Cox v. Secretary, DOC et al
Filing
18
OPINION AND ORDER denying in part and dismissing with prejudice in part 1 Petition for writ of habeas corpus. See Opinion and Order for details. The Clerk shall enter judgment accordingly and close the case. A certificate of appealability and leave to appeal in forma pauperis are denied. Signed by Judge John E. Steele on 9/3/2013. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROBERT W. COX, JR.,
Petitioner,
v.
Case No: 2:11-cv-439-Ftm-29UAM
SECRETARY, DOC and FLORIDA
ATTORNEY GENERAL,
Respondents.
______________________
______/
OPINION AND ORDER
Robert W. Cox, Jr. (“Petitioner”) initiated this action for
habeas corpus relief pursuant to 28 U.S.C. § 2254 by filing a
petition (Doc. 1).
supporting
Upon consideration of the petition and the
memorandum
of
law
(Doc.
2),
the
Court
ordered
Respondents to show cause why the relief sought in the petition
should not be granted (Doc. 7).
Thereafter, Respondents filed a
response in compliance with this Court’s instructions and with
the Rules Governing Section 2254 Cases in the United States
District Courts (Doc. 13).
Petitioner filed a reply to the
response (Doc. 16).
In the petition, Petitioner alleges that: (1) trial counsel
rendered
ineffective
continuance
when
he
assistance
had
for
reasonable
failing
grounds
to
to
request
believe
a
that
Petitioner may have been incompetent to stand trial; and (2)
appellate counsel was ineffective for failing to comprehend and
argue that the trial court abused its discretion when it did not
evaluate Petitioner for competency (Doc. 2 at 2-6).1
Because this Court can “adequately assess [Petitioner's]
claims
without
further
factual
development,”
an
evidentiary
hearing will not be conducted. Turner v. Crosby, 339 F.3d 1247,
1275 (11th Cir. 2003).
Upon due consideration of the petition,
the response, the reply, and the state court record, this Court
concludes that both claims in the petition should be denied.
I.
Background and Procedural History
On September 5, 2007, Petitioner was charged by information
in
state
court
case
number
07-CF-19120
with
burglary
of
a
dwelling; possession of burglary tools; and resisting an officer
1
In his supporting memorandum of law, Petitioner raises numerous
issues of trial court error regarding the court’s failure to
properly evaluate his competency to stand trial (Doc. 2).
Respondents argue that the majority of Petitioner's claims are
not exhausted due to Petitioner's failure to raise the
constitutional dimension of those claims in state court (Doc.
13).
In his reply, Petitioner moves to dismiss all of his
unexhausted claims, but states that the “failure to reach the
merits of ineffectiveness of counsel on his first appeal will
result in a miscarriage of justice on the merits under 28 U.S.C.
2254(b)(2)” (Doc. 16 at 1). Although it is unclear whether
Petitioner asserts that this Court should review the ineffective
assistance of trial counsel claims raised on direct appeal or
whether he now raises a claim of ineffective assistance of
appellate
counsel,
the
Court
will
construe
Petitioner's
pleadings liberally and will address both ineffective assistance
claims raised by Petitioner. However, because Petitioner moves
to dismiss all other claims, the issues of trial court error
raised in his memorandum of law are deemed abandoned and will
not be addressed.
2
without violence (Vol. 1).2 On January 22, 2008, Petitioner was
charged in case number 07-CF-022312 with burglary of a dwelling
and grand theft (Vol. 2).3
On August 6 and 10, 2009, Petitioner was tried by jury on
case number 07-CF-19120.
He was found guilty of the lesser
offense of burglary of a structure and with resisting arrest
without violence.
Petitioner was acquitted of the possession of
burglary tools charge (Vol. VII at 361-62).
He was sentenced to
five years in prison to run concurrently with a fifteen year
sentence imposed in case number 07-CF-22312 (Vol. IV at 80, 8485).
