McBride v. Ryan

Filing 21

ORDER ADOPTING IN PART REPORT AND RECOMMENDATION 19 . The Petition Under 28 U.S.C. §2254 for a Writ of Habeas Corpus by a Person in State Custody (Doc. 1) is DENIED. The Clerk of the Court shall enter judgment and shall then close its file in this matter. A Certificate of Appealability shall not issue in this case. Signed by Judge Cindy K Jorgenson on 1/26/17. (See attached PDF for complete information.) (KAH)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Dewey Lee McBride, Petitioner, 10 11 ORDER v. 12 No. CV-16-00485-TUC-CKJ Charles L Ryan, 13 Respondent. 14 15 16 17 On December 2, 2016, Magistrate Judge Leslie A. Bowman issued a Report and Recommendation (Doc. 19) in which she recommended the Petition Under 28 U.S.C. 18 19 20 21 §2254 for a Writ of Habeas Corpus by a Person in State Custody (Doc. 1) filed by Dewey McBride be denied. McBride objected to the Report and Recommendation. (Doc. 20). Respondents have not filed a response. 22 23 This Court “may accept, reject, or modify, in whole or in part, the findings or 24 recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). Further, under 28 25 U.S.C. § 636(b)(1), if a party makes a timely objection to a magistrate judge's 26 27 28 recommendation, then this Court is required to “make a de novo determination of those portions of the [report and recommendation] to which objection is made.” The statute 1 2 does not “require [] some lesser review by [this Court] when no objections are filed.” 3 Thomas v. Arn, 474 U.S. 140, 149-50, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Rather, this 4 Court is not required to conduct “any review at all . . . of any issue that is not the subject 5 of an objection.” Id. at 149. 6 7 8 9 No objections having been made to the magistrate judge’s rendering of the procedural and factual history, the Court adopts those recitations. The Court now evaluates McBride’s objections to statutory time computation, and finds McBride’s 10 11 12 13 petition is time-barred. Procedural History The Court will briefly reiterate facts mentioned in the Report and 14 15 16 17 18 Recommendation and supplement them with additional facts in the record that specifically address the objections by McBride. McBride was sentenced August 17, 2009, and filed his first petition for postconviction relief on February 22, 2011. (Doc. 19, p. 2). The first petition requested an 19 20 evidentiary hearing and resentencing on the issues of ineffective assistance of counsel 21 and mental incompetency. (Doc. 12, p. 10; Doc. 19, p. 2). Specifically, McBride argued 22 his mental health issues were not properly addressed by the court, and counsel failed to 23 24 represent him in the presentence interview as well as failed to present mitigating evidence 25 at sentencing. Id. The trial court denied the petition on November 30, 2011. (Doc. 13, pp. 26 36-38). 27 28 After the denial, McBride filed a petition for review in the Arizona Court of -2- 1 2 Appeals on January 4, 2012. (Doc. 19, p. 2). The appeals court granted a limited remand 3 to determine which exhibits the judge considered for sentencing. Id. The inquiry revealed 4 a disparaging letter the trial judge had reviewed. Id. The letter was sealed and had not 5 been disclosed to the parties. Id. Without directly addressing the letter, the Arizona Court 6 7 of Appeals granted review but denied relief on May 25, 2012. (Doc. 14, p. 29). In its 8 memorandum decision, the appeals court explained “McBride has failed to demonstrate 9 the trial court abused its discretion, either in finding insufficient evidence that he was 10 11 incompetent, or in concluding that counsel was not ineffective by failing to challenge 12 McBride’s incompetency at the change-of-plea and sentencing hearings.” (Doc. 19, p. 2). 