Phelan v. Supr. Great Meadow Corr. Facility
Filing
15
DECISION AND ORDER denying petition for writ of habeas corpus and dismissing the petition. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 4/9/12. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
KENNETH J. PHELAN,
Petitioner,
DECISION AND ORDER
No. 11-cv-06127
-vsSUPERINTENDENT OF THE GREAT
MEADOW CORRECTIONAL FACILITY
Respondent.
________________________________
I.
Introduction
Pro se Petitioner Kenneth J. Phelan (“Petitioner”) has filed a
timely petition for a writ of habeas corpus under 28 U.S.C. § 2254,
seeking review of a determination by the Collins Correctional Facility
on November 11, 2009, following a Tier III disciplinary hearing,
imposing a penalty of six months confinement in a Special Housing Unit
(“SHU”), and recommending the loss of six months of “good time”
credits.
II.
Factual Background and Procedural History
A.
State Prison Disciplinary Proceedings
On October 30, 2009, Petitioner was issued an inmate misbehavior
report
at
Collins
Correctional
Facility
for
violating
Prison
Disciplinary Rule 109.15, which provides that “[a]n inmate shall accept
double-cell assignments when such an assignment is directed by facility
staff.”
7 N.Y. Comp. Codes R. & Regs. (“NYCRR”) § 270.2(B)(10)(vi).1
1
“Double cell housing” is defined as a “maximum or medium security cell .
. . originally designated to accommodate a single inmate that has been equipped
The misbehavior report alleged that when Petitioner was ordered to
“secure himself . . . to accept a double-cell assignment,” he refused.
See Resp’t Ex. A (Collins Correctional Facility Inmate Misbehavior
Report).
On November 11, 2009, hearing officer Captain S. Eckert presided
over a Tier III disciplinary hearing2 at the Collins Correctional
Facility regarding the charge that Petitioner refused to accept a
double-cell assignment. See Resp’t Exs. B (Waiver of Assistance Form),
C (Hr’g Mins.), D (Hr’g Record Sheet).
Petitioner was advised of his
rights and responsibilities and he stated that he understood them. See
Resp’t Ex. C at 1.
Petitioner waived his right to the assistance of a
“tier assistant”, which waiver Petitioner confirmed on the hearing
record.
See
Resp’t
Exs.
B,
C
at
1.
Captain
Eckert
read
the
October 30, 2009 misbehavior report into the record and Petitioner
pleaded not guilty to the charge.
See Resp’t Ex. C at 1-2.
Captain Eckert heard testimony from Petitioner as well as from
Corrections
Officer
misbehavior report.
(“C.O.”)
R.
Hagedorn,
See Resp’t Ex. C.
who
had
issued
the
At the conclusion of the
hearing, Captain Eckert found Petitioner guilty of refusing to accept
to accommodate two inmates . . . .”
7 NYCRR § 1701.2.
2
In the New York prison system, three types of disciplinary hearings are
conducted.
See NYCRR § 270.3.
Tier I hearings address the least serious
infractions and can result in minor punishments such as the loss of recreation
privileges. Tier II hearings involve more serious infractions, and can result
in penalties which include confinement for a period of time in the SHU. Tier III
hearings concern the most serious violations and can result in unlimited SHU
confinement and the loss of “good time” credits. See Hynes v. Squillace, 143
F.3d 653, 655 (2d Cir. 1998); Walker v. Bates, 23 F.3d 652, 654 (2d Cir. 1994).
-2-
a double-cell assignment, based on the misbehavior report and the
testimony
of
Disposition).
C.O.
Hagedorn.
See
Resp’t
Exs.
C
at
5,
E
(Hr’g
Captain Eckert found as follows: “It is stipulated that
[Petitioner] did receive a double-cell assignment after this incident.
However, the initial orders must be followed without argument. Reasons
for this disposition is to impress upon [Petitioner] that all orders
regarding double-celling must be followed.
The fact that [Petitioner]
is currently double-celled mitigates the disposition imposed.” Captain
Eckert
also
observed
that
this
was
Petitioner’s
disposition for refusing double celling.”
