RAYO v. PERRY
Filing
10
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 02/09/2015; that Respondent's Motion for Summary Judgment (Docket Entry 5) be granted, that the Petition (Docket Entry 2 ) be denied, and that Judgment be entered dismissing this action, without issuance of a certificate of appealability. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TEODORO CAMPOS RAYO,
Petitioner,
v.
FRANK L. PERRY,
Respondent.
)
)
)
)
)
)
)
)
)
1:14CV326
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Petitioner, a prisoner of the State of North Carolina, seeks
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Entry 2.)
County,
On November 7, 2011, in the Superior Court of Durham
Petitioner
possession
(Docket
of
200
pled
to
guilty
400
to
grams,
trafficking
in
cocaine
by
trafficking
in
cocaine
by
transportation of 200 to 400 grams, and conspiring to traffic 200
to 400 grams of cocaine, in cases 11 CRS 074156, 074157, and
074159, and the trial court sentenced Petitioner to 70 to 84 months
imprisonment.
did not appeal.
(See id., ¶¶ 1-6; Docket Entry 2-1 at 13-14.)1
He
(Docket Entry 2, ¶ 8.)
On August 29, 2013, Petitioner filed a Motion for Appropriate
Relief (“MAR”) in the trial court.
1
(See id., ¶ 11(a); see also id.
The Petition indicates that Petitioner proceeded to a bench
trial (see Docket Entry 2, ¶ 6(c)); however, it appears Petitioner
misunderstood the question or made a typographical error as he
previously acknowledged that he had pled guilty (see id., ¶ 6(a)),
and other filings clarify that he did not go to trial (see, e.g.,
Docket Entry 2-1 at 5-12).
at 38-59.)
The trial court denied the MAR on September 27, 2013.
(Id., ¶ 11(a); see also id. at 33-37.)
Petitioner then filed a
Motion for Reconsideration on October 23, 2013.
(Id. at 27-32.)2
On October 30, 2013, the trial court denied that motion.
26.)
(Id. at
Petitioner then sought certiorari review with the North
Carolina Court of Appeals on January 6, 2014.
(See id., ¶ 11(b);
see also id. at 12-25.) The North Carolina Court of Appeals denied
that petition on January 23, 2014.
(Id. at 11.)
Finally, Petitioner signed the instant Petition, under penalty
of perjury, and dated it for mailing on April 14, 2014 (id. at 10),
and the Court stamped and filed the Petition on April 17, 2014 (id.
at 1).3
Respondent filed a Motion for Summary Judgment (Docket
Entry 5), and Petitioner responded (Docket Entry 8).
For the
reasons that follow, the Court should grant Respondent’s instant
Motion because Petitioner submitted his Petition outside of the
one-year limitations period.4
2
Petitioner dated the Motion for Reconsideration on October
21, 2013, but the trial court did not file it until October 23,
2013. (Compare Docket Entry 2 at 31, with id. at 26.) As either
date leads to a recommendation of dismissal, the undersigned need
not address the issue of what date controls.
3
Under Rule 3(d) of the Rules Governing Section 2254 Cases in
United States District Courts, the Court deems the instant Petition
filed on April 14, 2014, the date Petitioner signed the Petition
(under penalty of perjury) as submitted to prison authorities.
(See Docket Entry 2 at 10.)
4
Because the Petition qualifies as untimely, the undersigned
need not address Respondent’s alternative argument.
2
Petitioner’s Claims
The Petition raises five grounds for relief: (1) “Grossly
[d]isproportionate
[s]entence
and
[c]ruel
and
[u]nusual
[p]unishment” (Docket Entry 2 at 3); (2) “Violation of [d]ue
[p]rocess by denying [Petitioner] consular visits [under] Article
36
of
the
Vienna
Convention”
(id.