13 McBride moved for a rehearing based on the letter but it was summarily denied. Id. 14 15 On October 13, 2012, McBride filed a petition for review in the Arizona Supreme 16 Court. (Doc. 19, p. 2). This petition again argued incompetency and ineffective 17 assistance, but also included a request to remand for resentencing before a different judge 18 due to the sealed letter. (Doc. 14, p. 52; Doc. 19, p. 2). The Arizona Supreme Court 19 20 21 22 denied the petition February 15, 2013. (Doc. 19, p. 2). On April 12, 2013, McBride filed a second Notice of Post-Conviction Relief in the trial court. (Doc. 19, p. 3). The trial court dismissed the notice because the Arizona Court 23 24 of Appeals had not yet issued its mandate, and the court did not have jurisdiction. Id. 25 McBride then filed another Notice of Post-Conviction Relief (“Notice”) in the trial 26 court on June 10, 2013, as well as a sealed motion for change of judge for cause. Id. 27 28 When this petition was filed on August 12, 2013, McBride argued that the merits of the -3- 1 2 issues raised in the First Petition (McBride’s incompetency and counsel’s ineffective 3 assistance) needed to be re-reviewed because the disclosed letter constituted newly 4 discovered evidence which could have had an impact not only on the sentencing, but in 5 the trial court’s initial Rule 32 proceedings. (Doc. 15, p. 47; Doc. 19, p. 3). The court 6 7 reassigned the case to a different judge, finding “[the judge] has not, in any way, acted 8 improperly, that she acted in good faith in these matters, and that she reasonably believed 9 that no party would gain an advantage as a result of the ex-parte communication and that 10 11 the communication did not have an effect at the time of sentencing. However, this Court 12 does not wish there to be any issue of any nature surrounding these procedures.” (Doc. 13 15, p. 36). 14 15 At first, the trial court held that the letter was not “newly discovered evidence” 16 and denied both resentencing and re-evaluation of his first petition in front of a new 17 judge. (Doc. 19, p. 3). But, after McBride filed a motion for rehearing, the trial court 18 found the letter was “newly discovered evidence” and granted McBride a resentencing. 19 20 (Doc. 17, pp. 6-7). It did not, however, re-examine its order denying a re-evaluation of 21 the Rule 32 of-right petition in front of a different judge. (Doc. 19, p. 3). 22 McBride then filed a petition for review in the Arizona Court of Appeals on March 23 24 25 26 31, 2014. (Doc. 17, p. 11). The appeals court granted review but denied relief on September 22, 2014. (Doc. 18, pp. 3-6). McBride filed for review in the Arizona Supreme Court but was this was denied 27 28 on April 21, 2015. (Doc. 18, p. 20). The Arizona Court of Appeals’ mandate issued on -4- 1 2 May 7, 2015. (Doc. 8-4, p. 2). 3 Finally, McBride filed a petition for writ of certiorari with the U.S. Supreme Court 4 on July 20, 2015 (Doc. 18, p. 36) which was denied on December 7, 2015. (Doc. 18-6, p. 5 2). 6 7 8 9 The pending petition for a writ of habeas corpus in this Court was filed July 21, 2016. (Doc. 1). Statutory Limitations for Filing a Writ of Habeas Corpus 10 11 Under the Antiterrorism and Effective Death Penalty Act of 1996, a petitioner may 12 file a writ of habeas corpus in federal court requesting relief from a state judgment, 13 however, the time for the appeal is not unlimited. Petitioners have one year to file from 14 15 “the date on which the judgment became final by the conclusion of direct review or the 16 expiration of the time for seeking such review.” 8 U.S.C. § 2244(d)(1). “The time during 17 which a properly filed application for State post-conviction . . . is pending shall not be 18 counted toward any period of limitation.” 8 U.S.C. § 2244(d)(2). 19 20 McBride’s objections raise three issues: (1) whether the time between the 21 conclusion of review of the first Rule 32 of-right proceedings and the Notice was tolled 22 when calculating the one-year statute of limitations, (2) whether the sealed letter viewed 23 24 by the judge but not counsel constituted structural error, negating the first round of 25 appeals, and (3) whether the review was “pending” until the U.S. Supreme Court issued 26 its denial of certiorari. The Court addresses these issues separately. 27 28 1. Tolling of Time Between Petitions -5- 1 2 The magistrate judge found the end of direct review occurred on May 16, 2013; 3 ninety (90) days after the Arizona Supreme Court denied McBride’s first petition. The 4 Report and Recommendation subtracts the twenty-four (24) day period between that date 5 and the date of the properly filed Notice of Post-Conviction Relief from the one year 6 7 filing deadline. See Hemmerle v. Schriro, 495 F.3d 1069, 1074 (9th Cir. 2007) (When 8 notice is filed properly “it is sufficient to toll the AEDPA statute of limitations.”). 