Morgan v. Stephens-Director TDCJ-CID
Filing
32
OPINION AND ORDER: For the reasons discussed, the Court DENIES Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Further, a certificate of appealability will not be issued. (see order) (Ordered by Senior Judge Terry R Means on 11/28/2017) (tln)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
LARRY JOE MORGAN,
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
§
§
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§
§
§
§
§
§
§
§
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Civil Action No. 4:16-CV-139-Y
OPINION AND ORDER
Before the Court is a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 filed by petitioner, Larry Joe Morgan,
a state prisoner, against Lorie Davis, director of the Texas
Department of Criminal Justice, Correctional Institutions Division,
Respondent. After having considered the pleadings and relief sought
by Petitioner, the Court has concluded that the petition should be
denied.
I.
Factual and Procedural History
On March 22, 2013, petitioner was convicted by a jury in the
396th Judicial District Court, Tarrant County, Texas, Case No.
1249395D, of aggravated assault with a deadly weapon. (Clerk’s R.
94, doc. 21-2.) Subsequently, the trial court found the repeatoffender notice in the indictment true and sentenced Petitioner to
twenty years’ confinement. (Id. at 7, 94.) Petitioner appealed his
conviction, but his appellate counsel filed an Ander’s brief, and
the appellate court, finding no arguable grounds, affirmed his
conviction. The Texas Court of Criminal Appeals refused then
Petitioner’s petition for discretionary. (Mem. Op. 2, doc. 22-15;
Docket Sheet 2, doc. 21-1.) Petitioner also filed a postconviction
state habeas-corpus application challenging his conviction, which
was denied by the Texas Court of Criminal Appeals without written
order on the findings of the trial court. (Action Taken, doc. 232.) This is Petitioner’s second federal habeas petition challenging
the same conviction. The first was dismissed on exhaustion grounds.
(Op. and Order 6-8, Morgan v. Stephens, No. 4:14-CV-635-Y, doc.
29.)
The evidence at trial reflected that Petitioner met Anthony
Moore at Cobb Park in Fort Worth, Texas, where people often
gathered to drink beer and socialize. (Reporter’s R. 28, doc. 216.) The two bought beers from Michael Connor, who was there with
his girlfriend, Terri Carrol, and a group of friends. A dispute
over the beer occurred between Petitioner and Connor. Petitioner
left the park but returned shortly thereafter and confronted Connor
who was sitting in a lawn chair next to Carrol. Connor, who was
unarmed, testified that at some point he thought Petitioner was
pulling a weapon out of his pocket and he put Petitioner in a bear
hug and the two went down on the ground. When Connor realized that
he was being cut by Petitioner, he attempted to get up and run but
his right foot had been nearly severed from his leg. He hopped
2
around a pickup truck in an effort to escape Petitioner, who
continued to pursue him. Petitioner was then subdued by several
bystanders, one of whom hit Petitioner over the head with a folding
stool and one of whom admitted to pulling his own knife on
Petitioner. Petitioner’s industrial sheetrock knife was found at
the
scene.
With
some
inconsistencies,
Carrol
and
five
other
eyewitnesses testified similarly to the events. All the witnesses
testified that at no time did Connor hit, kick, stab, or threaten
Petitioner or act as the aggressor. The defense elicited testimony
on cross-examination that the injury was likely caused by a larger
weapon and presented expert testimony that, due to the nature of
the injury, a heavier “instrument” such as a machete was likely
used and not the sheetrock knife. Petitioner did not testify at
trial, but defense counsel attempted to establish through crossexamination
that
Petitioner
was
acting
in
self-defense
and
Petitioner testified at the punishment phase that Connor’s ankle
was cut while Connor was “stomping” and kicking Petitioner as he
sat on the ground. According to Petitioner, he was shielding his
face with the knife during Connor’s assault.
II.
Petitioner’s
claims
Issues
fall
within
the
following
general
categories: (1) ineffective assistance of counsel; (2) violation of
his
rights
under
the
Fourth,
Fifth,
Eighth,
and
Fourteenth
Amendments; and (3) defects in the state-habeas proceedings. (Pet.
3
6-7, doc. 1; Am. Pet. 7-8, doc. 18.) His claims are multifarious
and addressed as thoroughly as practical below.
III.
RULE 5 STATEMENT
Respondent believes that the petition is neither time-barred
nor
successive
but,
because
of
the
multifarious
nature
of
Petitioner’s claims, reserves the exhaustion and procedural-default
defenses. (Resp’t’s Answer 7, doc. 27.)
IV.
LEGAL STANDARD FOR GRANTING HABEAS-CORPUS RELIEF
A § 2254 habeas petition is governed by the heightened
standard of review provided for in the AEDPA. See 28 U.S.C. § 2254.
