Kapenekas v. Sepanek
Filing
7
MEMORANDUM OPINION & ORDER; 1) petition for writ of habeas corpus is DENIED 2) Court will enter an appropriate judgment 3) habeas proceeding is DISMISSED AND STRICKEN from docket. Signed by Judge Henry R. Wilhoit, Jr on 7/8/13.(SMT)cc: COR, Kapenekas via USMail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT ASHLAND
JOHN KAPENEKAS,
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Petitioner,
v.
MICHAEL SEPANEK, Warden,
Respondent.
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Civil Action No. 12-107-HRW
MEMORANDUM OPINION
AND ORDER
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John Kapenekas, an inmate confined in the Federal Correctional Institution in
Ashland, Kentucky, has filed a pro se petition seeking a writ of habeas corpus
pursuant to 28 U.S.C. § 2241, challenging his federal conviction. [D. E. No.1]
The Court conducts an initial review of habeas corpus petitions. 28 U.S.C.
§ 2243; Alexander v. Northern Bureau o/Prisons, 419 F. App'x 544,545 (6th Cir.
2011). The Court must deny the petition "if it plainly appears from the petition and
any attached exhibits that the petitioner is not entitled to relief." Rule 4 ofthe Rules
Governing § 2254 Cases in the United States District Courts (applicable to § 2241
petitions under Rule l(b)). The Court evaluates Kapenekas'petition under a more
lenient standard because he is not represented by an attorney. Erickson v. Pardus,
551 U.S. 89,94 (2007); Burton v. Jones, 321 F.3d 569,573 (6th Cir. 2003). At this
stage, the Court accepts Kapenekas' factual allegations as true, and construes his
legal claims in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56
(2007).
Having reviewed the habeas petition, the Court must deny it because
Kapenekas can not pursue his claims in a habeas corpus proceeding under § 2241.
KAPENEKAS' CRIMINAL CONVICTION AND
PRIOR COLLATERAL CHALLENGES
On September 24, 2008, Kapenakas pleaded guilty in federal court in
Aberdeen, Mississippi, to three counts of a five-count indictment which alleged,
among other things, that he had coerced and enticed a fourteen-year-old minor to
engage in sexually explicit conduct for the purposes of producing pornography.
United States v. Kapenekas, No.1 :08-CR-23-MPM-SAD-I (N.D. Miss. 2008) ("the
Sentencing Court"). On January 8, 2009, the Sentencing Court imposed a 180-month
(15 year) prison term on each ofthe three counts, to be served concurrently, plus a 5
year supervised release term. [R. 49 , therein] Kapenekas reserved the right to appeal
the denial of a pretrial motion to suppress evidence, but he did not appeal the ruling.
In September 2009, Kapenekas filed a motion in the Sentencing Court to vacate
his sentence pursuant to 28 U.S.C. § 2255, arguing that his offenses were
insufficiently charged and that they did not invoke federal jurisdiction under the
2
Commerce Clause ofthe U.S. Constitution. [D. E. No. 52, therein] Kapenekas noted
that Counts One, Two, Three and Four ofthe Indictment charged that between April
28, 2007 and May 2, 2007, he (Kapenekas)
did knowingly employ, use, coerce and entice a 17-year-old minor
female to engage in sexually explicit conduct for the purpose of
producing visual depictions of said sexually explicit conduct, using
materials that had been mailed, shipped and transported in interstate and
foreign commerce, in violation ofTitle 18, United States Code, Sections
2251(a) and 2256(2)(A).
