Chapman v. McQuiggin
Filing
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OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus; Denying Certificate of Appealability, Denying Leave to Appeal in forma pauperis. Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RONALD RAY CHAPMAN,
Petitioner,
Civil No. 2:11-CV-11596
HONORABLE PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
v.
GREG McQUIGGIN,
Respondent,
__________________________________/
OPINION AND ORDER DENYING (1) THE PETITION FOR WRIT OF HABEAS
CORPUS, (2) A CERTIFICATE OF APPEALABILITY, AND (3) LEAVE TO APPEAL
IN FORMA PAUPERIS
Ronald Ray Chapman, (“Petitioner”), confined at the Cooper Street Correctional Facility
in Jackson, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. §
2254, in which he challenges his conviction and sentence for three counts of first-degree criminal
sexual conduct, Mich. Comp. Laws § 750.520b. For the reasons that follow, the petition for writ
of habeas corpus is DENIED.
I. BACKGROUND
Petitioner pleaded guilty to the above charges in the Lapeer County Circuit Court on
August 11, 1997.
On September 15, 1997, petitioner requested a new court appointed attorney and asked to
withdraw his guilty plea. The judge agreed to appoint new counsel for petitioner but refused to
consider the motion to withdraw the plea until petitioner conferred with his new attorney. At a
hearing on September 22, 1997, the judge heard petitioner’s request to withdraw his plea. The
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judge decided to obtain a copy of transcript from the guilty plea and ordered petitioner to file an
affidavit. The hearings from September 15th and September 22nd were not transcribed.
On October 6, 1997, the judge heard oral argument on petitioner’s motion to withdraw
the plea and denied the request. (Tr. 10-6-97, pp. 20-21). The judge sentenced petitioner to
concurrent sentences of 25-40 years. (Id., pp. 27-29). The judge advised petitioner that he could
appeal by leave and informed him that if he could not afford an attorney, the court would appoint
him an attorney and furnish the attorney with the portions of the transcript and record the
attorney needed. (Id., pp. 29-30).
Petitioner requested the appointment of appellate counsel. The judge denied the motion
pursuant to Proposal B, which amended the Michigan Constitution to eliminate the right of
appeal from criminal defendants in guilty plea cases. People v Chapman, No. 97-006171-FC
(Lapeer County Circuit Court, October 21, 1997).
In January of 1998, petitioner filed a delayed application for leave to appeal with the
Michigan Court of Appeals. The Michigan Court of Appeals remanded the case to the trial judge
to reconsider the denial of appointed counsel in light of People v Najar, 229 Mich. App 393; 581
NW2d 302 (1998). People v Chapman, No. 209000 (Mich.Ct.App. June 29, 1998).
On remand the trial judge again denied petitioner’s request for the appointment of
appellate counsel without prejudice. The judge indicated that petitioner was required to state the
issues to be raised in his application for leave to appeal before the judge could decide if
appointment of counsel was appropriate. People v Chapman, No. 97-006171-FC (Lapeer County
Circuit Court, July 17, 1998).
Rather than complying with the trial court’s directive by filing a statement listing the
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issues that he wanted to raise on appeal, petitioner filed a motion to withdraw guilty plea. The
trial judge issued a three page opinion and order denying the motion to withdraw the guilty
plea. People v Chapman, No. 97-006171-FC (Lapeer County Circuit Court, October 9, 1998).
Petitioner filed a delayed application for leave to appeal and motion to file late appeal in
the Michigan Court of Appeals. While his appeal was pending, petitioner filed a motion for
production of transcripts and documents in the trial court. The trial judge denied the request
stating “Defendant made a previous request for the same documents and transcripts and was
provide[d] with such by the Clerk of the Court’s office on August 27, 1998.” People v Chapman,
No. 97-006171-FC (Lapeer County Circuit Court, May 26, 1999).
The Michigan Court of Appeals dismissed petitioner’s delayed application for leave to
appeal and motion to file late appeal “for failure to pursue the case in conformity with the rules.”
People v. Chapman, No. 217766 (Mich.Ct.App. May 11, 1999). This dismissal was “without
prejudice to whatever other relief may be available consistent with the Court Rules.” Id.