Petitioner
counsel
had
appealed,
been
arguing,
ineffective
for
inter
alia,
failing
to
that
defense
request
a
continuance when the trial court did not conduct a competency
hearing after it appointed an expert to evaluate Petitioner's
competency (Ex. 8 at 5).4
Florida’s Second District Court of
2
Unless otherwise noted, references to volume numbers (Vol. __
at __) and exhibits (Ex. __ at __) are to those filed by
Respondents on January 26, 2012 (Doc. 14).
3
Only case number 07-CF-19120 is under attack in the instant
petition. Petitioner has filed a separate 28 U.S.C. § 2254
petition challenging his conviction in 07-CF-022312 (Middle
District of Florida Case no. 2:13-cv-65-FtM-29SPC). Case no.
2:13-cv-65-FtM-29SPC has been administratively closed pending a
state court ruling on a pending Rule 3.850 motion in that case.
4
On the title page of his appellate brief for case number 07-CF19120, Petitioner listed case number 07-CF-22312 (Ex. 8).
3
Appeal per curiam affirmed Petitioner's conviction and sentence
(Ex. 11).
Petitioner did not file a Rule 3.850 motion or a state
habeas
petition
alleging
ineffective
assistance
of
appellate
counsel in regards to case number 07-CF-19120.
II.
Governing Legal Principles
a.
Standard of Review Under the Antiterrorism Effective
Death Penalty Act (“AEDPA”)
Pursuant to the AEDPA, federal habeas relief may not be
granted with respect to a claim adjudicated on the merits in
state court 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.
28 U.S.C. § 2254(d).
A state court’s summary rejection of a
claim, even without explanation, qualifies as an adjudication on
the merits which warrants deference.
Ferguson v. Culliver, 527
F.3d 1144, 1146 (11th Cir. 2008).
“Clearly established federal law” consists of the governing
legal
principles,
rather
than
the
dicta,
set
forth
in
the
However, after reading the brief, it is apparent that Exhibit 8
refers to case number 07-CF-19120.
4
decisions of the United States Supreme Court at the time the
state court issues its decision. Carey v. Musladin, 549 U.S. 70,
74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).
A decision is “contrary to” clearly established federal law if
the state court either: (1) applied a rule that contradicts the
governing
law
set
forth
by
Supreme
Court
case
law;
or
(2)
reached a different result from the Supreme Court when faced
with materially indistinguishable facts.
Ward v. Hall, 592 F.3d
1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12,
16 (2003).
A
state
application”
court
of
the
decision
Supreme
involves
Court’s
an
“unreasonable
precedents
if
the
state
court correctly identifies the governing legal principle, but
applies
it
to
the
facts
of
the
petitioner’s
case
in
an
objectively unreasonable manner, Brown v. Payton, 544 U.S. 133,
134 (2005); Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir.
2000) or, “if the state court either unreasonably extends a
legal principle from [Supreme Court] precedent to a new context
where it should not apply or unreasonably refuses to extend that
principle to a new context where it should apply.”
234
F.3d
at
unreasonable
531
(quoting
application
Williams,
inquiry
529
U.S.
“requires
at
the
Bottoson,
406).
state
The
court
decision to be more than incorrect or erroneous,” rather, it
must be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S.
5
63, 75-77 (2003) (citation omitted); Mitchell, 540 U.S. at 1718; Ward, 592 F.3d at 1155.
Finally, the Supreme Court has clarified that: “a decision
adjudicated
on
the
merits
in
a
state
court
and
based
on
a
factual determination will not be overturned on factual grounds
unless
objectively
unreasonable
in
light
of
the
evidence
presented in the state-court proceeding.” Miller–El v. Cockrell,
537 U.S. 322, 340 (2003) (dictum). When reviewing a claim under
§
2254(d),
a
federal
court
must
bear
in
mind
that
any
“determination of a factual issue made by a State court shall be
presumed to be correct,” and the petitioner bears “the burden of
rebutting the presumption of correctness by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1); see e.g. Miller–El, 537 U.S.
at 340 (explaining that a federal court can disagree with a
state
court’s
“conclude
the
factual
decision
finding
was
and,
when
unreasonable
guided
or
that
by
AEDPA,
the
factual
premise was incorrect by clear and convincing evidence”).
b.
