Hernandez v. Commonwealth
Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered granting 11 Motion for Judgment on the Pleadings; denying 15 Motion to Appoint Counsel (Woodlock, Douglas)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO.
MEMORANDUM AND ORDER
January 19, 2017
Ariel Hernandez seeks to vacate his Massachusetts state
court convictions on armed robbery, first degree murder, armed
home invasion, and weapons charges.
Hernandez contends the
Massachusetts state courts wrongfully denied: (1) his motion to
suppress firearm evidence, (2) his motion to sever his trial
from that of two co-defendants, and (3) his motion to sever the
several charges against him.
In federal habeas proceedings challenging state
convictions, determinations of factual issues made by the state
courts are presumed correct, and the petitioner has the burden
of rebutting that presumption of correctness by clear and
See 28 U.S.C. § 2254(e)(1).
undertaken no such showing here, consequently I presume the
state court findings of fact are correct, and will accept the
SJC’s findings in making my legal rulings in this matter.
Pina v. Maloney, 565 F.3d 48, 50 (1st Cir. 2009)(relying on
facts as recounted by SJC supplemented with other facts in the
record consistent with SJC’s decision).
On October 22, 2009 Hernandez, along with Giovanni Hill,
Darien Doby and Tim Brown drove slowly by the armed robbery
victims, Sophia Deno and Ashley Cardoso, twice and then parked
around the corner from them.
1072 (Mass. 2015).
Com. v. Hernandez, 42 N.E.3d 1064,
The vehicle was a green Honda Civic with a
Dominican flag hanging from the rear view mirror and was owned
by Hernandez’s sister.
Hernandez and Hill got out of the
vehicle and removed a firearm from the trunk, after which
Hernandez approached Deno and Cardoso, robbing them both at
Hill stood five to ten feet away laughing.
After the robbery, Hernandez and Hill got back in the
vehicle with Hernandez driving and Hill in the passenger seat.
The men drove to Simon Phanthai’s house, where Hernandez changed
into a black sweatshirt.
Next, the group, including Hernandez,
Hill, Doby, Brown, and Phanthai met at Brown’s house.
Hernandez went through the stolen purses and retrieved $80 in
cash and one of the victim’s debit cards.
Hernandez told Hill
to take the debit card to an automated teller machine to
withdraw money; Hill was ultimately unsuccessful after trying to
withdraw money at two banks.
At around 11:45 P.M., Hernandez’s two co-defendants at
trial, Jamal and Karon McDougal, arrived at Brown’s house.
Either Jamal or Karon asked Hernandez if he wanted to be
involved in a robbery.
Hernandez agreed to join them and bring
Silva drove his 1995 Toyota Camry to Brown’s house and
agreed to be the driver for the robbery.
Hernandez, Jamal, and
Karon changed into different clothes provided by Brown, and then
left Brown’s house together with Silva.
Jamal instructed Silva
where to drive; when they arrived, Silva remained in the vehicle
while the other three walked toward the residence through a
The two murder victims, Luis Antonio Martinez Delgado
(“Tony”) and Hector Delgado — who sold marijuana from their
house — were present at the residence.
Brian Staples was also
present at the time of the murder; as was the Delgados’ nephew,
At around 1:00 A.M. there was a loud bang on
their door and Tony answered.
Staples came down and saw two
males, both with guns drawn, one with a goatee and a hood
covering his face.
Staples ran upstairs to his bedroom to call
Kyle Delgado and Staples both heard gunshots while hiding.
When they emerged, they found Hector lying on his back in his
bedroom with a bullet hole in his stomach, and Tony was on the
stairs with a bullet hole in his back.
Both died of their
Karon returned to the Camry three to four minutes after
initially exiting the vehicle; Jamal and Hernandez returned five
minutes after Karon.
Jamal told Hernandez that he was a great
shot, and Hernandez responded, “I know, once I seen them jump on
you, I started shooting.”
Back at Brown’s house, Hernandez and
Jamal conversed further about the events.
