Barrientes v. Ryan et al
Filing
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ORDER that Petitioner's petition for writ of habeas corpus is denied. A certificate of appealability and leave to proceed in forma pauperis on appeal are denied because Petitioner has not made a substantial showing of the denial of a constitutional right. The Clerk shall terminate this action. Signed by Judge David G Campbell on 6/2/15. (KGM)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Jeremy Keith Barrientes,
Petitioner,
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ORDER
v.
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No. CV-15-00014-PHX-DGC
Charles L. Ryan, et al.,
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Respondents.
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Petitioner objects to the Magistrate Judge’s Report and Recommendation
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(“R&R”). Doc. 13. The R&R suggests that this Court deny the pro se petition for writ of
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habeas corpus brought pursuant to 28 U.S.C. § 2254.
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Magistrate Judge found that Petitioner failed to exhaust his state court remedies under the
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Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). The matter is fully briefed,
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and no party has requested oral argument. For the reasons that follow, the Court will
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deny the petition for habeas relief.
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I.
Doc. 12.
Specifically, the
Background.
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On August 11, 2010, a grand jury indicted Petitioner on kidnapping, first-degree
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burglary, theft of a means of transportation, trafficking in stolen property, two counts of
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misconduct involving weapons, and three counts of armed robbery. Doc. 12 at 2. At the
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time, Petitioner was on probation, and the state moved to revoke the probation after the
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indictment was issued. Id.
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After he was found competent to stand trial, Petitioner pled guilty on February 18,
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2011, to two counts of armed robbery and one count of misconduct involving weapons.
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Id. The remaining counts were dismissed, and Petitioner was sentenced to concurrent
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sentences of 21 years on the two armed robbery counts and a concurrent sentence of 2.5
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years on misconduct involving weapons. Id. Petitioner received a 5-year sentence for
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violating his probation, to be served concurrently with the other sentences. Id.
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On March 25, 2011, Petitioner filed a motion for post-conviction relief under
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Arizona Rule 32 challenging his guilty plea and the revocation of his probation. Id. at 2-
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3. Petitioner’s court-appointed counsel filed a notice that he could raise no colorable
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claims on Petitioner’s behalf. Id. at 3. Petitioner then filed a pro se motion, and the state
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conceded that Petitioner was entitled to be resentenced. Id. In his motion, Petitioner
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raised seven other claims: (1) his right to a speedy trial was violated; (2) the court’s
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finding that he was competent to stand trial violated due process; (3) he was threatened
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and coerced by the prosecutor into pleading guilty; (4) the court modified the plea
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agreement; (5) his plea was not made knowingly, intelligently, and voluntarily; (6) the
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court failed to set forth the aggravating factors when imposing his sentence; and
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(7) Maricopa County jail subjected him to mental torture. Id.
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On October 16, 2012, the state court partially granted Petitioner’s motion for post-
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conviction relief, ordered that he be resentenced, and denied his other claims. Id. The
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court found that because Petitioner pled guilty, he had waived all non-jurisdictional
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defects and defects occurring prior to the plea, as well as all claims of ineffective
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assistance of counsel not relating to his plea. Id. As a result, Petitioner was precluded
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from raising his speedy trial claim, his competency claim, the mental torture claim, and
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his claim that the court failed to properly consider his pro per motions. Id. at 4. The
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court also found that Petitioner’s claims that he did not understand his potential sentence
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and was coerced into pleading guilty were meritless. Id.
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On November 5, 2012, Petitioner appealed the trial court’s decision to the Arizona
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Court of Appeals, which granted review and denied relief on February 25, 2014.
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Doc. 10-5 at 35-58; 101-04, see also State v. Barrientes, Docket No. 1-CA-CR-12-0677-
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PRPC (Ariz. Ct. App. Nov. 5, 2012). The Court of Appeals also denied Petitioner’s
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motion for special action jurisdiction. Doc. 10-5 at 124, 132.
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On November 12, 2012, Petitioner was resentenced to the same terms previously
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imposed. Doc. 12 at 4. Petitioner then filed a second petition for post-conviction relief
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in September 2013 (Doc. 10-3 at 46-90, Doc. 10-4), which was denied by the trial court
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in January 2014 (Doc. 10-5 at 32-33). The Arizona Court of Appeals docket indicates
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that Petitioner has appealed the denial of his second petition, but the matter is still
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pending. See State v. Barrientes, Docket No. 1-CA-CR-14-0069-PRPC (Ariz. Ct. App.
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Jan. 27, 2014).
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There has been considerable confusion in this case about when and whether
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Petitioner appealed the denials of his two Rule 32 petitions and when the Arizona Court
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of Appeals ruled on them. The Magistrate Judge concluded that Petitioner did not appeal
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the denial of his first petition. Doc. 12 at 4. Respondents contend that Petitioner filed an
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appeal of the first petition, but assert that “the Court of Appeals did not do anything with
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the case” because it was improperly appealed. Doc. 14 at 3. The Court’s review of the
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record suggests that both are incorrect.
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Petitioner did appeal the denial of his first Rule 32 motion. The appeal was filed
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on November 5, 2012, as shown at Doc. 10-1 at 4. The appeal was assigned case number
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1-CA-CR-12-0677-PRPC. See State v. Barrientes, Docket No. 1-CA-CR-12-0677-PRPC
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(Ariz. Ct. App. Nov. 5, 2012). The Arizona Court of Appeals decided this appeal on
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February 25, 2014, and found that Petitioner had failed to present the petition in the form
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required by Arizona law. Doc. 10-5 at 101-04. The fact that this decision concerned the
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first petition and not the second is clear from at least two facts: the decision bore the
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number of the first appeal (1-CA-CR-12-0677-PRPC), and noted that “[t]he trial court
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granted relief on a sentencing issue and resentenced Barrientes to the same sentence in
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both cases,” a clear reference to the first petition. Id. at 101-02.
