Scott v. United States of America

Filing 9

ORDER: For the reasons discussed above, the Court dismisses Petitioner's Petition for Writ of Habeas Corpus. As Petitioner has not made a substantial showing of the denial of a constitutional right, a Certificate of Appealability shall not be issued, see 28 U.S.C. § 2253(c)(2); Lucidore v. NY State Div. of Parole, 209 F.3d 107, 111-12 (2d Cir. 2000), and the Court further certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this judgment on the merits would not be taken in good faith, see Coppedge v. United States, 369 U.S. 438, 445 (1962) ("We consider a defendant's good faith...demonstrated when he seeks appellate review of any issue not frivolous."); Burda Media Inc. v. Blumenberg, 731 F. Supp. 2d 321, 322-23 (S.D.N.Y. 2010) (citing Coppedge and finding that an appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith). The Clerk of the Court is respectfully directed to enter a judgment in favor of respondent and to close this case. SO ORDERED. (Signed by Judge Kenneth M. Karas on 11/14/2019) (jca) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

DAVID TERRELL SCOTT,
Petitioner,
Case No. 16-CV-4262 (KMK)
Case No. 12-CR-909 (KMK)

V.

UNITED STATES OF AMERICA,
ORDER
Respondent.

KENNETH M. KARAS, United States District Judge:
Prose petitioner David Scott ("Petitioner") has filed a Petition, pursuant to 28 U.S .C.

§ 2255, to vacate, set aside or correct his sentence (the "Petition"). (See Petition ("Pet.") (Dkt.
No. 1.)) 1 For the reasons stated herein, the Petition is denied.
I. BACKGROUND
On October 16, 2012, Scott was charged by federal complaint with distributing and
possessing with intent to distribute 28 grams or more of crack cocaine, in violation of Title 21,
United States Code, Sections 812, 841(a)(l), and 841(b)(l)(B). He was subsequently indicted on
the same charge by a grand jury. (Gov't Mem. in Opp' n to Pet. ("Gov't Mem.") Ex. B ("2012
Indictment") (Dkt. No. 8-2).) Following his federal indictment, the state charges arising out of
the June 6, 2012 search were dismissed. Laboratory results subsequently demonstrated that, in
fact, the crack cocaine recovered from Scott' s residence weighed less than 28 grams. The
Government advised defense counsel of such, and on April 9, 2013 , Petitioner waived indictment
and a superseding information was filed, charging him with distributing and possessing with

1

Docket numbers refer to the civil docket, Case No. 16-CV-4262, unless noted

othrrwi~e.

intent to distribute crack cocaine in an unspecified amount, in violation of Title 21, United States
Code, Sections 812, 841(a)(l), and 841(b)(l)(C). (Gov't Mem. Ex. C ("2013 Charge") (Dkt. No.
8-3).)
In the course of discovery, the Government not only produced documents relating to the
June 6, 2012 search, but also produced discovery related to 15 controlled purchases of narcotics
from Petitioner that occurred between July 2011 and May 2012. (Gov't Mem. Ex. D. ("Field
Test Affs.") (Dkt. No. 8-4).)
On April 24, 2013, Petitioner moved to suppress the fruits of the June 6, 2012 search
warrant on the grounds that the information contained in the affidavit in support of that warrant
was stale and misleading. Petitioner also moved to suppress the identification of him by two
confidential informants referenced in the affidavit. Petitioner further sought a bill of particulars
and other discovery. (Gov't Mem. Ex. E. ("Pet'r's Mot.") (Dkt. No. 8-5).)
On May 29, 2013, Petitioner pled guilty to the superseding information, pursuant to a
plea agreement ("the Plea Agreement"). (Gov't Mem. Ex. F. ("Plea Tr.") (Dkt. No. 8-6).) On
January 16, 2014, the Court sentenced Petitioner. The Court found, consistent with the Plea
Agreement, that Petitioner's total offense level was 29, his Criminal History Category was VI,
and his Guidelines range was 151 to 188 months' imprisonment. (Gov't Mem. Ex. G
("Sentencing Tr.") 14-16 (Dkt. No. 8-7).) The Court imposed a sentence of 151 months '
imprisonment. (Id. at 21.) In setting forth the reasons for the sentence, the Court noted, "I don't
know that I have seen somebody with 22 criminal history points in the nearly ten years that I
have been at this job, and they are earned through consistency, that [Petitioner] gets out of jail
and then he violates the law and he goes back into jail." (Id. at 19.) The Court also explained