9 McBride argues that the time between conclusion of the first round of Rule 32 10 11 proceedings and the filing of the Notice in the second petition on June 10, 2013 was 12 tolled because his second petition met the two-pronged test laid out in King v. Roe, 340 13 F.3d 821, 823 (9th Cir. 2003) (per curiam) (abrogated on other grounds); accord. Stancle 14 15 v. Clay, 692 F.3d 948, 953 (9th Cir. 2012). 16 The King test determines whether a petitioner is entitled to tolling of “the period 17 between petitions filed in the same court.” Stancle v. Clay, 692 F.3d at 953 (quoting 18 Banjo v. Ayers, 614 F.3d 964, 968 (9th Cir. 2010)). First, the Court must decide “whether 19 20 the petitions are limited to an elaboration of the facts relating to the claims in the first 21 petition.” King, 340 F.3d at 823. If the Court considers the second petition an elaboration, 22 “[the court] construe[s] the new petitions as part of the first ‘full round’ of collateral 23 24 review” and allows tolling. Id. If the petitioner simply tried to correct deficiencies in the 25 first petition the time would toll, but if the petitioner raises new claims, he brings a new 26 round of collateral attack and the statute of limitations would run. Stancle, 692 F.3d at 27 28 954. Second, the Court must decide whether the state court denied the second claim based -6- 1 2 on the merits or deemed the second petition untimely. Id. 3 Here, the magistrate judge’s determination of the date that terminated direct 4 review was made prior to McBride’s objections. Assumedly, the decision was predicated 5 on the assumption that each petition was separate; the first petition raised issues of 6 7 ineffective assistance of counsel and mental competency, the second raised the claim of 8 newly-discovered evidence. 9 Under this logic, McBride’s first petition was first denied by the trial court, then 10 11 the Arizona Court of Appeals, and finally the Arizona Supreme Court on February 15, 12 2013. The Report and Recommendation states the final judgment would commence 13 ninety (90) days after the denial, giving McBride a three month period to petition the U.S. 14 15 16 17 18 Supreme Court for certiorari. Since McBride did not petition to the U.S. Supreme Court, the time expired to seek such review. Based on McBride’s arguments before the magistrate judge, her conclusions were reasonable. The “newly discovered evidence” argument was not raised until after the 19 20 magistrate judge made her Report and Recommendation. However, when analyzed under 21 King, the newly discovered evidence issue was inextricably tied to the first proceeding 22 and functioned as an expansion of the record in the first petition. 23 24 The District Court of Arizona’s decision in Corrales v. Ryan is instructive. 2015 25 WL 4882632 (D. Ariz., Jun. 24, 2015). In that case, the defendant filed his first notice of 26 post-conviction relief alleging his attorney was ineffective because he did not ask that 27 28 counts be severed, and did not object to impeachment testimony or to the admission of -7- 1 2 evidence. Id. at *2. The trial court denied the petition. Id. He then filed a petition for 3 review to the Arizona Court of Appeals using the same arguments and was summarily 4 denied. Id. Defendant did not file a petition to the Arizona Supreme Court, instead filing 5 a second Rule 32 Notice in the trial court. Id. This time, defendant alleged ineffective 6 7 assistance of counsel and newly-discovered evidence, but failed to include any argument 8 or facts in support of either claim. Id. at 3. The court found that the second petition was 9 not an elaboration of the first, instead it asserted new claims of ineffective assistance and 10 11 12 13 newly discovered evidence and denied tolling of the time between petitions. Id. at 5. Addressing the second prong, the court also found the filings were untimely. Id. at 4. McBride’s situation is distinguishable from Corrales. In that case, the defendant 14 15 had neither discovered new evidence during the pendency of the first proceedings, nor 16 attempted to have the newly discovered evidence addressed during the pendency of the 17 first round of review. When the defendant raised ineffective assistance and newly 18 discovered evidence claims in the second round of proceedings, he failed to amend his 19 20 second petition with any additional facts that were unknown to the trial court in the first. 