Fawzi Khalid Al Odah, et al v. USA, et al, No. 09-5331 (D.C. Cir. 2010)

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V x i t ~ S ate5 aourf of appeals s f FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued April 6,2010 Decided June 30,2010 KHALID ABDULLAH FAHAD ODAH,DETA~NEE AL AND FAWZI KEIALED ODAH, AL NEXTFRIEND OF FAWZI KHALID ABDULLAH FAHAD ODAH, AL APPELLANTS OF ET UNITED STATES AMERICA, AL., APPELLEES Appeal from the United States District Court for the District of Columbia (NO. 1:02-cv-00828-CKK) David J. Cynanzon argued the cause for appellants. With him on tlne briefs were Mattlzew J. Maclean and Tlzol~zasG. Alleiz. Clzarles W Scarborough, Attorney, U. S. Department of Justice, argued the cause for appellees. With hiin on the brief were Ialz Heath Gershengom, Deputy Assistant Attori~ey General, and Robert M. Loeb, Attomey. Atigtist E. Flentje, Attomey, entered an appearance. Before: SENTELLE, Clzief Judge, ROGERS and GARLAND, Circuit Judges. Opinion for the Court filed by Clzief Judge SENTELLE. SENTELLE, Chief Judge: Fawzi Khalid Abdullah Fahad a1 Odah, a detainee at Guailtanamo Bay, Cuba, and his next friend appeal from the district court's denial of his petition for a writ of habeas corpus. Appellants contend that the preponderance of the evidence standard employed by the district court is unconstitutioi~al. That argument is foreclosed by precedent. Appellants hrther coiltend that the district court erred in admitting hearsay evidence. Again, controlling precedent is against them. Lastly, they argue that the evidence is insufficient to show that a1 Odah was "part o f ' a1 Qaeda and Taliban forces. We hold that the evidence is sufficient to support the district court's finding. Accordingly, we affirm the district court's denial of a1 Odah's petition for a writ of habeas corpus. I. BACKGROUND The legal framework that governs habeas petitions from detainees held at Guantanaino Bay, Cuba has been thoroughly explained in Al-Bihani v. Obama, 590 F.3d 866, 869 (D.C. Cir. 2010)andAwadv.Obama,No.09-5351, F.3d ,slipop. at 2-3 (D.C. Cir. June 2, 2010). As relevant to this appeal, Boullzediene v. Bush, 128 S. Ct. 2229 (2008), held that federal courts have jurisdiction over habeas petitions from individuals detained at Guantanamo Bay, Cuba. The Azrtlzorizationfor Use o Militaly Force, Pub. L. No. 107-40, 115 Stat. 224 (200 1) f ("AUMF"), provides: That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11,2001, or harbored such orgailizations or persons, in order to prevent any future acts of international terrorisin against the United States by such nations, organizatioils or persons. This gives the United States government the authority to detain a persoil who is found to have been "part o f ' a1 Qaeda or Taliban forces. See Awad, slip op. at 19; Al-Bihani, 590 F.3d at 871-72; F.3d , slip see also Barhounzi v. Obanza, No. 09-5383, op. at 12-14 (D.C. Cis. June 11,2010). A. Factual Background Fawzi Khalid Abdullah Fahad a1 Odah ("a1 Odah") was born ill Kuwait City, Kuwait in 1977. In August of 2001, a1 Odah traveled to Afghanistan. A1 Odah, a teacher, contends that he went there to do charity work and teach the Koran to the poor and needy for two weeks before the start of his next school year. The government coiltends that a1 Odah's purpose in making the trip was to join the Taliban in its fight against the Northern Alliance. On August 13,2001, a1 Odah paid cash for a one-way ticket and flew from Kuwait to Dubai, United Arab Emirates. The next day, he paid cash for a one-way ticket and flew froin Dubai to Karachi, Pakistan. A1 Odah stayed in Karachi for a day or two, and then paid cash for a one-way ticket and flew from Karachi to Quetta, Pakistan. A1 Odah then traveled by car froin Quetta, Pakistan to Spill Buldak, Afghanistan. Buldak, a1 Odah met with a man named was an official wi bail government. A1 seeking guidance on Odah claii~zs that he inet with where he could teach the Koran. The United States asserts that a1 Odali sought out a Taliban official to find information on joining a1 Qaeda and the Taliban. A1 Odah contends that Etook him around the countryside to teach at several schools in the area. The government argues, and tlie district court found, that this contention was not credible because a1 Odah could not provide tlie names of ally of the students he taught, the names of any of the schools at which he taught, or the naines of aiiy of his fellow teachers. - After some period of time, took a1 Odali to a Taliban-run camp for a day. While at this camp, a1 Odah admits that he engaged in target shooting with a Kalashnikov AK-47 rifle. At some point (exactly when is