lifetime supervision. (Exh. 57 at 64

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(ECF No. 17-24 at 65).)

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Petitioner had more opportunities than most people had to withdraw his plea, but

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still he pleaded guilty. The Nevada Supreme Court reasonably concluded that Petitioner’s

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plea was knowing and voluntary. Ground 3 is without merit.

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V.

CERTIFICATE OF APPEALABILITY

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In order to proceed with an appeal, petitioner must receive a certificate of

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appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski,

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435 F.3d 946, 950-951 (9th Cir. 2006); see also United States v. Mikels, 236 F.3d 550,

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551-52 (9th Cir. 2001). Generally, a petitioner must make “a substantial showing of the

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denial of a constitutional right” to warrant a certificate of appealability. Allen, 435 F.3d at

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951; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). “The

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petitioner must demonstrate that reasonable jurists would find the district court’s

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assessment of the constitutional claims debatable or wrong.” Allen, 435 F.3d at 951
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(quoting Slack, 529 U.S. at 484). To meet this threshold inquiry, the petitioner has the

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burden of demonstrating that the issues are debatable among jurists of reason; that a

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court could resolve the issues differently; or that the questions are adequate to deserve

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encouragement to proceed further. Id.

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The Court has considered the issues raised by petitioner, with respect to whether

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they satisfy the standard for issuance of a certificate of appealability, and determines that

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none meet that standard. The Court will therefore deny petitioner a certificate of

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appealability.

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VI.

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CONCLUSION
It is therefore ordered that the petition for a writ of habeas corpus (ECF No. 2) is

denied. The Clerk of the Court will enter judgment accordingly and close this action.

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It is further ordered that a certificate of appealability will not issue.

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DATED THIS 28th day of September 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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