Standard for Ineffective Assistance of Counsel
In Strickland v. Washington, the Supreme Court established
a two-part test for determining whether a convicted person is
entitled
to
ineffective
petitioner
relief
on
assistance.
must
the
ground
466
establish
U.S.
that
that
668,
his
counsel
687-88
counsel’s
rendered
(1984).
performance
A
was
deficient and fell below an objective standard of reasonableness
6
and that the deficient performance prejudiced the defense. Id.
Because both parts of the Strickland test must be satisfied in
order
to
demonstrate
a
violation
of
the
Sixth
Amendment,
a
district court need not address the performance prong if the
petitioner
cannot
meet
the
prejudice
prong,
or
vice
versa.
Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000).
The focus of inquiry under Strickland's performance prong
is
“reasonableness
Strickland,
466
under
U.S.
prevailing
at
688-89.
professional
In
reviewing
norms.”
counsel's
performance, a court must adhere to a strong presumption that
“counsel’s conduct falls within the wide range of reasonable
professional assistance.”
Id. at 689.
Indeed, the petitioner
bears the burden to “prove, by a preponderance of the evidence,
that
counsel’s
performance
was
unreasonable[.]”
Jones
v.
Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006). A court must
“judge the reasonableness of counsel’s conduct on the facts of
the
particular
conduct,”
case,
applying
scrutiny.
Roe
a
v.
viewed
“highly
as
of
the
deferential”
Flores-Ortega,
528
time
of
level
U.S.
470,
counsel’s
of
judicial
477
(2000)
(quoting Strickland, 466 U.S. at 690). “To state the obvious:
the trial lawyers, in every case, could have done something more
or something different.
issue
is
not
appropriate,
what
but
only
So, omissions are inevitable.
is
possible
what
is
7
or
‘what
is
constitutionally
But, the
prudent
or
compelled.’”
Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000)
(quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)).
As
to
the
prejudice
prong
of
the
Strickland
standard,
Petitioner’s burden to demonstrate prejudice is high. Wellington
v.
Moore,
314
F.3d
1256,
1260
(11th
Cir.
2002).
Prejudice
“requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable.”
Strickland,
466
U.S.
at
687.
That
is,
“[t]he
defendant must show that there is a reasonable probability that,
but
for
counsel’s
unprofessional
errors,
the
result
of
the
proceeding would have been different.” Id. At 694. A reasonable
probability is “a probability sufficient to undermine confidence
in the outcome.” Strickland, 466 U.S. at 694.
c.
Exhaustion and Procedural Default
The
AEDPA
precludes
federal
courts,
absent
exceptional
circumstances, from granting habeas relief unless a petitioner
has exhausted all means of available relief under state law.
Specifically, the AEDPA provides, in pertinent part:
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 unless it appears
that–
(A) the
applicant
has
exhausted
the
remedies available in the courts of the
State; or
(B)
8
(i) there is an
available
State
process; or
absence of
corrective
(ii) circumstances
exist
that
render such process ineffective
to protect the rights of the
applicant.
28 U.S.C. § 2254(b)(1) (2012).
Exhaustion
of
state
remedies
requires
that
the
state
prisoner “fairly presen[t] federal claims to the state courts in
order to give the State the opportunity to pass upon and correct
alleged violations of its prisoners’ federal rights.” Duncan v.
Henry, 513 U.S. 364, 365 (1995) (citing Picard v. Conner, 404
U.S. 270, 275-76 (1971)).
court
of
the
federal
The petitioner must apprise the state
constitutional
issue,
not
just
the
underlying facts of the claim or a similar state law claim.
Snowden
v.
Singletary,
135
F.3d
732
(11th
Cir.
1998).