Hernandez, Hill, and
Doby left Brown’s apartment together in the Honda belonging to
Hill placed the gun in the trunk of the
Hernandez dropped Doby off and was headed to Hill’s
house when Hernandez and Hill were stopped by police and
In December of 2009, Hernandez was charged with armed
robbery (two counts), murder in the first degree on the theory
of felony-murder (two counts), home invasion, unlawful
possession of ammunition, and possessing a firearm without a
Hernandez filed a motion to suppress the firearm
evidence, which consisted of a gun found in the trunk of the car
that he was driving.
Hernandez argued that the police lacked
probable cause for the warrantless search and that the search
exceeded the proper bounds of permissible inquiry.
evidentiary hearing, in which one witness (Officer Christian
Hanson of the Lowell Police Department) testified, the motion to
suppress was denied by the Massachusetts Superior Court.
Additionally, Hernandez filed a motion to sever his trial
on the charges of armed robbery of Deno and Cardoso from the
charges regarding the murders of Hector and Tony Delgado and
armed home invasion; Hernandez also requested to sever his trial
from that of Tim Brown.
In a second severance motion, Hernandez
asked to sever his trial regarding the murders from that of codefendants Jamal and Karon.
With respect to the first motion,
the court granted severance of the trials of Hernandez and
Brown, but the request to sever the trial of the charges was
Hernandez’s second severance motion regarding the joint
trial with Jamal and Karon was also denied.
Hernandez was tried in the Middlesex Superior Court and was
found guilty of all charges.
of all charges.
His co-defendants were acquitted
On appeal to the SJC, Hernandez argued (1) the
trial court erred in denying his motion to suppress the firearm
evidence (2) the trial court erred in denying severance of his
trial from that of his co-defendants and (3) the trial court
erred in denying severance of the various charges against him.
Hernandez, 42 N.E.3d at 1067.
The SJC upheld the trial court’s
See Hernandez, 42 N.E.3d at 1078.
Hernandez thereupon filed a petition for writ of habeas
corpus in this court, seeking review of the issues upon which he
had unsuccessfully pursued before the SJC.
Hernandez named the Commonwealth of Massachusetts as the
Respondent in this proceeding rather than Joseph Murphy, the
Superintendent of Old Colony Prison, where Hernandez is being
held. Congress has required that a writ of habeas corpus granted
by a district court “shall be directed to the person having
custody of the person detained.”
28 U.S.C. § 2243.
prisoner's proper custodian for purposes of habeas review is the
warden of the facility where he is being held.
Vasquez v. Reno,
233 F.3d 688, 691 (1st Cir. 2000).
Jurisdiction over the custodian is necessary because “[t]he
writ of habeas corpus does not act upon the prisoner who seeks
relief, but upon the person who holds him in what is alleged to
be unlawful custody.”
Id. at 690 (quoting Braden v. 30th
Judicial Circuit Court, 410 U.S. 484, 495 (1973)).
Circuit, in Vasquez, held that the district court should avoid
addressing the merits when the petitioner does not direct his
habeas petition to the person having custody of the person
Id. at 697; see also Gonzalez v. Grondolsky, 152 F.
Supp. 3d 39, 44 (D. Mass. 2016) (action moot when the named
respondent on a writ of habeas corpus was the warden of the
prison where the petitioner was held prior to being transferred
to another facility).
Such avoidance, however, seems
The warden of the Massachusetts prison
facility holding Hernandez, unlike the proper respondent in
Vasquez, is within the jurisdiction of this court, the nominal
respondent would be represented by the Massachusetts Attorney
General’s Office which argues the merits in the instant motion
to dismiss, and the petition may easily be amended to remedy the
error in identifying the nominal respondent.
Moreover, as will
appear, addressing the merits now will be dispositive favorably
to the respondent and will avoid further and unnecessary
consumption of judicial resources.
I turn therefore to the
Fourth Amendment Claim
Where the state has provided an opportunity for full and
fair litigation of a Fourth Amendment claim, a state prisoner
generally may not be granted federal habeas corpus relief on the
ground that evidence obtained in an unconstitutional search and
seizure was introduced at his trial.
465, 494 (1976).
Stone v. Powell, 428 U.S.
The First Circuit has interpreted Stone as
standing “for the proposition that a federal habeas court
ordinarily cannot revisit a state court’s disposition of a
prisoner’s Fourth Amendment claims.”
1, 8 (1st Cir. 2001).
