Osgood v. Steward
Filing
14
MEMORANDUM AND OPINION as set forth in following order. Signed by Chief District Judge Thomas A Varlan on 2/18/14. (c/m)(ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
VERIC DEAN OSGOOD,
Petitioner,
v.
HENRY STEWARD, Warden,
Respondent.
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No.:
3:10-cv-457-TAV-CCS
MEMORANDUM
This is a petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by
petitioner Veric Dean Osgood ("petitioner"). The matter is before the Court on the
respondent's answer to the petition. For the following reasons, the petition for the writ of
habeas corpus will be DENIED and this action will be DISMISSED WITH PREJUDICE.
I.
Standard of Review
A state prisoner is entitled to habeas corpus relief "only on the ground that he is in
custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C.
§ 2254(a). Under Rule 8 of the Rules Governing Section 2254 Cases In The United States
District Courts, the Court is to determine, after a review of the answer and the records of the
case, whether an evidentiary hearing is required. If no hearing is required, the district judge
is to dispose of the case as justice dictates. If the record shows conclusively that petitioner
is not entitled to relief under § 2254, there is no need for an evidentiary hearing and the
petition should be denied. Baker v. United States, 781 F.2d 85, 92 (6th Cir. 1986).
II.
Factual Background
The respondent has provided the Court with copies of the relevant documents as to
petitioner's post-conviction proceedings. [Doc. 10, Notice of Filing Documents, Addenda
1 & 2]. Petitioner pleaded guilty to an information charging him with two counts of
aggravated kidnapping, one count of aggravated robbery, and one count of aggravated
burglary. Pursuant to the plea agreement, he was sentenced to concurrent terms of
imprisonment of twelve years on the aggravated kidnapping convictions, a consecutive term
of imprisonment of twelve years on the aggravated robbery conviction, and a consecutive
term of imprisonment of six years on the aggravated burglary conviction, for a total effective
sentence of thirty years. Petitioner subsequently filed a petition for post-conviction relief,
in which he asserted a claim of ineffective assistance of counsel and that his guilty plea was
not knowingly and voluntarily entered. The post-conviction petition was denied after an
evidentiary hearing, and the Tennessee Court of Criminal Appeals affirmed. Osgood v.
State, No. E2009-00757-CCA-R3-PC, 2010 WL 3293926 (Tenn. Crim. App. Aug. 20, 2010)
[Addendum 2, Doc. 11].
The Tennessee Court of Criminal Appeals on appeal from the denial of postconviction relief summarized the history of petitioner's guilty plea and post-conviction
proceedings as follows:
1
The opinion of the Tennessee Court of Criminal Appeals was incorrectly designated by the
respondent in the Notice of Filing Documents as Addendum 2, Doc. 3.
2
The Petitioner agreed to waive his right to prosecution by indictment
or presentment and was charged by information on two counts of especially
aggravated kidnapping, one count of aggravated robbery, and one count of
aggravated burglary. On May 30, 2007, the Petitioner pled guilty to the
charged offenses. The plea agreement provided for sentences of twelve years
for each aggravated kidnapping conviction to be served concurrently; a
twelve-year sentence for the aggravated robbery conviction to be served
consecutively to the aggravated kidnapping sentences; and a six-year sentence
for the aggravated burglary conviction to be served consecutively to the
aggravated robbery sentence for a total effective sentence of thirty years.
At the guilty plea hearing, the State recited the following factual basis
for the pleas:
[T]he victims in this matter, Mr. and Mrs. Patterson, residents of
the City of Friendsville, [would testify] that on the date
appearing on the information-that being March the 22nd, 2007,
that [the Petitioner], along with Co-Defendants Kerley and
Patterson, entered their residence around the midnight hour ... by
way of ruse from Ms. Kerley that she was feigning car trouble
and that she had a small child in the car. She gained initial entry
into the residence. [The Petitioner] followed close behind,
entered into a physical confrontation with Mr. Patterson,
ultimately shoving the 70-some-odd-year-old gentleman to the
ground and binding him, holding him at gunpoint. When Mrs.