Petitioner did not seek leave to appeal with the Michigan Supreme Court. 1
On January 12, 2000, the trial court entered an order denying petitioner’s request for
appellate counsel and for documents and transcripts, finding the motions to be moot because the
Court of Appeals had denied petitioner’s delayed application for leave to appeal.
On June 23, 2005 the United States Supreme Court decided the case of Halbert v.
Michigan, 545 U.S. 605 (2005), which held that indigent defendants have a constitutional right to
appointed counsel to assist them in the first-tier appellate review of their guilty plea convictions.
In August of 2005, petitioner filed a motion for appointment of appellate counsel in the
1
See Affidavit of Corbin R. Davis, Clerk of the Michigan Supreme Court. [this Court’s dkt. # 10-10].
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trial court citing Halbert. Although this motion was never ruled on by the trial judge, petitioner
filed an application for leave to appeal the denial of appellate counsel. The Michigan Court of
Appeals dismissed the application for leave to appeal for lack of jurisdiction because the trial
court had not entered an order before petitioner filed the application. People v Chapman, No.
273600 (Mich.Ct.App. October 25, 2006).
On November 6, 2006, petitioner filed a motion with the trial court, in which he asked
the judge to enter an order either granting or denying him appellate counsel so he could appeal
such order. On April 20, 2007, the trial judge granted petitioner’s request for appellate counsel.
People v Chapman, No. 97-006171-FC (Lapeer County Circuit Court, April 20, 2007). On June
5, 2007, the trial court appointed Ronald Ambrose as appellate counsel and required the
transcripts from the plea and sentencing to be produced by the court reporter. People v Chapman,
No. 97-006171-FC (Lapeer County Circuit Court, June 5, 2007).
On April 22, 2008, petitioner’s appointed appellate counsel filed a motion to vacate
conviction, contending that the lengthy delay and lack of transcripts caused a due process
violation such that the convictions should be vacated. On May 19, 2008 the trial court heard oral
argument regarding petitioner’s motion to vacate conviction. Petitioner’s counsel indicated he
had not received the sentencing transcript or a transcript from the September 15, 1997 hearing.
The prosecutor indicated that he had a copy of the sentencing transcript. The judge noted that the
court reporter had married and moved out of state and that he was having a hard time locating
her. The judge said he would continue to attempt to locate the court reporter but, at defense
counsel’s request, the judge denied the motion without prejudice, indicating that he would
attempt to locate and have prepared the missing transcripts. (Tr. 5/19/08, pp. 3-10).
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On June 2, 2008, appointed appellate counsel filed a delayed application for leave to
appeal in the Court of Appeals. The Michigan Court of Appeals dismissed the application
stating:
The delayed application for leave to appeal filed June 2, 2008, is DISMISSED for
lack of jurisdiction because the application for leave to appeal was not filed within
12 months of the October 1997 judgment of sentence as required by MCR
7.205(F)(3) and the renewed request for appellate counsel that resulted in the order
of appointment of counsel was not made within 12 months of the judgment of
sentence as required by MCR 7.205(F)(4). See People v Houlihan, 480 Mich 1165
(2008), citing Simmons v Kapture, 516 F3d 450 (CA6, 2008), for the proposition that
Halbert v Michigan, 545 US 605; 125 S Ct 2582; 162 L Ed2d 552(2005) is not
retroactive.
People v Chapman, No. 285809 (Mich.Ct.App. June 18, 2008).
The Michigan Supreme Court subsequently denied petitioner leave to appeal. People v.
Chapman, 483 Mich. 887, 759 N.W.2d 879 (2009)(Kelly and Cavanagh, JJ, would grant leave to
appeal).
Petitioner subsequently filed a motion for relief from judgment, which was denied.
People v. Chapman, No. 97-006171-FC (Lapeer County Circuit Court, April 14, 2009). The
Michigan appellate courts denied petitioner leave to appeal. People v Chapman, No. 291707
(Mich. Ct. App. September 20, 2009); lv. den. 485 Mich. 1127, 780 N.W.2d 261 (2010).
Petitioner seeks a writ of habeas corpus on the following grounds:
The convictions and sentences should be vacated as a matter of due process of law,
U.S. Const. V & XIV; Const. Art. 1 Sec 17, where the trial judge erroneously denied
the appointment of appellate counsel for over nine years and where defendant has not
been supplied with the relevant transcripts.