Sanna v. Dipaolo, 265 F.3d
The First Circuit, however, has also
emphasized that “this proposition is not absolute: there is an
exception for instances in which a habeas petitioner had no
realistic opportunity to litigate his Fourth Amendment claim
fully and fairly in the state system.”
Even if I were to disagree with the outcome reached by the
state court on the Fourth Amendment claim here, I have no
authority to grant the writ without making the threshold inquiry
to determine whether the state prisoner was given the
opportunity for full and fair litigation of his Fourth Amendment
Pignone v. Sands, 589 F.2d 76, 80 (1st Cir. 1978)
(rationale of Stone would be wholly rejected if federal courts
could grant writ in response to disagreement with the state
Full and fair litigation means that the
state has made available to defendants a set of procedures
suitably crafted to test for possible Fourth Amendment claims.
Sanna, 265 F.3d at 8 (citing Pignone, 589 F.2d at 79).
that Hernandez had such process available and cannot surmount
the threshold for pressing a Fourth Amendment claim in a federal
habeas corpus proceeding.
Hernandez filed a motion to suppress the firearm evidence,
and was granted an evidentiary hearing.
Superior Court denied this motion through a written order.
claim was subsequently appealed to the SJC, which issued an
opinion upholding the Superior Court’s denial of the Motion to
See Hernandez, 42 N.E.3d at 1078.
demonstrate “full and fair litigation” of the claims.
Sanna, 265 F.3d at 8 (holding that an evidentiary hearing,
written opinion by the superior court judge, and a direct appeal
to the SJC was sufficient to find full and fair litigation of
Fourth Amendment claim).
Consequently, I do not reach the
substance of the Fourth Amendment claim because it has been
fully and fairly litigated in the state courts.
General Habeas Standard of Review
A petitioner seeking relief under the Antiterrorism and
Effective Death Penalty Act of 1996, faces a demanding burden.
Cooper v. Bergeron, 778 F.3d 294, 299 (1st Cir. 2015).
application for a writ of habeas corpus may not be granted as to
any claim that has previously been adjudicated on the merits by
a state court, unless the petitioner shows that the decision was
contrary to clearly established federal law, as determined by
the Supreme Court of the United States, or involved an
unreasonable application of such definitive federal law, or was
based on an unreasonable determination of the facts in light of
the evidence presented in the state court proceedings.
U.S.C. § 2254(d).
This means the petitioner must demonstrate
that “Supreme Court precedent requires an outcome contrary to
that reached by the relevant state court.”
Bissonnette, 480 F.3d 571, 576 (1st Cir. 2007).
“clearly established” refers only to the holdings, not the
dicta, of the Supreme Court’s decisions as of the time of the
relevant state-court decision.
Thaler v. Haynes, 559 U.S. 43,
47 (2010) (“A legal principle is ‘clearly established’ within
the meaning of this provision only when it is embodied in a
holding of this Court”).
A state court decision is “contrary to” clearly established
federal law as determined by the Supreme Court if it
“contradicts the governing law set forth in the Supreme Court’s
cases or confronts a set of facts that are materially
indistinguishable from a decision of the Supreme Court and
nevertheless arrives at a result different from its precedent.”
Brown v. Ruane, 630 F.3d 62, 67 (1st Cir. 2011) (quoting John v.
Russo, 561 F.3d 88, 96 (1st Cir. 2009)).
The phrase “‘contrary
to’ suggests that the state court's decision must be
substantially different from the relevant precedent of the
Id. (quoting Williams v. Taylor, 529 U.S. 362,
A state court adjudication involves an unreasonable
application of clearly established federal law if the state
court “identifies the correct governing legal principle from
[the Supreme] Court's decisions but unreasonably applies that
principle to the facts of the prisoner's case.”
Brown v. Ruane,
630 F.3d 62, 67 (1st Cir. 2011) (alteration in original)(quoting
Williams v. Taylor, 529 U.S. 362, 413 (2000)).
term “unreasonable” may be difficult to define with precision,
it is a common standard in legal analysis; fundamentally, its
use in this context serves to emphasize that an “unreasonable
application of federal law is different from an incorrect
application of federal law.”
Williams v. Taylor, 529 U.S. 362,
410 (2000) (O’Connor, J., concurring).