Kapenekas further noted that Counts Five, Six, and Seven of the Indictment
charged him with engaging in the same conduct between March 2,2007, and July 27,
2007. Kapenekas argued, however, that because no count alleged that he knew or had
"reason to know that such visual depictions will be transported in interstate or foreign
commerce or mailed," the Indictment was constitutionally defective and the
Sentencing Court lacked jurisdiction over his criminal proceeding. The government
responded that that the Sentencing Court had jurisdiction over Kapenekas' criminal
proceeding because the Indictment tracked the language of28 U.S.C. § 2251(a).1
Title 28 U.S.c. § 225 1(a) provides:
(a) Any person who employs, uses, persuades, induces, entices, or coerces any minor
to engage in, or who has a minor assist any other person to engage in, or who
transports any minor in or affecting interstate or foreign commerce, or in any
Territory or Possession ofthe United States, with the intent that such minor engage
in, any sexually explicit conduct for the purpose of producing any visual depiction
of such conduct or for the purpose of transmitting a live visual depiction of such
3
The Sentencing Court agreed with the government, finding that the statutory
language of § 2251 (a) applied to the circumstances ofKapenekas' case, wherein "the
images were produced using materials, such as cameras, film, memory devices like
memory sticks, SD chips or CDs, that had been shipped or transported in interstate
or foreign commerce." [D. E. No. 56, therein]; see also United States v. Kapenekas,
Civil Action No. 1:08CR23, 2010 WL 583916, at *2 (N. D. Miss. February 16,2010).
The Sentencing Court noted that Lee County Investigator Scott Reedy stated in his
affidavit that the cameras and flash cards used to manufacture the photos in
Kapenekas' case were manufactured in China and therefore necessarily had to have
traveled in interstate commerce.
ld.
In rejecting Kapenekas' argument, the
Sentencing Court stated:
The language of § 2251 is abundantly clear that a conviction may be
supported if the pornography "was produced or transmitted using
materials that have been mailed, shipped, or transported in or affecting
interstate or foreign commerce by any means, including by computer,"
and there is no way in which this language can simply be disregarded,
as petitioner seeks for this court to do.
conduct, shall be punished as provided under subsection (e), if such person knows
or has reason to know that such visual depiction will be transported or transmitted
using any means or facility of interstate or foreign commerce or in or affecting
interstate or foreign commerce or mailed, ifthat visual depiction was produced or
transmitted using materials that have been mailed, shipped, or transported in
or affecting interstate or foreign commerce by any means, including by
computer, or if such visual depiction has actually been transported or transmitted
using any means or facility of interstate or foreign commerce or in or affecting
interstate or foreign commerce or mailed. (Emphasis Added)
4
Id.
Kapenekas further argued that his plea agreement was breached because he
failed to appeal of the denial of his suppression motion, which appeal the plea
agreement specifically allowed him to pursue. The Sentencing Court also rejected
that argument, stating that while the plea agreement between Kapenekas and the
government did permit Kapenekas to appeal the order denying his motion to suppress,
"...appeals are obviously not self-executing. Petitioner seems to suggest that it was
the government's responsibility to file an appeal on his behalf, but this argument
borders on frivolous. Petitioner's motion to vacate or set aside his guilty plea is
therefore denied in its entirety." Id., at *3.
Although the Sentencing Court subsequently granted Kapenekas a certificate
of appealability ("COA") on the issue of whether § 2251 (a), as applied to him, was
an unconstitutional extension of the Commerce Clause [D. E. No. 63, therein], the
Fifth Circuit rejected that argument, finding that Kapenekas ' as-applied constitutional
challenge to § 2251 (a) was a non-jurisdictional defect (in the trial court proceedings)
which Kapenekas had waived by entering a valid guilty plea. United States v.
Kapenekas, 413 F. App'x 778, 779 (5 th Cir. 2011). Kapenekas also argued on appeal
that the indictment and the plea agreement to which he had agreed omitted an
essential element of the offense, i.e., the charge that he actually "produced" visual
5
depictions.
The Fifth Circuit refused to consider Kapenakas' additional claim
because he failed to raise it in the Sentencing Court; the issue was not included within
the scope of the COA that was granted; and Kapenekas failed to ask the Sentencing
Court to broaden the scope of the COA to specifically include that issue. Id.
Kapenekas then asked the Sentencing Court to amend the COA to include his
claim that the Indictment did not charge him with "producing" a sexually explicit
depiction ofa minor in violation § 2251(a). [D. E. No. 65, therein] The government
filed a 13-page objection, asserting that Kapenekas had waived the argument and that
even ifhe had not waived argument, it lacked merit. [D. E. No. 66, therein] The
Sentencing Court denied Kapenekas' motion to amend the COA, stating that it had
"already certified for appeal the one constitutional issue which it regarded- perhaps
generously-as meriting "encouragement to proceed further." [D. E. No. 67, therein].