II. STANDARD OF REVIEW
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act
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of 1996 (AEDPA), imposes the following standard of review for habeas cases:
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.
A decision of a state court is “contrary to” clearly established federal law if the state
court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law
or if the state court decides a case differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable
application” occurs when “a state court decision unreasonably applies the law of [the Supreme
Court] to the facts of a prisoner’s case.” Id. at 409. A federal habeas court may not “issue the
writ simply because that court concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at
410-11.
The Supreme Court has explained that “[A] federal court’s collateral review of a
state-court decision must be consistent with the respect due state courts in our federal system.”
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA thus imposes a ‘highly
deferential standard for evaluating state-court rulings,’and ‘demands that state-court decisions
be given the benefit of the doubt.’” Renico v. Lett, 130 S. Ct. 1855, 1862 (2010)((quoting Lindh
v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002)(per
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curiam)). “[A] state court’s determination that a claim lacks merit precludes federal habeas
relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011)(citing Yarborough v. Alvarado,
541 U.S. 652, 664 (2004)). The Supreme Court emphasized “that even a strong case for relief
does not mean the state court’s contrary conclusion was unreasonable.” Id. (citing Lockyer v.
Andrade, 538 U.S. 63, 75 (2003)). Furthermore, pursuant to § 2254(d), “a habeas court must
determine what arguments or theories supported or...could have supported, the state court’s
decision; and then it must ask whether it is possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a prior decision” of the Supreme
Court. Id.
“[I]f this standard is difficult to meet, that is because it was meant to be.” Harrington,
131 S. Ct. at 786. Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not
completely bar federal courts from relitigating claims that have previously been rejected in the
state courts, it preserves the authority for a federal court to grant habeas relief only “in cases
where there is no possibility fairminded jurists could disagree that the state court’s decision
conflicts with” the Supreme Court’s precedents. Id. Indeed, “Section 2254(d) reflects the view
that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice
systems,’ not a substitute for ordinary error correction through appeal.” Id. (citing Jackson v.
Virginia, 443 U.S. 307, 332, n. 5 (1979))(Stevens, J., concurring in judgment)). Thus, a
“readiness to attribute error [to a state court] is inconsistent with the presumption that state
courts know and follow the law.” Woodford, 537 U.S. at 24. Therefore, in order to obtain
habeas relief in federal court, a state prisoner is required to show that the state court’s rejection
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of his claim “was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington,
131 S. Ct. at 786-87.
III. DISCUSSION
The Court discusses petitioner’s related claims together for judicial economy. 2
Petitioner initially contends that he was denied due process because the trial judge
refused to appoint appellate counsel for him until 2007.
A defendant has an absolute right to be represented by counsel on his first appeal from
his conviction. Douglas v. California, 372 U.S. 353, 356 (1963); Penson v. Ohio, 488 U.S. 75,
83-83 (1988). The Sixth Amendment right to the effective assistance of trial counsel has been
extended to guarantee the effective assistance of counsel on the first appeal by right. Evitts v.
Lucey, 469 U.S. 387, 395-97 (1985).
In the present case, petitioner pleaded guilty. The Michigan State Constitution was
amended in 1994 to provide that “an appeal by an accused who pleads guilty or nolo contendere
shall be by leave of the court,”rather than by right. Mich. Const., Art. 1, § 20. In the aftermath
of this amendment, some trial court judges in Michigan began to deny appointed appellate
counsel to indigent defendants who had pleaded guilty or nolo contendere. See Kowalski v.
Tesmer, 543 U.S. 125, 127 (2004). A majority of the Michigan Supreme Court upheld the
constitutionality of this practice against challenges based on the Equal Protection and Due
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Respondent contends that the habeas petition should be dismissed as being untimely because it was not
filed in compliance with the statute of limitations found in 28 U.S.C. § 2244(d)(1). The Court need not resolve the
dispute over the timeliness of petitioner habeas application. Assuming without deciding that the current petition was
timely, petitioner’s habeas application fails on the merits. See Ahart v. Bradshaw, 122 F. App’x. 188, 192 (6th Cir.
2005).
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Process Clauses of the Fourteenth Amendment to the Federal Constitution. People v. Harris,
470 Mich. 882; 681 N.W.2d 653 (2004)(Kelly, J. dissenting and Cavanagh, J. would hold case
in abeyance pending the decision in Kowalski v. Tesmer, supra); People v. Bulger, 462 Mich.
