Barnett v. Montgomery

Filing 31

ORDER (1) Adopting 29 Report and Recommendation;l (2) Overruling Petitioner's objections; (3) Denying Petitioner's Petition for Writ of Habeas Corpus; and (4) Declining to issue a certificate of appealability.. Signed by Judge Anthony J. Battaglia on 12/08/2017. (All non-registered users served via U.S. Mail Service)(jpp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BRIAN KEITH BARNETT, Case No.: 17-cv-00209-AJB-BLM Petitioner, 12 13 14 ORDER: v. W.L. MONTGOMERY, Warden, 15 (1) ADOPTING REPORT AND RECOMMENDATION; Respondent. (2) OVERRULING PETITIONER’S OBJECTIONS; 16 17 (3) DENYING PETITIONER’S PETITION FOR WRIT OF HABEAS CORPUS; AND 18 19 20 (4) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY 21 22 (Doc. Nos. 1, 29, 30) 23 24 25 26 27 On February 1, 2017, Petitioner Brian Keith Barnett (“Petitioner”), a state prisoner proceeding pro se, filed his petition for writ of habeas corpus. (Doc. No. 1.) On August 29, 2017, Magistrate Judge Barbara Lynn Major filed a Report and Recommendation (“R&R”) denying Petitioner’s request for judicial notice and recommending that the district court 28 1 17-cv-00209-AJB-BLM 1 deny Petitioner’s petition. (Doc. No. 29.) Petitioner filed an objection to the R&R on 2 September 22, 2017. (Doc. No. 30.) For the reasons set forth more fully below, the Court 3 ADOPTS the R&R in full, (Doc. No. 29), OVERRULES Petitioner’s objections, (Doc. 4 No. 30), and DENIES Petitioner’s petition for writ of habeas corpus, (Doc. No. 1). 5 I. 6 7 The following facts are taken from the California Court of Appeal’s April 29, 2016, opinion in People v. Barnett, Appeal No. D065324: 8 On the night of June 21, 2013, [Petitioner] and Frederick Morao had a loud argument at a residential hotel in San Diego. The two men were friends and [Petitioner] was temporarily staying with Morao. Morao had purchased methamphetamine from [Petitioner], and both had consumed “a lot” of “crystal meth” that day. The men argued about money [Petitioner] claimed Morao owed him for the methamphetamine. Earlier in the day, Morao had witnessed [Petitioner] hit Devon Clements (a friend of Morao’s), with sufficient force to knock him down. During the argument, Morao told [Petitioner] “I ain’t Devon. You ain’t going to hit me like Devon.” One of the two men said something like “We’ll handle this,” or “[l]et’s hit the corner” and Morao walked away from the hotel. [Petitioner] followed behind. Morao carried the bottom part of a pool cue (approximately two feet long and two inches in diameter) concealed inside his sweater. He had it with him because he knew [Petitioner] carried weapons, including a serrated knife with a four-to-five inch blade. When [Petitioner] got close to Morao, Morao turned around, thinking [Petitioner] was going to “swing, hit me some kind” and “swung too,” swinging the pool cue at [Petitioner]. [Petitioner] was able to disarm Morao of the pool cue before being struck. Morao then began throwing punches at [Petitioner], many of which landed. Clements followed slowly behind the men and saw [Petitioner] holding a cylindrical object about a foot and a half long during the fight. Clements initially stated he did not see [Petitioner] use the object on Morao, but later testified it did not 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BACKGROUND1                                                                   1 The R&R also employs the same factual background provided by the California Court of Appeal’s opinion. 2 17-cv-00209-AJB-BLM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 make contact with Morao. Clements originally described the object as looking like a rolling pin and testified it was wider than the pool cue. Morao felt blows to his chest and stomach during the fight. The brief fight stopped when Morao felt like he “got enough hits in,” and Morao and [Petitioner] separated. [Petitioner] walked away limping and yelling something. Morao joined Clements and said something like “I got him.” The two men gave each other “daps,” a celebratory gesture. Morao and Clements then walked back toward the hotel and Morao realized he was bleeding heavily. After Morao reached the lobby, the hotel security guard called an ambulance. Morao lost consciousness after the paramedics arrived and the next thing he remembered is waking up after surgery. Morao remained in the hospital for a week. Morao had multiple stab wounds, at least one to the left side of his stomach and one on his back. A doctor told Morao there were 14 stab wounds. Clements also recalled hearing from a police officer that Morao was stabbed 14 to 16 times and might not make it. In addition, the investigating officer, Detective Tews, recalled hearing from police officers at the scene that Morao was stabbed 14 times, but was unable to personally verify the number. Detective Tews interviewed Morao. Morao initially told Detective Tews he had been jumped by two Hispanic