In his § 2241 petition [D. E. No.1], Kapenekas continues to argue that the
Indictment was constitutionally defective under the Fifth Amendment of the U.S.
Constitution because it failed to charge him with an essential element of the crime.
Specifically, Kapenekas argues that the Indictment was deficient because it failed to
charge him with producing a visual depiction of sexually explicit conduct involving
a minor using materials that weremailed.shipped. or transported in interstate or
foreign commerce; that his guilty plea does not preclude him from collaterally
6
challenging the constitutionality of the Indictment; and that the failure of an
Indictment to charge a crime is jurisdictional and cannot be waived. [Id., pp. 14-19]
Kapenekas also claims that he received ineffective assistance from both the
attorney who represented him in the criminal proceeding and another attorney who
filed his § 2255 motion in the Sentencing Court. Kapenekas alleges that in June
2012, he received legal paperwork and records from his brother which revealed, for
the first time, that the Indictment was constitutionally defective because it did not
charge him with "producing" the illegal images. [Id., pp. 3-5] That claim falls under
the ambit of the Sixth Amendment of the U.S. Constitution, which guarantees
effective assistance of counsel to defendants in criminal proceedings. Kapenekas
seeks an order nullifying his conviction and setting aside his sentence.
DISCUSSION
Kapenekas is not challenging the execution of his sentence, such as the
computation ofsentence credits or parole eligibility, issues which fall under the ambit
of § 2241. United States v. Jalili, 925 F.2d 889, 894 (6th Cir. 1999). Instead,
Kapenekas challenges the constitutionality of his underlying federal conviction on
Fifth and Sixth Amendment grounds. But § 2241 is not the mechanism for asserting
such a challenge: 28 U.S.C. § 2255(a) provides the primary avenue of relief for
federal prisoners seeking relief from an unlawful conviction or sentence, Terrell v,
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United States, 564 F.3d 442, 447 (6th Cir. 2009), and is the mechanism for
collaterally challenging errors that occurred "at or prior to sentencing." Eaves v.
United States, 2010 WL 3283018, at *6 (B.D. Tenn. Aug. 17,2010).
Section 225 5(e) provides a narrow exception to this rule, and permits a prisoner
to challenge the legality of his conviction through a § 2241 petition, where his
remedy under Section 2255 "is inadequate or ineffective" to test the legality of his
detention. The only circumstance in which a petitioner may use this provision is
where, after his conviction has become final, the Supreme Court re-interprets the
terms of the statute the petitioner was convicted of violating in such a way that his
actions did not violate the statute. Martin v. Perez, 319 F.3d 799,804 (6th Cir. 2003).
See Barnes v. United States, 102 F. App'x 441,443 (6th Cir. 2004) ("A prisoner who
can show that an intervening change in the law establishes his actual innocence can
invoke the savings clause of § 2255 and proceed under § 2241."); Lott v. Davis, 105
F. App 'x 13, 14-15 (6th Cir. 2004). This exception does not apply where the prisoner
failed to seize an earlier opportunity to correct a fundamental defect in his conviction
under pre-existing law, or where he did assert his claim in a prior post-conviction
motion under § 2255, but was denied relief. Charles v. Chandler, 180 F.3d 753, 756
(6th Cir. 1999); United States v. Prevatte, 300 F.3d 792, 800 (7th Cir. 2002).
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Neither Kapenekas' s Fifth Amendment claim alleging the denial ofdue process
based upon an allegedly defective Indictment, nor his Sixth Amendment claim,
alleging ineffective assistance of counsel, fall within the exception set forth in §
2255. In his § 2241 petition, Kapenekas continues to challenge his underlying
conviction, alleging that the Indictment charging him with violating § 2251 was
constitutionally defective because it did not charge him with "producing" a sexually
explicit depiction involving a minor using material shipped either in interstate or
foreign commerce. 2 Kapenekas' argument fails for two reasons.