“third
guilty
Captain Eckert imposed a
penalty of six months confinement in the SHU, but suspended four of the
months so that Petitioner would serve only two months.
Captain Eckert
also recommended the loss of six months of “good time” credit.3
See
Resp’t Ex. C at 5-6.
B.
The Administrative Appeal
Petitioner
administratively
appealed
the
results
of
the
disciplinary hearing on the following grounds: (1) that “a mental
health assessment should have been done since [Petitioner] [had] a
documented disability and [was] on psyche meds”; (2) “Petitioner was
3
“For all inmates serving determinate or indeterminate sentences
(other than life sentences) who are not granted parole or reparole, but who
nevertheless have performed well within the correctional facilities, good
behavior allowances can be used to obtain release under supervision and to
demonstrate prior to expiration of the term of the sentence that they can
follow acceptable behavior patterns in the community as well as in a
correctional facility.” 7 NYCRR § 260.1(c). Good behavior allowances “may be
granted for good behavior and efficient and willing performance of duties
assigned or progress and achievement in an assigned treatment program, and may
be withheld, forfeited or canceled in whole or in part for bad behavior,
violation of institutional rules of failure to perform properly in the duties
or program assigned.” N.Y. Correction Law § 803(1)(a).
-3-
not allowed to call witnesses” at the hearing;
officer was biased.”
and (3) the “hearing
On December 17, 2009, the hearing officer’s
determination was affirmed.
See Resp’t Exs. F (Appeal Form), G (NYS
DOCS Appeal Decision).
C.
The Article 78 Proceedings
In December 2009, Petitioner challenged his November 11, 2009,
Tier III conviction by commencing two separate pro se Article 78
proceedings in the Supreme Court, Erie County.
In both Article 78
proceedings, Petitioner also challenged the results of unrelated Tier
II hearings that are not at issue in the instant proceeding.
In his first Article 78 petition, dated December 16, 2009, and
captioned Index No. 2010-1908 (“Case 1908”), Petitioner argued that:
(1) he was not allowed to call witnesses; (2) “a mental health
assessment was not done”; and (3) he was not provided with “a rule
book, required by law.”4
Resp’t Ex. H.
In Petitioner’s second Article 78 petition, dated December 23,
2009, and captioned Index No. I-2010-1910 (“Case 1910”), Petitioner
argued that: (1) he was denied the right to call witnesses; and (2) a
mental health evaluation was not conducted.5
See Resp’t Ex. K.
4
Petitioner also asserted unrelated claims for alleged procedural violations
at a Tier II hearing conducted on November 9, 2009, at which he was convicted of
threatening another inmate, in violation of Prison Disciplinary Rule 102.10. See
Resp’t Ex. H.
5
Petitioner also asserted an unrelated claim for alleged procedural
violations at a Tier II hearing on December 14, 2009, at which he was convicted
of, among other things, possessing contraband. See Resp’t Ex. K.
-4-
On June 1, 2010, the Erie County Supreme Court (Hon. John L.
Michalski) issued an order with respect to Case 1910, finding that
Petitioner was challenging the findings from “a Tier II disciplinary
hearing,” and that “[i]nsofar as at least part of that challenge is
based upon the sufficiency of the evidence introduced at that hearing,
this matter must be transferred to the Appellate Division, pursuant to
CPLR 7804(g).”
Resp’t Ex. N.
That order did not address Petitioner’s
claims related to the Tier III hearing, or otherwise address the Tier
III hearing.
On June 18, 2010, the court notified the parties that the
June 1, 2010 order had “mistakenly displayed the index number” for Case
1910.
The court therefore issued an identical order on June 18, 2010
with respect to Case 1908.
The People subsequently served Petitioner
with notice of entry of the June 18, 2010 order. See Resp’t Exs. O, P.
On June 7, 2010, the Erie County Supreme Court issued an order
denying the Article 78 petition in Case 1910.
See Resp’t Ex. Q.
The
order stated that, by way of Case 1910, Petitioner was challenging
findings from both Tier II and Tier III disciplinary hearings.
Id.
The court noted that, “[i]nsofar as Petitioner’s challenge to the Tier
III hearing has already been addressed in [the court’s] decision under
Index No. 2010-1908, [the court would] limit [its] decision here solely
to the Tier II findings.”