men. Morao had prior felony convictions including theft, possession of methamphetamine for sale, petty theft with a prior, and robbery. He used his “felon mentality” when first speaking with the police. After learning about surveillance video of the incident, Morao told Detective Tews the truth about what happened, explaining he made up the initial story because he did not want to be a rat. Detective Tews also interviewed [Petitioner]. [Petitioner] denied stabbing Morao. [Petitioner] told Detective Tews Morao tried to hit him with a pool cue, he took the cue away, Morao ran and was then attacked from behind by a “Hispanic dude.” [Petitioner] admitted he always carried a knife and he had a black, foot-long, serrated knife with him at the time of the incident, but denied using the knife on Morao. On June 21, 2013, Morao was either 5’3” or 5’7 and weighed around 205 or 210 pounds. [Petitioner] is significantly taller than Morao. Morao felt threatened by the size disparity due 3 17-cv-00209-AJB-BLM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to [Petitioner’s] advantage of height and “reach.” Morao was very soft spoken and nervous during [Petitioner’s] crossexamination. Morao does not like weapons, does not know anything about knives, and does not need a knife. However, [Petitioner] had promised to get Morao a knife. Section 1118 Motion for Acquittal At the close of the prosecution’s case, [Petitioner] moved for acquittal under section 1118. He argued there was insufficient evidence to show he used a knife. He further argued evidence showed Morao had a concealed pool cue, which he attempted to strike [Petitioner] with, [Petitioner] took the cue away from him and Morao swung and hit [Petitioner] 20 times. [Petitioner] asserted he “had an absolute right to defend himself” under those circumstances. The trial court denied the motion, noting although evidence established Morao (the smaller individual) initially had a pool cue, any force Morao used after being disarmed “did not justify the deadly force that [Petitioner] used when he stabbed him in the gut.” The court therefore ruled there was sufficient evidence for a reasonable jury to find [Petitioner] guilty. Defense Evidence [Petitioner] represented himself. [Petitioner] first called Dr. Murphy, a forensic psychologist, who testified about the fight or flight syndrome and similar responses of people using crystal methamphetamine. [Petitioner] also called San Diego Police Officer Carlos Munoz (Officer Munoz), who had written a report of the incident stating Morao was stabbed 14 times. Hospital staff had informed Officer Munoz of the 14 stab wounds, but the specific source was not identified in his report and he could not recall who it was. Officer Munoz did not take pictures of any of the stab wounds. [Petitioner] took the stand. He described his relationship with Morao as one in which Morao depended upon him to “help him out” by supplying crystal methamphetamine and testified he would come from various locations in Southern California, at his own expense, to supply Morao. The fight with Morao occurred because Morao was angry that [Petitioner’s] friends would not give him a cheap price on illegal drugs. When Morao said “Let’s go handle it,” [Petitioner] anticipated a fistfight and believed he “ain’t got no problem,” as he was “fixing to whip this little 4 17-cv-00209-AJB-BLM 1 chump’s ass, you know, for crossing me up, plain and simple.” [Petitioner] was not worried about fighting the younger Morao, a “guy in his prime,” because “[m]ost youngsters these days, they don’t even know how to sling the fist. They can’t even fight. You know, I [was] brought up using my hands to defend myself.” [Petitioner] was attacked by Morao and “just defended [him]self.” After [Petitioner] took the pool stick away from Morao, Morao ran and [Petitioner] did not pursue him. At the time, [Petitioner] saw Clements was following behind, and thought he was going to try to help Morao, but was not worried about being “double team[ed]” by the men. [Petitioner] had a gun in one of his back pockets during the incident, but had no intention of using it. [Petitioner’s] “big ol’ knife” was in his other back pocket. [Petitioner] was “hit in the nose” by Morao, and there was some bleeding. [Petitioner] testified he used only his fists on Morao and did not stab him. Instead, Morao was stabbed by a Hispanic male after [Petitioner] disarmed him and Morao ran off into the street. After [Petitioner] took Morao’s weapon away, Morao “turned around and he got stabbed.” 2 3 4 5 6 7 8 9 10 11 12 13 14 15 (Doc. No. 9-22 at 2–7.)2 16 After trial, the jury found Petitioner guilty of assault with a deadly weapon. (Id. at 17 2.) On January 29, 2014, the trial court sentenced Petitioner to seventeen years in state 18 prison. (Doc. No. 9-12.) 