Patterson came out, he instructed her to be seated, held her at
gunpoint as well. Co-Defendant Kerley began to ransack the
residence, retrieving items of personalty from the person of Mr.
Patterson, as well as items from the household; to wit, change,
personal items such as shoes, car keys, et cetera.
They then stole the elderly couple's vehicle and fled the
scene. They were later apprehended in the couple's vehicle-all
three co-defendants were later apprehended in the vehicle with
items belonging, in fact, to the victims.
Subsequently, the Petitioner filed a petition for post-conviction relief,
alleging that his trial counsel was ineffective and that his guilty pleas were not
knowingly and voluntarily entered. In support of his claims, the Petitioner
alleged that he was erroneously advised by counsel that he would have to serve
only thirty percent of his thirty-year sentence in confinement.
3
Id., 2010 WL 3293926 at *1 (internal citation omitted).
The appellate court also summarized the testimony at the post-conviction evidentiary
hearing and the findings of the trial court in denying post-conviction relief:
At the post-conviction hearing, the Petitioner testified that he and
counsel had numerous discussions regarding whether the Petitioner should
plead guilty. The Petitioner maintained that he had been "threatened" that if he
proceeded to trial, he faced eighty-five years in prison. The Petitioner said trial
counsel showed him a chart which explained the potential sentences in
different ranges, but he did not understand what he was being shown.
The Petitioner stated that trial counsel told him that if he accepted the
plea agreement, he could be released after serving eight years, which was
approximately thirty percent of his thirty-year sentence. The Petitioner said
that after he pled guilty and went to prison, he learned that because he had no
prior felony convictions, he was "perfectly qualified for not only the low range
of eight to twelve ... [but] also qualified for concurrent [sentencing]."
The Petitioner said he pled guilty believing "that they would go lenient
on me, I would be shown mercy. And the mercy would come either through
the percentage or the year amount." He stated that trial counsel advised him
that he would be eligible to get out of prison in eight years if he "kept his nose
clean" but that his early release was not guaranteed.
The Petitioner acknowledged that the agreement provided that he would
be eligible for release after serving eighty-five percent of his sentence in
confinement. However, he said that counsel explained to him that eighty-five
percent of his sentence was the maximum time he would be required to serve.
The Petitioner said he would not have entered guilty pleas had he known that
he would have to serve eighty-five percent of his aggravated kidnapping
sentences in confinement before becoming eligible for release. He
acknowledged that counsel "[b]riefly" reviewed the plea agreement form with
him before he signed it.
The Petitioner stated that he became further confused about the terms
of his guilty pleas when the trial court referred to the charging instrument as
an indictment even though the Petitioner had actually waived his right to an
indictment and was being charged by information. He said he waived his right
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to an indictment believing it would prevent the State from seeking a longer
sentence.
The Petitioner said that the State made the plea offer two weeks before
he accepted it and that he initially refused the offer. However, based upon trial
counsel's advice and his fear of receiving a longer sentence if convicted at trial,
he eventually decided to accept the State's offer. He said counsel told him that
a trial would not "be a good idea. That he wasn't a paid lawyer and that his
wife was pregnant and by the time we went to trial his wife's baby would be
due and he wouldn't have the time or the access or the ability to properly
represent me in a trial." The Petitioner said he was also told that he faced a
potential sentence of eighty-five years, and he believed it was in his best
interest to accept a plea agreement with a thirty-year sentence and the
possibility of release after eight years.
Petitioner's trial counsel testified that he was appointed to represent the
Petitioner. He averred that at no time during his representation did he intimate
that the Petitioner might be released after serving eight years in confinement.
Trial counsel said that the Petitioner was a standard Range I offender and that
he faced a potential maximum sentence of forty-two years.