at
4);
(3)
“Ineffective
[a]ssistance of [c]ounsel” (id. at 5) because counsel failed to
investigate the criminal matters to the fullest, did not object to
the State’s factual basis, failed to advise him of his right to
appeal, failed to appeal, failed to contact Petitioner’s consul,
failed to move for suppression of evidence, failed to withdraw from
representation, and coerced Petitioner into a guilty plea (id. at
46-49); (4) “Invalid and unknowing guilty plea” (id. at 5) because
there was not a factual basis for the plea, the traffic stop was
made without reasonable suspicion, the State performed an illegal
search, the State racially profiled Petitioner, the confidential
informant did not testify, Petitioner never admitted his guilt, and
counsel promised Petitioner a sentence not to exceed 35 to 42
months (id. at 50-51);5 and (5) “Violation of the Equal Protection
Clause
by
denying
[r]etroactivty
5
of
the
law”
(id.
at
6),
The Petition joins both Grounds 3 and 4 into one ground, but
Petitioner listed them separately in his MAR and certiorari
petition. (Compare Docket Entry 2 at 5, with id. at 16, 46, 50.)
Given that Petitioner purports to incorporate his state collateral
filings into the Petition (see, e.g., id. at 3), the undersigned
has separated these Grounds.
3
specifically North Carolina General Statute Section 15A-1340.18
(id. at 23).6
Discussion
Respondent moves for summary judgment on the merits of the
Petition (Docket Entry 6 at 2-13) and for untimeliness (id. at 1320).
In order to assess Respondent’s statute of limitations
argument, the undersigned must first determine when Petitioner’s
one-year period to file his Petition commenced.
The United States
Court of Appeals for the Fourth Circuit has explained:
Under § 2244(d)(1)(A)-(D), the one-year limitation period
begins to run from the latest of several potential
starting dates:
(A) the date on which the judgment became
final by the conclusion of direct review or
6
Rule 2(c) of the Rules Governing Section 2254 Cases in the
United States District Courts “explicitly requires that a
petitioner summarize the facts supporting each of the alleged
grounds for relief.” Adams v. Armontrout, 897 F.2d 332, 333 (8th
Cir. 1990). Thus, a habeas petitioner who generally references
allegations raised in other case records and briefs “patently
fail[s] to comply with Rule 2(c).” Id. Federal courts need not
“sift through voluminous documents filed by habeas corpus
petitioners in order to divine the grounds or facts which allegedly
warrant relief.” Id. (citing Williams v. Kullman, 722 F.2d 1048,
1051 (2d Cir. 1983)). The particularized facts which entitle a
petitioner to habeas relief “must consist of sufficient detail to
enable the court to determine, from the face of the petition alone,
whether the petition merits further habeas corpus review.” Id. at
334. Petitioner flagrantly violated this Rule with his repeated
citations to the entire record. (See, e.g., Docket Entry 2 at 3
(“Petitioner retakes [sic] his claim of grossly [d]isproportionate
and [c]ruel and unusual [p]unishment as stated in his collateral
attacks and incorporates them hereto as a reference[.]”).) Despite
such violations, the undersigned has reviewed the entire record for
purposes of assessing the statute of limitations issue.
4
the expiration of the time for seeking such
review;
(B) the date on which the impediment to filing
an application created by State action in
violation of the Constitution or laws of the
United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right
asserted was initially recognized by the
Supreme Court, if the right has been newly
recognized by the Supreme Court and made
retroactively
applicable
to
cases
on
collateral review; or
(D) the date on which the factual predicate of
the claim or claims presented could have been
discovered through the exercise of due
diligence.
Green v. Johnson, 515 F.3d 290, 303-04 (4th Cir. 2008).
must determine timeliness on claim-by-claim basis.
The Court
See Pace v.
DiGuglielmo, 544 U.S. 408, 416 n.6 (2005).
Neither Petitioner nor Respondent contends that subparagraphs
(B) or (C) apply in this case (see Docket Entries 2, 4, 5, 6, 8,
9), but Petitioner does assert that subparagraph (D) applies (see
Docket Entry 8 at 3).
Moreover, Petitioner asserts, for reasons
detailed below, that the statute of limitations should not prohibit
the Court from addressing the merits of his case.
Entry 2 at 9; Docket Entry 8.)
(See Docket
Thus, the undersigned must first
determine which subparagraph applies in order to decide when the
statute of limitations commenced.
