Storey v. Paramo
Filing
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ORDER denying 39 Third Renewed Motion for Stay and Abeyance. Signed by Judge Larry Alan Burns on 1/16/2018. (All non-registered users served via U.S. Mail Service)(jdt)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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DONTAZE A. STOREY,
Case No.: 17cv23-LAB (BGS)
Petitioner,
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v.
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ORDER DENYING THIRD
RENEWED MOTION FOR STAY
AND ABEYANCE
DANIEL PARAMO,
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Respondent.
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After being convicted in California superior court of nineteen counts of lewd acts
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with his minor daughters, and two counts of failure to register as a sex offender,
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Petitioner Dontaze Storey brought a direct appeal. His petition for review in the
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California Supreme Court was denied on January 13, 2016. His appellate counsel notified
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him of that fact, told him they were no longer representing him, and notified him of his
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right to file a federal habeas petition as well as the deadline for filing such a claim. (See
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Docket no. 1 at 63.) His counsel also explained federal exhaustion requirements to him,
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and told him how to exhaust his claims. (Id. at 63–64.)
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Storey waited almost a year, then filed a mixed petition including at least four
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unexhausted claims. He also filed a motion for stay and abeyance. (Docket no. 3.) On
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January 18, 2017, the Court also informed Storey of the exhaustion requirement. (Docket
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no. 5.) The Court’s order specifically cited Rose v. Lundy, 455 U.S. 509, 522 (1982),
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17cv23-LAB (BGS)
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which requires that habeas petitions containing unexhausted claims generally must be
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dismissed.
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The case was referred to Magistrate Judge Bernard Skomal for report and
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recommendation. After receiving briefing Judge Skomal issued his report and
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recommendation (the “R&R”) on August 18, 2017, recommending denying without
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prejudice the motion for stay and abeyance. (Docket no. 24.) The R&R recommended
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that Storey be allowed to file a renewed motion for stay and abeyance only if he brought
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his unexhausted claims before the California Supreme Court by filing a habeas petition
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there and included a copy of that petition with his renewed petition. (R&R at 6:25–7:8.)
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The R&R suggested a deadline of 45 days after the Court issued its order adopting the
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R&R. Because of what happened next, the Court never adopted that 45-day deadline. 1
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While the Court was awaiting objections to the R&R, Storey without leave filed a
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second motion for stay and abeyance. (Docket no. 31.) The Court denied both the
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original and the second motion for stay and abeyance. (Docket no. 33.) Storey then filed
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a second renewed motion for stay and abeyance (Docket no. 35), which the Court again
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denied. (Docket no. 36.) Storey then submitted another motion for stay and abeyance,
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which the Court construed as an unauthorized second motion for reconsideration and
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rejected for filing. (Docket no. 37.) Now Storey has submitted another renewed motion
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for stay and abeyance, which the Court has accepted for filing.
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Over the course of his briefing, Storey has requested stay and abeyance under both
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Rhines v. Weber, 544 U.S. 269 (1995) and Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003),
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each of which provides for a stay and abeyance procedure that applies under different
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circumstances. See King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009).
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Storey’s later filings show he thinks this part of the R&R is in force, but it is not. He should not cite or
rely on the R&R’s recommendation (Docket no. 24 at 5:20–25) that he be given leave to file a renewed
motion for stay and abeyance under certain conditions.
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The procedure set forth in Kelly is unavailable here, for two reasons. First, Kelly
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deals with the situation where a petitioner has filed (or is willing to file) an entirely
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exhausted petition in federal court, but wants to exhaust additional claims and amend his
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federal petition to add them. Jackson v. Roe, 425 F.3d 654, 661 (9th Cir. 2005) (holding
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that Kelly applies to fully exhausted petitions); King, 564 F.3d at 1141 (“[T]he Kelly
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procedure requires petitioners to dismiss their unexhausted claims and then attempt to
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add them back into the federal complaint later . . . .”). Here, Storey has filed a mixed
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petition, and has refused to amend it to delete the unexhausted claims. (See Docket no.
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33 (giving Storey until December 8, 2017 to file an amended petition including only
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exhausted claims).) Second, a stay under Kelly does not toll the federal limitations period
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with respect to the unexhausted claims. King, 564 F.3d at 1135, 1140–42. Any
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unexhausted claims that were not included in the federal petition are already time-barred.
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And dismissing any unexhausted claim from the federal petition would result in its being
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immediately time-barred. See id. at 1140–42. See also id. at 1141 (denial of a stay under
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Kelly is appropriate if the new claims cannot be added after exhaustion because of the
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federal time bar).
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In Rhines, the Supreme Court made clear that stay and abeyance should be granted
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only in “limited circumstances” and is not to be granted lightly or routinely. 544 U.S. at
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277. Federal courts’ discretion to stay petitions is limited. Id. at 279. To obtain a stay
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under Rhines, a petitioner must show, among other things, good cause for failure to
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exhaust. Id. Although Storey has been pointed to Rhines a number of times and has been
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told of the “good cause” requirement, he has never shown good cause. The closest he has
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come is in his petition when he claimed in passing that his failure to exhaust was due to
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ineffective assistance of appellate counsel. But “a bald assertion cannot amount to a
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showing of good cause . . . .” Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014).
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Moreover, Storey’s appellate counsel performance has nothing to do with Storey’s own
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failure to exhaust his claims by filing a habeas petition in the California Supreme Court.
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They have not been involved with these claims since January of 2016.