Trial counsel said the State had "a particular interest" in the case
because the elderly victims were the grandparents of one of the co-defendants,
they had sustained serious physical injury during the offense, and the case had
received "significant media attraction." The State also threatened to try the
counts separately to "bump [the appellant] up into a different range." After
plea negotiations began, the State told counsel that if the Petitioner did not
plead guilty, the prosecutor would go back before the grand jury and seek
further felony charges against the Petitioner. Counsel said he attempted to
negotiate a plea involving a sentence less than thirty years, but the State would
not agree to a lesser sentence.
Trial counsel said he was in contact with the Petitioner no less than
thirteen times during his representation and that he reviewed the plea
agreement with the Petitioner. Trial counsel said the Petitioner understood the
sentences he was receiving and knew some of the sentences were to be served
at eighty-five percent. Trial counsel said he made a graph that depicted the
State's offer, including the ranges of punishment and the lengths of sentences.
On the graph, which was introduced at the post-conviction hearing, trial
counsel wrote that the Petitioner would serve 15.6 years in confinement if he
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served eighty-five percent of his aggravated kidnapping sentences and thirty
percent of his aggravated robbery and aggravated burglary sentences.
Trial counsel said that he received discovery from the State, which
included statements as well as photographs of the victims and of the items
recovered. He said the Petitioner initially wanted to fight the charges.
However, the Petitioner was unable to meet his $300,000 bond. Additionally,
one of the Petitioner's co-defendants pled guilty, and counsel advised the
Petitioner that the co-defendant could "turn state's evidence" against him. Trial
counsel denied ever telling the Petitioner that counsel's wife's pregnancy would
affect his representation.
At the conclusion of the hearing, the post-conviction court found that
counsel was not ineffective and that the Petitioner's pleas were knowingly and
voluntarily entered. Specifically, the court found that counsel was credible and
that there was no proof, other than the Petitioner's bare assertions to support
his allegations of ineffective assistance. The court found that the Petitioner's
claims were belied by the transcript of the guilty plea hearing, which reflected
that the Petitioner was advised he would have to serve eighty-five percent of
two of his sentences. The transcript reflects that the following colloquy
occurred regarding the sentences to be imposed:
The Court: All right. Do you understand, in counts one
and two, you're going to receive a sentence of twelve years?
[The Petitioner]: Yes.
The Court: All right, sir. Do you also understand that in
count three, you're going to receive another twelve-year
sentence, do you understand?
[The Petitioner]: Yes.
The Court: And that sentence is going to run consecutive
to count[s] one and two?
[The Petitioner]: Yeah.
The Court: And do you understand in the last count of the
indictment, you're going to receive a six-year sentence, and that
sentence is going to run consecutive to count one, two, and
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three. And this effectively gives you a 30-year sentence; do you
understand that?
[The Petitioner]: Yes.
The Court: You're eligible for release on three of these
sentences at 85 percent; do you understand that? Or maybe two
of these sentences....
[The State]: Two of them, Your Honor.
The Court: Two of these sentences at 85 percent; do you
understand that?
[The Petitioner]: Yes
The Court: That doesn't mean you'll be released at 85
percent, do you understand?
[The Petitioner]: Right. Yes.
The Court: That means that's the first time you'll be
eligible for being released. With regard to the burglary
conviction and the other conviction, you'll be eligible for release
at 30 percent; do you understand?
[The Petitioner]: Yes.
The Court: And again, that doesn't mean that you're going
to be released; that means you'll just be considered for release.
Do you understand?
[The Petitioner]: Yes.
The Court: Do you understand that the effect of this
sentence is to give you 30 years in the State penitentiary? Do
you understand?
[The Petitioner]: Yes.
Id. at **2-4.
7
This Court has reviewed the record of petitioner's post-conviction proceedings,
including the transcript of the evidentiary hearing and the transcript of petitioner's guilty plea.
[Addendum 1, Vol. 1, Technical Record of Post-Conviction Proceedings; Addendum 1, Vol.