2

that this is "such an extraordinary, extraordinary situation ofrecidivism" and emphasized that the
Court had "never seen a case ofrecidivism like this before." (Id at 21, 24.)
Petitioner appealed the judgment, but the Second Circuit summarily affirmed. (Gov't
Mem. Ex. I. ("Affirmance") (Dkt. No. 8-8).)
IL DISCUSSION
A. Standard of Review of a Section 2255 Petition
A prisoner in federal custody may move to vacate, set aside or correct his sentence only
"upon the ground that the sentence was imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral
attack." 28 U.S.C. § 2255(a). 2 "Because collateral challenges are in tension with society's
strong interest in the finality of criminal convictions, the courts have established rules that make
it more difficult for a defendant to upset a conviction by collateral, as opposed to direct, attack."
Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010) (citation and quotation marks
omitted). To prevail on a collateral attack of a final judgment under § 2255, a petitioner must
demonstrate either the existence of a "constitutional error, ... or an error of law or fact that
constitutes a fundamental defect which inherently results in a complete miscarriage of justice."

2

Title 28 U.S.C. § 2255(a) provides:
A prisoner in custody under sentence of a court established by Act
of Congress claiming the right to be released upon the ground that
the sentence was imposed in violation of the Constitution or laws
of the United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.

3

United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (citations and quotation marks omitted);
accord Cuoco v. United States, 208 F.3d 27, 30 (2d Cir. 2000).

In ruling on a§ 2255 petition, the district court is required to hold a hearing "[u]nless the
motion and the files and records of the case conclusively show that the prisoner is entitled to no
relief." 28 U.S.C. § 2255(b); accord Gonzalez v. United States, 722 F.3d 118, 130 (2d Cir.
2013). A hearing is not required where the petitioner's allegations are "vague, conclusory, or
palpably incredible." Machibroda v. United States, 368 U.S. 487, 495 (1962). Instead, to justify
a hearing, the petition must set forth "specific facts supported by competent evidence, raising
detailed and controverted issues of fact that, if proved at a hearing, would entitle the petitioner to
relief." See Gonzalez, 722 F.3d at 131.
B. Analysis
Petitioner claims that both his state and federal counsel provided ineffective assistance.
(See generally Pet'r's Mem. in Supp. of Pet. ("Pet'r' s Mem.") (Dkt. No. 2).) In particular,

Petitioner contends that he is entitled to relief because his state court defense attorney did not
properly advise him regarding a plea offer in his state case. (Id. at 14-22.) He also claims that
his federal defense attorney rendered ineffective assistance by failing to raise a Fourth
Amendment challenge to a search warrant. (Id. at 22-24.)
1. Standard of Review of Ineffective Assistance Claims
Claims of ineffective assistance of counsel are evaluated under the framework set forth in
Strickland v. Washington, 466 U.S. 668, 687 (1984). "First, the [petitioner] must show that

counsel's performance was deficient." Strickland, 466 U.S. at 687. "Second, the [petitioner]
must show that the deficient performance prejudiced the defense." Id.