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17cv23-LAB (BGS)
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Storey says he sent a habeas petition to the California Supreme Court on April 13,
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2017, but it was rejected for filing errors. (See Docket no. 14 at 2.) Then he corrected
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the errors, made some substantive changes, and refiled it. It was accepted for review on
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May 22, 2017. (See Docket no. 16.) The petition was denied on August 16, 2017 with
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citations to People v. Duvall, 9 Cal.4th 464, 474 (1995); In re Swain, 34 Cal.2d 300, 304
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(1949); and In re Dixon, 41 Cal.2d 756, 759 (1953). These citations indicate that the
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petition was not properly filed because it did not include copies of reasonably available
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documentary evidence (Duvall) and did not allege sufficient facts with particularity
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(Swain). The citation to Dixon indicates the Court’s determination that Storey could have
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raised at least some of the claims on direct appeal, but failed to do so.
After this denial, Storey waited about three to four months before submitting a new
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petition. His latest renewed motion for stay and abeyance includes documentation
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showing that the California Supreme Court received it on December 4, 2017 but rejected
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it on December 14 because he did not use the required form. (Motion at 4.) Storey’s
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latest motion, dated January 8, says he has asked the California Supreme Court for an
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extension of time so that he can file his petition there. Although the motion does not say
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so, it is clear he has not yet completed or filed that petition. It is unclear when, if ever, he
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will do so. And if he does, it is likely his claims will be rejected as untimely. See In re
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Harris, 5 Cal.4th 813, 828 n.7 (1993) (“[T]he habeas corpus petition must be filed within
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a reasonable time after the petitioner or counsel knew, or with due diligence should have
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known, the facts underlying the claim as well as the legal basis of the claim.”). See also
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Stewart v. Cate, 757 F.3d 929, 935–36 (9th Cir. 2014) (approving a thirty-to-sixty-day
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benchmark for California’s “reasonable time” standard, unless the petitioner could show
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good cause for a longer delay).
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The motion gives no reason at all for Storey’s continued failure to exhaust his
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claims in the two years since his conviction became final. But the record makes clear that
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nothing is preventing him from drafting and filing petitions, and his failure to petition
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successfully is not the fault of his appellate counsel. Furthermore, the California Supreme
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Court’s determination that Storey could have raised some of his claims on direct appeal
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means Storey either failed to raise the issue of ineffective appellate counsel before that
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Court, or that he did so and the Court rejected it.
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Mindful of the Supreme Court’s admonitions in Rhines, 544 U.S. at 276–77 and
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the Ninth Circuit’s admonitions in cases such as Wooten v. Kirkland, 540 F.3d 1019,
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1024 (9th Cir. 2008), the Court must proceed to adjudicate Storey’s petition.
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The situation at present is that Storey has left at least four of his claims exhausted
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for about two years, and has not shown or made any serious effort to show good cause for
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doing that. Beyond that, there is no schedule for exhausting them and no showing that he
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is even making any progress in doing that. Staying the petition until Storey decides to
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take action and exhaust his claims (assuming they are not already defaulted) would
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violate Rhines’ directive that “[a] mixed petition should not be stayed indefinitely.” 544
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U.S. at 277. Also, the Court cannot adjudicate the petition as it now stands. Rose makes
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it clear that the Court must dismissed a mixed petition. 455 U.S. at 510. See Sechrest v.
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Ignacio, 549 F.3d 789, 800 (9th Cir. 2008) (citing Rose, 455 U.S. at 522 (“[F]ederal law
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prohibits the consideration of mixed petitions . . . .”); Jefferson v. Budge, 419 F.3d 1013,
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1015 (9th Cir. 2005) (“Rose mandates that a district court must dismiss mixed
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petitions . . . .”).
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Storey’s latest motion for stay and abeyance is DENIED. If he wants to try to
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exhaust his unexhausted claims, he must file a petition with the California Supreme Court
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no later than February 8, 2018. By February 15, 2018, he must file a renewed motion
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for stay and abeyance, and must attach a copy of the petition he filed with the California
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Supreme Court. A renewed motion that does not attach a copy of the petition will be
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rejected or denied, which will likely result in dismissal of the entire case. If he does not
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intend to exhaust his unexhausted claims, he must, no later than February 15, 2018, file
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17cv23-LAB (BGS)
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an amended petition that includes only claims he has already exhausted and leaves out all
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unexhausted claims. 2
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These deadlines will not be extended unless Storey files an ex parte motion well
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before the deadlines, showing good cause for the extension. The Court is aware that
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Storey is a prisoner, is not a lawyer and has never studied law, and is representing
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himself, and has considered these facts when setting the deadlines. Therefore, Storey
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should not expect that he can show good cause by pointing out these facts.
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Storey must choose one of those two options. See Jefferson, 419 F.3d at 1015–16
(citing Rose, 455 U.S. at 510) (a habeas petitioner must be given the choice either to
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return to state court to exhaust his claims or to amend and resubmit his petition to present
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only exhausted claims to the federal district court). There is no third option. If he does
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not do one or the other within the time limited, stay and abeyance will be unavailable.
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Also, his mixed petition will be dismissed as required by Rose, and all his claims will be
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time-barred. Because the petition Storey filed in this Court is mixed, the Court cannot
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consider it.
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Failing to obey this order will mean that Storey will lose all his federal claims.
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His claims will be dismissed and he will not be able to raise them in federal court
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again.
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IT IS SO ORDERED.
Dated: January 16, 2018
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The job of amending the complaint is Storey’s, not the Court’s. The Court cannot do it for him. See
Rhines, 544 U.S. at 278 (“[T]he court should allow the petitioner to delete the unexhausted claims . . . .”)
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17cv23-LAB (BGS)
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