First, as the Sentencing Court correctly observed when denying Kapenekas' §
2255 motion, the Indictment tracked the statutory language of § 2251(a) and
specifically included language charging Kapenekas with coercing and enticing a
female minor to engage in sexually explicit conduct "for the purpose of producing
visual depictions of said sexually explicit conduct." Counts One and Two of the
Indictment stated that during the two relevant time-periods, Kapenekas
2
"Producing" is defined to mean "producing, directing, manufacturing, issuing, publishing,
or advertising." 18 U.S.C. § 2256. "The definition's list ofterms shows that Congress did not intend
a technical definition of 'produced.'" United States v. Wright, 2013 164096 at *7 (W.D. Mich. Jan.
15,2013) (citing United States v. Poulin, 631 F.3d 17,22 (1st Cir. 2011). "Congress intended to
retain a non-technical definition ofthe term 'producing' (that is, in the sense ofcreating or making),
but also sought to expand its scope to include activities that may not be generally considered to fall
within the typical meaning of the term." United States v. Fadl, 498 F.3d 862, 867 (8 th Cir. 2007).
The list ofterms in the definition reflects Congress' intention to broadly define the term "producing"
to include " ... the varied means by which an individual might actively participate in the creation and
distribution of child pornography." Id.
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did knowingly employ, use, coerce and entice a 17-year-old minor
female to engage in sexually explicit conduct for the purpose of
producing visual depictions of said sexually explicit conduct, using
materials that had been mailed, shipped and transported in interstate and
foreign commerce, in violation ofTitle 18, United States Code, Sections
2251(a) and 2256(2)(A).
(Emphasis added).
Second, the factual basis of Kapenekas' claim that he was insufficiently
charged with "producing" the illegal images is a claim that either was, or should have
been, known to him during his criminal proceeding or at the very latest, when he filed
his §2255 motion in the Sentencing Court. Kapenekas in his petition that he learned
ofthe factual basis ofhis claim in June 2012, but this assertion is refuted by the fact
that he unsuccessfully attempted to raise this same claim before the Fifth Circuit, and
that in March 2011, after the Fifth Circuit ruled against him, he asked the Sentencing
Court to amend the COA to include this very claim. Despite Kapenekas' incorrect
assertions to the contrary, his allegation that the Indictment adequately failed to
charge him with "producing" a sexually explicit depiction of a minor is not premised
on facts or information that could be considered as "newly discovered."
In his § 2255 motion, Kapenekas argued that the Indictment was
constitutionally defective because it failed to charge him with producing sexual
depictions of minors which he knew would be used in either interstate or foreign
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commerce. Kapenekas focused on the alleged absence of interstate or foreign
commerce, but at that time, he could and should have raised similar claims
challenging other aspects ofthe Indictment, such as his claim that he was not charged
with "producing" a sexually explicit depiction of a minor. As the claim which
Kapenekas currently asserts also challenges the constitutionality of the Indictment,
Kapenekas could and should have asserted it during his criminal proceeding, or at the
latest, when he filed his § 2255 motion in the Sentencing Court. The Government
successfully argued this very point when it objected to Kapenekas' motion to amend
the COA to include this claim-- which Kapenekas had previously failed to assert. 3
Kapenekas then asked the Sentencing Court to amend the COA to include this
issue, but was unsuccessful in that attempt. Adopting the arguments advanced by the
Government--that Kapenekas had waived the argument, and that even ifhe had not
3
The Government responded as follows to Kapenekas' claim that the Indictment failed to
charge him with "producing" a sexually explicit depiction of a minor:
The claim was not advanced prior to Kapenekas' guilty pleas or sentencing. It was
not raised by a direct appeal. It was not advanced in his Section 2255 Motion to
Vacate which only alleged the indictment failed to allege that the images were either
transported in interstate or foreign commerce or that Kapenekas had reason to know
that the images would be so transported. [R. 259-260, Kapenekas' Motion to
Vacate]. As stated above, by pleading guilty, Kapenekas waived this issue. Failure
to raise an issue prior to appeal constitutes a waiver of that issue. See, e.g., United
States v. Whitfield, 590 F.3d 325, 359 (5th Cir. 2009), cert. denied, 131 S. Ct 136
(2010).