In
addition, a federal habeas court is precluded from considering
claims that are not exhausted but would clearly be barred if
returned to state court. Coleman v. Thompson, 501 U.S. 722, 735
n.1 (1991) (if a petitioner has failed to exhaust state remedies
and the state court to which the petitioner would be required to
present his claims in order to meet the exhaustion requirement
would
now
find
the
claims
procedurally
barred,
there
is
a
procedural default for federal habeas purposes regardless of the
decision
of
the
last
state
court
9
to
which
the
petitioner
actually presented his claims). Finally, a federal court must
dismiss those claims or portions of claims that have been denied
on adequate and independent procedural grounds under state law.
Coleman, 501 U.S. at 750.
If a petitioner attempts to raise a
claim in a manner not permitted by state procedural rules, he is
barred from pursuing the same claim in federal court. Alderman
v. Zant, 22 F.3d 1541, 1549 (11th Cir. 1994).
Procedural
circumstances.
default
will
be
excused
only
in
two
narrow
First, a petitioner may obtain federal review of
a procedurally defaulted claim if he can show both “cause” for
the default and actual “prejudice” resulting from the default.
“To establish cause for procedural default, a petitioner must
demonstrate that some objective factor external to the defense
impeded the effort to raise the claim properly in state court.”
Wright
v.
Hopper,
169
F.3d
695,
703
(11th
Cir.
1999).
To
establish prejudice, a petitioner must show that there is at
least a reasonable probability that the result of the proceeding
would have been different.
Henderson, 353 F.3d at 892.
The second exception, known as the fundamental miscarriage
of
justice,
only
“constitutional
conviction
of
occurs
in
violation
one
who
is
an
has
extraordinary
probably
actually
Carrier, 477 U.S. 478, 479-80 (1986).
resulted
innocent[.]”
where
a
in
the
Murray
v.
Actual innocence means
factual innocence, not legal insufficiency.
10
case,
Bousley v. United
States, 523 U.S. 614, 623 (1998).
To meet this standard, a
petitioner must “show that it is more likely than not that no
reasonable juror would have convicted him” of the underlying
offense.
Schlup
v.
Delo,
513
U.S.
298,
327
(1995).
In
addition, “[t]o be credible, a claim of actual innocence must be
based
on
[new]
reliable
evidence
not
presented
at
trial.”
Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup,
513 U.S. at 324).
III. Analysis
a.
Claim One
Petitioner asserts that “trial counsel rendered ineffective
assistance
Petitioner's
for
failing
competency
to
[and
request
by]
[a]
allowing
continuance
him
to
proceed
on
to
trial while incompetent after Counsel had reasonable grounds to
believe that Petitioner may be incompetent.” (Doc. 2 at 4).
Specifically, Petitioner asserts that counsel failed to follow
Rule
3.210(b)
ensuring
that
of
the
the
Florida
court
Rule
appoint
of
“two
Criminal
or
Procedure
by
experts;
by
more”
failing to ensure that a competency hearing was held; and by
failing
to
recognize
that
the
appointed
doctor
failed
to
evaluate Petitioner when requested to do so (Doc. 2 at 4).
Petitioner raised this issue on direct appeal (Ex. 8), and
the
State
argued
ineffectiveness
would
in
be
its
more
answer
brief
appropriately
11
that
counsel’s
addressed
during
post-conviction proceedings (Ex. 9 at 12).
The State further
argued that Petitioner’s claim warranted no relief because he
had not indicated the results of any competency evaluation, the
benefits of further examinations, or that any error had occurred
in
his
initial
evaluation.
Id.
Petitioner
replied
that
ineffective assistance of trial counsel claims can be raised on
direct appeal if the claims of error are apparent on the face of
the record (Ex. 10 at 5).
In its order affirming Petitioner's
conviction, the Second District Court of Appeals did not explain
whether it affirmed based on the State’s procedural arguments or
on the State’s assertion that the claim would fail on the merits
(Ex. 11).
Respondents
ineffective
now
assistance
urge
that
any
of
counsel
is
substantive
unexhausted
claim
of
because
an
ineffective assistance of counsel claim cannot be raised for the
first time on direct appeal (Doc. 13 at 16-17).