19 On December 5, 2014, Petitioner appealed his conviction, arguing that the trial court 20 committed reversible error by (1) denying his motion for acquittal under section 1118.1 21 because there was insufficient evidence to find Petitioner did not act in self-defense, and 22 (2) prejudicially instructing the jury regarding self-defense after an attacker is disabled or 23 danger ceases. (Doc. No. 9-19.) On April 29, 2016, the California Court of Appeal affirmed 24 Petitioner’s conviction. (Doc. No. 9-22.) On June 3, 2016, Petitioner filed a petition for 25 review in the California Supreme Court reasserting the same claims raised in his appeal. 26 27 28                                                                   2 Page numbers refer to the CM/ECF page number and not the number on the original document. 5 17-cv-00209-AJB-BLM 1 (Doc. No. 9-23.) On July 27, 2016, the Supreme Court of California denied the petition for 2 review without any discussion. (Doc. No. 9-24.) 3 On January 29, 2014, Petitioner filed a petition for Writ of Habeas Corpus in the 4 California Court of Appeal arguing that (1) his Faretta rights to due process and equal 5 protection were violated when the county jail made decisional and statutory law available 6 via a “kiosk” separate from the desktop with a word processor and denied him access to 7 confidential legal phone calls and black ink pens, and (2) the thumb drive and media disc 8 provided by the prosecution did not function, he could not contact the court clerk to 9 calendar a hearing or obtain sufficient copies of documents for service, and the prosecutor 10 had denied receiving his motions. (Doc. No. 9-25.) On January 31, 2014, the California 11 Court of Appeal denied the Petition as untimely, explaining that Petitioner “should have 12 brought his complaints to the attention of the trial court before—not after—he proceeded 13 to trial and was convicted[.]” (Doc. No. 9-26.) 14 On May 3, 2016, Petitioner filed a second Petition for Writ of Habeas Corpus in the 15 California Court of Appeal, arguing that (1) the prosecutor knowingly and intentionally 16 withheld exculpatory evidence, or alternatively, destroyed it before trial and (2) the 17 prosecutor knowingly elicited and permitted the introduction of false testimony. (Doc. No. 18 9-27.) On May 17, 2016, the California Court of Appeal denied the petition, noting that 19 Petitioner demonstrated neither the materiality of the alleged undisclosed information nor 20 that the police or prosecution were acting in bad faith. (Doc. No. 9-28.) 21 On August 25, 2014, Petitioner filed a Petition for Writ of Habeas Corpus in the 22 California Supreme Court, arguing that (1) the prosecutor knowingly and intentionally 23 withheld exculpatory evidence of a digital recording of the initial interview with witness 24 Devon Michael Clements and (2) the California Court of Appeal failed to hold an 25 evidentiary hearing on the prosecution’s alleged withholding of evidence. (Doc. No. 9-31.) 26 On November 9, 2016, the California Supreme Court denied the petition without 27 discussion. (Doc. No. 9-32.) 28 /// 6 17-cv-00209-AJB-BLM 1 II. PROCEDURAL BACKGROUND 2 On February 1, 2017, Petitioner filed the present matter, his Petition for Writ of 3 Habeas Corpus asserting five grounds for relief: (1) the prosecution knowingly and 4 intentionally withheld the digital recording of statements of witness Devon Michael 5 Clements in violation of his due process discovery rights; (2) the appellate court failed to 6 order an evidentiary hearing on the prosecution allegedly withholding evidence; (3) 7 arbitrary and capricious jail policies obstructed and interfered with Petitioner’s exercise of 8 his Faretta Rights; (4) the jail obstructed Petitioner’s ability to produce his moving papers 9 and did not provide him copies for lawful service via U.S. Mail; and (5) the trial court erred 10 by denying Petitioner’s motion for a judgment of acquittal based on insufficient evidence. 11 (See generally Doc. No. 1.) Subsequently, Petitioner was granted in forma pauperis status. 12 (Doc. No. 3.) 13 On April 4, 2017, Respondent filed his response and on May 10, 2017, Petitioner 14 filed his traverse. (Doc. Nos. 8, 12.) On July 17, 2017, Petitioner filed a request for judicial 15 notice. (Doc. No. 28.) Thereafter, on August 29, 2017, Magistrate Judge Major filed an 16 R&R denying Petitioner’s request for judicial notice and recommending that his petition 17 be denied. (Doc. No. 29.) Petitioner then filed his objection to the R&R by the deadline set 18 by the Court. (Doc. No. 30.) 19 III. LEGAL STANDARDS 20 A. 21 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 22 judge’s duties in connection with a magistrate judge’s report and recommendation. The 23 district judge must “make a de novo determination of those portions of the report . . . to 24 which objection is made,” and “may accept, reject, or modify, in whole or in part, the 25 findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); 26 see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the 27 absence of timely objection(s), the court “need only satisfy itself that there is no clear error 28 on the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72(b), Review of the Report and Recommendation 7 17-cv-00209-AJB-BLM 1 Advisory Committee Notes (1983); see also United States v. Reyna-Tapia, 328 F.3d 1114, 2 1121 (9th Cir. 2003). 