Under the Act, a writ of habeas corpus should be granted only if a
state court arrives at a decision that is contrary to or an
unreasonable application of clearly established federal law as
established by the United States Supreme Court or that is based on
an unreasonable determination of the facts in light of the record
before the state court. See 28 U.S.C. § 2254(d)(1)–(2); Harrington
v. Richter, 562 U.S. 86, 100 (2011). This standard is difficult to
meet but “stops short of imposing a complete bar on federal court
relitigation of claims already rejected in state proceedings.”
Harrington, 562 U.S. at 102.
Additionally, the statute requires that federal courts give
great deference to a state court’s factual findings. Hill v.
Johnson, 210 F.3d 481, 485 (5th Cir. 2000). Section 2254(e)(1)
4
provides that a determination of a factual issue made by a state
court shall be presumed to be correct. When the Texas Court of
Criminal Appeals denies relief on a state habeas-corpus application
without written order, typically it is an adjudication on the
merits, which is likewise entitled to this presumption. Harrington,
562 U.S. at 100; Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim.
App. 1997). In such a situation, a federal court may assume that
the state court applied correct standards of federal law to the
facts, unless there is evidence that an incorrect standard was
applied. Townsend v. Sain, 372 U.S. 293, 314 (1963); Schartzle v.
Cockrell, 343 F.3d 440, 443 (5th Cir. 2003); Catalan v. Cockrell,
315 F.3d 491, 493 n.3 (5th Cir. 2002); Valdez, 274 F.3d at 948
n.11; Goodwin v. Johnson, 132 F.3d 162, 183 (5th Cir. 1997). A
petitioner
has
correctness
by
the
clear
burden
and
of
rebutting
convincing
the
evidence.
presumption
28
U.S.C.
of
§
2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003);
Williams v. Taylor, 529 U.S. 362, 399 (2000).
V.
1.
Discussion
Ineffective Assistance of Counsel
A
criminal
defendant
has
a
constitutional
right
to
the
effective assistance of counsel at trial and on the first appeal as
of right. U.S. CONST. amend. VI, XIV; Evitts v. Lucey, 469 U.S. 387,
396 (1985); Strickland v. Washington, 466 U.S. 668, 688 (1984). To
5
establish ineffective assistance of counsel a petitioner must show
(1) that counsel’s performance fell below an objective standard of
reasonableness and (2) that but for counsel’s deficient performance
the result of the proceeding would have been different. Strickland,
466 U.S. at 688. Both prongs of the Strickland test must be met to
demonstrate ineffective assistance. Id. at 687, 697. In applying
this test, a court must indulge a strong presumption that counsel’s
conduct fell within the wide range of reasonable professional
assistance. Id. at 668, 688-89. Judicial scrutiny of counsel’s
performance must be highly deferential and every effort must be
made to eliminate the distorting effects of hindsight. Id. at 689.
The Supreme Court set out in Harrington v. Richter the manner
in which a federal court is to consider an ineffective-assistanceof-counsel claim raised in a habeas petition subject to AEDPA’s
strictures:
The pivotal question is whether the state court’s
application of the Strickland standard was unreasonable.
This is different from asking whether defense counsel’s
performance fell below Strickland’s standard. Were that
the inquiry, the analysis would be no different than if,
for example, this Court were adjudicating a Strickland
claim on direct review of a criminal conviction in a
United States district court. Under AEDPA, though, it is
a necessary premise that the two questions are different.
For purposes of § 2254(d)(1), “an
unreasonable
application of federal law is different from an incorrect
application of federal law.” A state court must be
granted a deference and latitude that are not in
operation when the case involves review under the
Strickland standard itself.
562 U.S. at 101 (quoting Williams v. Taylor, 529 U.S. 362, 410
6
(2000)). Accordingly, it is necessary only to determine whether the
state courts’ rejection of Petitioner’s ineffective-assistance
claims was contrary to or an objectively unreasonable application
of Strickland. Bell v. Cone, 535 U.S. 685, 698-99 (2002); Kittelson
v. Dretke, 426 F.3d 306, 315-17 (5th Cir. 2005); Schaetzle v.
Cockrell, 343 F.3d 440, 443 (5th Cir. 2003).
Petitioner claims his trial counsel was ineffective by failing
to investigate; failing to assert the defense of self-defense;
failing to present the police report, including the eyewitness
statements, for impeachment purposes at trial; failing to present
evidence that the victim was “cut across the bottom of his stomach”
to counter the testimony of the state’s witnesses; failing to have
the 911 CD-ROMs transcribed; failing to request DNA testing or
investigate whether DNA testing had been done; failing to subpoena
and call eyewitnesses who were listed on the offense report; and
“suppressing tangible evidence.” (Pet. 6-7, doc. 1; Am. Pet. 7,
doc. 18.) According to Petitioner, the following evidence was
“concealed”: a favorable “911 caller,” a picture proving selfdefense, “DNA testing,” crime-scene photos showing the scene was
“staged,” and “911 callers of the events.” (Pet. 7, doc. 1.)