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Petitioner will not meet the frrst prong based solely on disagreements with counsel ' s
strategy or advice. Indeed, there is a "strong presumption" that counsel' s conduct fell within the
vast spectrum of reasonable assistance, and it is Petitioner' s burden to demonstrate "that
counsel ' s representation was unreasonable under prevailing professional norms and that the
challenged action was not sound strategy." Kimmelman v. Morrison, 477 U.S. 365, 381 (1986)
(citation omitted); see also Bonilla v. Lee, 35 F. Supp. 3d 551, 575 (S.D.N.Y. 2014) (same);

Henderson v. Martuscello , No. 10-CV-5135, 2013 WL 6463348 , at *15 (S .D.N.Y. Dec. 10,
2013) (" Strategic choices made after thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable, even where counsel adopts a course of action (or inaction)
that seems risky, unorthodox[,] or downright ill-advised." (citation, alteration, and quotation
marks omitted)). Thus, to satisfy this prong, Petitioner must demonstrate that counsel "made
errors so serious that counsel was not functioning as the 'counsel ' guaranteed .. . by the Sixth
Amendment." Strickland, 466 U.S . at 687. In assessing counsel's conduct, "a reviewing court
must judge his conduct on the basis of the facts of the particular case, ' viewed as of the time of
counsel' s conduct,' and may not use hindsight to second-guess his strategy choices." Mayo v.

Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (citations omitted) (quoting Strickland, 466 U.S . at
690).
With respect to the "prejudice" prong, "the defendant must show that there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
below would have been different." United States v. Caracappa, 614 F.3d 30, 46 (2d Cir. 2010)
(citation, alteration, and quotation marks omitted). "A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. "It is not
enough for the defendant to show that the errors had some conceivable effect on the outcome of

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the proceeding," as " [v]irtually every act or omission of counsel would meet that test, and not
every error that conceivably could have influenced the outcome undermines the reliability of the
result of the proceeding." Id. at 693 (citation omitted). '"[P]urely speculative' arguments about
the impact of an error do not establish prejudice." DeCarlo v. United States, No. 11-CV-2175,
2013 WL 1700921, at *4 (S.D.N.Y. Apr. 17, 2013 ) (alteration in original) (quoting United States
v. Weiss, 930 F.2d 185, 199 (2d Cir.1991)). Measuring this probability depends on the context of
the alleged error. Where the challenge is to a guilty plea on the basis of ineffective assistance of
counsel, the petitioner must show that "there is a reasonable probability that, but for counsel ' s
errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial."
United States v. Cuoto, 311 F.3d 179, 187 (2d Cir. 2002) (citation and quotation marks omitted),
abrogated on other grounds by Padilla v. Kentucky, 599 U.S. 356 (2010).
2. Ineffective Assistance of State Counsel
Petitioner asserts that counsel in his state court case was ineffective. In particular,
Petitioner claims that after he was initially charged in state court, the prosecution made a plea
offer that would have resulted in a term of imprisonment of eight years. According to Petitioner,
however, his counsel did not advise him that he would be charged federally if he declined the
offer. He thus declined the offer, was charged before this Court, and ultimately received a
sentence of 151 months ' imprisonment. Petitioner argues that his state counsel should have
advised him that he would be prosecuted in federal court if he failed to plead guilty in the state,
and that the failure to do so constitutes ineffective assistance under the Sixth Amendment.
Petitioner further contends that, had he known that a failure to plead in the state would result in
federal prosecution, he would have taken the state' s plea offer and received a sentence of at most
eight years' imprisonment. (Pet' r' s Mem. 4-18.)

6

Petitioner's claim lacks merit. The law is clear that a defendant cannot challenge the
effectiveness of counsel in a state criminal case through§ 2255. See Johnson v. United States,
Nos. 14-CV-1066, 1 l-CR-49, 2015 WL 6040306, at *3 (W.D. Mich. Oct. 15, 2015) ("Although
the Court cannot resolve this question of fact without a hearing, Movant' s contention that he was
denied effective assistance of counsel with respect to the state court action is not a basis for relief
in this § 2255 federal habeas action. A federal habeas action is not designed to remedy
violations in a separate state court action."); United States v. Waters, Nos. 13-CV-115, 11-CR100, 2013 WL 3949092, at *8 (E.D. Pa. July 31, 2013) ("As the Sixth Amendment right to
counsel is offense specific, we conclude that Waters's Sixth Amendment right to the effective
assistance of counsel did not attach to the federal charges asserted against him in this proceeding
until he was indicted by the federal grand jury in early 2011. ") (citation omitted)); United States
v. Daniels, Nos. 06-CV-1770, 06-CR-1770, 2007 WL 2668891, at *3 (W.D. La. May 30, 2007)