21 McBride, on the other hand, attempted at the earliest possible opportunity to obtain a 22 rehearing at the Arizona Court of Appeals on the issue of the sealed letter during the first 23 24 round of proceedings. He then petitioned for review of the issue to the Arizona Supreme 25 Court. When McBride filed his second petition at the trial court, it included the letter, a 26 newly discovered fact which was presented in the first round of review, but had not been 27 28 properly addressed by the trial court in the first petition because the fact was unknown at -8- 1 2 the time of filing. In McBride’s case, the trial court granted him resentencing and found 3 there was newly discovered evidence which could have altered the sentence. (Doc. 17, p. 4 6). McBride was attempting to fix the discrepancies and errors in the first petition based 5 on facts that were only revealed in the process of his first Rule 32 post-conviction 6 7 proceedings. Unlike Corrales, McBride reasserted his original claims, but then asked that 8 these claims be re-examined based on the newly-discovered letter. The “newly 9 discovered evidence” should not be considered another claim, but the avenue in which 10 11 McBride was able to elaborate on the facts included in the first Rule 32 petition. The second prong of the two-part analysis is satisfied as well. The trial court did 12 13 not find McBride’s second petition untimely, and denied the petition on the merits. 14 The Court finds the later petition, filed June 10, 2013, was not a subsequent round 15 16 of collateral review, but elaborated on the facts of the first petition. Therefore, the time 17 between the conclusion of direct review in the Arizona Supreme Court and the Notice in 18 the second round of post-conviction proceedings was tolled. 19 20 2. Structural Error 21 In the alternative, McBride argues that if the Court rejects the argument that the 22 23 time between proceedings is tolled, then the second Notice should be treated as the Rule 24 32 of-right petition for the purposes of beginning the one-year statute of limitations. He 25 reasons the first petition and all of its appeals proceedings were void because the sealed 26 27 28 letter constituted structural error by the trial court, and cannot be used to calculate the time. -9- 1 2 Structural errors “infect the entire trial process and necessarily render a trial 3 fundamentally unfair.” Neder v. United States, 527 U.S. 1, 7–9, 119 S.Ct. 1827, 144 4 L.Ed.2d 35 (1999); see State v. Ring (Ring III), 65 P.3d 915, 993 ¶ 45 (2003). Structural 5 error “is limited to such circumstances as denial of counsel or a biased [trier or fact],” 6 7 State v. Valverde, 208 P.3d 233, 235–36 (Ariz. 2009) (en banc) (citing State v. Garza, 8 163 P.3d 1006, 1013 n. 6 (2007). In such cases, prejudice is presumed, because errors 9 were “so intrinsically harmful as to require automatic reversal.” Id. at ¶ 10. 10 11 A biased trial judge may constitute structural error, but bias means more than 12 simply considering evidence that should not have been considered. McBride’s examples 13 differ from the present situation. In those cases, the judges had a high degree of improper 14 15 personal involvement. In Williams v. Pennsylvania, a judge on a panel did not recuse 16 himself from post-conviction review, but should have because he had approved the death 17 penalty against the defendant when he served as a district attorney. __ U.S. __, 136 S.Ct. 18 1899, 1910, 195 L.Ed.2d 132 (2016). In another case, the judge had a pecuniary interest 19 20 in the outcome of the case. Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 71 L.Ed. 749 21 (1927). In the last case, a judge denied a defendant the right to a jury verdict, and instead 22 substituted his own. Sullivan v. Louisiana, 508 U.S. 275, 281, 113 S.Ct. 2078, 124 23 24 L.Ed.2d 182 (1993). 