McCoy v. Hedgpath
Filing
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ORDER Denying Motion For Appointment of Counsel re Doc. 24 MOTION filed by Kavin W McCoy. Petitioner filed Document 24 and stated therein for an Attorney to be appointed for him, the Court construes the document to be a motion for appointment of counsel. For the reasons stated within this Order, the "interests of justice" in this matter do not compel the appointment of counsel. Accordingly, Petitioner's Request for Appointment of Counsel is denied without prejudice. Signed by Magistrate Judge William V. Gallo on 6/6/2011.(All non-registered users served via U.S. Mail Service)(leh)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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KAVIN W. MCCOY,
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Petitioner,
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v.
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ANTHONY HEDGPETH,
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Respondent.
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Civil No. 11-0653-MMA(WVG)
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(DOC. # 24)
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On May 27, 2011, Petitioner filed a document entitled “In re
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3:11-cv-00653-MMA-WVG and Discrepancies in Documents in Documents #
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14 #16.” (Doc. #24) In that document, Petitioner requests that an
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attorney be appointed for him. Therefore, the Court construes the
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document to be a Motion for Appointment of Counsel.
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The Sixth Amendment right to counsel does not extend to
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federal habeas corpus actions by state prisoners.
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Zant, 499 U.S. 467, 495 (1991);
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1196 (9th Cir. 1986); Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th
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Cir. 1986). However, financially eligible habeas petitioners seeking
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relief pursuant to 28 U.S.C. § 2254 may obtain representation
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whenever the court “determines that the interests of justice so
McCleskey v.
Chaney v. Lewis, 801 F.2d 1191,
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11CV0653
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require.’”
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v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990); Bashor v. Risley,
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730 F.2d 1228, 1234 (9th Cir. 1984); Hoggard v. Purkett, 29 F.3d
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469, 471 (8th Cir. 1994).
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18 U.S.C. § 3006A(a)(2)(B) (West Supp. 1995); Terrovona
The interests of justice require appointment of counsel when
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the
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Terrovona, 912 F.2d at 1177; Knaubert, 791 F.2d at 728; Abdullah v.
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Norris, 18 F.3d 571, 573 (8th Cir. 1994); Rule 8(c), 28 U.S.C. foll.
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§
court
2254.
conducts
an
evidentiary
hearing
on
the
petition.
The appointment of counsel is discretionary when no
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evidentiary hearing is necessary.
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Knaubert, 791 F.2d at 728; Abdullah, 18 F.3d at 573.
Terrovona, 912 F.2d at 1177;
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In the Ninth Circuit, “[i]ndigent state prisoners applying
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for habeas relief are not entitled to appointed counsel unless the
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circumstances of a particular case indicate that appointed counsel
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is necessary to prevent due process violations.”
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at 1196; Knaubert, 791 F.2d at 728-29.
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occur in the absence of counsel if the issues involved are too
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complex for the petitioner. In addition, the appointment of counsel
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may be necessary if the petitioner has such limited education that
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he or she is incapable of presenting his or her claims.
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Bennett, 423 F.2d 948, 950 (8th Cir. 1970).
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Chaney, 801 F.2d
A due process violation may
Hawkins v.
In the Eighth Circuit, “[t]o determine whether appointment of
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counsel
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claims, a district court should consider the legal complexity of the
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case, the factual complexity of the case, the petitioner’s ability
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to investigate and present his claim, and any other relevant
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factors.”
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Armontrout, 902 F.2d 701, 702 (8th Cir. 1990)); Hoggard, 29 F.3d at
is
required
for
habeas
petitioners
with
non-frivolous
Abdullah v. Norris, 18 F.3d at 573 (citing Battle v.
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11CV0653
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471; Boyd v. Groose, 4 F.3d 669, 671 (8th Cir. 1993); Smith v.
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Groose, 998 F.2d 1439, 1442 (8th Cir. 1993); Johnson v. Williams,
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788 F.2d 1319, 1322-23 (8th Cir. 1986).
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Since these factors are useful in determining whether due
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process requires the appointment of counsel, they are considered to
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the extent possible based on the record before the Court. Here,
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Petitioner has sufficiently represented himself to date. From the
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face of the Petition, filed pro se, it appears that Petitioner has
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a good grasp of this case and the legal issues involved. Under such
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circumstances, a district court does not abuse its discretion in
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denying a state prisoner’s request for appointment of counsel as it
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is simply not warranted by the interests of justice.
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Risley, 827 F.2d 622, 626 (9th Cir. 1987). At this stage of the
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proceedings, the Court finds that the interests of justice do not
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require the appointment of counsel. Therefore, Petitioner’s Motion
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for
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prejudice.
Appointment
of
Counsel
in
this
regard
is
See LaMere v.
DENIED
without
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Also, Petitioner seeks counsel because he states that he
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needs an expert to use forensic laboratory reports pertaining to his
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case. However, Petitioner has not shown that such appointment is
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necessary. The in forma pauperis statute, 28 U.S.C. § 1915, does not
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waive the requirement of the payment of fees or expenses for
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witnesses.1/ Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993).