Id.
The court then found that Petitioner’s
claims with respect to the Tier II findings were meritless.
Id.
In
its Memorandum of Law, Respondent asserts that it “has found no record
or
any
other
order
in
Erie
County
Supreme
disposing of, Petitioner’s Tier III claims.”
-5-
Court
addressing,
or
Further, Respondent
states that “the Appellate Division has no record of any filings with
respect to Petitioner’s Article 78 proceedings, either by way of a
transfer or an appeal from the Supreme Court.”
Resp’t Mem. of Law at
6.6
D.
The Habeas Corpus Petition
In the instant habeas petition, Petitioner challenges the findings
from the Tier III hearing on November 11, 2009, and seeks habeas relief
on the following grounds: (1) he was “not allowed to call” his
cellmate, Spencer, as a witness at the hearing, and the “hearing
officer refused and did not provide a[n] explanation orally or in
writing” for that decision; (2) the prison authorities failed to
conduct a mental health evaluation; and (3) Petitioner “was not allowed
to review the hearing tape after the hearing.”
Pet. ¶ 13.
For the reasons stated below, habeas relief is denied and the
petition is dismissed.
III. Exhaustion Requirement
It is well-settled that a federal court sitting in habeas review
may not consider the merits of a claim unless that claim was fairly
presented to the state courts.
Daye v. Attorney General, 696 F.2d 186,
191 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048 (1984).
6
The Court points out that Petitioner does not allege in his habeas petition
that he applied to the Appellate Division for relief relating to the denial of
his Article 78 proceedings either. See Pet. ¶¶ 10-12. And, in response to the
standard-form question asking Petitioner if “[he] [has] a petition or appeal now
pending in any court . . . as to the judgment under attack,” Petitioner has
checked the box “no”. See Pet. ¶ 15.
-6-
Under New York law, the proper way to challenge the loss of good
time credits is the commencement of an Article 78 proceeding and
exhaustion of that proceeding in the state courts.
See Van Gorder v.
Boucaud, No. 08-CV-442(NAM)(DEP), 2008 U.S. Dist. LEXIS 56762, * 3
(N.D.N.Y. Jul. 22, 2008) (citing Scales v. New York State Div. of
Parole, 396 F. Supp. 2d 423, 428 (S.D.N.Y. 2005). Petitioners seeking
Article 78 review of a prison’s good time credit determination must
commence the proceeding “within four months after the determination to
be reviewed becomes final and binding upon the petitioner.’” Walton v.
New York State Dep’t of Corr. Srvcs, 8 N.Y.3d 186 (2007)(quoting N.Y.
C.P.L.R. § 217[1]);
see also Morales v. Selsky, 288 A.D.2d 805 (3d
Dep’t 2001) (noting the four-month statute of limitations period
applicable to Article 78 petitions).
“An administrative determination
becomes ‘final and binding’ when two requirements are met: completeness
(finality)
of
the
determination
and
remedies.” Walton, 8 N.Y.3d at 194.
exhaustion
of
administrative
As set forth below, all of
Petitioner’s claims are unexhausted.
IV.
Analysis of the Petition
1.
Petitioner’s Claim Regarding the Hearing Tape is Unexhausted But
Deemed Exhausted and Procedurally Defaulted
Petitioner argues that “[he] was not allowed to review the hearing
tape after the [Tier III] hearing.”
Pet. ¶ 13.
Because Petitioner
raises this claim for the first time in the instant proceeding, it is
unexhausted for purposes of federal habeas review.
§ 2254(b)(1).
See 28 U.S.C.A.
Nonetheless, as discussed below, because Petitioner no
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longer has a state court forum within which to exhaust the claim, the
Court deems it exhausted and procedurally defaulted.
Petitioner failed to include this claim in either of his Article
78 petitions filed in state court.
See Resp’t Exs. H, K.
If
Petitioner were to return to state court to file another Article 78
proceeding arising from the revocation of his good-time credits at the
November 11, 2009 disciplinary hearing, he would be time-barred because
the fourth month statute of limitations for doing so has expired.