25 The error committed here was not structural error. The sentencing judge sealed 26 one letter and reviewed it for sentencing, however, she had no interest in the outcome and 27 28 viewing the letter did not undermine the entire sentencing process. This situation is much - 10 - 1 2 closer to that of a jury permitted to review evidence which had not been admitted. See 3 e.g., Eslaminia v. White, 136 F.3d 1234, fn. 1 (9th Cir. 1998) (not structural error when 4 jurors considered taped interview of individual who did not testify, tape was not in 5 evidence, and counsel did not find out until after deliberations.); People v. Gamache, 227 6 7 P.3d 342, 385-86 (Cal. 2010) (not structural error when jurors viewed tape of two 8 witnesses not admitted into evidence); but see United States v. Noushfar, 78 F.3d 1442 9 (9th Cir. 1996) (structural error found when judge allowed jury to view 14 incriminating 10 11 tapes of defendants’ statements). Because there was no structural error, prejudice is not 12 presumed. Valverde, 208 P.3d at 236. McBride has failed to show prejudice during his 13 first round of post-conviction proceedings, and the Court finds the denials of review in 14 15 McBride’s first round of post-conviction review proceedings are valid. 16 Therefore, the conclusion of direct review occurred after the Arizona Supreme 17 Court denied review in the first round of proceedings on February 15, 2013. See section 18 4, infra (discussing conclusion of review occurs on the date the state’s highest court 19 20 21 22 denied review). Nonetheless, even if this Court found the first round of post-conviction review void due to structural error, the Court would not agree with McBride’s conclusion. 23 24 25 26 Because the Court finds tolling of all the time from the first petition to the conclusion of the second petition, McBride’s argument would not increase the tolled time. 3. Final Judgment to U.S. Supreme Court 27 28 McBride then argues the case remained “pending” until his petition for certiorari - 11 - 1 2 to the United States Supreme Court was denied on December 7, 2015. He cites no case 3 law supporting this theory. If true, it would mean the entire time between final judgment 4 of the Arizona Supreme Court on May 16, 2013, to the denial of his petition for certiorari 5 by the U.S. Supreme Court on December 7, 2013 was excluded from statute of 6 7 limitations calculations. Accordingly, the pending petition (Doc. 1) would have been filed 8 within the statutory time, 227 days later on July 21, 2016. 9 McBride’s calculations for the end of tolling are incorrect. A petition to the U.S. 10 11 12 13 14 15 16 17 18 Supreme Court for certiorari does not stop the statute of limitations clock from running. The U.S. Supreme Court explained: “[T]he statute of limitations is tolled only while state courts review the application. . . . [A] state post-conviction application ‘remains pending’ ‘until the application has achieved final resolution though the State’s post-conviction procedures.’ [The U.S. Supreme Court] is not a part of a ‘State’s post-conviction procedures.’ And an application for state post-conviction review no longer exists. All that remains is a separate certiorari petition pending before a federal court. The application for state post-conviction review is therefore not ‘pending’ after the state court’s post-conviction review is complete, and § 2244(d)(2) does not toll the 1-year limitations period during the pendency of a petition for certiorari.” 19 20 Lawrence v. Florida, 549 U.S. 327, 332 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007) 21 (emphasis in original). Applying this to the pending writ, the time between the Arizona 22 Supreme Court denial on the second round of post-conviction review and the final denial 23 24 25 of certiorari from the U.S. Supreme Court was not tolled. 4. Denial from Arizona Supreme Court 26 27 28 Since the Court finds that McBride’s petition was not pending while seeking a petition for certiorari to the U.S. Supreme Court, the Court must now determine the - 12 - 1 2 actual date the tolling of time concluded and the clock began to run. 3 Tolling concludes at the time in which “the State’s highest court has issued its 4 mandate or denied review.” Lawrence, 549 U.S. at 332 (emphasis added). In Arizona, the 5 denial of review by the State Supreme Court ends the pendency of appeals proceedings 6 7 and allows the clock to begin again. Hemmerle v. Schriro, 495 F.3d 1069, 1077 (9th Cir. 8 2007), cert. denied, 555 U.S. 829 (2008); Flores v. Trujillo, 2013 WL 424725 (D. Ariz., 9 Apr. 10, 2014) (“When the Arizona Supreme Court denied his petition for post- 10 11 conviction review, the limitation period began running again from where it left off.”). 