unclear), a1 Odah then traveled with from Spin Buldak to Kandahar. A1 Odali was in Kandahar on the day of tlie September 11, 2001 terrorist attacks. After September 11, on 'S recoi~lmendation, Odali rented a car and drove from Kandaliar a1 to Logar Province, Afghanistan. A1 Odali argues that he made this trip to try to stay safe and get out of Afghanistan. The governillent points out that if a1 Odah felt unsafe, he could have left Afghanistan more quickly by retracing the route by which he arrived. While in Logar Province, a1 Odah sought out man recommei~ded b y . The evidence a1 Odah stayed in Logar Province a t ' s home, free of charge, for about a month. A1 Oda . There is no passport, and other documents with evidence as to what a1 Odah did during this month. After his time in Logar Province, a1 Odali, at suggestion, traveled to Jalalabad, Afghanistan. In Ja Odah stayed with a man named . There were a number of other people staying in s house. Some of the inen there carried weapons. A1 Oda11 stayed at 'S out ten days. At some point during these ten days, gave a1 Odah a Kalashnikov AK-47 rifle. A1 Odah the11 left Jalalabad and, on foot, headed through the White Mountains in the Tora Bora region. He traveled with a group of about 150 men, some of whom were armed. A1 Odah carried his AK-47 with him throughout this journey. The group wit11 which a1 Odah was traveling was attacked by US and allied air strikes, but a1 Odah himself was never injured. When a1 Odah reached the Afghanistan-Pakistan border, he was detained by Pakistani guards. The exact date he was detained is disputed, but it was sometime between midNovember and mid-December 2001. At the time of his capture, a1 Odah still had his AK-47 wit11 him. A1 Odah was transferred to US custody, and has been detained at Guantanaino Bay, Cuba since early 2002. Since a1 Odah's initial detention, additional incriminating evidence has come to light. Additionally, a1 Odah's name and phone number appeared on a document on a1 Qaeda's official website. - - - - Lastly, a1 Odah's passport, which he left with in Logar Province, was later recovered from an a1 Qaeda safehouse in Kar an. Also at this safehouse, an individual nained was captured. B . Procedural Background On May 1,2002, a1 Odah, through his next friend, Khaled a1 Odah, along wit11 eleven other Guantanamo Bay detainees filed a petition for a writ of habeas corpus in the United States District Court for the District of Columbia. Since then, the liabeas petitions have been the subject of extended litigation involving jurisdictional questions. See Rasul v. Bush, 215 F. Supp. 2d 55 (D.D.C. 2002); Al-Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003); Rasul v. Bush, 542 U.S. 466 (2004); In re Guantananzo Detainee Cases, 355 F. Supp. 2d 443 (D.D.C. 2005); Bounzediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007); Bou~nediene Bush, 128 S. Ct. 2229 (2008). After Bou~nediene v. v. Bush established that the district court had jurisdiction to hear a1 Odah's petition, the court considered a1 Odali's petition on the merits. After receiving the government's factual return and the parties' various filings, the district court held a three-day hearing. On August 24,2009, the district court denied a1 Odah's petition for a writ of habeas corpus. A1 Odah v. United States, 648 F. Supp. 2d 1 (D.D.C. 2009). In Hanzdi v. Runzsfeld, 542 U.S. 507, 533-34 (2004) (plurality op.), the Supreme Court said: [Tlhe exigencies of the circumstances may demand that, aside from these core elements, enemycombatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. Hearsay, for example, may need to be accepted as the most reliable available evidence from the Governi~lent in such a proceeding. Relying upon this language from the Supreme Court, the district comt stated that it would allow the use of hearsay by both parties. 648 F. Supp. 2d at 4-5. The district judge reasoned "[tlhe Court is fully capable of considering whether a piece of evidence (whether hearsay or not) is reliable . . . ." Id. at 5. The court denied the government's motion to have its evidence admitted with a presumption of accuracy and authenticity. Id. at 5-6. The court then discussed how intelligence documents can be unreliable. Id. With regards to a1 Odah's motion to exclude certain pieces of evidence, the court declined to do so, and instead held that "the better approach is to make such determinations after considering all of the evidence in the record and hearing the parties' arguments thereto . . . . Accordingly, the Court's consideration of the evidence proffered by the parties shall encompass inquiries into authenticity, reliability, and