3 B. 4 A petitioner in state custody pursuant to the judgment of a state court may challenge 5 his detention only on the grounds that his custody is in violation of the United States 6 Constitution or the laws of the United States. 28 U.S.C. § 2254(a); accord Williams v. 7 Taylor, 529 U.S. 362, 375 n.7 (2000). The Anti-Terrorism and Effective Death Penalty Act 8 (“AEDPA”), applies to § 2254 habeas corpus petitions filed after 1996. See Lindh v. 9 Murphy, 521 U.S. 320, 322 (1997). Federal habeas relief is available only if the result 10 reached by the state court on the merits is “contrary to” or “an unreasonable application” 11 of Supreme Court precedent, or if the adjudication is “an unreasonable determination” 12 based on the facts and evidence. 28 U.S.C. § 2254(d)(1)-(d)(2). 13 IV. Standard of Review Under 28 U.S.C. § 2254 DISCUSSION 14 The law is well established that a district judge “shall make a de novo determination 15 of those portions of the report or specified proposed findings or recommendations to which 16 objection is made.” 28 U.S.C. § 636(b)(1). Presently, Petitioner proffers three objections 17 to Magistrate Judge Major’s R&R: (1) that it incorrectly concluded that the State Appellate 18 Court adjudicated ground one of Petitioner’s application; (2) that Magistrate Judge Major 19 misconstrued Petitioner’s claim that the Appellate court did not review an audio recording; 20 and (3) Magistrate Judge Major incorrectly concluded that the prosecution provided one 21 audio recording of witness Devon Clements. (See generally Doc. No. 30.) The Court notes 22 that Petitioner does not object to the R&R in regards to ground two through five of his 23 petition, nor does he discuss the denial of his request for judicial notice. (See generally id.) 24 Instead, Petitioner focuses solely on ground one—the prosecution allegedly knowingly and 25 intentionally withholding exculpatory evidence. (Id.) 26 A. 27 The crux of Petitioner’s objection is that he was not at any time prior to or during 28 his state trial provided any opportunity to review any recording of witness Devon Michael Alleged Withholding of the Audio Recording 8 17-cv-00209-AJB-BLM 1 Clements’ (“Clements”) statements to San Diego Police detective Tews. (Doc. No. 30 at 2 2.) This occurred despite the duty of the prosecution to disclose evidence to Petitioner 3 during his trial and despite the Superior Court’s order to the Prosecution to provide the 4 audio recording to him. (Doc. No. 40 at 4–5, 7.) 5 Under 28 U.S.C. § 2254(d) as amended by AEDPA: 6 (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—(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. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U.S.C. § 2254(d). “The prosecution’s affirmative duty to disclose evidence favorable to a defendant can trace its origins to early 20th-century strictures against misrepresentation and is of course most prominently associated with this Court’s decision in Brady v. Maryland, 373 U.S. 83, 83, S.Ct. 1194, 10 L.Ed.2d 215 (1963).” Kyles v. Whitley, 514 U.S. 419, 432 (1995). Brady held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. “[A] showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s acquittal[.]” Kyles, 514 U.S. at 434. Instead the touchstone of materiality is a “reasonable probability” of a different result. Id. However, “[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of 28 9 17-cv-00209-AJB-BLM 1 confidence.” Id. 2 In sum, for petitioner to prevail on his Brady claim he must show that (1) the 3 evidence was favorable to the accused either because it was exculpatory or impeaching; 4 (2) the evidence was suppressed by the State; and (3) the suppression resulted in prejudice. 5 Strickler v. Greene, 527 U.S. 263, 281–82 (1999). 6 Unfortunately for Petitioner, the crucial flaw with the objections he proffers is that 7 Petitioner still fails to demonstrate the materiality of the Clements audio recording. See 8 United States v. Bagley, 473 U.S. 667, 682 (1985) (holding that evidence is material “if 9 there is a reasonable probability that, had the evidence been disclosed to the defense, the 10 result of the proceeding would have been different. A ‘reasonable probability’ is a 11 probability sufficient to undermine the confidence in the outcome.”). Instead, Petitioner 12 focuses his objections on detailing how the appellate court did not review the audio 13 recording, that the prosecutor allegedly failed to disclose the evidence, that Magistrate 14 Judge Major was incorrect when she stated that Petitioner stated that he received a copy of 15 the recorded interview, and that the materiality of the recording is not the issue. (See 16 generally Doc. No. 30.) 