Jones v. Bradshaw
Filing
222
MEMORANDUM OPINION & ORDER granting Motion to transfer to 6th Circuit Court of Appeals for final resolution of petition for writ of habeas corpus (Related Doc # 190 ); denying 191 Motion to Extend Deadlines; ; denying Motion for order (Related Doc # 193 ); denying Motion to dismiss (Related Doc # 217 ); denying Motion to strike (Related Doc # 219 ). Judge David A. Katz on 10/13/15.(G,C)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
ODRAYE G. JONES (n/k/a Malik
Allah-U-Akbar),
Petitioner,
vs.
MARGARET BRADSHAW, Warden,
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CASE NO. 1:03 CV 1192
JUDGE DAVID A. KATZ
MEMORANDUM OPINION
AND ORDER
Respondent.
Before the Court in this capital habeas corpus case are the following: (1)
Respondent Warden Margaret Bradshaw’s (“Respondent”) motion to transfer this case
back to the Sixth Circuit Court of Appeals for final resolution of Petitioner Odraye Jones’
(“Jones”)1 petition for writ of habeas corpus (ECF No. 190), which Jones, through counsel,
opposed (ECF No. 191); (2) Jones’ motion, through counsel, to extend the discovery
deadline on his lethal-injection claim (ECF No. 191), which Respondent opposed (ECF No.
192), and to which Jones replied (ECF No. 195); (3) Jones’ pro se motion to waive his
lethal-injection claim and proceed pro se (ECF No. 193), to which Respondent responded
(ECF No. 194); (4) Respondent’s motion to dismiss Jones’ lethal-injection claim (ECF No.
217); and (5) Jones’ motion, through counsel, to strike Respondent’s motion to dismiss, or
in the alternative, memorandum in opposition to that motion (ECF No. 219), which
Respondent opposed (ECF No. 220).
1
Jones has legally changed his name to Malik Allah-U-Akbar. (See ECF No. 198.)
The Court will continue to refer to him as Jones in this Memorandum of Opinion and
Order, however, for the sake of clarity and continuity.
For the following reasons, the Court: (1) grants Respondent’s motion to transfer
Jones’ lethal-injection claim back to the Sixth Circuit; (2) denies Jones’ motion, through
counsel, to extend the discovery deadline on his lethal-injection claim; (3) dismisses Jones’
pro se motion to waive his lethal-injection claim; (4) denies Respondent’s motion to
dismiss the lethal-injection claim; and (5) denies Jones’ motion, through counsel, to strike
Respondent’s motion to dismiss.
I.
Relevant Procedural History
This Court already has addressed several of the motions now before it in a
Memorandum of Opinion and Order issued on March 25, 2015. (ECF No. 201). In that
opinion, the Court recited the long and complex procedural history of Jones’ claim
challenging Ohio’s lethal-injection method of execution and his repeated requests to
withdraw that claim and remove his counsel. (Id. at 2-14.) Ultimately, it denied Jones’ pro
se motion to proceed without counsel and held in abeyance his request to waive his lethalinjection claim and the motions related to discovery on that claim until the United States
Supreme Court decided Glossip v. Gross, a case involving a challenge to Oklahoma’s
lethal-injection execution protocol. (Id. at 26-27.)
The Supreme Court issued its decision in Glossip on June 29, 2015. Glossip v.
Gross, 135 S. Ct. 2726 (2015). Shortly after, Respondent filed a motion to dismiss Jones’
lethal-injection claim. (ECF No. 217.) She argues that the Court should grant Jones’ pro
se motion to withdraw his lethal-injection claim on the ground that “Glossip makes quite
clear that ‘method of execution claims’ must be brought in a civil action under Title 42
Section 1983.” (Id. at 2.) Through counsel, Jones moved to strike the motion to dismiss,
2
or, in the alternative, opposed it. (ECF No. 219.) Although counsel initially declined to
respond to Jones’ pro se motion “[b]ecause the issues ha[d] been previously raised and
addressed in this matter” (ECF No. 195 at 5 n.4), in this motion, Jones’ counsel argues that
Jones’ pro se motion to waive his lethal-injection claim should be “stricken” for the same
reason his motion to proceed pro se was denied, because the stakes in this case are too high
and the legal and factual issues, too complex (ECF No. 219 at 9-10).
