McJimpson v. Supreme Court of California
Filing
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FINDINGS and RECOMMENDATION Regarding Respondent's Motion to Dismiss 8 , signed by Magistrate Judge Michael J. Seng on 1/17/17: 30-Day Objection Deadline. (Hellings, J)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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Case No. 1:16-cv-01288 AWI MJS (HC)
MARCUS MCJIMPSON,
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FINDINGS AND RECOMMENDATION
Petitioner, REGARDING RESPONDENT’S MOTION
TO DISMISS
v.
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[Doc. 8]
DEBBIE ASUNCION, Warden,
Respondent.
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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas
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corpus pursuant to 28 U.S.C. § 2254. Respondent, Debbie Asuncion, Warden of
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California State Prison, Los Angeles, is hereby substituted as the proper named
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respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Respondent
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is represented in this action by Tami Krenzin, of the Office of the Attorney General for
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the State of California.
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I.
Background
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Petitioner is currently in the custody of the California Department of Corrections
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pursuant to an October 5, 1990 judgment of the Superior Court of California, County of
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Fresno, upon being convicted of two counts of first degree murder and various
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enhancements. (Lodged Doc. 1.) Petitioner was sentenced to an indeterminate prison
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sentence of life without the possibility of parole. Id. Petitioner filed an appeal with the
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Fifth District Court of Appeal. It was denied on August 13, 1992. (Lodged Doc. 2.) Ten
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years later, in 2003, Petitioner sought review from the California Supreme Court. The
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California Supreme Court denied review on November 19, 2003. (Lodged Doc. 3.)
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On September 15, 2015, Petitioner filed a petition for sentence reduction under
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California law with the Fresno County Superior Court. (Lodged Doc. 4.) On September
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30, 2015, the court denied the request finding Petitioner was not eligible or resentencing.
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(Lodged Doc. 5.) Petitioner sought review from the Fifth District Court of Appeal. On May
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31, 2016, the Court dismissed the petition for review, holding that the superior court’s
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order was not appealable. (Lodged Doc. 7.) Petition filed a petition for writ of prohibition
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on July 7, 2016 with the California Supreme Court. (Lodged Doc. 8.) It was denied on
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July 27, 2016.
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On August 31, 2016, Petitioner filed the instant petition requesting this Court grant
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his motion for resentencing. (Pet.) On November 22, 2016, Respondent filed a motion to
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dismiss asserting that Petitioner has not presented federally cognizable claims. (ECF
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No. 8.) Petitioner did not file an opposition to the motion. Accordingly, the matter stands
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ready for adjudication.
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II.
Discussion
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A.
Procedural Grounds for Motion to Dismiss
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Rule 4 of the Rules Governing Section 2254 Cases allows a district court to
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dismiss a petition if it “plainly appears from the petition and any attached exhibits that the
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petitioner is not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing
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Section 2254 Cases.
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The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an
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answer if the motion attacks the pleadings for failing to exhaust state remedies or being
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in violation of the state’s procedural rules. See, e.g., O’Bremski v. Maass, 915 F.2d 418,
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420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to
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exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using
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Rule 4 as procedural grounds to review motion to dismiss for state procedural default);
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Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n. 12 (E.D. Cal. 1982) (same). Thus, a
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respondent can file a motion to dismiss after the court orders a response, and the Court
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should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 &
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n. 12.
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B.
Legal Standard of Review
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On April 24, 1996, Congress enacted the Antiterrorism and Effective Death
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Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus
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filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 326, 117 S. Ct. 2059, 138 L. Ed.
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2d 481 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). The instant
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petition was filed after the enactment of the AEDPA; thus, it is governed by its
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provisions.
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Under AEDPA, an application for a writ of habeas corpus by a person in custody
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under a judgment of a state court may be granted only for violations of the Constitution
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or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. at 375 n.
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7 (2000). Federal habeas corpus relief is available for any claim decided on the merits in
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state court proceedings if the state court's adjudication of the claim:
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(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.
28 U.S.C. § 2254(d).
C.
Petitioner’s Federal Claims Are Without Merit
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Here, Petitioner asserts that his federal Due Process and equal protection rights
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were violated by the state’s denial of Petitioner’s petition for writ of prohibition. Petitioner
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sought relief in the state courts to have his sentence modified, specifically to have the
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special circumstances stricken so that he might become eligible for parole. (See Lodged
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Doc. 5.) The court informed Petitioner that he was not entitled to the relief sought under
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People v. Williams, 30 Cal.3d 470 (1981), because California Penal Code § 1385.1,
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when enacted on June 6, 1990, precluded relief under Williams. (Id.) Accordingly, the
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court denied Petitioner’s writ of prohibition requesting to modify his sentence. (Id.)
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A claim of state sentencing error does not raise a federal constitutional question.