C.P.L.R. § 217[1].
See
Because state remedies are no longer available to
Petitioner, his claims are deemed exhausted and procedurally defaulted.
See Bossett v Walker, 41 F.3d 825, 828 (2d Cir. 1994);
Aparicio v.
Artuz, 269 F.3d 78, 90 (2d Cir. 2001).
Despite the procedural default, this Court may review the merits
of Petitioner’s claim if he can show “cause” for his failure to raise
this
claim
in
the state
courts
and “actual
prejudice” resulting
therefrom, or, that failure to review the claim will result in a
“fundamental miscarriage of justice.”
478, 485, 496 (1986);
(1995)
See Murray v. Carrier, 477 U.S.
see also Schlup v. Delo, 513 U.S. 298, 316
(introduction of new evidence of innocence is essential to
establish a “fundamental miscarriage of justice” to allow a federal
court to reach the merits of a barred habeas claim).
Petitioner has
not alleged cause and prejudice to overcome the default.
Further,
Petitioner has not proffered new evidence of his innocence or otherwise
attempted to avail himself of the miscarriage of justice exception.
Accordingly,
Petitioner’s
claim
related
-8-
to
the
hearing
tapes
is
unexhausted but deemed exhausted and procedurally defaulted from habeas
review.
2.
The claim is dismissed.
Petitioner’s Remaining Claims Are Unexhausted and Meritless
Petitioner’s
remaining
claims
appear
to
be
unexhausted.
Admittedly, the orders issued by the Erie County Supreme Court with
respect to Petitioner’s Article 78 petitions are confusing and, in
particular, appear to have mistakenly identified that Petitioner’s Tier
III claims were addressed in Case 1908.
See Resp’t Ex. Q.
In any
event, exhaustion requires that a habeas petitioner present his claims
to the “highest state court from which a decision can be had.”
696 F.2d at 190.
Daye,
In this case, Petitioner failed to apply to the
Appellate Division for relief relating to the denial of his Article 78
petitions.
To this extent, the remaining claims are unexhausted.
Petitioner’s failure to exhaust his remaining claims, however, is
not fatal to the Court’s disposition of them on the merits.
the
Court
finds
the
claims
to
be
wholly
meritless,
it
Because
has
the
discretion to dismiss the petition notwithstanding Petitioner’s
failure to exhaust.7 See 28 U.S.C. § 2254(b)(2); Pratt v. Greiner, 306
F.3d 1190, 1197 (2d Cir. 2002).
7
The Second Circuit has not yet established a standard for denying
unexhausted claims under 28 U.S.C. § 2254(b)(2), but all four districts in New
York have applied the “patently frivolous” test for dismissing such claims. See,
e.g., Love v. Kuhlman, No. 99 Civ. 11063, 2001 U.S. Dist. LEXIS 22572 (S.D.N.Y.
Dec. 12, 2001); Cruz v. Artuz, No. 97 Civ. 2508, 2002 U.S. Dist. LEXIS 11150
(E.D.N.Y. June 24, 2002); Toland v. Walsh, No. 02 Civ. 0399, 2008 U.S. Dist.
LEXIS 24616 (N.D.N.Y. Mar. 26, 2008); Hammock v. Walker, 224 F. Supp. 2d 544
(W.D.N.Y. 2002). A minority of courts in this Circuit have denied such petitions
when they do not raise even a colorable federal claim. See Hernandez v. Lord,
No. 00 Civ. 2306, 2000 U.S. Dist. LEXIS 10228 (S.D.N.Y. July 21, 2000)
(discussing cases applying this standard) (internal quotation marks omitted).
Under either of these standards, Petitioner’s claims are meritless.
-9-
A.
To the Extent Petitioner Challenges the Hearing Court’s
Imposition of SHU Confinement, Rather than Loss of Good Time
Credits, his Claims are Not Cognizable
To obtain a federal writ of habeas corpus, a state prisoner must
show that he or she is in custody in violation of the Constitution or
laws of the United States.
appropriate
confinement.
only
for
See 28 U.S.C. § 2254 (a).
challenges
to
the
“fact
Habeas corpus is
or
duration”
of
Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see also
Peralta v. Vasquez, 467 F.3d 98, 102 (2d Cir. 2006).