relevance." Id. at 6. The court held that the government had the burden of demonstrating by a preponderance of the evidence that a1 Odah was lawfully detained. Id. at 8. It further held that the President had the authority under the AUMF to detain a1 Odah if the government established according to that evidentiary standard that he was "part o f ' the Taliban, a1 Qaeda, or associated enemy forces. Id. at 6-7. In weighing the evidence, the court found that a1 Odah had not offered any credible explanation for his trip to Dubai en route to Afghanistan. Id. at 8-9. It also found that a1 Odah's travels through Afghanistan contradicted his other statements that his intention was only to teach in Afghanistan for two weeks. Id. at 9. The court also found that a1 Odah's offered reason for going to Afghanistan lacked credibility because although he claimed lie taught at schools in Afghanistan for two weeks, he was unable to provide the names of the places where he taught, the names of any of his fellow teachers, or the names of ally of his students. Id. at 9-10. The court discussed evidence that the travel route used by a1 Odah was a comlnon travel route for those going to Afghanistan to join the Taliban. Id. at 9- 10. It found "that this record supports a reasonable inference that A1 Odah may have also been traveling to Afghanistan to engage in jihad, and not to teach the poor and needy for two weeks." Id. at 10. The district court also found that the reasons a1 Odah offered for not leaving Afghanistan immediately after September 11 lacked credibility and were not consistent with his other statements. Id. at 11-12. The court found that a1 Odah's pattern of staying at houses and his surrendering of his passport were consistent with a1 Qaeda and Taliban operating procedures. Id. at 12. The court recounted the time line of a1 Odah's travels, and found that his capture occurred on or around December 18,200 1, id. at 12-13, a date that corresponds with the Battle of Tora Bora, which occurred between approximately December 6 and 18, 2001. The court noted that a1 Odah's statements failed to account for one inontl~ his time in Afghanistan. Id. at 13. It stated that of a1 Odah's explanation for why he was traveling through the Tora Bora nzountains was not credible. Id. at 13-14. The district court wrote that the "evidence reflects that A1 Odah made a conscious choice to ally himself with the Taliban instead of extricating himself from the country." Id. at 15. The court found, based on this evidence, that it was "more likely than not that A1 Odah became part of the Taliban's forces." Id. - The court noted that there was other evidence presented (eyewitness identification of a1 Odah and ,)but that it did not need to consider that evidence because it had already found that the Government had presented adequate factual information to meet its burden by a preponderance of the evidence to show that a1 Odah was "part o f ' a1 Qaeda and the Taliban. Id. at 15,11. 17. The court also made an additional finding that the camp that a1 Odah attended where he engaged in the target shooting with the AK-47 was "more likely than not A1 Farouq," a terrorist training camp. Id. at 16. The court discussed similarities in geography and operation between the camp a1 Odah attended and the A1 Farouq camp. Id. The court noted the fact that there was a trainer at A1 Farouq who went by the name ,which was very siinilar to the name of the Taliban official from whom a1 Odah followed directions for several weeks. Id. at 16-17. It also noted similarities between the physical descriptions of the two. Id. at 17. The court then concluded that the Government has met its burden based on the evidence in the record without specifically identifying that the Taliban-run camp attended by A1 Odah was, in fact, A1 Farouq. Nevertheless, the Court also finds that it is more likely than not that the camp was A1 Farouq, which also makes it more likely than not, when combined wit11 the other evidence in t l ~ record, e that A1 Odah became a part of the forces of the Taliban and a1 Qaeda. Id. at 18. On September 8, 2009, a1 Odah filed a notice of appeal. 