Cooper v. Palmer
OPINION AND ORDER Denying 1 Petition for Writ of Habeas Corpus filed by James Cooper; and Denying a Certificate of Appealability, Signed by District Judge John Corbett O'Meara. (WBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case Number: 5:16-CV-11125
HONORABLE JOHN CORBETT O’MEARA
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY
This matter is before the Court on Petitioner James Cooper’s pro se petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of assault
with intent to murder, MICH. COMP. LAWS § 750.83, torture, MICH. COMP. LAWS §
750.85, and first-degree home invasion, MICH. COMP. LAWS § 750.110a(2). Petitioner
raises four claims for habeas corpus relief. Respondent, through the Attorney General’s
Office, has filed an answer in opposition arguing that one of Petitioner’s claims is
procedurally defaulted and that all of the claims lack merit. The Court finds no basis for
habeas corpus relief and denies the petition.
Petitioner’s convictions arise from the assault of Henry Merritt at his home in
Adrian, Michigan on December 30, 2012. The Michigan Court of Appeals described the
evidence adduced at trial as follows:
In December 2012, the victim, Henry Merritt, allowed his adult daughter,
Jessica Tabernero, and her daughter to live in his home with him.
Tabernero had a bad drug addiction. After her work ended at a local bar in
the early morning hours of December 30, 2012, Tabernero went to the home
of defendant’s brother-in-law, Eric Williams, where defendant also lived,
and began using crack cocaine. Also present were defendant; defendant’s
wife, Leah Cooper; Williams; and Jessica Miller. All were, and had been,
ingesting significant amounts of crack cocaine. Soon after her arrival,
defendant asked Tabernero to have sex with Leah as a birthday present to
her; she agreed, and after doing so she exited the room and began showing
signs of overdosing. While in that condition she stated that her father had
raped her. Hearing this, defendant asked for her father’s name and address,
left the house and picked up Leondre McCarver, defendant’s drug supplier,
and proceeded to Merritt’s home.
Thus, in the early morning of December 30, 2012, Merritt heard a noise that
sounded like a loud boom coming from his kitchen. Merritt went to his
kitchen and saw two men, a black man and a white man. Merritt identified
the white man as defendant, though he had never seen either man before.1
Merritt asked the two men why they were in his home, to which they
responded, “‘We’re here to do a job.’” After this interaction, Merritt was
“subdued by both of them and beat unmercifully around [his] face area.”
The men then took Merritt to his bedroom, where defendant accused Merritt
of having sex with Tabernero. Merritt told them that he did not have sex
with his daughter,2 but that his ex-wife’s husband had done so.
Undeterred by Merritt’s statement, both men continued to beat and choke
Merritt while also continuing to accuse him of having sex with Tabernero.
Defendant told Merritt that if he had “anything to do with sex” in his home,
defendant was going to kill him. After this, Merritt was in and out of
consciousness. Eventually, the two men dragged Merritt to the bathroom,
“[f]orcibly,” with a belt around his neck. Defendant and McCarver
continued to beat Merritt in the bathroom.
Defendant then put Merritt in the bathtub, continued punching Merritt, and
told McCarver to get a gas can that was just outside Merritt’s house.
Defendant then doused Merritt with gasoline and said, “‘You’re going to
feel it, you’re going to feel the wrath of me, you’re going to feel the pain.’”
Defendant then lit Merritt on fire. Merritt’s neck was the only part of his
body that caught on fire.
Merritt prayed “the whole time out loud and to [himself] asking God to help
[him]....” The pain from the fire was indescribably hot, and Merritt endured
the heat until the gasoline burned itself out. To help with the pain, Merritt
turned on the shower. Defendant reacted violently after Merritt turned on
the water, punching him repeatedly. After that, defendant repeatedly hit
Merritt’s head with a hammer. Merritt was lit on fire again, burning his
neck and upper back. Eventually, defendant and McCarver left the
bathroom, and Merritt moved a dresser to block the bathroom door.
However, both men obtained reentry after they broke the door down.
Eventually, defendant and McCarver left. The damage to Merritt’s body
was horrific. His middle finger was sliced off and he was stabbed in the
arm either with a knife or the claw of a hammer. Merritt’s arm was broken,
his neck and the top part of his shoulders were burnt, and his face was
bloody and swollen. Before getting help for his injuries, Merritt went
downstairs in his home to smoke a cigarette. After he finally3 lit the
cigarette, Merritt went outside and called for help; Merritt’s neighbors,
Laurie Damon and Tori Helsel, came to his rescue. Both testified that his
injuries were so horrific that they were surprised that he could talk. Merritt
was evacuated by helicopter to a hospital.