“specifically used the word ‘unreasonable,’ and not a term like
‘erroneous’ or ‘incorrect,’. . . a federal habeas court may not
grant relief simply because it concludes in its independent
judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly,” rather,
“that application must also be unreasonable.”
Id. at 411.
Severance of Parties
The SJC relied primarily on Massachusetts law in concluding
that joinder of parties was not prejudicial to Hernandez.
Massachusetts law, it is presumed that individuals will be tried
together when criminal charges arise out of the same criminal
Com. v. Siny Van Tran, 953 N.E. 2d 139, 149 (Mass.
2011); Mass. R. Crim. P. 9(b).
If it appears that a joinder of
offenses or of defendants is not in the best interests of
justice, the judge may upon his own motion or the motion of
either party order an election of separate trials of counts,
grant a severance of defendants, or provide whatever other
relief justice may require.
Mass. R. Crim. P. 9(c).
courts of the Commonwealth, severance is usually a matter within
the sound discretion of the trial judge.
N.E.2d 846, 853 (Mass. 2007).
Com. v. Stewart, 875
“A judge should sever trials if a
defendant meets the burden of proving that (1) the defenses are
antagonistic to the point of being mutually exclusive, or (2)
the prejudice resulting from a joint trial is so compelling that
it prevents a defendant from obtaining a fair trial.”
Tran, 953 N.E.2d at 149–50 (citations omitted)(internal
Defenses are mutually antagonistic and
irreconcilable when the “sole defense of each is the guilt of
Id. at 150 (quoting Com. v. Moran, 442 N.E.2d 399,
406 (Mass. 1982)); see also Stewart, 875 N.E.2d at 853.
On the issue of joinder of parties, Massachusetts law is
substantially the same as applicable federal law.
Federal Rules of Criminal Procedure, “[t]wo or more defendants
may be charged in the same indictment or information if they are
alleged to have participated in the same act or transaction or
in the same series of acts or transactions constituting an
offense or offenses.”
Fed. R. Crim. P. 8(b); Zafiro v. United
States, 506 U.S. 534, 537 (1993).
There is a preference under
federal law for joint trials of defendants who are indicted
together because joint trials promote efficiency and “serve the
interests of justice by avoiding the scandal and inequity of
Zafiro, 506 U.S. at 537.
Federal Rules of Criminal Procedure recognize that if it appears
a defendant will be prejudiced by joinder with co-defendants
“the court may order separate trials of counts, sever the
defendants' trials, or provide any other relief that justice
Fed. R. Crim. P. 14(a); Zafiro, 506 U.S. at 538.
Additionally, under federal law, as under Massachusetts
law, “mutually antagonistic” or “irreconcilable” defenses may,
in some circumstances, be so prejudicial as to mandate
severance, but courts have reversed relatively few convictions
on such grounds.
Zafiro, 506 U.S. at 538.
In Zafiro, the
Supreme Court held that mutually antagonistic defenses are not
prejudicial per se, and Rule 14 does not require severance even
if prejudice is shown, but leaves relief to the District Court’s
506 U.S. at 538-39.
The Supreme Court has directed
that District Courts only grant severance under Rule 14 if there
is a “serious risk that a joint trial would compromise a
specific trial right of one of the defendants, or prevent the
jury from making a reliable judgment about guilt or innocence.”
Id. at 539.
The question at this juncture is whether the Supreme
Court’s holding in Zafiro constitutes “clearly established”
federal law binding on the states.
This has not been addressed
by the First Circuit, but the Ninth Circuit has held that Zafiro
does not apply to states, and therefore does not constitute
“clearly established” federal law.
See Collins v. Runnels, 603
F.3d 1127, 1132-33 (9th Cir. 2010).
While I might be inclined
to hold that Zafiro constitutes “clearly established” — if
somewhat open textured — federal constitutional law as embodied
in the Federal Rules of Criminal Procedure, I need not resolve
that issue because the SJC here adhered to state law that is
substantially similar to Zafiro.
The trial court judge granted the motion by Hernandez to
sever his trial from Brown’s.
With respect to Jamal and Karon,
Hernandez’s primary argument was that his defense was
inconsistent with the defense of Jamal and Karon.