II.
Analysis
A.
Jones’ Pro Se Motion to Waive his Lethal-Injection Claim
The Court first must determine whether to grant Jones’ pro se motion to waive his
lethal-injection claim, since if it were granted, all of the other motions relating to this claim
would be moot. Upon further consideration of Jones’ request, the Court concludes that
Jones’ motion was improvidently filed because he is represented by counsel. As the Court
previously has held in this case, Jones “cannot proceed by means of hybrid representation
in this matter.” (ECF No. 72 at 2.) See United States v. Mosely, 810 F.2d 93, 97 (6th Cir.
1987) (holding that a criminal defendant has no right to be represented by counsel and to
represent himself at the same time, because it would confuse the jury and cause undue
delay). Jones’ pro se motion to waive his lethal-injection claim, therefore, is dismissed.
Additionally, since Respondent’s motion to dismiss Jones’ lethal-injection claim asks the
Court to grant Jones’ request to waive the claim, it also is denied, as is Jones’ motion,
through counsel, to strike Respondent’s motion to dismiss.
B.
Jones’ Motion, Through Counsel, to Continue Discovery on Jones’
Lethal-Injection Claim and Respondent’s Motion to Transfer the Claim
Back to the Sixth Circuit
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As explained more fully in the Court’s prior opinion on this matter, Jones also
requests, but through counsel, that the Court extend the discovery deadline on his lethalinjection claim until 60 days after Ohio’s next execution so that he can conduct discovery
relating to the execution. (ECF No. 191 at 8-10.)
Discovery in habeas cases is governed by Habeas Rule 6(a), which provides:
A party shall be entitled to invoke the processes of discovery available
under the Federal Rules of Civil Procedure if, and to the extent that, the
judge in the exercise of his discretion and for good cause shown grants leave
to do so, but not otherwise.
Habeas R. 6(a). See also Bracy v. Gramley, 520 U.S. 899, 904 (1997) (a federal habeas
petitioner, “unlike the usual civil litigant, is not entitled to discovery as a matter of ordinary
course”). “Good cause” for discovery under Rule 6(a) exists “only where specific
allegations before the court show reason to believe that the petitioner may, if the facts are
fully developed, be able to demonstrate that he is . . . entitled to relief . . . .” Id. at 908–09
(quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)). The Court concludes that Jones
cannot demonstrate good cause to support his request for additional discovery on his lethalinjection claim.
Respondent argues that the discovery Jones requests exceeds the scope of the Sixth
Circuit’s remand in January 2009 of Jones’ lethal-injection claim “for limited discovery
and factual development” of the “important question” under Baze v. Rees, 553 U.S. 35, 61
(2008), “of whether Ohio’s safeguards are materially different than Kentucky’s.” (ECF
No. 192 at 3 (quoting ECF No. 128; Case No. 07-3755, ECF No. 60-1 at 4).) She explains,
With this new discovery request, however, Jones’ claim has morphed from
focusing on the implementation and risk of future maladministration of
lethal injection (the issue in Baze) to Ohio’s past deviations from, and
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changes to, its lethal injection protocol and its alleged botched executions.
This new claim is not the type of method-of[-]execution challenge addressed
in Baze, and the discovery requested certainly exceeds the scope of the Sixth
Circuit’s remand.
(Id. at 3.) Respondent further contends that Jones’ lethal-injection claim has little chance
of prevailing. She notes the Supreme Court’s observation in Baze that it has never held
that an inmate met the “heavy burden” of demonstrating that a state’s execution violates
the Eighth Amendment, and that courts around the country have approved of the drugs in
Ohio’s new protocol. (Id. at 5 (quoting Baze, 553 U.S. at 48), 4 (listing cases).)