2, Transcript of the Post-Conviction Hearing; Addendum 1, Vol. 4, Exhibits to PostConviction Hearing, Exhibit No. 1, Transcript of Guilty Plea]. The summary by the
Tennessee Court of Criminal Appeals is accurate and is supported in the record.
In support of his petition for the writ of habeas corpus, petitioner alleges (1) his guilty
plea was not knowingly and voluntarily entered because he did not understand the
consequences of his plea, and (2) he received the ineffective assistance of counsel when his
attorney advised him to waive his rights and enter a guilty plea that he did not fully
understand. The respondent contends he is entitled to judgment as a matter of law based on
the findings of the Tennessee state courts.
III.
State Court Findings
Pursuant to 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), petitioner may not obtain federal habeas corpus relief with
respect to a claim that was adjudicated on the merits in a state court proceeding unless the
state court decision (1) was contrary to, or involved an unreasonable application of, clearly
established federal law or (2) was not reasonably supported by the evidence presented to the
state court. In addition, findings of fact by a state court are presumed correct and petitioner
must rebut the presumption of correctness by clear and convincing evidence. 28 U.S.C. §
2254(e).
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The Supreme Court, in Williams v. Taylor, 529 U.S. 362 (2000), clarified the
distinction between a decision "contrary to," and an "unreasonable application of," clearly
established Supreme Court law under § 2254(d)(1). A state court decision is "contrary to"
Supreme Court precedent "if the state court arrives at a conclusion opposite to that reached
by [the Supreme Court] on a question of law or if the state court decides a case differently
than [the Supreme Court] has on a set of materially indistinguishable facts." Id. at 413. A
state court decision "involves an unreasonable application of clearly established Federal law"
only where "the state court's application of clearly established federal law was objectively
unreasonable." Id. at 409. A federal habeas court may not find a state adjudication to be
"unreasonable" "simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law erroneously or
incorrectly. Rather, that application must also be unreasonable." Id. at 411.
Recent case law indicates the high bar a habeas petitioner must meet under the
standard set by the AEDPA. "A state court's determination that a claim lacks merit precludes
federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the
state court's decision.
Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). "[A] habeas court must determine what
arguments or theories supported or ... could have supported the state court's decision; and
then it must ask whether it is possible fairminded jurists could disagree that those arguments
or theories are inconsistent with the holding in a prior decision of this Court." Id. The
Supreme Court acknowledges this is a very high standard. "If this standard is difficult to
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meet, that is because it is meant to be." Id. See also Renico v. Lett, 130 S. Ct. 1855, 1866
(2010) ("AEDPA prevents defendants -- and federal courts -- from using federal habeas
corpus review as a vehicle to second-guess the reasonable decisions of state courts."); Peak
v. Webb, 673 F.3d 465, 472 (6th Cir. 2012) ("[T]he Supreme Court has very recently made
abundantly clear that the review granted by the AEDPA is even more constricted that
AEDPA's plain language already suggests.") (citing Harrington v. Richter, 131 S. Ct. at 786).
Petitioner has failed to rebut, by clear and convincing evidence, the findings of the
state courts and they will be presumed correct by this Court. In light of the foregoing, the
Court will consider petitioner's claims for relief.
IV.
Discussion of Claims
A.
Voluntariness of Guilty Plea
The United States Supreme Court has held that, prior to accepting a guilty plea, a state
criminal court judge must affirmatively determine that the plea is "intelligent and voluntary."
Boykin v. Alabama, 395 U.S. 238, 242 (1969). The judge must ensure that the defendant
understands that he is waiving several federal constitutional rights: his right to a trial by jury,
his right to confront the witnesses against him, and his privilege against self-incrimination.
Id. at 243-44.
Petitioner alleges his guilty plea was not voluntary because he was advised by counsel
that he would only be required to serve thirty percent of his sentence before he was eligible
for release, when in fact it was eighty-five percent. Petitioner raised this claim in his postconviction proceedings and it was rejected by the state courts. The trial court determined that
10
petitioner entered a knowing and voluntary plea. [Addendum 1, Vol. 1, Technical Record
of Post-Conviction Proceedings at 60, Order denying post-conviction relief, p. 10].