12 The Court concludes the date the proceedings were no longer ‘pending’ was on 13 April 21, 2015, when the Arizona Supreme Court denied relief. Therefore, the clock 14 15 began on April 24, 2015, the day after the Arizona Supreme Court decision and expired 16 366 days later on April 23, 2016. 1 McBride filed his federal habeas petition on July 21, 17 2016, 457 days after the clock started. So, even granting tolling for the twenty-four (24) 18 days between his first and second petition, the pending habeas is still eighty-nine (89) 19 20 21 22 days overdue and is deemed untimely. The Court therefore finds: 1. The entire time period between McBride’s filing of his first Rule 32 petition ofright on February 22, 2011, and his denial by the Arizona Supreme Court on April 23 24 21, 2015 is tolled. 25 26 1 27 28 Like the magistrate judge, the Court uses the “anniversary method” and includes an additional day because 2016 was a leap year. (Doc. 19, p. 6) (citing United State v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000). Since the filing deadline was a Sunday, the court extends the deadline to Monday, April 24, 2016. Fed.R.Civ.P 6(a)(1)(C). - 13 - 1 2 2. The clock for the one-year time limit to file a writ for habeas corpus in federal 3 court began the day after the Arizona Supreme Court issued its denial of review, 4 April 22, 2015. 5 3. Petitioner’s deadline for filing within the one-year time limit expired April 24, 6 7 8 9 2016. 4. Petitioner filed his Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody on July 21, 2016, eighty-nine (88) days after the one- 10 11 12 year statute of limitations had expired. 5. Petitioner’s writ is therefore time-barred. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Certificate of Appealability (“COA”) Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the “district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Such certificates are required in cases concerning detention arising “out of process issued by a State court”, or in a proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1). Here, the Petition is brought pursuant to 28 U.S.C. § 2254, and challenges detention pursuant to a State court judgment. This Court must determine, therefore, if a COA shall issue. The standard for issuing a COA is whether the applicant has “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “When the district court denies a habeas petition on procedural grounds without reaching - 14 - 1 2 3 4 5 6 7 8 the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id.; see also Robbins v. Carey, 481 F.3d 1143,1146-47 (9th Cir. 2007) (failure to object to magistrate judge’s conclusions does not automatically waive appellate challenge) In the certificate, the Court must indicate which specific issues satisfy the showing. See 28 U.S.C. § 2253(c)(3). 9 10 11 12 The Court finds that jurists of reason would not find it debatable whether the Petition was filed within the statutory time limitations and the Court finds that jurists of reason would not find it debatable whether the district court was correct in its procedural ruling. A COA shall not issue as to McBride’s claims. 13 14 Any further request for a COA must be addressed to the Court of Appeals. See Fed. R.App. P. 22(b); Ninth Circuit R. 22-1 15 16 Accordingly, IT IS ORDERED: 17 1. The Report and Recommendation (Doc. 19) is ADOPTED IN PART; 18 2. The Petition Under 28 U.S.C. §2254 for a Writ of Habeas Corpus by a Person in 19 20 State Custody (Doc. 1) is DENIED; 21 22 ... 23 ... 24 ... 25 26 27 28 - 15 - 1 2 3 4 3. The Clerk of the Court shall enter judgment and shall then close its file in this matter, and; 4. A Certificate of Appealability shall not issue in this case. 5 6 Dated this 26th day of January, 2017. 7 8 9 10 11 Honorable Cindy K. Jorgenson United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 16 -

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