The Court agrees, particularly in light of Glossip v. Gross, supra, and the Sixth
Circuit’s prior precedent on Eighth Amendment method-of-execution claims. In Glossip,
several plaintiffs in a § 1983 action challenging Oklahoma’s execution protocol sought to
enjoin the state’s use of the drug midazolam as the first drug administered in its three-drug
protocol. Oklahoma had previously used the three-drug protocol found constitutional by a
plurality of the Supreme Court in Baze v. Rees, supra, but the first drug, sodium thiopental,
and a later substitute, pentobarbital, both barbiturates, became unavailable. Oklahoma then
substituted the sedative midazolam. The plaintiffs claimed that midazolam fails to render a
person insensate to pain, creating an unacceptable risk of severe pain caused by the second
and third drugs, a paralytic agent and potassium chloride. After holding an evidentiary
hearing, the district court denied the prisoners’ application for a preliminary injunction,
finding that they had failed to prove that midazolam is ineffective. The Tenth Circuit
affirmed. Glossip, 135 S. Ct. at 2733-36.
In a five-to-four opinion, the Supreme Court affirmed the denial of injunctive relief.
In doing so, the Court expressly followed the standard for Eighth Amendment method-of5
execution claims set forth by the plurality opinion in the fractured Baze decision. See id. at
2737 (“The controlling opinion in Baze outlined what a prisoner must establish to succeed
on an Eighth Amendment method-of-execution claim.”). Under the Baze test, a petitioner
must establish that the state’s execution protocol creates “‘a demonstrated risk of severe
pain,’” and that the risk is “‘substantial when compared to the known and available
alternatives.’” Glossip, 135 S. Ct. at 2737 (quoting Baze, 553 U.S. at 61). The Glossip
Court emphasized the latter part of the Baze standard, however, holding that a “requirement
of all Eighth Amendment method-of-execution claims” is that the petitioner “identify a
known and available alternative method of execution that entails a lesser risk of pain.” Id.
at 2731.
Applying this standard, the Glossip Court held that the plaintiffs had failed to
demonstrate that any risk posed by midazolam was substantial when compared to known
and available alternatives. Id. It provided two bases for its conclusion: first, the plaintiffs
failed to identify a known and available alternative; and second, the district court did not
commit clear error when it found that the drug’s use would not result in severe pain and
suffering. Id. The Court reiterated in Glossip, “While methods of execution have changed
over the years, ‘[t]his Court has never invalidated a State’s chosen procedure for carrying
out a sentence of death as the infliction of cruel and unusual punishment.’” Glossip, 135 S.
Ct. at 2732 (quoting Baze, 553 U.S. at 48). It explained that its “decisions in this area have
been animated in part by the recognition that because it is settled that capital punishment is
constitutional, ‘[i]t necessarily follows that there must be a [constitutional] means of
carrying it out.’” Id. at 2732-33 (quoting Baze, 553 U.S. at 47).
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Of particular significance here, in discussing the petitioners’ argument that the
feasible-alternative requirement contradicts its decision in Hill v. McDonough, 547 U.S.
573 (2006), the Court indicated that Eighth Amendment method-of-execution claims are
not cognizable in habeas corpus. It stated:
The portion of the opinion in Hill on which [the petitioners] rely concerned
a question of civil procedure, not a substantive Eighth Amendment question.
In Hill, the issue was whether a challenge to a method of execution must be
brought by means of an application for a writ of habeas corpus or a civil
action under § 1983. . . . We held that a method-of-execution claim must be
brought under § 1983 because such a claim does not attack the validity of
the prisoner’s conviction or death sentence.
Glossip, 135 S. Ct. at 2738 (citations omitted) (emphasis added). In addition, the Court
stated that a feasible alternative means of execution is required in “all Eighth Amendment
method-of-execution claims,” a requirement that necessarily would defeat any challenge to
the legitimacy of a death sentence – the very nature of habeas relief – based on its method
of execution. Id. at 2731 (emphasis added). See also id. at 2737 (stating twice that the
Baze controlling opinion established the requirements for “an Eighth Amendment methodof-execution claim”).
This language contradicts the Sixth Circuit’s interpretation of Hill in Adams v.