However, the
record does not establish that the state court of appeal relied
on a state procedural bar in denying Petitioner's ineffective
assistance of counsel claim.
The doctrine of procedural default
does not bar consideration of a federal claim unless the state
court “clearly and expressly” states that its judgment rests on
a
state
(1989).
procedural
bar.
Harris
v.
Reed,
489
U.S.
255,
263
Additionally, the U.S. Supreme Court has held that a
petitioner may raise ineffective assistance of counsel claims in
12
a collateral proceeding even if procedurally defaulted.
v. United States, 538 U.S. 500 (2003).
Massaro
Accordingly, the Court
will address this claim on the merits. However, Petitioner is
entitled to no relief on this claim because he has not satisfied
Strickland’s prejudice prong.
On May 28, 2008, trial counsel filed a motion for the
appointment
of
an
expert
to
“assist
in
the
preparation
of
defense” for both cases 07-CF-19120 and 07-CF-22313 (Ex. 3).
The motion stated that “Defendant may be incompetent to proceed
at trial, and it appearing that an expert should be appointed in
this regard” and that “the resulting evaluation is reportable
only
to
defense
counsel
and
is
within
the
privilege.” (Ex. 3) (emphasis in original).
granted,
and
Dr.
Frederick
Schaerf
was
attorney
client
The motion was
appointed
to
examine
Petitioner (Ex. 4). The record does not include the results of
any mental health evaluation, nor was Petitioner's competence
raised by defense counsel at any other time.
In his brief on appeal, Petitioner urged that counsel was
ineffective
because,
although
counsel
filed
the
motion
to
appoint an expert to assist the defense, no competency hearing
was conducted, and “[t]here [was] no tactical explanation for
failing to move for a continuance because a defendant may not be
subject
to
a
criminal
trial
while
13
possessing
mental
defects
which prevent full understanding of the proceeding against him
or her.” (Ex. 8 at 6).
Under Strickland, even if trial counsel’s failure to raise
the issue of competence to the trial court was unreasonable,
counsel’s performance would only be constitutionally ineffective
upon a showing of prejudice, which requires a showing that the
Petitioner
was
actually
incompetent
during
period. See e.g. Robidoux v. O’Brien,
the
relevant
time
643 F.3d 334, 338-39 (1st
Cir. 2011)(analyzing an alleged failure to request a competency
hearing under Strickland and requiring a showing of prejudice).
In Futch v. Dugger, 874 F.2d 1483 (11th Cir. 1989), the
United
States
considered
an
Court
of
Appeals
ineffective
for
assistance
the
claim
Eleventh
Circuit
regarding
trial
counsel's failure to determine the petitioner's competency to
stand trial. The court stated, that “[i]n order to demonstrate
prejudice from counsel's failure to investigate his competency,
[a]
petitioner
reasonable
has
to
probability
show
that
that
a
there
exists
psychological
‘at
least
evaluation
a
would
have revealed that he was incompetent to stand trial.’” Id. at
1487 (quoting Alexander v. Dugger, 841 F.2d 371, 375 (11th Cir.
1988)).
Notably, Petitioner did not allege in his appellate brief,
nor does he do so in the instant petition, that he was actually
incompetent to proceed – only that counsel should have moved for
14
a continuance so that he could receive additional mental health
evaluation.
Petitioner
argues
that
he
cannot
say
what
additional psychological testing would have revealed because no
competency evaluation was conducted in the first place (Doc. 2
at
6).
This
argument
is
unavailing.
A
petitioner
must
“affirmatively prove prejudice.” Strickland, 466 U.S. at 693. He
cannot
satisfy
the
second
prong
of
Strickland
with
mere
speculation and conjecture, Bradford v. Whitley, 953 F.2d 1008,
1012
(5th
Cir.
1992),
and
conclusory
allegations
are
insufficient to obtain habeas relief. Koch v. Puckett, 907 F.2d
524, 530 (5th Cir. 1990).