Merritt was shown a photo array before trial and selected defendant
Tabernero subsequently indicated that this was true. Merritt had not raped
Despite being soaked in gasoline, Merritt did not catch himself on fire.
When asked if he was able to light his cigarette, Merritt explained: “Yeah,
but my finger that was cut off, hanging off, the end of my finger, by doing
this it put it out, the cigarette out.” The blood from Merritt’s missing finger
was putting the cigarette out.
People v. Cooper, 309 Mich. App. 74, 76-79 (Mich. Ct. App. Jan. 22, 2015).
Following a jury trial in Lenawee County Circuit Court, Petitioner was convicted
of assault with intent to murder, torture, and first-degree home invasion. On August 14,
2013, Petitioner was sentenced as a twelfth-offense habitual offender to 320 to 640
months’ imprisonment for first-degree home invasion, life imprisonment for assault with
intent to commit murder, and 900 to 1,800 months’ imprisonment for torture.
Petitioner filed an appeal of right in the Michigan Court of Appeals raising these
claims: (i) defense counsel was ineffective in eliciting testimony regarding Petitioner’s
alleged drug dealing and prior assault of a prosecution witness; (ii) the prosecutor
improperly vouched for the credibility of prosecution witnesses and defense counsel was
ineffective for failing to object; and (iii) defense counsel was ineffective in failing to
cross-examine accomplice about plea agreement. Petitioner also filed a motion for
remand. The trial court granted the motion to remand to allow Petitioner to file a motion
for new trial and for the trial court to conduct an evidentiary hearing on the ineffective
assistance of counsel claims. People v. Cooper, No. 318159 (Mich. Ct. App. May 6,
2014), ECF No. 8-11, Pg. ID 1036. Following an evidentiary hearing pursuant to People
v. Ginther, 390 Mich. 436 (1973), the trial court denied the motion for new trial. 7/30/14
Op. & Order, ECF No. 8-11, Pg. ID 1184-1190. The Michigan Court of Appeals then
affirmed Petitioner’s convictions. Cooper, 309 Mich. App. at 91. The Michigan
Supreme Court denied Petitioner’s application for leave to appeal. People v. Cooper, 498
Mich. 896 (Mich. 2015).
Petitioner then filed the pending habeas petition. He raises these claims:
Defense trial counsel was constitutionally ineffective in failing to object to,
or actually eliciting, irrelevant and unfairly prejudicial evidence that
appellant was involved in drug dealing and had assaulted a prosecution
Prosecutor vouched for witness testimony.
Ineffective trial counsel for eliciting testimony that I assaulted a prosecution
Ineffective trial counsel for failing to cross examine alleged accomplice
about facing life.
Review of this case is governed by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”). Under the AEDPA, a state prisoner is entitled to a writ of
habeas corpus only if he can show that the state court’s adjudication of his claims –
(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 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
(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 408. “[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 411.
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, 559 U.S. 766,
773 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n. 7 (1997); Woodford v.
Visciotti, 537 U.S. 19, 24 (2002) (per 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, 562
U.S. 86, 101 (2011). The Supreme Court has emphasized “that even a strong case for
relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102.
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 th[e Supreme] Court.” Id.
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” Supreme Court precedent. 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.
(quoting Jackson v. Virginia, 443 U.S. 307, 332 n. 5 (1979)) (Stevens, J., concurring)).
Therefore, in order to obtain habeas relief in federal court, a state prisoner is required to
show that the state court’s rejection 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.” Id. at 103, 131 S. Ct. at 786–87.
Additionally, a state court’s factual determinations are entitled to a presumption of
correctness on federal habeas review. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut
this presumption with clear and convincing evidence. See Warren v. Smith, 161 F.3d 358,
360-61 (6th Cir. 1998). Moreover, habeas review is “limited to the record that was before
the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
Ineffective Assistance of Counsel Claims
Petitioner’s first, second, and fourth claims raise allegations of ineffective
assistance of counsel. Petitioner argues that his defense attorney’s performance was
deficient because counsel: failed to object to and elicited irrelevant and prejudicial
testimony regarding Petitioner’s drug dealing; elicited testimony that Petitioner
previously assault a prosecution witness; and failed to cross-examine Leondre McCarver.