Bradshaw, 644 F.3d 481, 483 (2011), which held that method-of-execution claims may
sound in habeas. And district courts in this circuit consistently have relied on Adams for
that proposition. See, e.g., Sheppard v. Warden, Chillicothe Corr. Inst., 2013 WL 146364,
at **7-8 (S.D. Ohio Jan. 14, 2013) (Frost, J.); Smith v. Pineda, 2012 WL 6021471, at *1
(S.D. Ohio Oct. 26, 2012) (Merz, Mag. J.); Post v. Bradshaw, 2012 WL 5906802, at *5 n.3
(N.D. Ohio Nov. 26, 2012) (Wells, J.).
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Although, more recently, the Sixth Circuit has suggested that the § 1983 lethalinjection litigation, In re Ohio Execution Protocol Litigation (“In re OEPL”), is a better
(though not only) vehicle for habeas petitioners’ method-of-execution claims. In Scott v.
Houk, 760 F.3d 497 (6th Cir. 2014), the circuit court affirmed denial of habeas relief on
petitioner’s habeas lethal-injection claim and refused to remand it for factual development
of the claim, concluding,
Although we understand Scott’s point – that the relief he seeks is available
only through a federal habeas claim – we decline to grant Scott’s request for
a remand. As the law currently stands, there is no merit to Scott’s assertion
that his sentence is void because lethal injection is unconstitutional. Simply
put, lethal injection does not violate the Constitution per se, and Scott
acknowledges as much in his brief. See Baze v. Rees, 553 U.S. [35 (2008)];
Cooey v. Strickland, 589 F.3d 210 (6th Cir. 2009). Therefore, in order to
obtain relief from his sentence, Scott would first have to gather facts
showing that Ohio is unable to administer lethal injection in a
constitutionally permissible manner. And this is precisely the type of
discovery that Scott can pursue in his § 1983 litigation.
Scott, 760 F.3d at 512. Similarly, in Frazier v. Jenkins, 770 F.3d 485, 505 (6th Cir. 2014),
the circuit court denied the petitioner’s habeas lethal-injection claim, refused to remand it
for discovery, and advised that In re OEPL “is the proper avenue” to bring such a
challenge.
Jones argues that Adams remains good law after Glossip. (ECF No. 219 at 5.) He
limits Glossip’s language regarding Hill and its feasible-alternative requirement to the
more specific § 1983 “method-of-execution” claims; while his more global habeas “lethalinjection” claim remains viable. (Id. at 6-7.) He further distinguishes Scott and Frazier
because he is not a plaintiff in In re OEPL and has no alternative venue to pursue this claim
unless he intervenes in the “duplicative” civil rights litigation. (Id. at 7-8.)
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As Respondent points out, however, the Supreme Court plainly stated in Glossip
that Hill “held that a method-of-execution claim must be brought under § 1983 because
such a claim does not attack the validity of the prisoner’s conviction or death sentence.”
Glossip, 135 S. Ct. at 2738 (citing Hill, 547 U.S. at 579-80) (emphasis added). At the very
least, this language calls into question the continued viability of method-of-execution
claims in habeas corpus generally and Jones’ claim in particular.
District courts in the Southern District of Ohio have addressed this issue, resolving
it against habeas challenges to Ohio’s execution protocol. Judge Gregory Frost recently
denied a habeas petitioner’s amended petition asserting method-of-execution claims and
motion for leave to file a second amended petition raising additional claims based on
Ohio’s latest execution protocol on the ground that, after Glossip, none of the claims are
cognizable in habeas corpus. Henderson v. Warden, Chillicothe Corr. Inst., 2015 WL
5741937, at *7 (S.D. Ohio Sept. 30, 2015). He found “the [Glossip] majority’s notably
unqualified characterization of Hill . . . an express conclusion regarding the availability of
habeas relief for all [Eighth Amendment] challenges . . . .” Id. at *6. He also rejected the
petitioner’s argument that Glossip’s characterization of Hill was “mere dictum” and a
misstatement of Hill’s holding, finding the Court’s interpretation of Hill central to the
Glossip holding. He wrote,
It is not for this Court or any other lower court to say Hill means otherwise
than what Glossip said it means. Regardless of how this Court or other
courts read Hill in the past, it is the obligation of the lower courts to comply
with the teachings of a Supreme Court majority.