Moreover, Petitioner has presented no
evidence
counsel
that,
even
had
requested
a
continuance,
a
competency hearing would have resulted or that he would have
been found incompetent to proceed. See Pate v. Robinson, 383
U.S. 375, 385–86 (1966) (A trial judge must conduct a sua sponte
sanity
hearing
only
when
the
defendant's
conduct
and
the
evidence raises a “bona fide doubt” regarding the defendant's
competence
to
stand
trial.).
Further,
nothing
in
the
record
indicates that Petitioner was incompetent at the time of his
trial.
Petitioner has not demonstrated prejudice from counsel's
failure to move for a competency hearing.
Accordingly, this
Court need not address Strickland’s performance prong. Holladay,
15
209 F.3d at 1248.
This claim fails under Strickland’s prejudice
prong and is denied pursuant to 28 U.S.C. § 2254(d).
b.
Claim Two
Petitioner asserts that “Florida’s Second District Court of
Appeal
abused
judgment
of
Petitioner's
briefing
with
[its]
discretion
conviction
direct
and
appeal
respect
to
by
affirming
sentence
counsel
to
ineffective
Petitioner's
without
submit
directing
supplemental
assistance
of
trial
counsel.” (Doc. 2 at 4).
To
the
extent
Petitioner
is
attempting
to
raise
an
ineffective assistance of appellate counsel, such a claim is not
exhausted. “[T]he state prisoner must give the state court an
opportunity to act on his claims before he presents those claims
to
a
federal
court
in
a
habeas
petition.”
O'Sullivan
v.
Boerckel, 526 U.S. 838, 842 (1999). A petitioner has met the
exhaustion requirement once his federal claims has been fairly
presented to the state courts. Heath v. Jones, 863 F.2d 815, 818
(11th Cir. 1989). The proper method by which to raise a claim of
ineffective assistance of appellate counsel is by petition for
writ of habeas corpus directed to the appellate court which
considered the direct appeal. Smith v. State, 400 So.2d 956
(Fla. 1981).
Petitioner filed no state habeas petition in this case.
Further, he has not alleged cause for the default of this claim
16
nor do the facts suggest that Petitioner is “actually innocent”
so that the fundamental miscarriage of judgment exception would
apply.
Accordingly, Petitioner's claim is unexhausted and any
attempt to return to state court to file a state habeas petition
would
be
futile
because
such
petition
would
be
barred
by
Florida’s two year statute of limitation. See Fla. R. App. P.
9.140(j)(3).
Claim
Two
is
dismissed
as
unexhausted
and
procedurally defaulted.
Any of Petitioner's allegations not specifically addressed
herein have been found to be without merit.
IV.
Certificate of Appealability
Petitioner
appealability.
is
not
entitled
to
a
certificate
of
A prisoner seeking a writ of habeas corpus has
no absolute entitlement to appeal a district court's denial of
his petition. 28 U.S.C. § 2253(c)(1).
Rather, a district court
must first issue a certificate of appealability (COA).
“A [COA]
may issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To make such a showing, Petitioner must demonstrate
that
“reasonable
assessment
of
jurists
the
would
constitutional
find
claims
the
district
debatable
or
court's
wrong,”
Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v.
McDaniel,
529
U.S.
473,
presented
were
‘adequate
484
to
(2000)),
deserve
17
or
that
encouragement
“the
issues
to
proceed
further.’” Miller–El, 537 U.S. at 335–36. Petitioner has not
made the requisite showing in these circumstances.
Because
Petitioner
is
not
entitled
to
a
certificate
of
appealability, he is not entitled to appeal in forma pauperis.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. The Petition for Writ of Habeas Corpus (Doc. 1) filed by
Robert W. Cox, Jr. is DENIED as to Claim One, and is DISMISSED
WITH PREJUDICE as to Claim Two.
2.
3.
Petitioner is DENIED a Certificate of Appealability.
The Clerk of the Court is directed to enter judgment
accordingly and to close this case.
DONE AND ORDERED at Fort Myers, Florida, this
of September, 2013.
SA: OrlP-4 8-23
Copies to: All parties of record
18
3rd
day
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