495; 614 N.W. 2d 103 (2000)(Cavanagh, and Kelly, JJ., dissenting). The Michigan State
Legislature codified the practice of limiting the appointment of appellate counsel in guilty plea
cases to certain limited situations. See Mich. Comp. Laws § 770.3a.
In Halbert v. Michigan, 545 U.S. 605 (2005), the United States Supreme Court, based on
its holding in Douglas, held that the Due Process and Equal Protection Clauses of the
Fourteenth Amendment to the United States Constitution require the appointment of counsel for
defendants who have pleaded guilty or nolo contendere and who seek access to first-tier review
of their convictions in the Michigan Court of Appeals, even when such appeals are
discretionary, rather than as of right. Id. at 609-610.
In Simmons v. Kapture, 516 F.3d 450, 451 (6th Cir. 2008), the Sixth Circuit held that the
decision in Halbert did not apply retroactively to cases on collateral habeas corpus review. The
Sixth Circuit based its decision on Teague v. Lane, 489 U.S. 288 (1989), in which the Supreme
Court held that a state prisoner collaterally attacking his conviction may not rely on a new
constitutional rule announced after his conviction became final. Id. at 310-11. The Supreme
Court acknowledged that it is often difficult to determine when a case announces a new rule,
and therefore did not attempt to define the spectrum of what may or may not constitute a new
rule for retroactivity purposes. Id. at 301. However, a case is generally considered to announce
a new rule has when the decision “breaks new ground,” “imposes a new obligation on the States
or the Federal Government,” or “was not dictated by precedent existing at the time the
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defendant’s conviction became final.” Id. The Sixth Circuit in Simmons concluded that Teague
barred the retroactive application of Halbert on collateral review, because Halbert announced a
“new rule,” and that new rule neither decriminalized a class of conduct nor was it a “watershed”
rule. Simmons, 516 F.3d at 451.
“A state conviction and sentence become final for purposes of retroactivity analysis
when the availability of direct appeal to the state courts has been exhausted and the time for
filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally
denied.” Caspari v. Bohlen, 510 U.S. 383, 390 (1994).
Petitioner was sentenced on October 6, 1997. The Michigan Court of Appeals denied
petitioner’s application for leave to appeal on May 11, 1999. Petitioner did not seek review in
Michigan Supeme Court, and his time to do so expired 56 days later, on July 5, 1999. See Mich.
Ct. R. 7.302(C)(2). Any time that petitioner may have had to file a petition for certiorari expired
ninety days later on October 3, 1999. Giving petitioner the benefit of every possible doubt, his
conviction became final on that date. See United States v. Cottage, 307 F.3d 494, 498-99 (6th
Cir. 2002). Halbert was not decided by the United States Supreme Court until over five years
later, on June 23, 2005.
Petitioner’s conviction became final prior to the issuance of the Halbert decision.
Because Halbert does not apply retroactively to cases on collateral habeas corpus review, the
rule regarding a right to first-tier discretionary appeals is inapplicable to petitioner’s case.
Petitioner would therefore not be entitled to habeas relief on his claim that the trial court erred
in delaying the appointment of appellate counsel.
As a related claim, petitioner contends that the delays in appointing appellate counsel
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violated his right to a speedy appeal.
The Court is aware that the Sixth Circuit has held that a criminal defendant has the right
to a speedy appeal. See United States v. Smith, 94 F.3d 204, 206-08 (6th Cir. 1996); See also
Turner v. Bagley, 401 F.3d 718, 724-27 (6th Cir. 2005)(granting unconditional writ of habeas
corpus where habeas petitioner’s appeal had languished in the state appellate court for eleven
years). A habeas court, however, may only look at the holdings of the United States Supreme
Court as they existed at the time of the relevant state court decision to determine whether the
state court decision was contrary to, or an unreasonable application of, clearly established
federal law. Mitzel v. Tate, 267 F.3d 524, 530-31 (6th Cir. 2001). A habeas court cannot look to
the decisions of this circuit, or other courts of appeals, when deciding whether a state court’s
decision was contrary to, or an unreasonable application of, clearly established federal law. Id.