The AEDPA “erects a formidable barrier to federal habeas relief for prisoners
whose claims have been adjudicated in state court.” Burt v. Titlow, — U.S. — , 134 S.
Ct. 10, 16 (2013). The standard for obtaining relief is “‘difficult to meet.’” White v.
Woodall, — U.S. —, 134 S. Ct. 1697, 1702 (2014), quoting Metrish v. Lancaster, 569
U.S. —, —, 133 S. Ct. 1781, 1786 (2013). In the context of an ineffective assistance of
counsel claim under Strickland v. Washington, 466 U.S. 668 (1984), the standard is “all
the more difficult” because “[t]he standards created by Strickland and § 2254(d) are both
highly deferential and when the two apply in tandem, review is doubly so.” Harrington,
562 U.S. at 105 (internal citations and quotation marks omitted). “[T]he question is not
whether counsel’s actions were reasonable”; but whether “there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Id.
An ineffective assistance of counsel claim has two components. A petitioner must
show that counsel’s performance was deficient and that the deficiency prejudiced the
defense. Strickland, 466 U.S. at 687. To establish deficient representation, a petitioner
must demonstrate that counsel's representation “fell below an objective standard of
reasonableness.” Id. at 688. In order to establish prejudice, a petitioner must show that,
but for the constitutionally deficient representation, there is a “reasonable probability”
that the outcome of the proceeding would have been different. Id. at 694.
In his first ineffective assistance of counsel claim, Petitioner argues that his
attorney erred in eliciting testimony from prosecution witness Laurie Damon that she
knew Petitioner from her “past” because her child’s father, Mike Wotring, had purchased
pills from Petitioner. She had never met Petitioner in person, but was sure he was the
same person who had given pills to Wotring a decade earlier. At the Ginther hearing,
defense counsel testified that he did not consider Damon a critical witness and thought
that she had Petitioner confused with someone else. Defense counsel explained that he
elicited this testimony from Damon in an attempt to show that she never actually met
Petitioner and may have been confused. Defense counsel acknowledged that he was
unable to show that Damon was mistaken in her belief that Petitioner was the person who
sold pills to Wotring. The Michigan Court of Appeals held that counsel’s decision to
elicit this testimony was not ineffective. Cooper, 309 Mich. App. at 81-82. Defense
counsel had a sound trial strategy for eliciting this testimony – an attempt to discredit
Damon as a witness. Id. In addition, in a statement to police detective Luann Bearden,
Petitioner admitted that he used a lot of crack cocaine on the night of the attack. Thus, his
involvement with drugs was before the jury on his own statement. Id. He was not
prejudiced by the brief reference to drug activity a decade before his crimes. “Counsel is
strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at
690. Petitioner has not shown that the decision of the state court was contrary to or an
unreasonable application of Strickland.
Next, Petitioner argues that his defense counsel was ineffective in failing to object
to the prosecutor’s questioning of Detective Bearden regarding searches of two residences
with which Petitioner was associated and the recovery of narcotics from at least one of
the residences. The Michigan Court of Appeals held that Petitioner could not show that
he was prejudiced by this testimony because of Petitioner’s own admissions that he used
drugs. Cooper, 309 Mich. App. at 82-83. This Court agrees. In light of Petitioner’s
statement admitting to drug use and the overwhelming evidence against Petitioner, the
Court discerns no way in which the absence of this testimony would have created a
reasonable probability of a different result. Habeas relief is denied on this claim.
Petitioner also challenges defense counsel’s handling of defense witness Jessica
Miller. Petitioner alleges that defense counsel opened the door to Miller testifying that
Petitioner had previously assaulted her when she was high on drugs. The Michigan Court
of Appeals reviewed defense counsel’s Ginther hearing testimony and found no
Pursuant to defense trial counsel’s questioning, Miller testified that she had
worried, in the past, about her safety whenever she did drugs with defendant
because defendant had assaulted her when she was high on crack cocaine.