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Further, the appointment of an independent expert witness under
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Federal Rule of Evidence 706 is discretionary.
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American Home Shield Long Term Disability Plan, 180 F.3d 1065, 1071
See
Walker v.
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1/
On April 21, 2011, Petitioner’s Motion to Proceed in forma pauperis
was granted.
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11CV0653
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(9th
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contemplate the appointment of, and compensation for, an expert to
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aid one of the parties.” Trimble v. City of Phoenix Police Dept.,
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2006 WL 778697, *2 (D. Ariz. 2006). Appointment of an expert witness
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may generally be appropriate when “scientific, technical, or other
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specialized knowledge will assist the trier of fact to understand
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the evidence or decide a fact in issue...” Levi v. Director of
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Corrections, 2006 WL 845733, *1 (E.D. Cal. 2006) [citing Ledford v.
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Sullivan,
Cir.
1999).
105
“Reasonably
F.3d
354,
construed,
358-59
(7th
[Rule
Cir.
706]
1997)].
does
not
Therefore,
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Petitioner’s Motion for Appointment of Counsel in this regard is
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DENIED without prejudice.
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The Court also notes that “[w]here the issues involved can be
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properly resolved on the basis of the state court record, a district
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court does not abuse its discretion in denying a request for court-
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appointed counsel.”
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973 F.2d 655, 661 (8th Cir. 1992); Travis v. Lockhart, 787 F.2d 409,
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411 (8th Cir. 1986) (per curiam) (holding that district court did
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not abuse its discretion in denying § 2254 habeas petitioner’s
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motion for appointment of counsel where allegations were properly
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resolved on basis of state court record).
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proceedings, it appears the Court will be able to properly resolve
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the issues involved on the basis of the state court record.
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Hoggard, 29 F.3d at 471; McCann v. Armontrout,
At this stage of the
“The procedures employed by the federal courts are highly
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protective of a pro se petitioner’s rights.
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required to construe a pro se petition more liberally than it would
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construe a petition drafted by counsel.”
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(citing Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding pro se
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complaint to less stringent standard) (per curiam)); Bashor, 730
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The district court is
Knaubert, 791 F.2d at 729
11CV0653
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F.2d at 1234. The Petition in this case was pleaded sufficiently to
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warrant this Court’s order directing Respondent to file an answer or
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other responsive pleading to the Petition.
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“The district court must scrutinize the state court record
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independently to determine whether the state court procedures and
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findings were sufficient.”
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Ricketts, 774 F.2d 957, 961 (9th Cir.1985); Rhinehart v. Gunn, 598
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F.2d 557, 558 (9th Cir.1979) (per
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F.2d 111, 112 (9th Cir.1978) (per curiam).
Knaubert, 791 F.2d at 729; Richmond v.
curiam);
Turner v. Chavez, 586
Even when the district
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court accepts a state court’s factual findings, it must render an
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independent legal conclusion regarding the legality of a peti-
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tioner’s incarceration.
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(1985).
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receive de novo appellate review.
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1434, 1436 (9th Cir. 1986).
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Miller
v. Fenton, 474 U.S. 104, 112
The district court’s legal conclusion, moreover, will
Hayes v. Kincheloe, 784 F.2d
The assistance counsel provides is valuable.
“An attorney
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may narrow the issues and elicit relevant information from his or
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her client. An attorney may highlight the record and present to the
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court a reasoned analysis of the controlling law.”
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F.2d at 729.
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evidentiary hearing is held, an attorney’s skill in developing and
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presenting new evidence is largely superfluous; the district court
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is entitled to rely on
the state court record alone.”
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Sumner
U.S.
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§ 2254(d)).
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appointment of counsel, it must “review the record and render an
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independent legal conclusion.”
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does not appoint counsel, it must “inform itself of the relevant
v.
Knaubert, 791
However, as the court in Knaubert noted: “unless an
Mata,
449
539,
545-57
(1981),
and
Id. (citing
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U.S.C.
Because this Court denies Petitioner’s motion for
Id.
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Moreover, because the Court
11CV0653
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law.
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while significant, is not compelling.”
Therefore, the additional assistance provided by attorneys,
Id.
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If an evidentiary hearing is required, Rule 8(c) of the Rules
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Governing Section 2254 Cases requires that counsel be appointed to
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a petitioner who qualifies under 18 U.S.C. § 3006A(a)(2)(B).
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8(c), 28 U.S.C. foll. § 2254; see Wood v. Wainwright, 597 F.2d 1054
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(5th Cir. 1979). In addition, the Court may appoint counsel for the
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effective utilization of any discovery process. Rule 6(a), 28 U.S.C.
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foll. § 2254. For the above-stated reasons, the “interests of
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justice” in this matter do not compel the appointment of counsel.
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Accordingly, Petitioner’s Motion for Appointment of Counsel is
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DENIED without prejudice.
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IT IS SO ORDERED.
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DATED: June 6, 2011
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Hon. William V. Gallo
U.S. Magistrate Judge
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11CV0653
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