11. ANALYSIS A1 Odah challenges the procedure followed by the district court in admitting evidence and the sufficiency of the evidence to support its findings and judgment. Because the procedural issues inform our analysis of the sufficiency questions, we shall address the procedural challenges first. A. Procedural Challenges A1 Odah makes two procedural challenges. As we noted above, the district court held both that the government had to meet its burden by a preponderance of the evidence and that it would admit hearsay evidence subject to review for reliability. A1 Odah argues that the preponderance of the evidence standard is unconstitutional and that the district court cannot admit hearsay evidence unless it complies with the Federal Rules of Evidence. We review a1 Odah's challenge to the evidentiary standard de novo because it is a question of law. See Awad, slip op. at 17; Al-Bihani, 590 F.3d at 870. Our review of the district court's admission of evidence, including its admission of hearsay evidence, is for abuse of discretion. See United States v. Bailey, 3 19 F.3d 5 14,5 17 (D.C. Cir. 2003); Morrison v. Int'l Programs Consortium, Inc., 253 F.3d 5, 9 (D.C. Cir. 2001). We can dispatch both of these assignments of error in short order. A1 Odah argues that the government can deprive a person of his liberty only if it meets its evidentiary burden by clear and convincing evidence. But this argument fails under binding precedent in this circuit. It is now well-settled law that a preponderance of the evidence standard is constitutional in considering a habeas petition from an individual detained pursuant to authority granted by the AUMF. See Awad, slip op. at 17-18 ("A preponderance of the evidence standard satisfies constitutional requirements in considering a habeas petition from a detainee held pursuant to the AUMF."); Al-Biha~zi, F.3d at 590 878 ("Our narrow charge is to determine whether a preponderance standard is unconstitutional. Absent more specific and relevant guidance, we find no indication that it is."); see also Barhounzi, slip op. at 11 (holding that under circuit precedent "a preponderance of the evidence standard is constitutional in evaluating a habeas petition from a detainee held at Guantanarno Bay, Cuba," and that the detainee's argument that "the Government should have been required to establish that [he] is lawfully detained under a standard of at least clear and convincing evidence" is "foreclosed by circuit precedent") (internal quotation marks omitted). A1 Odah's second procedural argument fares no better. He argues that the Federal Rules of Evidence and the habeas corpus statute, 28 U.S.C. 5 2241 et seq., restrict the situations in which a district court may admit hearsay evidence in considering a petition from a person detained pursuant to the AUMF. The law is against him. As we quoted above, the Supreme Court in Hamdi stated that "[hlearsay . . . may need to be accepted as the most reliable available evidence from the Government" in this type of proceeding. 542 U.S. at 533-34. We applied the teachings of Hanzdi in Awad, in which we explicitly held that "[Tlhe fact that the district court generally relied on items of evidence that contained hearsay is of no consequence. To show error in the court's reliance on hearsay evidence, the habeas petitioner must establish not that it is hearsay, but that it is unreliable hearsay." Slip op. at 11; see also Barhoumi, slip op. at 10 (holding that under circuit precedent, "hearsay evidence is admissible in this type of habeas proceeding if the hearsay is reliable") (internal quotation marks omitted); Al-Bihani, 590 F.3d at 879 ("[Tlhe question a habeas court must ask when presented wit11 hearsay is not whether it is admissible . . . but what probative weight to ascribe to whatever indicia of reliability it exhibits."). Whether a piece of evidence is hearsay is not at issue in this appeal. Rather, we review the decision of the district court as to whether the hearsay is reliable. The government offered reasons why its hearsay evidence had indicia of reliability, and the court considered the reliability of the evidence in deciding the weight to give the hearsay evidence. For example, in considering interrogation reports of a third party concerning a1 Qaeda and Taliban travel routes into Afghanistan, the court noted that this hearsay was corroborated by "multiple other examples of individuals who used this route to travel to Afghanistan for the purpose of jihad." 