Thus, to the
extent, if any, Petitioner challenges the hearing court’s imposition of
SHU confinement in the instant proceeding, rather than the loss of good
time credits, his claims are not cognizable on federal habeas review.
Accord e.g., Stallone v. Fischer, No. 10-CV-0615(MAT), 2011 U.S. Dist.
LEXIS 121884, *17 (W.D.N.Y. Oct. 21, 2011) (finding Petitioner’s claim
challenging imposition of confinement in special housing unit not
cognizable on federal habeas review because said claim challenged
change in conditions of Petitioner’s confinement rather that duration
of his confinement);
Gonzalez v. Lempke, 09-CV-6423-CJS, 2010 U.S.
Dist. LEXIS 4380, *3, n.1 (W.D.N.Y. Jan. 20, 2010) (“Petitioner raises
three other grounds, but all concern conditions of confinement, thus,
are not cognizable under 28 U.S.C. § 2254.”) (citing Preiser, 411 U.S.
at 485);
Welch v. Mukasey, 589 F. Supp. 2d 178, 183 n.3 (N.D.N.Y.
2008) (“Welch also alleges that he is being illegally confined in the
Special Housing Unit . . . . [That] claim[], to the extent [it]
challenge[s] conditions of confinement, [is] not cognizable on habeas
review).
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B.
Petitioner’s Claim that the Hearing Officer Failed to Order
a Mental Health Assessment is Not Cognizable
Petitioner claims that the hearing officer failed to order a
mental health assessment “in violation of 7 NYCC Ch. 5 and DOCS
directives.”
Pet. ¶ 13.
This claim, which alleges violations of state
law, is not cognizable by this Court on federal habeas review.
See
Estelle v. McGuire, 502 US 62, 67-68 (1991) (“federal habeas corpus
relief does not lie for errors of state law”);
Artus,
No.
06-CV-0532(VEB),
2008
U.S.
Dist.
see also Lebron v.
LEXIS
1666,
*48-49
(W.D.N.Y. Jan. 9, 2008) (“Petitioner has overlooked the well-settled
principle that the ‘failure to follow a [NYS] DOCS Directive or prison
regulation does not give rise to a federal constitutional claim.’”
(citing Rivera v. Wohlrab, 232 F. Supp.2d 117, 123 (S.D.N.Y. 2002)).
C.
Petitioner was Afforded Procedural Due Process at the Tier
III Hearing on November 11, 2009
“It is well established the loss of good time credit as punishment
for
prison
disciplinary
offenses
implicates
protected by the Fourteenth Amendment.”
a
liberty
interest
Homen v. Hasty, 229 F. Supp.
2d 290, 295 (S.D.N.Y. 2002) (citing Wolff v. McDonell, 418 U.S. 539,
558 (1974)).
In Wolff, the Supreme Court ruled that a disciplinary hearing that
results in the revocation of a prisoner’s good time credit satisfies
the due process requirements of the Fourteenth Amendment if:
(1) the
prisoner is provided written notice of the disciplinary charges at
least twenty-four hours in advance of the hearing;
-11-
(2) a neutral and
detached hearing body conducts the hearing;
(3) the prisoner is
afforded an opportunity to present evidence and call witnesses as long
as
the
presentation
of
evidence
is
not
institutional safety or correctional goals;
unduly
hazardous
to
(4) the prisoner is
granted assistance, if necessary, to understand and prepare a defense;
and (5) the factfinder provides a written statement of the evidence
relied upon in making its decision and the reasons for the decision.
Wolff, 418 U.S. at 563-67.
In this case, Petitioner received all of the process due at his
disciplinary hearing. Petitioner received written notice of the charge
against him on November 2, 2009 (nine days before the hearing date),
and chose to waive assistance related to the hearing.
B;
C at 1.
See Resp’t Exs.
On November 11, 2009, hearing officer Captain Eckert
conducted a Tier III hearing, at the start of which Petitioner was
informed of his rights and obligations, including his right to call
witnesses
and
to
make
objections
and
arguments
in
his
defense.