At the Ginther hearing, defense trial counsel explained that his strategy in
questioning Miller was to attack her credibility by focusing on her drug use,
particularly her heavy use of crack cocaine, and how it impacted her
perception. Also, defense trial counsel explained the decision and strategy
in questioning Miller about the time defendant assaulted her:
I discussed with Mr. Cooper the down side to asking those
types of questions. I had some interaction with Miss Miller, I
had interviewed her and I had also seen different recorded
statements and she was hysterical and her statements often
shifted. And part of [the discussion] about the prior alleged
assault by Mr. Cooper was to show that she was hysterical
and that she, and this was something that Mr. Cooper kind of
relayed to me, that she remembered things in this kind of
grandiose way and that, you know, after she was not high for
a while, that maybe she would remember that it didn’t quite
happen the way that she perceived it to at the time. So what
we were trying to show, and I had actually talked to Miss
Miller a little bit about it, is that—is that there was an assault
and that the assault that—well, that there wasn’t an assault;
that she believed there was an assault and played it up in her
head but now that she was sober she realized that that’s not
exactly what had happened and that she was hysterical at the
time that this thing—these things were going on. We were
trying to attack her credibility.
As part of this strategy, trial counsel also elicited testimony from Miller that
she was bipolar.
Defense trial counsel’s questioning of Miller did allow Miller to testify
about her fear of defendant because he had previously assaulted her.
However, this was a consequence of the overall trial strategy in questioning
Miller—which was to point out Miller’s heavy use of drugs and how it
affected her perceptions. “A failed strategy does not constitute deficient
performance.” People v. Petri, 279 Mich. App. 407, 412, 760 N.W.2d 882
(2008). Thus, defense trial counsel’s performance did not constitute
Cooper, 309 Mich. App. at 83-84.
The record supports the Michigan Court of Appeals’ holding that defense
counsel’s decision to cross-examine Miller about her claim that Petitioner assaulted her
was made at the urging of Petitioner and in furtherance of an attempt to impeach Miller.
Counsel was able to elicit testimony that Miller had a diagnosed mental disorder and that
she used illicit drugs. The record supports the Michigan Court of Appeals’ decision that
counsel’s cross-examination of Miller was based upon a reasonable strategic decision.
Moreover, Petitioner has not shown that he was prejudiced by this testimony. Habeas
relief is denied on this claim.
Petitioner next argues that counsel was ineffective in failing to object to Leondre
McCarver’s testimony that Petitioner was his best customer and purchased $500 to
$1,000 worth of crack cocaine from him each day. At the Ginther hearing, defense
counsel testified that he did not object to this testimony because he felt that the estimate
of $500 to $1,000 a day was so high as to be ridiculous. He believed that allowing that
testimony hurt McCarver’s credibility. The Michigan Court of Appeals held that defense
counsel’s decision not to object was reasonable trial strategy because it provided him a
means of challenging McCarver’s credibility. Cooper, 309 Mich. App. at 85. The state
court’s decision was not contrary to or an unreasonable application of Supreme Court
precedent. The evidence against Petitioner was very strong and his defense weak.
Defense counsel had to proceed within the limitations presented by the circumstances of
the case. Habeas relief is denied on this claim.
Finally, Petitioner argues that defense counsel was ineffective in failing to crossexamine McCarver about the plea agreement he received in exchange for his testimony.
McCarver testified on direct examination that the plea agreement reduced the charges he
had been facing down to one felony charge that carried a maximum penalty of ten years’
imprisonment. Petitioner argues that defense counsel should have cross-examined
McCarver about the life sentence he would have faced had the plea agreement not been
entered and the other charges dismissed.
Defense counsel explained during the Ginther hearing that he did not crossexamine McCarver on his plea bargain because that information was already before the
jury and he already had introduced in his opening statement the motives that certain
witnesses had for testifying. The Michigan Court of Appeals held that, even assuming
that defense counsel should have cross-examined McCarver on this point, Petitioner could
not show that he was prejudiced by counsel’s error. Cooper, 309Mich. App. at 86-87.
The record fully supports this finding because the jury was aware of the plea agreement,
if not all of its terms, and because the evidence against Petitioner was overwhelming.
The jury was aware that McCarver testified pursuant to a plea agreement that reduced the
crimes with which he was charged, and the implication that he may have been testifying
to save himself. Merritt positively identified Petitioner as the person who assaulted him.