Under subparagraph (D), the one-year limitations period begins
when the factual predicate of a claim “could have been discovered
5
through the
exercise
of
discovery of any claim.
due
diligence,” not
upon
the
actual
28 U.S.C. § 2244(d)(1)(D); Schlueter v.
Varner, 384 F.3d 69, 74 (3d Cir. 2004); see also Johnson v. Polk,
No. 1:07CV278, 2008 WL 199728, at *3 (M.D.N.C. Jan. 22, 2008)
(unpublished) (Tilley, J., adopting recommendation of Sharp, M.J.)
(“Under 28 U.S.C. § 2244(d)(1)(D), the limitations period begins to
run when the petitioner knows, or through due diligence could
discover, the important facts underlying his potential claim, not
when
he
recognizes
their
legal
significance.”).
Although
Petitioner contends that subparagraph (D) applies, he does not
elaborate on the reasoning for its application to his grounds of
relief or identify the grounds to which it should apply.
Docket Entry 8.)
(See
Rather, Petitioner mainly argues the need for
equitable tolling of the statute of limitations and challenges
Respondent’s arguments on the merits.
(Id.)
The Petition does allege that “Petitioner has dilligently
[sic] search[ed] for his entire file and he has discovered new[]
evidence
which
innocence.”
[is]
[m]aterial
to
this
(Docket Entry 2 at 9.)
case
to
prove
However, such conclusory
allegations do not support application of subparagraph (D).
Freeman
v.
Zavaras,
467
F.
App’x
his
770,
775
(10th
Cir.
See
2012)
(refusing to apply subparagraph (D) where petitioner failed to
explain
why
he
could
not
have
discovered
the
alleged
Brady
materials earlier); Farabee v. Clarke, No. 2:12-cv-76, 2013 WL
6
1098098, at *3 (E.D. Va. Feb. 19, 2013) (unpublished) (finding
subparagraph
(D)
inapplicable
where
petitioner’s
“threadbare”
allegations failed to explain his inability to discover the factual
predicate earlier), recommendation adopted, 2013 WL 1098093 (E.D.
Va. Mar. 13, 2013) (unpublished); Norrid v. Quarterman, No. 4:06cv-403-A,
2006
WL
2970439,
at
*1
(N.D.
Tex.
Oct.
16,
2006)
(unpublished) (concluding that the petitioner had the burden of
demonstrating the applicability of subparagraph (D)); Frazier v.
Rogerson, 248 F. Supp. 2d 825, 834 (N.D. Iowa 2003) (refusing to
apply subparagraph (D) when the petitioner “never identifie[d] when
or how he discovered his ‘new evidence’”).
Thus, Petitioner has
not borne “the burden of proving that he exercised due diligence,
in order for the statute of limitations to begin running from the
date he discovered the factual predicate of his claim . . . .”
DiCenzi v. Rose, 452 F.3d 465, 471 (6th Cir. 2006).
Nevertheless, in an abundance of caution, the undersigned will
review
claims.
the
applicability
of
subparagraph
(D)
to
Petitioner’s
At the time Petitioner pled guilty, he either knew or
through due diligence should have known (1) the length of his
sentence for purposes of determining whether it qualified as
grossly disproportionate; (2) whether he had received a consular
visit in accord with Article 36 of the Vienna Convention; (3)
whether his counsel: investigated the facts underlying Petitioner’s
crimes, objected to the State’s factual basis, advised Petitioner
7
of his right to appeal, contacted Petitioner’s consul, motioned to
suppress evidence, attempted to withdraw from representation, and
coerced Petitioner into signing a plea agreement; and (4) whether
the State presented a factual basis for Petitioner’s guilty plea,
the nature of the traffic stop, the basis for any claim of racial
profiling,
whether
the
confidential
informant
testified,
if
Petitioner admitted his guilt, and if the sentence imposed matched
the sentence promised to Petitioner.
As a result, only two possible claims for application of
subparagraph (D) remain.
The first lies within Ground 3, i.e.,
whether counsel failed to file an appeal. As North Carolina allows
a party to file an appeal within fourteen days of judgment, see
N.C.R. App. 4(a)(2), Petitioner would not have known the factual
basis
for
this
claim
at
the
time
he
pled
guilty.