("To the extent that Daniels challenges the performance of his attorney in the state prosecution
prior to or following the motion to suppress, those claims are not properly raised in the context of
this§ 2255 motion." (footnote omitted)).
This conclusion flows from the fact that '"the Supreme Court has incorporated double
jeopardy analysis, including the dual sovereignty doctrine, into its Sixth Amendment
jurisprudence,"' and thus, the state case (a prosecution by one sovereign) necessarily could not
have triggered a right to counsel in the federal case (a prosecution by a different sovereign).
United States v. Worjloh, 546 F.3d 104, 109 (2d Cir. 2008) (quoting United States v. Avants, 278

F.3d 510,517 (5th Cir. 2002)). In the end, whatever happened in state court, in a separate
prosecution by the state, has no bearing on the proceedings before this Court, or the sufficiency
of counsel's performance in this case, thus dooming this claim.

7

Petitioner argues for a different result because he believes he was prosecuted in federal
court as part of "Project Exile." Petitioner describes "Project Exile" as a cooperative project
between federal and state prosecutors in which defendants (and their counsel) are told that
rejection of a state plea offer will result in federal charges. (Pet'r' s Mem. 6-7.) Based on this
predicate, Petitioner cites United States v. Morris, 470 F.3d 596 (6th Cir. 2006), in which the
Sixth Circuit held that federal habeas relief was warranted where
the United States Attorney' s Office was involved in deciding whether a plea offer
would be made available to Morris in state court, and the state court plea offer
included an agreement that Morris would not be prosecuted in federal court, even
though the state and federal governments could have chosen to pursue separate
prosecutions. Because the United States Attorney's Office made itself a party to
the state court plea offer, the district court was justified in enforcing the plea offer
against it based on traditional principles of contract law.

Id. at 600. This claim lacks any factual support here. Petitioner offers no evidence, and thus
does not create a disputed fact, that demonstrates that he was prosecuted as part of "Project
Exile," or that federal and state prosecutors cooperated in leveraging a plea from him. In the
absence of such evidence, Morris has no bearing on this case. See Johnson, 2015 WL 6040306,
at *3 ("This case bears no resemblance to Morris because Movant has not come forward with
any suggestion that the federal prosecutor was involved in deciding whether a plea offer would
be made available to Movant in state court, or that the state court plea offer included an
agreement that Movant would not be prosecuted in federal court."). Thus, Petitioner' s claim to a
hearing is wanting. Indeed, the cases Petitioner cites in support of his claim describe "Project
Exile" as a federal firearms program - meaning that the program focuses on bringing federal

firearms charges against those initially prosecuted in state court. (Pet' r' s Mem. 6, citing United
States v. Manuel, 64 F. App'x 823 , 827 (2d Cir. 2003) (summary order) (describing "Project
Exile" as "a federal program to prosecute firearm offenses").) See also Johnson v. United States,

8

Nos. 1 l-CV-2875, 07-CR-153, 2013 WL 4010662, at *4 (D. Md. Aug. 2, 2013) ("Project Exile
is a federal program that shifts the prosecutions of some gun possession offenses from state to
federal court."); United States v. Jones, 36 F. Supp. 2d 304, 307 (E.D. Va. 1999) ("The stated
goal of Project Exile is to reduce violent crime by federally prosecuting firearm-related crimes
whenever possible. Under Project Exile, local police review each firearm-related offense to
determine whether the conduct alleged also constitutes a federal crime."). However, in this case,
Petitioner was only charged with federal narcotics charges. 3 Thus, there is no basis upon which
to have a hearing on Petitioner's unsubstantiated claim.
3. Ineffective Assistance of Federal Counsel
Petitioner also argues that his counsel in the case before this Court was constitutionally
ineffective because he failed to challenge a portion of the affidavit in support of the state court
search warrant. (Pet'r's Mem. 22.) In paragraph 9 of that affidavit, the affiant described a
controlled buy conducted by a confidential informant ("CI-2") in the third week of May 2012.
The affiant stated in paragraph 10 that, in April 2012, CI-2 identified Petitioner as the person
who sold him the drugs. (Gov't Mem. Ex. A ("Search Warrant Aff.") 6 (Dkt. No. 8-1).)
Petitioner claims that his counsel should have challenged the affidavit on the ground that CI-2
could not have identified him in April, in connection with a controlled purchase that occurred in
May. (Pet' r' s Mem. 22.) In particular, Petitioner argues that "the search warrant application
was defective in that it did not provide reasonable cause to believe that there was recent credible
information establishing probable cause to believe that Mr. Scott, the target of the search warrant