Although the Sixth Circuit has held that a criminal defendant has a right to a speedy appeal,
Sixth Circuit precedent does not constitute “clearly established Federal law, as determined by
the Supreme Court” and thus “cannot form the basis for habeas relief under [the] AEDPA.”
Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012). The Supreme Court has yet to recognize a
right to a speedy appeal. In the absence of any clearly established law from the Supreme Court
that a defendant has a right to a speedy appeal in a criminal case, petitioner would not be
entitled to habeas relief on his claim that he was denied the right to a speedy appeal. See Owens
v. McLaughlin, 733 F.3d 320, 329 (11th Cir. 2013); Hayes v. Ayers, 632 F.3d 500, 523 (9th Cir.
2011). Indeed, the dissenting judge in the Turner case noted that it was unclear whether a due
process right to speedy appeal could be the basis for habeas relief because such a right had not
been recognized by the Supreme Court. Turner, 401 F.3d at 728 (Guy, J., concurring in part and
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dissenting in part). Because the United States Supreme Court has yet to recognize a
constitutional right to a speedy appeal, petitioner is not entitled to habeas relief on this claim.
Petitioner lastly claims that his right to right to due process and a meaningful appeal was
violated because the transcripts from hearings conducted on September 15, 1997 and September
22, 1997 with regards to his motion to withdraw his guilty plea were never produced.
The Sixth Circuit has stated that “federal habeas relief based on a missing transcript will
only be granted where the petitioner can show prejudice.” See Scott v. Elo, 302 F.3d 598, 604
(6th Cir. 2002) (citing Bransford v. Brown, 806 F.2d 83, 86 (6th Cir. 1986)). Although the Sixth
Circuit has recognized the difficulty in demonstrating prejudice where the transcripts are
missing, a habeas petitioner must nonetheless “present something more than gross speculation
that the transcripts were requisite to a fair appeal.” See Bransford, 806 F.2d at 86.
Although a state must afford an indigent criminal defendant a record of sufficient
completeness to permit proper review of his claims on appeal, a “‘record of sufficient
completeness’ does not translate automatically into a complete verbatim transcript.” Mayer v.
City of Chicago, 404 U.S. 189, 194 (1971). Therefore, a state may find other means to afford
adequate and effective appellate review to indigent defendants, such as an agreed statement of
facts, a full narrative statement based on a court reporter’s notes or a judge’s notes, or a
bystander’s bill of exceptions. Id.
Petitioner has offered nothing other than gross speculation that the missing transcripts
were necessary for him to file a meaningful appeal. The transcripts from petitioner’s guilty plea
and sentence were transcribed. Subsequent to his sentencing, petitioner filed a written motion to
withdraw his guilty plea, which advanced arguments in support of his motion to withdraw. The
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trial judge issued a three page opinion denying the motion to withdraw, in which he gave
detailed reasons for the denial. Under the circumstances, petitioner has offered nothing other
than gross speculation that the missing transcripts were necessary for his appeal. Petitioner
failed to establish that he was denied due process or the right to meaningful appellate review.
The Court denies the petition for writ of habeas corpus. The Court also denies a
certificate of appealability. In order to obtain a certificate of appealability, a prisoner must make
a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To
demonstrate this denial, the applicant is required to show that reasonable jurists could debate
whether, or agree that, 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, 483-84 (2000). When a district court rejects a habeas petitioner’s constitutional
claims on the merits, the petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims to be debatable or wrong. Id. at 484. “The
district court must issue or deny a certificate of appealability when it enters a final order adverse
to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254.
For the reasons stated in this opinion, the Court denies petitioner a certificate of
appealability because reasonable jurists would not find this Court’s assessment of petitioner’s
claims to be debatable or wrong. Johnson v. Smith, 219 F. Supp. 2d 871, 885 (E.D. Mich. 2002).
The Court also denies petitioner leave to appeal in forma pauperis, because the appeal would be
frivolous. Allen v. Stovall, 156 F. Supp. 2d 791, 798 (E.D. Mich. 2001).
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IV. CONCLUSION
Accordingly, the Court DENIES WITH PREJUDICE the petition for a writ of habeas
corpus. The Court further DENIES a certificate of appealability and leave to appeal in forma
pauperis.
SO ORDERED.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: December 9, 2013
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party
of record herein by electronic means or first class U.S. mail on December 9, 2013.
s/Deborah Tofil
Case Manager
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