[D. E. No. 66, p. 9, therein]
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waived the argument, it lacked any substantive merit-the Sentencing Court denied
Kapenekas' motion. As the Fifth Circuit concluded when it affirmed the denial of
Kapenekas' § 2255 motion--'''A plea of guilty admits all the elements of a formal
criminal charge and waives all non-jurisdictional defects in the proceedings leading
to conviction.'"
United States v. Kapenekas, 413 F. App'x at 779 (citing United
States v. Smallwood, 920 F.2d 1231,1240 (5th Cir. 1991)).
Kapenekas fares no better on the claim in this § 2241 proceeding. The remedy
provided under § 2255 is not rendered inadequate and ineffective if the prisoner
presented a claim in a § 2255 motion but was denied relief on the claim, ifhe failed
to assert a claim in his § 2255 motion, or ifhe was denied permission to file a second
or successive § 2255 motion.
See Charles, 180 F.3d at 756-758; Rumler v.
Hemingway, 43 F. App'x 946, 947 (6th Cir. 2002); Bautista v. Shartle, 2012 WL
11135 at *2 (N.D. Ohio Jan. 3,2012). Kapenekas failed to raise his current Fifth
Amendment "production" claim in his § 2255 motion; the Fifth Circuit Court of
Appeals refused to entertain the issue for the first time on appeal; and, after the Fifth
Circuit's adverse ruling, the Sentencing Court refused to amend the COA to include
the issue. Under Charles, Kapenekas can not use § 2241 as a vehicle merely to assert
a Fifth Amendment claim which he could and should have asserted, but failed to
assert, in his § 2255 motion, or to raise a claim which was decided adversely to him
12
In
a § 2255 proceeding.
Section 2241 is not an additional, alternative, or
supplemental remedy to the one provided in § 2255. Charles, 180 F.3d at 758.
Kapenekas further claims that both Steven Farese, Sf., the attorney who
represented him in the Sentencing Court during his criminal proceeding, and James
L. Robertson, the attorney who later represented him in his § 2255 proceeding, both
failed to argue that the Indictment was constitutionally defective because it failed to
charge him with "producing" a sexually explicit depiction ofa minor. On this claim,
Kapenekas also fails to demonstrate grounds entitling him to relief under § 2241.
In his § 2255 motion, Kapenekas did not allege that his original attorney in his
criminal proceeding allegedly failed to raise that claim; he alleged only (1) that the
Indictment failed to charge him with knowingly engaging in activity which involved
interstate or foreign commerce, and (2) that he (Kapenekas) failed to file an appeal
of the order denying his suppression motion. Again, Kapenekas can not use § 2241
in order to assert a Sixth Amendment ineffective assistance of counsel claim which
he could and should have asserted, but failed to assert, in his § 2255 motion. Section
2241 is not an additional, alternative, or supplemental remedy to the one provided in
§ 2255. Charles, 180 F.3d at 758.
Nevertheless, because Kapenekas claims that he was denied effective
assistance of counsel at various stages of his criminal proceeding, the Court will
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consider whether two Supreme Court cases decided last year, Lafler v. Cooper,_
U.S._, 132 S.Ct.1375 (2012), and Missouriv. Frye,_U.S._, 132 S.Ct. 1399
(2012), support his Sixth Amendment claims. In Frye, the Supreme Court held that
defense counsel has the duty to communicate formal offers from the prosecution to
accept a plea on terms that may be favorable to the accused, prior to the offer's
expiration, and defense counsel's failure to inform a defendant of a written plea offer
before it expired satisfies the deficient performance prong ofthe standard set forth in
Stricklandv. Washington, 466 U.S. 668 (1986). In Lafler, the defendant wentto trial
rather than accept a plea deal as a result of ineffective assistance of counsel during
the plea negotiation process. Lafler, 132 S.Ct. at 1386. The defendant received a
substantially more severe sentence at trial than he likely would have received by
pleading guilty. Id.
In his habeas petition, Kapenekas alleges that prior to pleading guilty to the §
2251 offenses, Attorney Farese failed to inform him of any grounds suggesting that
the Indictment was allegedly defective.