648 F. Supp. 2d at 10. The court indicated that it was aware of the limitations of this evidence when it concluded that "[allthough far froin conclusive, the Government's evidence suggests that an individual using this travel route to reach Kandahar may have done so because it was a route used by some individuals seeking to enter Afghanistan for the purpose of jihad." Id. This is exactly the analysis of hearsay which we subsequently approved in Al-Bihani and Awad. The district court correctly applied the law, and therefore, there was no abuse of its discretion. Having thus rejected a1 Odah's two procedural challenges, we proceed to his challenges to the sufficiency of the evidence. B. Sufficiency of the Evidence A1 Odah argues that the evidence submitted to the district court was insufficient to establish that he was "part o f ' a1 Qaeda and Taliban forces. A1 Odah has a heavy burden to meet to have this court reverse the district court's factual findings that are the underpinnings of its deterrnination. As we have recently stated in an appeal with an identical procedural context: We review a district court's factual findings for clear error, regardless of whether the factual findings were based on live testimony or, as in this case, documentary evidence. See Anderson v. City o f Bessemer, 470 U.S. 564, 572 (1985). "We further note that '[tlhis standard applies to the inferences drawn from findings of fact as well as to the findings themselves. "' Overby v. Nat '1 Ass 'n o Letter f Carriers, 595 F.3d 1290, 1294 (D.C. Cir. 2010) (quoting Halberstanz v. Welch, 705 F.2d 472, 486 (D.C. Cir. 1983) (alteration in Overby). "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been committed." Boca Investerings Partnership v. US., 3 14 F.3d 625, 629-30 (D.C. Cir. 2003) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). But "[ilf the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it . . . Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Overby, 595 F.3d at 1294 (quoting City ofBessen?er, 470 U.S. at 573-74) (omission in Overby). Awad, slip op. at 10. A1 Odah makes several challenges to individual pieces of evidence. In considering these challenges to the individual pieces of evidence, we must keep in mind that the purpose of our inquiry is to determine whether, overall, the district court's finding was supported by sufficient evidence. See Awad, slip op. at 10-11 ("We will begin with Awad's challenges to the individual items of evidence. In evaluating these challenges, we do not weigh each piece of evidence in isolation, but consider all of the evidence taken as a whole."). A1 Odah argues that the district court made several errors in not adopting his understanding of the facts and in drawing inferences unfavorable to him from the undisputed evidence. A1 Odah defends his following instructions froin . He argues that while I was a Taliban official, he was a civilian official and not part of the Taliban's military. A1 Odah argues that it was reasonable for him, a foreigner in a strange country at a time of war, to seek out and follow the advice of knowledgeable locals. But this argument asks the court to ignore all the other evidence in the case. What matters is not only the formal positioil of in the Taliban government, but what kind of instructions he gave that a1 Odah followed. t o o k a1 Odah to a camp where he trained on a Kalashnikov AK-47 rifle. I instructions on where to gave a1 Odah go after the September 11,2001 attacks. A1 Odah followed I ' s instructions to go to a house. At this house, a1 Odah gave the person in charge of this house his passport and major possessions, which was standard a1 Qaeda and Taliban operating gave a1 Odah instructions on where to procedures. receive weapons training, where to go after the September 11 terrorist attacks, where he could stay for free, and introduced him to people from whom he acquired an AK-47. For several months, a1 Odah followed instructions of a military nature from a member of the Taliban. We uphold the district court's rejection of a1 Odah's attempt to put an innocuous gloss over these undisputed facts. A1 Odah also argues that it was not nefarious for him to carry a rifle while in Afghanistan. A1 Odah argues that rifles were common in Afghanistan, and that he carried the AK-47 for self defense. Again, a1 Odah is asking this court to examine this single piece of evidence in isolation. A1 Odah did not simply possess a weapon. Rather, the evidence shows that , a Taliban official, took a1 Odah to a Taliban-run camp to train on an AK-47 rifle. then provided a1 Odah a recoinmendation to find a person, who subsequently introduced him to another person who gave a1 Odah the same type of AK-47 rifle as that on which he trained. A1 Odah the11 carried this rifle for days during an armed march through the Tora Bora mountains, a march during which a1 Odah and his fellow travelers were attacked by US and allied warplanes. A1 Odah argues that the district court was also in error to fault him for not leaving Afghanistan immediately after September 11,2001, and that the district court failed to consider that he was stuck in a foreign country trying to do the best he could in a chaotic situation. But the district court considered exactly that. It considered, and rejected, a1 Odah's argument that he chose what he thought