As noted in the summary by the Tennessee Court of Criminal Appeals, the trial court
specifically found that the transcript of petitioner's guilty plea hearing contradicted his claim
that he did not understand the consequences of his guilty plea. [Id. at 4-8]. The trial court
also found that petitioner's written plea agreement also contradicted his claim:
Before the Court, as Ex. 3, is Petitioner's guilty plea agreement form in
the underlying criminal proceeding. That form unambiguously states that
Petitioner received two (2) twelve (12)-year aggravated kidnapping sentences,
as a Range I offender, to be served concurrently, with a percentage of eightyfive percent of those twelve (12)-year sentences to be served before he would
be eligible for release; and that he received two (2) consecutive sentences, (1)
a twelve (12)-year sentence for aggravated robbery with a thirty percent
release eligibility, and (2) a six-year aggravated burglary sentence, again at
thirty percent, with the aggravated robbery and aggravated burglary sentences
to be served consecutively to each other and to the underlying concurrent
aggravated kidnapping sentences, for a total effective sentence of thirty (30)
years.
Petitioner executed that plea agreement form which, in addition,
contained a statement of certain rights of the Petitioner which, by execution of
the form, he acknowledged he was aware of, including his right to plead not
guilty and to have a jury trial.
[Id. at 4, ¶ 14].
In considering the voluntariness of petitioner's guilty plea, the Tennessee Court of
Criminal Appeals first noted the Boykin standard for evaluating such a claim. Osgood v.
State, 2010 WL 3293926 at *5. The appellate court then concluded:
The post-conviction court found that the transcript of the guilty plea hearing
belied the Petitioner's contentions. The court noted that the Petitioner's guilty
pleas were clearly and unambiguously explained to him, including which
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sentences were concurrent, which were consecutive, and the percentage of
each sentence which was to be served in confinement. Additionally, the court
found that the Petitioner was aware that he had an effective thirty-year
sentence. There is nothing in the record to preponderate against the
post-conviction court's findings. Accordingly, we conclude that the Petitioner
was clearly informed regarding the sentences he was receiving as a result of
his guilty pleas. Therefore, we agree with the post-conviction court that
counsel was not ineffective in his representation of the Petitioner and that the
Petitioner's guilty pleas were knowingly and voluntarily entered.
Id. at *6.
As noted, this Court has reviewed the record of petitioner's post-conviction
proceedings, including the transcripts of the guilty plea hearing and the post-conviction
hearing. This Court has also reviewed petitioner's signed guilty plea, which was an exhibit
at the post-conviction hearing. [Addendum 1, Vol. 4, Exhibits to Post-Conviction Hearing,
Exhibit No. 3, Plea Agreement]. The findings by the state courts are supported in the record.
In his plea agreement, petitioner acknowledged his understanding of his right to plead
not guilty, his right to a trial by jury, his right to confront the witnesses against him, and his
right against self-incrimination; he further acknowledged his understanding that he was
giving up those rights by pleading guilty. [Id. at 2]. The plea agreement also set forth the
terms of imprisonment for each conviction and the percentage of each term of imprisonment
that petitioner would be required to serve before being eligible for early release. [Id. at 2-3].
Petitioner's rights as well as the consequences of his guilty pleas were likewise explained to
him during the guilty plea hearing. [Id., Exhibit No. 1, Transcript of Guilty Plea].
The Constitution does not require a precise litany for the entry of a valid guilty plea;
all that is required is that the guilty plea is in fact voluntary and knowing. See Campbell v.
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Marshall, 769 F.2d 314, 324 (6th Cir. 1985); Armstrong v. Egeler, 563 F.2d 796, 799 (6th
Cir. 1977). The record in this action clearly establishes that the petitioner's guilty pleas were
in fact voluntary and in full compliance with the requirements of Boykin v. Alabama.