Karon are African American and they highlighted, he argues,
testimony that the perpetrators of the home invasion were
Mutual antagonism exists where the acceptance of one
party's defense will preclude the acquittal of the other.
v. Moran, 442 N.E.2d 399, 406 (Mass. 1982).
Or, in other words,
where the sole defense of each is the guilt of the other.
Com. v. Stewart, 875 N.E.2d 846, 853 (Mass. 2007).
however, the acceptance of Jamal and Karon’s defenses did not
preclude Hernandez from being acquitted simply because he is
In upholding the trial court’s decision, the SJC
agreed with the contention that there are many other Hispanic
individuals, aside from Hernandez, who could have committed this
Hernandez, 42 N.E.3d at 1075.
Furthermore, Hernandez and his co-defendants did not use,
as their sole defense, the guilt of each other.
identified third parties as the actual perpetrators of the
In closing argument, defense counsel for all three
defendants argued that other persons who were present at Brown’s
apartment on the evening leading to the armed home invasion and
double murder were responsible.
Hernandez, 42 N.E.3d at 1074.
In particular, counsel for Hernandez argued that Silva and Brown
were the perpetrators, not Hernandez and the McDougal codefendants.
Id. Karon’s counsel argued that Silva, Brown, and
Hill were the culpable parties.
Jamal’s counsel argued that
Brown, Silva, Doby, and Hill were responsible.
The SJC concluded that there was no abuse of discretion in
the denial of the motions to sever because “the defenses at
trial were not mutually exclusive and joinder of defenses at
trial did not prevent the defendant from obtaining a fair
Hernandez, 42 N.E.3d at 1075.
The SJC observed that
“although the codefendants differed in the descriptive
characteristics they wanted the jury to remember about the
intruders, [Hernandez] did not need the jury to believe that
Jamal or Karon were guilty in order to obtain an acquittal.”
It remains an open question in the First Circuit whether
Zafiro expresses, through its treatment of Fed. R. Crim. P. 14,
“clearly established” federal law binding on states.
assuming that Zafiro is in that sense clearly established
federal law, the SJC did not contravene it here.
While the SJC
did not explicitly rely on federal law in its ruling, the SJC’s
decision affirming the determination not to grant severance is
neither contrary to, nor an unreasonable application of federal
law under Zafiro.
The SJC adhered to state court standards
which are nearly identical to Zafiro.
Severance of Claims
As with the severance of parties, it is unclear whether
there is clearly established federal law with respect to
severance of claims.
The Supreme Court has stated that a
misjoinder of offenses may be a constitutional violation if it
prevents a defendant from obtaining a fair trial.
States v. Lane, 474 U.S. 438, 446 n. 8 (1986) (“Improper joinder
does not, in itself, violate the Constitution.
misjoinder would rise to the level of a constitutional violation
only if it results in prejudice so great as to deny a defendant
his Fifth Amendment right to a fair trial.”); Cormier v. Saba,
953 F. Supp. 2d 274, 286–87 (D. Mass. 2013)(applying the Lane
standard to denial of motion to sever claims); Herring v.
Meachum, 11 F.3d 374, 377 (2d Cir. 1993) (joinder of offenses
rises to the level of a constitutional violation only if it
“actually renders petitioner’s state trial fundamentally unfair
and hence, violative of due process”).
However, footnote 8 in
Lane may be characterized as dicta rather than a formal holding
and consequently is not necessarily “clearly established”
See Thaler v. Haynes, 559 U.S. 43, 47 (2010) (per
curiam) (explaining that dicta is not “clearly established”
My colleague Judge Saylor dealt with this issue
in adopting a Report and Recommendation by Magistrate Judge Dein
which held that “clearly established federal law simply states
that misjoinder may be a constitutional violation if it prevents
a defendant from obtaining a fair trial.”
2d at 287.
Cormier, 953 F. Supp.
Alternatively, the Ninth Circuit has held that Lane
does not identify “clearly established” federal law.
Collins, 603 F.3d at 1131.
Although I share the view expressed
by Judge Saylor, given the divergence in approach by the courts
on this issue, I will for present purposes assume that Lane is
“clearly established” federal law and examine whether the SJC’s
decision to uphold the trial court’s joinder of claims rendered
the trial of Hernandez fundamentally unfair.