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Petitioner appealed the trial court’s denial of his second Rule 32 petition on
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January 27, 2014, and it was assigned appeal number 1-CA-CR-14-0069-PRPC. See
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State v. Barrientes, Docket No. 1-CA-CR-14-0069-PRPC (Ariz. Ct. App. Jan. 27, 2014).
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A review of the docket of the Arizona Court of Appeals shows that no decision has been
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made on this appeal. Id.
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II.
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Analysis.
The Court may accept, reject, or modify, in whole or in part, the findings or
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recommendations made by a magistrate judge in a habeas case.
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§ 636(b)(1). The Court must undertake a de novo review of those portions of the R&R to
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which specific objections are made. See id.; Fed. R. Civ. P. 72(b)(3); United States v.
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Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Petitioner’s sole objection is that the
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Magistrate Judge incorrectly found that he failed to appeal the state court’s denial of his
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first petition. Doc. 13. He argues that he properly exhausted his claims.1
See 28 U.S.C.
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The AEDPA prohibits a federal court from reviewing a petition for writ of habeas
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corpus filed “on behalf of a person in custody pursuant to the judgment of a State court”
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unless the petitioner has “exhausted the remedies available in the court of the State[.]” 28
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U.S.C. § 2254(b)(1)(A); see O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“Before a
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federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his
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remedies in state court.”); Kyzar v. Ryan, 780 F.3d 940, 946 (9th Cir. 2015) (same).
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“[T]he exhaustion doctrine is designed to give the state courts a full and fair opportunity
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to resolve federal constitutional claims before those claims are presented to the federal
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courts.” O’Sullivan, 526 U.S. at 845.
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If the state court denies relief for “noncompliance with a state procedural rule, the
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federal claim is procedurally defaulted and a federal court cannot grant relief unless
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petitioner shows cause for the default and prejudice resulting from the alleged
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constitutional violation.” Smith v. Or. Bd. of Parole & Post-Prison Supervision, 736 F.3d
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To the extent Petitioner challenges the entirety of the R&R in his one-paragraph
objection, the Court declines to address the challenge. General objections have the same
effect as a failure to object, and create no right to de novo review. Warling v. Ryan, No.
CV-12-1396-PHX-DGC, 2013 WL 5276367, at *2 (D. Ariz. Sept. 19, 2013).
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857, 862 (9th Cir. 2013) (citing Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977)). In this
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case, Petitioner procedurally defaulted the claims in his first petition and does not assert
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cause, prejudice, or actual innocence in his objection to the R&R.
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“For the procedural default rule to apply, ‘the application of the state procedural
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rule must provide an adequate and independent state law basis on which the state court
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can deny relief.’” Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014) (quoting Bennett v.
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Mueller, 322 F.3d 573, 580 (9th Cir. 2003)). A ground is independent if “the last state
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court rendering a judgment in the case clearly and expressly states that its judgment rests
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on a state procedural bar.” Harris v. Reed, 489 U.S. 255, 263 (1989). A ground is
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adequate if it is clear, consistently applied, and well-established at the time of petitioner’s
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purported default. Lambright v. Stewart, 241 F.3d 1201, 1203 (9th Cir. 2001).
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The Arizona Court of Appeals found that Petitioner’s first petition failed to
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comply with Rule 32 because Petitioner failed to “set forth specific claims, present
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sufficient argument supported by legal authority, and include citation to the record.”
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Doc. 10-5 at 102. Denial of relief rested solely on Petitioner’s failure to comply with
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Rule 32. Id. The court noted that “[c]ompliance with Rule 32 is not a mere formality. A
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petitioner must strictly comply with Rule 32 in order to be entitled to relief. [Petitioner]
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has failed to comply with Rule 32.” Id. The Arizona Supreme Court likewise has stated:
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“We have consistently required that parties ‘strictly comply’ with [Rule 32] to be entitled
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to relief.” Canion v. Cole, 115 P.3d 1261, 1263 (Ariz. 2005). The Arizona Court of
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Appeals’ decision thus rested on independent and adequate grounds sufficient to support
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a finding for procedural default, and Petitioner may not assert his first-petition claims in
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this Court. As noted, he does not assert cause, prejudice, or actual innocence in his
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objection to the R&R.
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Nor can Petitioner assert the claims in his second Rule 32 petition. The second
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petition was denied by the trial court, but, as noted above, remains pending. Because the
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Arizona Court of Appeals has not yet decided the second-petition issues, those issues are
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unexhausted. See McMonagle v. Meyer, 766 F.3d 1151, 1157 (9th Cir. 2014) (“The
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exhaustion requirement affords state courts a full opportunity to consider and correct any
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constitutional or federal law challenges to a state judgment before a habeas defendant can
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collaterally attack the judgment in federal court.”).
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In summary, Petitioner has procedurally defaulted on the claims in his first
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Rule 32 petition and has not yet exhausted the claims in his second petition. For these
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reasons, the Court will accept the Magistrate Judge’s recommendation that the habeas
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petition be denied, albeit for slightly different reasons than those set forth in the R&R.
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IT IS ORDERED:
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Petitioner’s petition for writ of habeas corpus is denied.
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2.
A certificate of appealability and leave to proceed in forma pauperis on
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appeal are denied because Petitioner has not made a substantial showing of
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the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2).
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3.
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Dated this 2nd day of June, 2015.
The Clerk shall terminate this action.
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