Based upon the foregoing, the state courts' decisions that petitioner's guilty plea was
knowingly and voluntarily made were neither contrary to, nor did they involve an
unreasonable application of, federal law as set forth in Boykin v. Alabama. Accordingly,
petitioner is not entitled to relief on this claim.
B.
Effectiveness of Counsel
In Strickland v. Washington, 466 U.S. 668 (1984) the Supreme Court established a
two-part standard for evaluating claims of ineffective assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the "counsel" guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id. at 687.
To establish that his attorney was not performing "within the range of competence
demanded of attorneys in criminal cases," McMann v. Richardson, 397 U.S. 759, 771 (1970),
petitioner must demonstrate that the attorney's representation "fell below an objective
standard of reasonableness." Strickland v. Washington, 466 U.S. at 687-88. In judging an
attorney's conduct, a court should consider all the circumstances and facts of the particular
case. Id. at 690. Additionally, "a court must indulge a strong presumption that counsel's
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conduct falls within the wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the circumstances, the challenged
action 'might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana,
350 U.S. 91, 101 (1955)). A finding of serious attorney incompetence will not justify setting
aside a conviction, however, absent prejudice to the defendant so as to render the conviction
unreliable. Id. at 691-92.
The two-part test of Strickland also applies to ineffective assistance of counsel claims
in cases involving guilty pleas. Hill v. Lockhart, 474 U.S. 52 (1985).
We hold, therefore, that the two-part Strickland v. Washington test
applies to challenges to guilty pleas based on ineffective assistance of counsel.
In the context of guilty pleas, the first half of the Strickland v. Washington test
is nothing more than a restatement of the standard of attorney competence
already set forth in Tollett v. Henderson, [411 U.S. 258 (1973)], and McMann
v. Richardson, [397 U.S. 759 (1970)]. The second, or "prejudice," requirement,
on the other hand, focuses on whether counsel's constitutionally ineffective
performance affected the outcome of the plea process. In other words, in order
to satisfy the "prejudice" requirement, the defendant must show that there is
a reasonable probability that, but for counsel's errors, he would not have
pleaded guilty and would have insisted on going to trial.
Id. at 58-59 (footnote omitted).
Petitioner alleges he received the ineffective assistance of counsel when his attorney
advised him to waive his rights and enter a guilty plea that he did not fully understand. The
trial court and the Tennessee Court of Criminal Appeals concluded that petitioner's guilty
plea was knowing and voluntary, and therefore he failed in his claim of ineffective assistance
of counsel. In doing so, the appellate court noted that Strickland v. Washington and Hill v.
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Lockhart established the standard for evaluating the claim of ineffective assistance of
counsel. Osgood v. State, 2010 WL 3293926 at *5.
This Court having found that petitioner's guilty plea was knowing and voluntary, there
is nothing in the record to demonstrate that petitioner received ineffective assistance of
counsel under either prong of Strickland. Based upon the foregoing, this Court concludes
that the state courts' determinations that petitioner received the effective assistance of counsel
were neither contrary to, nor did they involve an unreasonable application of, federal law as
established by the Supreme Court in Strickland v. Washington and Hill v. Lockhart.
Petitioner is not entitled to relief on this claim.
V.
Conclusion
The petition for habeas corpus relief will be DENIED and this action will be
DISMISSED WITH PREJUDICE. Petitioner having failed to make a substantial showing
of the denial of a constitutional right, a certificate of appealability SHALL NOT ISSUE. 28
U.S.C. § 2253(c); Rule 22(b) of the Federal Rules of Appellate Procedure. The Court will
CERTIFY that any appeal from this action would not be taken in good faith and would be
totally frivolous. See Rule 24 of the Federal Rules of Appellate Procedure. The Court will
further DENY petitioner leave to proceed in forma pauperis on appeal.
AN APPROPRIATE ORDER WILL ENTER.
s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE
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