Petitioner attempts to rescue this claim by asserting that "Project Exile" also "targets
violent repeat offenders with only pending state drug charges." (Pet'r' s Mem. 6 n.2). However,
Petitioner is not a "violent repeat offender," and no charging instrument alleged he is such. He
3

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9

had recently sold drugs to the Confidential Informant," and that the failure to pursue that claim
constituted ineffective assistance of counsel. (Id at 23.)
The claim fails. First, there is no basis to Petitioner's assertion that counsel's
performance with respect to the search was constitutionally deficient. To begin, a warrant
"issued by a neutral and detached magistrate is entitled to substantial deference, and doubts
should be resolved in favor of upholding the warrant." United States v. Rosa, 11 F.3d 315,326
(2d Cir. 1993) (citation and quotation marks omitted). Moreover, the "good faith" exception to
the exclusionary rule deprives a defendant of any suppression when evidence is "obtained in
objectively reasonable reliance on a subsequently invalidated search warrant." See United States
v. Leon, 468 U.S. 897, 922 (1984). In this case, the search warrant affidavit described numerous
instances in August 2011 when Petitioner emerged from the Residence to sell crack-cocaine to a
confidential informant. (Search Warrant Aff. 5-6.) This alone was sufficient to establish
probable cause for a search warrant in June 2012. See Rivera v. United States, 928 F.2d 592, 602
(2d Cir. 1991) ("In investigations of ongoing narcotics operations, we have held that intervals of
weeks or months between the last described act and the application for a warrant did not
necessarily make the information stale."); United States v. Rowell, 903 F.2d 899, 903 (2d Cir.
1990) ("Given the continuous nature of narcotics conspiracies ... the approximately 18-month
delay between procuring the informants' statements and seeking the wiretap warrant did not
render the information stale."). Indeed, probable cause for the search was even stronger given
that, as set forth in the affidavit (and as corroborated by a field test affidavit produced in
discovery), a controlled purchase of crack cocaine from an individual emerging from the
Residence occurred in the third week of May 2012. (Search Warrant Aff. 6; see also Field Test
Affs. DTS-85 (field test affidavit for the May 16, 2012 purchase of crack cocaine from

10

Petitioner).) Even if this Court had found that probable cause was lacking, at the very least it
would have found that the officers executing the search warrant acted in good faith under Leon,
and would not have suppressed the fruits of the search. In the end, Petitioner is conflating
probable cause to search the Residence with probable cause to arrest him. His claim is that the
affidavit did not establish probable cause that he sold CI-2 crack-cocaine in the third week of
May 2012. Putting aside the merits of that claim-it may be, as the Government contends, that
the affidavit contains a typographical error regarding the date of CI-2 ' s identification of the
defendant-whether or not CI-2 identified the defendant is ultimately irrelevant. Given the other
information in the affidavit regarding drug dealing linked to the Residence, law enforcement
officers could certainly rely in good faith on the search warrant for that location. See United
States v. Kurniawan, No. 12-CR-376, 2013 WL 180412, at *2 (S.D.N.Y. Jan. 17, 2013)
("Probable cause exists to issue a search warrant where, as here, under the totality of
circumstances, there is a fair probability that contraband or evidence of a crime will be found in a
particular location." (citation and quotation marks omitted)). 4