was the quickest way to leave the country. It found that when a1 Odah had a choice to head out of the country or to stay, he consistently chose to remain in Afghanistan following directions of a member of the Taliban. A1 Odah further argues that there are benign reasons why someone would not travel with his passport while in Afghanistan. Perhaps there may be valid reasons for such behavior, but the district court considered this fact in the context of all the evidence in the case and found it to be incriminating. It was not clear error for the district court to do so. We have considered, and rejected, a1 Odah's challenges to the individual pieces of evidence. The only remaining question is whether all the evidence before the district court was sufficient to support its finding that a1 Odah was "part of' the Taliban and a1 Qaeda forces. To simply recite the evidence and the inferences the district court drew therefrom is to answer the question in the affirmative regardless of the standard of review we use. See Awad, slip op. at 17 ("Determining whether Awad is 'part o r a1 Qaeda is a mixed question of law and fact. Whether our review of the district court's finding on this question is de novo or for clear error does not matter in this case because the evidence is so strong."). A1 Odah traveled to Afghanistan on a series of one-way plane tickets purchased with cash in a manner consistent with travel patterns of those going to Afghanistan to join the Taliban and a1 Qaeda. Once in Afghanistan, a1 Odah sought out a Taliban official. This Taliban official led a1 Odah for a month doing we know not what, but culminated in the Taliban official taking a1 Odah to a Taliban-run camp to train on an AK-47 rifle. After the September 11, 200 1, terrorist attacks, I told a1 Odah where he should go and who he should seek out to help him. A1 Odah did what I recommended to him. He gave up his passport and other possessions, and obtained an AK47 rifle, as he stayed with several individuals over several months. He then went on a march through the Tora Bora region for ten days with 150 men, some of whom, including a1 Odah, were armed. This march was attacked by US and allied warplanes. A1 Odah attempts to rebut the government's case only by presenting a gloss of innocent activity over several of the undisputed facts. The district court considered all the evidence, rejected a1 Odah's explanation of the evidence, and held that a1 Odah was "part o f ' a1 Qaeda and Taliban forces. There was no error in this finding, under either a de novo or clear error standard of review. The district court had before it further evidence that supported the correctness of its conclusion. The district court did not need to rely upon this further evidence because of the weight of the other evidence, but it mentioned the existence of the evidence, and we note it to emphasize that it is further support for the district court's finding. discovered in an a1 Qaeda safehouse. Two other individuals have identified a1 Odah as a Taliban and a1 Qaeda member. All this evidence is above and beyond what is necessary for us to affirm the district court's coilclusion that a1 Odah was "part o f ' a1 Qaeda and Taliban forces. The district court's alternative basis for finding that a1 Odah was "part of' a1 Qaeda and Taliban forces was that he trained at the A1 Farouq training camp. A1 Odah raises several challenges to the factual findings underlying this conclusion by the district court. But as we have upheld the district court's finding that a1 Odah was "part o f ' a1 Qaeda and the Taliban by his activities in Afghanistan separate from the allegations that the camp he attended was A1 Farouq, we do not need to consider this issue. Once the government has established by a preponderance of the evidence that a1 Odah was "part of' a1 Qaeda and Taliban forces, the requirements of the AUMF are satisfied and the government has authority to detain a1 Odah. 111. CONCLUSION The law of this circuit is that a preponderance of the evidence standard is constitutional in considering a habeas petition from an alien detained pursuant to authority granted by the AUMF. Awad, slip op. at 17-18. Decisions of this court and of the Supreme Court have established that in this type of habeas proceeding, hearsay evidence is admissible if it is reliable. In our review of the record, we see strong support for the district court's finding that a1 Odah was "part of' a1 Qaeda and Taliban forces in the fall of 2001. Accordingly, we affirm the district court's denial of a1 Odah's petition for a writ of habeas corpus. So ordered.

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