Thus,
subparagraph (D) conceivably applies to this claim for relief. The
Court
therefore
must
determine
when
Petitioner
could
have
discovered the factual predicate for this claim, i.e., when he
should have discovered that his counsel failed to file an appeal.
Courts have used various time periods to determine when a
petitioner should have reasonably discovered that his counsel
failed to file an appeal.
See Ryan v. United States, 657 F.3d 604,
607 (7th Cir. 2011) (collecting cases).
This Court need not now
adopt a per se reasonable period, as even under the longest period
of time allowed that the undersigned could find, five months, see
8
Wims v. United States, 225 F.3d 186, 190-91 (2d Cir. 2000), the
Petition still qualifies as untimely.
Applying a delay of five
months means Petitioner should have reasonably discovered that his
counsel failed to appeal by the end of April 2012, and from there,
the one-year limitations period began and ran unimpeded until its
expiration in late April 2013.
Petitioner took no action until
August of 2013 when he finally filed his MAR.
¶
11(a);
see
also
id.
at
38-59.)
(See Docket Entry 2,
Therefore,
even
under
subparagraph (D) this claim for relief remains untimely.7
The second (and final) possible claim as to which subparagraph
(D) might pertain lies in Ground 5, wherein Petitioner contends
North Carolina General Statute Section 15A-1340.18, as modified by
the Justice and Reinvestment Act of 2011, retroactively applies to
his case.
(See Docket Entry 2 at 23, 52-55.)
Because Section 15A-
1340.18 did not go into effect until January 1, 2012 (after
Petitioner had pled guilty), see N.C. Sess. Law 2011-192, he could
7
In any event, this claim would fail as a matter of law,
based on its conclusory nature. See Whitely v. United States, Nos.
1:03CR445, 1:12CV67, 2014 WL 4443295, at *6 n.1 (M.D.N.C. Sept. 9,
2014) (unpublished) (recommendation of Webster, M.J., adopted by
Beaty, S.J.) (“Unsupported, conclusory allegations do not warrant
an evidentiary hearing, much less relief. See Nickerson v. Lee,
971 F.2d 1125, 1136 (4th Cir. 1992), abrog’n on other grounds
recog’d, Yeatts v. Angelone, 166 F.3d 255 (4th Cir. 1999).”); see
also United States v. Dyess, 730 F.3d 354, 359 (4th Cir. 2013)
(“[A] habeas petition is expected to state facts that point to a
real possibility of constitutional error . . . . Thus, vague and
conclusory allegations contained in a § 2255 petition may be
disposed of without further investigation by the District Court.”
(internal quotation marks omitted)).
9
not have utilized Section 15A-1340.18 as a basis for relief until
its effective date.
At the time Section 15A-1340.18 went into
effect (and indeed until August 2013), Petitioner had not filed his
MAR.
The statute of limitations for Ground 5 thus ran, unimpeded,
from January 1, 2012, until its expiration on January 1, 2013.
Therefore, Petitioner filed his Petition, with respect to Ground 5,
untimely.8
As to the remaining grounds for relief, under subparagraph
(A), Petitioner’s conviction became final, for purposes of the
statute of limitations, no later than November 21, 2011 - the final
day on which he could have appealed his convictions.
See N.C.R.
App. P. 4(a)(2) (requiring a notice of appeal within fourteen days
of the entry of judgment); see also Gonzalez v. Thaler, __ U.S. __,
__, 132 S. Ct. 641, 653-54 (2012) (holding that a petitioner’s case
becomes final when the time for pursuing direct review expires).9
The statute of limitations then ran on Petitioner’s remaining
8
Even if the Court reached the merits of this ground, it
would still fail. As previously held, the Justice Reinvestment Act
of 2011 does not operate retroactively and its failure to do so
does not violate the Equal Protection Clause. See Minton v. Perry,
No. 1:12CV497, 2014 WL 5605632, at *6-7 (M.D.N.C. Nov. 4, 2014)
(unpublished).
Moreover, to the extent Petitioner relies on
actions allegedly taken by President Obama or the United States
Congress (see Docket Entry 2 at 23; Docket Entry 8 at 9-10, 12),
the State convicted Petitioner for his underlying crimes, so
federal drug laws do not apply.