Jessica Miller testified that Tabernero gave Petitioner her father’s address after telling
everyone that her father had sexually assaulted her. Before leaving, Petitioner told
Tabernero she would not have to worry about her father anymore. Miller also testified
that she answered a phone call on Tabernero’s cell phone later in the evening. It was
Petitioner calling and he asked to speak to Tabernero. After Tabernero spoke to
Petitioner she handed the phone back to Miller. Miller heard Petitioner say, “This is what
it sounds like when my hand’s around his throat.” Tr. II, at 158. She also heard Merritt
say, “I swear I would never do that to my daughter.” Id. at 159. Given all of this
evidence, Petitioner has failed to show that he was prejudiced by counsel’s failure to
cross-examine McCarver on the specific reduction in sentence exposure he received as
part of his plea deal. Habeas relief is denied.
Prosecutorial Misconduct Claim
Finally, Petitioner seeks habeas corpus relief on the ground that the prosecutor
engaged in misconduct by vouching for the credibility of two prosecution witnesses:
Jessica Miller and Leondre McCarver. Respondent argues that this claim is procedurally
defaulted. “[F]ederal courts are not required to address a procedural-default issue before
deciding against the petitioner on the merits.” Hudson v. Jones, 351 F.3d 212, 215 (6th
Cir. 2003), citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997). “Judicial economy
might counsel giving the [other] question priority, for example, if it were easily resolvable
against the habeas petitioner, whereas the procedural-bar issue involved complicated
issues of state law.” Lambrix, 520 U.S. at 525. In this case, the Court finds that the
interests of judicial economy are best served by addressing the merits of this claim.
The prosecutor elicited testimony from prosecution witnesses Jessica Miller and
Leondre McCarver that each had pleaded guilty pursuant to plea agreements that required
each to provide truthful testimony. The Michigan Court of Appeals held that the
prosecutor’s questions were not improper because the prosecutor did not intimate that he
had some special information, not disclosed to the jury, that the witness was testifying
truthfully or make any additional comments about these witnesses’ credibility. Cooper,
309 Mich. App. at 90-91.
The “clearly established Federal law” relevant to a habeas court’s review of a
prosecutorial misconduct claim is the Supreme Court’s decision in Darden v. Wainwright,
477 U.S. 168, 181 (1986). Parker v. Matthews, 567 U.S. 37, —, 132 S. Ct. 2148, 2153
(2012). In Darden, the Supreme Court held that a “prosecutor’s improper comments will
be held to violate the Constitution only if they ‘so infected the trial with unfairness as to
make the resulting conviction a denial of due process.’” Id. quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)). This Court must ask whether the Michigan
Court of Appeal’s decision denying Petitioner’s prosecutorial misconduct claims “‘was so
lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.’” Id. at 2155, quoting
Harrington, 562 U.S. at 103.
“‘Improper vouching occurs when a prosecutor supports the credibility of a
witness by indicating a personal belief in the witness’s credibility thereby placing the
prestige of the [prosecutor’s office] behind that witness.’” U.S. v. Trujillo, 376 F.3d 593,
607 (6th Cir. 2004), quoting U.S. v. Martinez, 253 F.3d 251, 253-54 (6th Cir. 2001). In
Trujillo, the prosecutor asked one prosecution witness whether her plea agreement
required her “truthful cooperation.” Id. at 608. Another prosecution witness testified that
her plea agreement required her to “tell the truth.” Id. The Sixth Circuit Court of
Appeals held that the prosecutor’s questions to these two witnesses “merely encompassed
the terms of [their] plea agreements which this Court has held to be permissible,” and,
therefore, did not amount to improper vouching. Id. at 609.
In this case, the prosecutor’s examination of Miller and McCarver merely asked
them to confirm the terms of their plea agreements. The prosecutor did not imply any
specialized knowledge of whether the witnesses testified truthfully. The Michigan Court
of Appeals’ decision finding no misconduct is amply supported in the record.
Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed
unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of
the Rules Governing Section 2254 Proceedings now requires that the Court “must issue or
deny a certificate of appealability when it enters a final order adverse to the applicant.” A
COA may be issued “only if the applicant has made a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2). The substantial showing threshold is
satisfied when a petitioner demonstrates “that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,
529 U.S. 473, 484 (2000).
In this case, the Court concludes that reasonable jurists would not debate the
Court’s conclusion that none of the claims in the habeas petition warrant relief.
Therefore, the Court denies a certificate of appealability.
The petition for a writ of habeas corpus and a certificate of appealability are
DENIED and the matter is DISMISSED WITH PREJUDICE.
s/John Corbett O’Meara
United States District Judge
Date: April 14, 2017
I hereby certify that a copy of the foregoing document was served upon the parties
of record on this date, April 14, 2017, using the ECF system and/or ordinary mail.
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