Id. at *5. He also noted that the petitioner’s assertion that he is attacking the validity of the
sentence and does not concede an alternative method of execution did not alter the fact that
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his particularized claims “if successful, simply would not undermine the validity of [the]
death sentence itself,” especially given that Ohio law allows for the adoption of other
means of execution. Id. (citing Ohio Rev. Code § 2949.22(C)). See also Landrum v.
Robinson, 2015 WL 5145533, at *4 (S.D. Ohio Sept. 2, 2015) (Merz, J.) (“Insofar as
Adams reads Hill as permitting an inmate to bring the same lethal injection claim in both
1983 and habeas, it cannot survive Glossip. [The petitioner] must limit his habeas claims
to those which would invalidate his death sentence.”); Turner v. Hudson, 2015 WL
5251233, at *6 (S.D. Ohio Sept. 9, 2015) (Merz, J.) (dismissing habeas petitioner’s third
amended complaint raising lethal-injection claims on same ground).
Moreover, even if Eighth Amendment method-of-execution claims remain
cognizable in habeas after Glossip, Jones still has little chance of prevailing on his claim.
First, if the Glossip/Baze standard applies, Jones will have to identify a feasible alternative.
Jones argues, again, that Glossip applies only to § 1983 cases, and its alternative-means
requirement does not apply to habeas method-of-execution claims. (ECF No. 219 at 7 n.1.)
As noted above, however, the Court held in Glossip that a “requirement of all Eighth
Amendment method-of-execution claims” is that the petitioner “identify a known and
available alternative method of execution that entails a lesser risk of pain.” Glossip, 135 S.
Ct. at 2731 (emphasis added).
In addition, because the Glossip Court adhered to the plurality opinion in Baze, the
Sixth Circuit decisions applying Baze to Eighth Amendment challenges to Ohio’s lethalinjection execution protocols remain good law. And the court consistently has rejected
those claims. In Cooey (Biros) v. Strickland, 589 F.3d 210, 223-24 (6th Cir. 2009), the
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Sixth Circuit held that Ohio’s lethal-injection protocol at the time did not violate the Eighth
Amendment and denied a stay of execution sought in a § 1983 action. The court stated,
“Permitting constitutional challenges to lethal injection protocols based on speculative
injuries and the possibility of negligent administration is not only unsupported by Supreme
Court precedent but is also beyond the scope of our judicial authority.” Id. at 225. It noted
that since Baze, every federal court of appeals that has addressed challenges to various
states’ lethal-injection protocols has rejected them. Id. at 221. Later, in Treesh v. Bagley,
612 F.3d 424, 439 (6th Cir. 2010), the Sixth Circuit denied a certificate of appealability on
a habeas Eighth Amendment challenge to Ohio’s execution protocol because the petitioner
had failed to make a substantial showing that he was denied a constitutional right. And in
Scott v. Houk, supra, as noted above, the Sixth Circuit affirmed the district court’s denial of
a similar habeas lethal-injection claim and denied the petitioner’s request on appeal that it
remand the claim for further development in the district court. Scott, 760 F.3d at 512.
District courts within the circuit also routinely have rejected habeas challenges to
Ohio’s lethal-injection method of execution since Baze. See, e.g., Phillips v. Robinson,
2013 WL 5441772, at *3 (S.D. Ohio Sept. 27, 2013) (Frost, J.) (“Sixth Circuit precedent all
but forecloses Petitioner’s Eighth Amendment claim . . . .”); Brinkley v. Houk, 866 F. Supp.
2d 747, 842-43 (N.D. Ohio 2011) (Adams, J.) (same); Lynch v. Hudson, 2011 WL
4537890, at *132 (S.D. Ohio Sept. 28, 2011) (Frost, J.) (“Petitioner has not (and cannot)
cite to any clearly established federal law as determined by the United States Supreme
Court holding that lethal injection constitutes cruel and unusual punishment . . . .”); Frazier
v. Bobby, 2011 WL 5086443, at *57-58 (N.D. Ohio Oct. 25, 2011) (Gaughan, J.) (same).