Counsel, Scott Walker, responded via affidavit in the statehabeas proceedings to one or more of Petitioner’s allegations as
follows:
4.
Mr. Morgan is correct that I didn’t present a selfdefense claim. Doing so would have been contrary to
7
the physical evidence, and would have been
unproductive. At some point, prior to trial, Mr.
Morgan told me his version of the events that he
told when he testified in the punishment phase of
trial. After reviewing all of the evidence the
State had provided and interviewing three of the
doctors that treated the victim at the hospital, I
realized that Mr. Morgan’s version of the events
did not mesh with the physical evidence. I
explained this to Mr. Morgan. I told him that there
was no blood on his utility knife, which was the
knife the State’s witnesses would say he used to
assault the victim. I also told him that all three
doctors had told me that they did not believe the
injuries to the victim’s ankle could have been
caused by the utility knife. All three doctors also
told me that the injury to the victim’s ankle must
have been caused by a much larger knife, such as a
machete. I explained to Mr. Morgan that our chances
of success would be maximized by allowing the
doctor or doctors to testify to their beliefs, and
then rest our case. At the trial, I decided that it
would be best to rest our case after the first
doctor testified. His testimony was the high point
in the trial for the defense. After the doctor
testified, there was a break for lunch. During the
break, I talked to Mr. Morgan in the holding cell.
I asked my investigator, Ms. Torrez, to accompany
me. We explained to Mr. Morgan that the trial had
gone very well and that I believed that our chances
of obtaining a not guilty verdict was very good if
we rested our case at that point. I certainly did
not in any way assure Mr. Morgan that he would be
found not guilty. I also told Mr. Morgan that if he
chose to testify to his version of events, doing so
would negate everything I had done by having the
doctor testify that Mr. Morgan’s knife could not
have caused the injury to the victim’s ankle. I did
everything I could to convince Mr. Morgan that he
should not testify. However, I carefully explained
to Mr. Morgan that the decision was totally up to
him. I made it clear to him that Texas law is very
clear about it being his decision to make. He
decided to follow my advice and not testify. The
trial judge also admonished Mr. Morgan, explaining
the law very well in this regard. Again, I never
assured Mr. Morgan of an acquittal if he did not
testify.
8
5.
Mr. Morgan is correct that I did not identify and
subpoena a woman who made a 911 call. I was under
the assumption, based on information I obtained
from the prosecution, that the woman was the
victim’s girlfriend. I believe the prosecution was
under the same assumption. I learned from the
prosecution during the trial that the person was in
actuality the victim’s girlfriend’s sister and that
she had arrived shortly before she made the 911
call and did not see the altercation. During trial
preparation, I listened to the 911 recording
several times. I did not hear anything on the
recording that made me feel that I should try to
find the woman and interview her. It was clear to
me that the woman on the recording knew the victim.
I had no reason to believe that she was not the
victim’s girlfriend. Had I learned early on that
she was actually the girlfriend’s sister, I still
would have not changed my plans for trial. I still
would not have seen any reason to find her and
interview her. I felt that our best strategy would
be to hope the prosecution did not call her. That
was because the 911 call was extremely emotional
and certainly would not have been helpful to the
defense.
6.
I did not subpoena the arresting officer. I
believed his testimony certainly would have been
more favorable to the prosecution than the defense.
7.
I offered all the pictures into evidence that would
have been helpful to our case. I have no idea what
Mr. Morgan is referring to in . . . the writ.
8.
It is true that I did not offer the police report
into evidence. Police reports are generally
inadmissible. Also, the prejudicial information in
the report certainly outweighed any possible
exculpatory information.
9.
It is true that I did not bring to the jury’s
attention that the victim was cut across the
stomach, as well as the ankle. Doing so would have
been much more detrimental to our case than
beneficial. There would have been no benefit in
making the jury believe that Mr. Morgan cut the
victim’s stomach, as well as his ankle.
9
10.
It is true that I did not subpoena Officer Salazar
to ask him why DNA testing was not done. Doing so
would have been counter-productive. There was no
reason to believe that DNA testing would have
exonerated Mr. Morgan. After all, from day one, he
stuck to the story that he cut the victim’s ankle
in self-defense.
. . .
14.
It is true that Mr. Morgan told me, early on, that
he had given a SIM card to Jim Shaw, his former
attorney. However, he did not tell me that the SIM
card contained contacts for punishment witnesses.