9
Because Petitioner pleaded guilty, he likely possessed no
right to appeal. See State v. Smith, 193 N.C. App. 739, 741-42,
668 S.E.2d 612, 613-14 (2008) (enumerating limited grounds for
appeal for defendants who plead guilty).
10
grounds from November 21, 2011, until its expiration on November
21, 2012. Petitioner did not file his instant Petition until April
14, 2014.
(Docket Entry 2 at 10.)
Thus, Petitioner filed his
Petition well beyond the one-year limitations period.
Although
Petitioner filed a MAR in state court, by that point, the statute
of limitations had already run, and the belated filing could not
revive the already expired one-year limitations period. See Minter
v. Beck, 230 F.3d 663, 665 (4th Cir. 2000) (finding that state
filings made after the federal limitations period do not restart or
revive the federal limitations period).
Despite
the
instant
Petition’s
untimeliness,
Petitioner
requests the Court to address his claims on the merits.
Docket Entry 2 at 9; Docket Entry 8 at 3-12.)
(See
Although the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
provides for a one-year statute of limitations for habeas claims,
see 28 U.S.C. § 2244(d)(1), a court can equitably toll that
limitations period, see Holland v. Florida, 560 U.S. 631, 634
(2010).
that
Equitable tolling requires that Petitioner demonstrate
(1)
he
has
diligently
pursued
his
rights,
and
(2)
extraordinary circumstances prevented a timely filing. Id. at 649.
Equitable tolling involves a case by case analysis. Id. at 649-50.
Here, Petitioner argues Trevino v. Thaler, __ U.S. __, 133 S.
Ct. 1911 (2013), and Martinez v. Ryan, __ U.S. __, 132 S. Ct. 1309
(2012),
provide
an
exception
to
11
the
statute
of
limitations;
further, he claims actual innocence, lack of legal fluency, denial
of assistance by North Carolina Prisoner Legal Services, and lack
of access to a law library as reasons to toll the statute of
limitations.
(Docket Entry 2 at 9; Docket Entry 8 at 4-8.)
The
undersigned will address each argument in turn.
In Trevino and Martinez, the Supreme Court held that where
petitioners, under state law or as a matter of practice, cannot
claim ineffective assistance of counsel on direct review, the
procedural default rule will not prevent a federal court from
reaching
the
issue
if
petitioners
had
either
no
counsel
or
ineffective counsel in the initial-review collateral proceeding.
Trevino, 133 S. Ct. at 1921; Martinez, 132 S. Ct. at 1320.
Neither
case even addressed statute of limitations issues, contrary to
Petitioner’s assertions (see Docket Entry 8 at 4).
See Trevino,
133 S. Ct. at 1911; Martinez, 132 S. Ct. at 1309.
Thus, Trevino
and Martinez provide no assistance to Petitioner.
See Arthur v.
Thomas, 739 F.3d 611, 630-31 (11th Cir.) (holding that Martinez and
Trevino do not affect habeas statute of limitations), cert. denied,
__ U.S. __, 135 S. Ct. 106 (2014).
Petitioner also contends that his actual innocence ought to
prevent application of the statute of limitations.
2 at 9; Docket Entry 8 at 6-8.)
(Docket Entry
The United States Supreme Court
has recognized that a showing of actual innocence may excuse
noncompliance with the one-year limitations period.
12
McQuiggin v.
Perkins, ___ U.S. ___, ___, 133 S. Ct. 1924, 1928 (2013).
However,
the Court also ruled that showings of actual innocence “are rare,”
and that a petitioner must demonstrate that no reasonable juror
could vote to find the petitioner guilty beyond a reasonable doubt.
Id.
In
this
case, Petitioner
puts
forth
only a
copy
of
a
laboratory report created in his underlying criminal case (Docket
Entry 2-1 at 1) and letters of support (id. at 15-18) as evidence
of his innocence.
This material does not show that “‘it is more
likely than not that no reasonable juror would have convicted
[Petitioner],’” McQuiggin, 133 S. Ct. at 1933 (quoting Schlup v.
Delo, 513 U.S. 298, 329 (1995)).