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Lewis v. Jeffers, 497 U.S. 764, 783, 110 S. Ct. 3092, 111 L. Ed. 2d 606 (1990). The
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Ninth Circuit has refused to consider state law errors in the application of state
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sentencing law. Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002); Christian v. Rhode,
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41 F.3d 461, 469 (9th Cir. 1994); Hendricks v. Zenon, 993 F.2d 664, 674 (9th Cir. 1993);
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Miller v. Vasquez, 868 F.2d 1116 (9th Cir. 1989) (refusing to examine state's
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determination that a prior was a serious felony); Johnson v. Arizona, 462 F.2d 1352,
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1353-54 (9th Cir. 1972) (rules of sentencing adopted by state court do not raise
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constitutional issues which may be reached by habeas corpus); Adams v. Eyman, 418
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F.2d 911 (9th Cir. 1969); Sturm v. California Adult Authority, 395 F.2d 446, 448 (9th Cir.
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1967). Therefore, to the extent that Petitioner claims that there was a violation of
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California law relating to sentencing, he does not state a cognizable federal question.
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Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991).
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Petitioner claims that the state court decisions violated his federal Due Process
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rights. (See, Pet.) “As for the Due Process Clause, standard analysis under that
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provision proceeds in two steps: We first ask whether there exists a liberty or property
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interest of which a person has been deprived, and if so we ask whether the procedures
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followed by the State were constitutionally sufficient. Swarthout v. Cooke, 131 S. Ct. 859,
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861 (2011); Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460, 109 S. Ct.
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1904, 104 L. Ed. 2d 506 (1989).
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In order to state a due process claim, Petitioner must show that a constitutionally
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protected liberty interest is implicated. Baumann v. Arizona Dept. of Corrections, 754
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F.2d 841, 844 (9th Cir. 1985). A state may create a constitutionally protected liberty
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interest if it establishes regulatory measures that impose substantive limitations on the
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exercise of official discretion. Hewitt v. Helms, 459 U.S. 460, 470-72, 103 S. Ct. 864, 74
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L. Ed. 2d 675 (1983), overruled in part by Sandin v. Conner, 515 U.S. 472, 484, 115 S.
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Ct. 2293, 132 L. Ed. 2d 418 (1995).
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However, a state prisoner does not have a liberty interest in a classification status
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under the Fourteenth Amendment. Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th
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Cir. 1987); see Moody v. Daggett, 429 U.S. 78, 88 n.9, 97 S. Ct. 274, 50 L. Ed. 2d 236
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(1976) (Due Process Clause not implicated by federal prisoner classification and
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eligibility for rehabilitative programs, even where inmate suffers "grievous loss").
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To the extent Petitioner might attempt to base a due process claim on having a
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liberty interest violated by the state court's abuse of discretion, the source of any liberty
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interest is state law. Cf. Swarthout v. Cooke, 131 S.Ct. 859 at 861-62 (characterizing as
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reasonable a decision of the Ninth Circuit Court of Appeals that California law creates a
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liberty interest in parole protected by the Due Process Clause of the Fourteenth
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Amendment). Here, after affording Petitioner due process and considering the pertinent
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factors, the state court determined it lacked jurisdiction under state law to modify his
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sentence. (Lodged Doc. 5.) Thus, Petitioner has not shown there was a violation of a
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liberty interest protected by the Due Process Clause. Absent a showing of fundamental
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unfairness, a state court's misapplication of its own sentencing laws does not justify
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federal habeas relief. Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994). Petitioner
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has not shown any fundamental unfairness.
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Therefore, the state court's denial of Petitioner's due process claim was neither
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contrary to, nor an unreasonable application of, clearly established law. See 28 U.S.C. §
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2254(d).
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III.
Conclusion
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In sum, Petitioner has not presented cognizable claims. Further, to the extent that
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this Court construed Petitioner's claims as potentially cognizable claims, the state court's
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denial of this claim was neither contrary to, nor an unreasonable application of, clearly
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established law. See 28 U.S.C. § 2254(d). The Court therefore recommends that
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Respondent's motion to dismiss be granted and the petition for writ of habeas corpus be
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dismissed.
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IV.
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Recommendation
Accordingly, the Court HEREBY RECOMMENDS that the motion to dismiss for
Petitioner’s failure to state a federally cognizable claim be GRANTED.
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This Findings and Recommendation is submitted to the assigned United States
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District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and
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Rule 304 of the Local Rules of Practice for the United States District Court, Eastern
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District of California. Within thirty (30) days after the date of service of this Findings and
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Recommendation, any party may file written objections with the Court and serve a copy
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on all parties. Such a document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendation.” Replies to the Objections shall be served and filed
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within fourteen (14) days after service of the Objections. The Finding and
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Recommendation will then be submitted to the District Court for review of the Magistrate
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Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(c). Petitioner is advised that failure
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to file objections within the specified time may waive the right to appeal the District
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Court's order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014).
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IT IS SO ORDERED.
Dated:
January 17, 2017
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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