Petitioner stated that he understood these rights and obligations. See
Resp’t Ex. C at 1.
At the hearing, Petitioner pleaded not guilty and
testified that accepted inmate “Spence” as his cell-mate on the date of
the incident.
Id. at 2.
Captain Eckert explained to Petitioner that
“the log book does in fact . . .
state that you bunked with inmate
Spence . . . . [H]owever, that doesn’t explain [the] [instant] ticket.”
Id. at 3.
C.O. Hagedorn then testified that, on the date of the
incident alleged in the misbehavior report, inmate Carsidio was brought
to Petitioner’s cell and Petitioner refused to accept him.
-12-
Id. at 4.
When Captain Eckert asked Petitioner if he remembered refusing that
particular inmate, Petitioner responded in the negative.
close of
the
hearing,
Captain
Eckert found
Id.
Petitioner
At the
guilty of
refusing double-celling in violation of Prison Disciplinary Rule 109.15
and
provided
Petitioner
with
a
written
disposition,
including
a
statement describing the evidence relied upon and the reasons for his
decision.
See Resp’t Exs. C, E.
Nonetheless, Petitioner claims that he was deprived of procedural
due process insofar as he was “not allowed to call” his cell-mate,
“Spence”, as a witness at the hearing, and that the “hearing officer
refused and did not provide a[n] explanation orally or in writing.”
Pet. ¶ 13.
An inmate's right to call witnesses is not the same as a
defendant’s in a criminal trial, but rather is qualified by the
circumstances of prison life.
Wolff, 418 U.S. at 566-67.
The Supreme
Court has stated that disciplinary hearing officers must have the
discretion to deny witnesses, noting that valid bases for the denial of
witnesses would include irrelevance, lack of necessity, and other
hazards particular to each case.
Id.
In this case, “Spence’s”
testimony was not necessary because Captain Eckert stipulated as to the
veracity of that individual’s testimony.
See Resp’t Ex. C at 3-5.
On
the record, Captain Eckert explained to Petitioner that “the log book
does in fact . . . state that you
had bunked with inmate Spence,
okay?”
stated,
In
response,
Petitioner
“okay.”
Id.
at
3.
Subsequently, Captain Eckert reiterated, “[o]kay, again, I’ll stipulate
to the fact that [Petitioner] did accept Spence as . . . a Bunkie.”
-13-
Id. at 5.
Notably, after Captain Eckert set forth this stipulation on
the record, Petitioner did not again request to call “Spence” as a
witness
or
otherwise
contest
Captain
Eckert’s
ruling.
Id.
In
delivering his oral decision at the close of the hearing, Captain
Eckert made reference to the stipulation, explicitly stating, “[i]t is
stipulated that [Petitioner] did receive a double-cell assignment after
this incident.”
Id. at 5.
This stipulation was also referenced in
Captain Eckert’s written decision finding Petitioner guilty of refusing
double-celling.
was
denied
See Resp’t Ex. E.
procedural
due
Thus, Petitioner’s claim that he
process
is
meritless
and
is
therefore
dismissed.
V.
Conclusion
For the reasons stated above, the petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 (Dkt. No. 1) is denied, and the
petition is dismissed.
Because Petitioner has failed to make “a
substantial showing of a denial of a constitutional right,” 28 U.S.C.
§
2253(c)(2),
the
Court
declines
to
issue
a
certificate
of
appealability. See, e.g., Lucidore v. New York State Div. of Parole,
209 F.3d 107, 111-113 (2d Cir. 2000).
The Court also hereby certifies,
pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this judgment
would not be taken in good faith and therefore denies leave to appeal
as a poor person.
Coppedge v. United States, 369 U.S. 438 (1962).
Petitioner must file any notice of appeal with the Clerk’s Office,
United States District Court, Western District of New York, within
thirty (30) days of the date of judgment in this action.
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Requests to
proceed on appeal as a poor person must be filed with United States
Court
of
Appeals
for
the
Second
Circuit
in
accordance
requirements of Rule 24 of the Federal Rules of Appellate
Procedure.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
April 9, 2012
Rochester, New York
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with
the
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