Kapenekas then alleges that Attorney
Robertson, who filed the § 2255 motion on his behalf, argued that Indictment failed
to allege a sufficient interstate or foreign commerce nexus, but that he failed to (a)
argue that the Indictment failed to charge him with "producing" sexually explicit
depictions of a minor using materials which weremailed.shipped and transported in
14
interstate and foreign commerce, and (b) ask the Sentencing Court to expand the
scope of the COA to include the "production" challenge to the Indictment.
Frye and Lafler do not support Kapenekas'Sixth Amendment claims because
they are factually inapposite to the facts of his case. Even if the two cases were
factually similar to Kapenekas' case, neither ofthem apply retroactively to cases on
collateral review, such as Kapenekas' §2241 petition. Five federal circuit courts have
ruled that because Frye and Lafler do not announce a new constitutional rule
justifying a second or subsequent § 2255 petition, they are not retroactively
applicable to cases on collateral review. Buenrostro v. United States, 697 F.3d
1137,1140 (9th Cir. 2012); In re King, 697 F.3d 1189 (5th Cir. 2012); Harev. United
States, 688 F.3d 878,879 (7th Cir. 2012); In re Perez, 682 F.3d 930,932-33 (1Ith
Cir. 2012); In re Graham, 714 F.3d 1181,1183 (10th Cir. April 23, 2013). Forthese
additional reasons, Kapenekas has not alleged a Sixth Amendment violation
warranting relief under § 2241.
Alternatively, a prisoner proceeding under § 2241 can use the savings clause
of § 2255 ifhe alleges "actual innocence," Bannerman v. Snyder, 325 F.3d 722, 724
(6th Cir. 2003); Paulino v. United States, 352 F.3d 1056, 1061 (6th Cir. 2003), but
actual innocence requires factual innocence, not mere legal insufficiency. Bousley
v. United States, 523 U.S. 614,623-24 (1998); Wooten v. Cauley, 677 F.3d 303,307
15
(6th Cir. 2012); Hilliard v. United States, 157 F.3d 444, 450 (6th Cir. 1998). To
make this showing, the movant must allege a new rule of law made retroactive by a
Supreme Court case, such as the claim raised in Bailey v. United States, 516 U.S.
137(1995). Townsend v. Davis, 83 F. App'x 728 (6th Cir. 2003); United States v.
Peterman, 249 F.3d. 458,461 (6th Cir. 2001).
Kapenekas alleges that he is actually innocent of "producing" a sexually
explicit depictions of a minor using materials which weremailed.shipped and
transported in interstate and foreign commerce. But as the Fifth Circuit correctly
pointed out, Kapenekas pleaded guilty to that very offense and in doing so, waived
any and all claims to the sufficiency of the Indictment. A federal court in a
post-conviction proceeding can rely on the factual conclusions made by an appellate
court in the same case. Smith v. Snyder, 22 F. App'x 552,553 (6th Cir. 2001); Myers
v. United States, 198 F.3d 615,619 (6th Cir. 1999). Finally, Kapenekas does not
point to a new rule of law made retroactive by the Supreme Court which would
support his claims.
In summary, the burden is on the § 2241 petitioner to establish that the remedy
under § 2255 was inadequate or ineffective. Martin, 319 F .3d at 804-05. Kapenekas
has neither carried his burden of showing that as to his Fifth and Sixth Amendment
claims, his remedy under § 2255 was inadequate to challenge his federal conviction,
16
nor established a claim of actual innocence. For these reasons, Kapenekas has not
demonstrated that he is entitled to relief from his conviction under § 2241.
Kapenekas' petition will be denied and this proceeding will be dismissed.
CONCLUSION
Accordingly, IT IS ORDERED that:
1.
The 28 U.S.C. § 2241 petition for a writ of habeas corpus filed by John
Kapenekas [D. E. No.1] is DENIED;
2.
The Court will enter an appropriate judgment; and
3.
This habeas proceeding is DISMISSED and STRICKEN from the
Court's docket.
This July 8, 2013.
sv-tBr
-Hem R. Wilhoit Jr.
United States
17
DIstra_
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