Petitioner’s final arguments - that he lacks legal fluency,
North Carolina Prisoner Legal Services denied assistance, and he
lacks access to a law library - do not provide a sufficient basis
for tolling.
See United States v. Sosa, 364 F.3d 507, 512 (4th
Cir. 2004) (“[I]gnorance of the law is not a basis for equitable
tolling.”); Johnson v. Beck, No. 1:08CV336, 2008 WL 3413303, at *4
(M.D.N.C. Aug. 8, 2008) (refusing to toll when prisoner did not
have access to a library, but did have access to North Carolina
Prisoner Legal Services), recommendation adopted, slip op. (Docket
Entry 17) (M.D.N.C. Feb. 12, 2009); Rhew v. Beck, 349 F. Supp. 2d
975, 978 (M.D.N.C. 2004) (Osteen, Sr., J, adopting recommendation
of Eliason, M.J.) (refusing to toll when prisoner cited delays by
North Carolina Prisoner Legal Services), appeal dismissed, 158 F.
13
App’x 410 (4th Cir. 2005) (unpublished).
Additionally, Petitioner
provides no support for these contentions beyond his own conclusory
allegations.
(See
Docket
Entry
8
at
7.)
“Mere
conclusory
allegations are insufficient to raise the issue of equitable
tolling.”
2011).
San Martin v. McNeil, 633 F.3d 1257, 1268 (11th Cir.
Furthermore, Petitioner’s ability to file his MAR and
certiorari
petition
in
state
court
notwithstanding
the
cited
conditions undermines his request for tolling.
As a final matter, the Court should note that, in addition to
untimeliness, the Petition largely qualifies as facially frivolous.
For example, Petitioner complains that his counsel promised him a
sentence that would not exceed 35 to 42 months in prison.
Entry 2 at 49.)
(Docket
However, Petitioner’s plea transcript (printed in
both English and Spanish) clearly contradicts his argument.
The
plea transcript lists the charges against Petitioner as well as the
maximum punishment for each charge - 84 months.
2-1 at 6, 11.)
(See Docket Entry
The plea transcript also lists 70 months as the
minimum sentence that Petitioner could receive.
(See id. at 6.)
Moreover, the plea transcript contains a section entitled “PLEA
ARRANGEMENT / ACUERDO NEGOCIADO CON EL FISAL” that states: “the
charges shall be consolidated for judgment purposes.
months active imprisonment).”
(Id. at 8.)
(70 - 84
Finally, Petitioner
agreed that the plea arrangement described represented the correct
agreement.
(Id. at 8.)
Petitioner, as well as a translator,
14
signed the plea transcript, indicating that Petitioner understood
it. (Id. at 9.) Petitioner’s current, unsupported contention that
his counsel promised him a different sentence fails before such
evidence.
See Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).
Similarly, Petitioner’s argument that he did not admit his
guilt
also
transcript
cannot
belies
stand
this
as,
once
unsupported
again,
Petitioner’s
contention.
In
the
plea
plea
transcript, in response to the question “[a]re you in fact guilty?”
Petitioner responded, “yes.” (Docket Entry 2-1 at 7.) Simply put,
the plea transcript renders frivolous many of Petitioner’s claims.
In addition, Petitioner incorporated into his Petition the
allegation within his MAR that law enforcement and medical reports
indicated that the State did not find Petitioner’s semen, and that
the victim’s hymen had not been touched.
(Docket Entry 2 at 47.)
Clearly, such argument bears no relevance to Petitioner’s drug
convictions,10
unduly
burdens
the
Court,
and
demonstrates
the
frivolousness of the Petition, even apart from its untimeliness.
10
In fact, it appears Petitioner copied that portion of his
Petition, verbatim, from a petition in another case.
(Compare
Docket Entry 2 at 46-48, with Perez v. Perry, No. 1:14-cv-311-JABLPA (Docket Entry 2-2 at 21-23) (M.D.N.C.) (containing the same
three pages).)
15
IT IS THEREFORE RECOMMENDED that Respondent’s Motion for
Summary Judgment (Docket Entry 5) be granted, that the Petition
(Docket Entry 2) be denied, and that Judgment be entered dismissing
this action, without issuance of a certificate of appealability.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
February 9, 2015
16
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