4

To the extent that Petitioner believes he would have obtained relief under Franks
v. Delaware, 438 U.S. 154 (1978), (see Pet'r' s Mem. 23), that claim is equally unavailing. "The
Franks standard is a high one," Rivera, 928 F.2d at 604, and to obtain relief under that standard
Petitioner would have to establish that "(1) the claimed inaccuracies or omissions [in the
affidavit] are the result of the affiant's deliberate falsehood or reckless disregard for the truth;
and (2) the alleged falsehoods or omissions were necessary to the issuing judge' s probable cause
finding. " See United States v. Canfield, 212 F.3d 713 , 717-18 (2d Cir. 2000) (citation and
quotation marks omitted). As to the first prong, "a defendant must show that the intent behind
the misstatement or omission was to mislead the judicial officer into approving the requested
warrant," and " an inaccuracy that is the result of negligence or innocent mistake is insufficient."

United States v. Lahey, 967 F. Supp. 2d 698, 709 (S.D.N.Y. 2013) (citation, alterations, and
quotation marks omitted). As to the second prong, " [t]o determine if misrepresentations or
omissions are material, a court corrects the errors and then resolves de novo whether the
hypothetical corrected affidavit still establishes probable cause." Id. at 711 (citation omitted).
Petitioner could not have met either requirement. While the statement in the affidavit
that CI-2 identified Petitioner in the fourth week of April 2012 is confusing (or even mistaken),
the),"¥ 9® l;,¥ nQ

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11

Second, even if federal counsel was ineffective in failing to challenge the search,
Petitioner has not established any prejudice from counsel's performance. Putting aside the
confidential informant's supposed identification of Petitioner, that is discussed in the affidavit,
the Government had ample evidence of Petitioner's narcotics trafficking, including 15 controlled
purchases from him over a year's time. (See generally Field Test Affs.) A conviction from any
one of those buys would have qualified Petitioner as a career offender (and a Guidelines range of
151-88 months' imprisonment). Thus, even a successful challenge to the search would not have
prevented the Government from charging Petitioner with up to 15 narcotics transactions, leaving
Petitioner in potentially more legal jeopardy. Thus, in the absence of any prejudice from
Petitioner's supposed ineffectiveness, Petitioner's claim fails.
III. CONCLUSION
For the reasons discussed above, the Court dismisses Petitioner's Petition for Writ of
Habeas Corpus.
As Petitioner has not made a substantial showing of the denial of a constitutional right, a
Certificate of Appealability shall not be issued, see 28 U.S.C. § 2253(c)(2); Lucidore v. NY

State Div. of Parole, 209 F .3d 107, 111-12 (2d Cir. 2000), and the Court further certifies,
pursuant to 28 U.S .C. § 1915(a)(3), that an appeal from this judgment on the merits would not be
taken in good faith, see Coppedge v. United States, 369 U.S. 438, 445 (1962) (" We consider a

approving the proposed warrant---on the contrary, by saying CI-2 identified Petitioner in the
fourth week of April 2012 (before the controlled buy) rather than after the controlled buy, the
affiant made it less likely that the judicial officer would approve the warrant. Simply put, the
facially-apparent error was unlikely to be an intentional effort to mislead. And, regarding
materiality, if paragraph 10 of the affidavit was excised entirely, there would still have been
probable cause to conduct the search. Thus, Petitioner would have been unable to obtain relief
under Franks.

12

defendant's good faith ... demonstrated when he seeks appellate review of any issue not
frivolous."); Burda Media Inc. v. Blumenberg, 731 F. Supp. 2d 321, 322-23 (S.D.N.Y. 2010)
(citing Coppedge and finding that an appeal may not be taken in forma pauperis if the trial court
certifies in writing that it is not taken in good faith).
The Clerk of the Court is respectfully directed to enter a judgment in favor of respondent
and to close this case.
SO ORDERED.

a,

2019
Dated: November
White Plains, New York

UNITED STATES DISTRICT JUDGE

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