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Accordingly, the Court finds no “good cause” for further discovery on Jones’
lethal-injection claim when, even with the discovery he seeks, he has little chance of
succeeding on the merits. Accord Phillips v. Robinson, 2013 WL 5441772, at *6 (S.D.
Ohio Sept. 27, 2013) (Frost, J.) (holding that Cooey (Biros) v. Strickland, supra, was
“sufficient in this Court’s view to find that Petitioner herein cannot presently demonstrate
‘good cause’ to conduct discovery.”).
Respondent advances an additional ground upon which to deny Jones’ discovery
request: it imposes a significant burden and expense on the State and undermines its
interest in finality and wise judicial administration. (ECF No. 192 at 5-6.) She asserts that
the request violates public policy because it is too open-ended; it would allow a new round
of discovery with each new execution protocol and execution. (Id. at 6.) Jones responds
that Respondent has agreed to similar discovery extensions in other habeas cases asserting
lethal injection claims; his requests are not asserted under Habeas Rule 6, but are tied to In
re OEPL by this Court’s order; he has yet even to present his claim to the Sixth Circuit, and
this Court has no authority to rule on the cognizability of that claim; and the discovery will
not burden Respondent because she will have to produce it in In re OEPL in any event.
(ECF No. 195 at 2-4.)
The Court now finds Respondent’s arguments persuasive. As the Court already has
observed,
Jones’ request is overly broad in both time and scope. This Court tied
discovery in this case to the In re OEPL discovery in its scheduling order at
the parties’ request and only because the cases are factually related and the
In re OEPL discovery already was clearly defined and easily could be
reproduced. Jones’ Eighth Amendment habeas claim, however, is legally
distinct from the § 1983 civil rights claims asserted in In re OEPL, and the
12
two cases need not, and should not, be linked to one another indefinitely.
(ECF No. 201 at 23-24.) This conclusion is further supported by Glossip and its
“deepening of the distinction between habeas and 1983” method-of-execution claims.
Landrum, 2015 WL 5145533, at *6.
The discovery Jones seeks does in fact impose a significant burden and expense on
the State, while further, and possibly indefinitely, prolonging a case that has been in this
Court for nearly seven years on a “limited” remand. Indeed, Judge Frost recently opined in
another case that continually granting habeas petitioners more time to conduct discovery
and amend their claims regarding Ohio’s ever-changing lethal-injection protocols and past
executions will “deprive the Sixth Circuit of the opportunity to provide clearer guidance as
to how district courts should treat method-of-execution claims raised in habeas corpus.”
Sheppard v. Robinson, 2015 WL 1565714, at *1 (S.D. Ohio Apr. 8, 2015) (Frost, J.). He
explained:
Against a constantly changing landscape, this Court previously granted
extensions of time out of an abundance of caution. The Court is now of the
view that it must temper the exercise of that caution with a recognition that
the constantly changing landscape of carrying out executions in Ohio does
not justify indefinitely postponing adjudication fo method-of-execution
habeas corpus claims.
Id. at *3. For this reason, too, then, there is not “good cause” to allow Jones additional
discovery on his lethal-injection claim. The Court therefore grants Respondent’s motion to
transfer Jones’ lethal-injection claim back to the Sixth Circuit and denies Jones’ motion to
extend the discovery deadline.
III.
Conclusion
For the foregoing reasons, the Court hereby: (1) grants Respondent’s motion to
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transfer this case back to the Sixth Circuit Court of Appeals for final resolution of
Petitioner Odraye Jones’ petition for writ of habeas corpus (ECF No. 190); (2) denies
Jones’ motion, through counsel, to extend the discovery deadline on his lethal-injection
claim (ECF No. 191); (3) dismisses Jones’ pro se motion to waive his lethal-injection claim
(ECF No. 193); (4) denies Respondent’s motion to dismiss Jones’ lethal-injection claim
(ECF No. 217); and (5) denies Jones’ motion, through counsel, to strike Respondent’s
motion to dismiss (ECF No. 219).
IT IS SO ORDERED.
S/ David A. Katz
DAVID A. KATZ
U. S. DISTRICT JUDGE
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