As to this issue, the SJC also cited primarily
Massachusetts law; at the same time it relied heavily on
Commonwealth v. Pillai, 833 N.E.2d 1160 (Mass. 2005) which
stands for the basic proposition set out by the Supreme Court in
Lane, 474 U.S. at 446 n. 8.
Pillai, 833 N.E.2d at 1166 (the
defendant “bears the burden of demonstrating that . . .
prejudice from joinder was so compelling that it prevented him
for obtaining a fair trial.”).
Consequently, even though it may
be said to be an open question in the First Circuit whether Lane
is “clearly established” federal law, the SJC adhered to a
standard essentially identical to that set out in Lane.
reached the merits of Hernandez’s claim; therefore, I review the
SJC’s determination under a deferential standard.
953 F. Supp. 2d at 287.
Under the Massachusetts Rules of Criminal Procedure,
joinder of offenses in trial is permissible “if a defendant is
charged with two or more related offenses . . . unless [the
trial judge] determines that joinder is not in the best interest
of justice.” Mass. R. Crim. P. 9(a).
Related offenses are
“based on the same criminal conduct or episode or arise out of a
course of criminal conduct or series of criminal episodes
connected together or constituting parts of a single scheme or
The federal rule regarding misjoinder strives to
ensure that the jury does not convict an accused of a charged
crime simply because the accused has been charged with, or
convicted of, a different, unrelated crime.
United States v.
Bruck, 152 F.3d 40, 44 (1st Cir. 1998).
In determining whether counts are properly joined, the SJC
considered such factors as factual similarities, closeness of
time and space, and whether evidence of the other offenses would
be admissible in separate trials on each offense.
Pillai, 833 N.E.2d at 1166 with United States v. Edgar, 82 F.3d
499, 503 (1st Cir. 1996)(the court considers factors such as:
whether the charges are laid under the same statute, whether
they involve similar victims, locations, or modes of operation,
and the time frame in which the charged conduct occurred).
the SJC observed, the two robberies transpired within a few
hours of one another, occurred within 50 yards of one another,
and a firearm was used in both.
Hernandez, 42 N.E.3d at 1077.
For these reasons, it was not unreasonable to conclude the
crimes had a common scheme or pattern.
See Pillai, 833 N.E.2d
at 1166 (“Offenses are related if ‘the evidence in its totality
shows a common scheme or pattern of operation that tends to
prove’ each of the complaints.”).
The defendant “bears the
burden of demonstrating that the offenses were unrelated, and
that prejudice from joinder was so compelling that it prevented
him from obtaining a fair trial.”
Pillai, 833 N.E.2d at 1166.
The SJC supportably determined that Hernandez failed to meet
The SJC also considered whether evidence of each offense
would be admissible in separate trials.
that evidence of other bad or criminal acts is not admissible to
show “bad character or propensity to commit the crime charged,”
the SJC observed that the bad acts at issue here could be
admissible to show “intent, motive, state of mind, or some other
relevant issue at trial.”
Hernandez, 42 N.E.3d at 1077 (quoting
Commonwealth v. Dung Van Tran, 972 N.E.2d 1 (2012)).
concluded that the evidence was admissible because “the
prosecution is entitled to present as full a picture as possible
of the events surrounding the incident itself, as long as the
probative value of the evidence presented is not substantially
outweighed by any prejudice to the defendant.”
N.E.3d at 1077 (internal quotation marks omitted).
determined that neither the joinder of co-defendants, nor of
claims, prevented Hernandez from having a fair trial.
The SJC considered Hernandez’s joinder claims fully and
applied standards which conform with and did not unreasonably
apply the standards employed under federal law, irrespective of
whether those standards constitute “clearly established” federal
law applicable to the states.
Federal habeas relief is not
available on grounds of improper joinder.
For the foregoing reasons, I GRANT the Respondent’s Motion for
Judgment on the Pleadings with respect to Petitioner’s habeas
corpus petition, which I construe to be directed against the
Massachusetts prison warden in whose custody he is serving his
The Clerk is directed to enter a judgment of
dismissal of this petition.
/s/ Douglas P. Woodlock______
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?