17 The Court notes that it has carefully taken under consideration the various issues 18 Petitioner has with the alleged Clements recording and does not downplay his qualms and 19 concerns. However, Petitioner’s ten page objection and its claim of prosecutorial 20 misconduct cannot be distinct from a material determination. As Magistrate Judge Major 21 discussed in great detail, when a prosecutor is accused of suppressing exculpatory evidence 22 in violation of due process, the petitioner must show (1) the prosecution suppressed 23 evidence; (2) the evidence was favorable to the accused; and (3) the evidence was material 24 to the issue of guilt or punishment. Brady, 373 U.S. at 87. Thus, other than claiming that 25 the Clements recording “could have influenced the determination of the case,” (Doc. No. 26 30 at 5), and that he “intended to use the recording for impeachment purposes,” (id. at 7), 27 Petitioner does not demonstrate how the alleged recording was favorable to his case. See 28 Benn v. Lambert, 283 F.3d 1040, 1053 (2002) (“Evidence is deemed prejudicial, or 10 17-cv-00209-AJB-BLM 1 material, only if it undermines confidence in the outcome of the trial.”); see also Strickler, 2 527 U.S. at 281 (holding that “there is never a real ‘Brady violation’ unless the 3 nondisclosure was so serious that there is a reasonable probability that the suppressed 4 evidence would have produced a different verdict.”). 5 In coming to this conclusion, for Petitioner’s benefit, the Court highlights that 6 Petitioner was provided with notes from the interview with Clements and both the 7 interviewing officer and witness testified at trial. (Doc. No. 9-28 at 1–2.) Moreover, the 8 Court agrees with the appellate court that Petitioner’s claim that the Clements recording 9 may have included additional or contradictory information is “entirely speculative.” (Id. at 10 2.) 11 Second, as detailed clearly in the R&R, Clements’ trial testimony was consistent 12 with the information that he provided during his June 21, 2013 interview, thus the 13 information was not impeaching. (Doc. No. 29 at 13–15.) Finding no need to repeat the 14 R&R’s findings, the Court briefly summarizes that detective Tew’s Investigator’s Report 15 from June 21, 2013, describes that Clements was awoken by Morao who was angry, that 16 he followed Morao and Petitioner, Morao and Petitioner then began to fight by a tuxedo 17 shop, he never saw a knife, and that after the fight Morao noticed that he was bleeding. 18 (Doc. No. 16 at 19.) In comparison, during trial, Clements testified that Morao came by his 19 room in an angry state, that he observed Petitioner and Morao argue as they walked down 20 the street, that he saw Petitioner strike Morao with something, and that after the fight Morao 21 realized he was bleeding. (Doc. No. 9-7 at 30–38, 48–49, 76–77, 82, 100–01, 104–06, 108, 22 138–39.) Consequently, comparing the two, the Court finds that Clements’ testimony at 23 trial and Detective Tews’ June 21, 2013 Investigator’s Report are consistent. 24 On a final note, the Court finds that Petitioner has failed to demonstrate that a 25 recording actually existed. Both the prosecutor and detective Tews stated on the record that 26 there is no recording of the June 21, 2013 interview of Clements and Petitioner does not 27 provide any further evidence of such a recording in his objection. (Doc. No. 9-8 at 41–42; 28 Doc. No. 9-3 at 28–29, Doc. No. 9-5 at 28–30.) 11 17-cv-00209-AJB-BLM 1 Based on the foregoing, despite Petitioner’s various arguments, most of which are 2 irrelevant to the matter at hand, Petitioner has not established the materiality of the 3 Clements recording and thus his Brady violation fails. Accordingly, the Court 4 OVERRULES Petitioner’s objections. 5 V. CONCLUSION 6 As explained in more detail above, the Court hereby (1) ADOPTS Magistrate Judge 7 Major’s R&R; (2) OVERRULES Petitioner’s objections; (3) DENIES the Petition on the 8 merits; and (4) DECLINES to issue a certificate of appealability.3 9 10 Dated: December 8, 2017 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28                                                                   When a district court enters a final order adverse to the applicant in a habeas proceeding, it must either issue or deny a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A). A certificate of appealability is required to appeal a final order in a habeas proceeding. See id. A certificate of appealability is appropriate only where the petitioner makes “a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 326 (2003). Under this standard, the petitioner must demonstrate that “reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 475 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). 3 12 17-cv-00209-AJB-BLM

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