In fact, Mr. Morgan had consistently refused to
discuss the punishment phase of the trial because
of his belief that he would be found not guilty. At
the beginning of the punishment hearing, I asked
Mr. Morgan, on the record, if this was true, and he
affirmed that it was. What Mr. Morgan had told me
about the SIM card was that it contained a hospital
bill for his own injuries. I did not need that
information because the State had given me all of
Mr. Morgan’s medical records. Mr. Morgan also told
me that his two email accounts had pictures of his
injuries taken a few weeks after the incident. I
did not need the pictures because the State had
given me very good pictures of the injuries which
were taken at the hospital the night of the
incident. Nevertheless, I attempted to gain access
to the email accounts on more than one occasion.
The attempts failed. At some point a week or so
before trial, Mr. Morgan told me that there were
reference letters as to his character contained in
his email accounts. Again, I could not open the
email accounts. But, again, he did not mention the
character letters for the purpose of punishment
evidence. He wanted to offer the letters into
evidence in the guilt/innocence phase of trial. I
explained to him that, even if I could retrieve the
letters,
they
would
almost
certainly
be
inadmissible. Mr. Morgan not only did not help in
planning mitigation, but he actually refused to
talk about it. He refused to give me any contact
information for family members or friends.
(State Habeas R. 59-62, doc. 23-18.)
10
Counsel and the court-appointed investigator also testified at
the new-trial hearing regarding the nature and extent of the
investigation conducted in the case. (Reporter’s R., Hr’g on Mot.
for New Trial, 10-11, 16-19, 26-29, 33-36, doc. 21-15.)
Based on the documentary record, counsel’s affidavit, and his
own recollection of the trial-court proceedings, the state habeas
judge found defense counsel’s testimony and affidavit credible and
supported by the record. He then entered factual findings, too
numerous to list here, refuting Petitioner’s claims. (State Habeas
R. 113-20, doc. 23-18.) Applying Strickland to the totality of
counsel’s representation, the state court concluded that Petitioner
failed to prove that counsel was ineffective, that counsel’s
representation fell below objective standards of reasonableness, or
that there existed a reasonable probability that, but for counsel’s
alleged acts of misconduct, the result of his trial would have been
different. (Id. at 120-23.)
Petitioner fails to rebut the state court’s findings of fact
by clear-and-convincing evidence. See 28 U.S.C. § 2254(e)(1). Thus,
the findings, including the court’s credibility findings, are
entitled to a presumption of correctness. Richards v. Quarterman,
566 F.3d 553, 563-64 (5th Cir. 2009); Galvan v. Cockrell, 293 F.3d
760, 764 (5th Cir. 2002). Applying the appropriate deference and
having independently reviewed Petitioner’s claims in conjunction
with the state court records, it does not appear that the state
11
courts’ application of Strickland was objectively unreasonable.
Petitioner’s claims are largely conclusory, refuted by the record,
or involve strategic and tactical decisions made by counsel, all of
which generally do not entitle a state petitioner to federal habeas
relief. See Strickland, 460 U.S. at 689 (providing strategic
decisions by counsel are “virtually unchallengeable” and generally
do not provide a basis for post-conviction relief on the grounds of
ineffective assistance of counsel); Evans v. Cockrell, 285 F.3d
370, 377 (5th Cir. 2002) (providing petitioner must “bring forth”
evidence, such as affidavits, from uncalled witnesses, including
expert witnesses, in support of an ineffective-assistance claim);
Green v. Johnson, 160 F.3d 1029, 1042 (5th Cir. 1998) (providing
“[m]ere conclusory allegations in support of a claim of ineffective
assistance of counsel are insufficient to raise a constitutional
issue”); United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989)
(providing “[a] defendant who alleges a failure to investigate on
the part of his counsel must allege with specificity what the
investigation would have revealed and how it would have altered the
outcome of the trial”); Alexander v. McCotter, 775 F.2d 595, 602
(5th Cir. 1985) (providing ineffective assistance claims “based
upon uncalled witnesses [are] not favored because the presentation
of witness testimony is essentially strategy and thus within the
trial counsel’s domain, and . . . speculations as to what these
witnesses would have testified [to] is too uncertain”). Petitioner
12
has not demonstrated deficient performance or shown any reasonable
probability that the outcome of his trial would have been different
but for counsel’s representation. A petitioner shoulders a heavy
burden to overcome a presumption that his counsel’s conduct is
strategically
motivated,
and
to
refute
the
premise
that
“an
attorney’s actions are strongly presumed to have fallen within the
wide range of reasonable professional assistance.” Messer v. Kemp,
760 F.2d 1080, 1090 (11th Cir. 1985). Petitioner has presented no
evidentiary, factual, or legal basis in this federal habeas action
that could lead the Court to conclude that the state courts
unreasonably applied the standards set forth in Strickland based on
the evidence presented in state court. 28 U.S.C. § 2254(d).
Petitioner also claims his appellate counsel was ineffective
by failing to investigate; failing to present Petitioner’s “laundry
list of errors” and his claim that the court-appointed investigator
did not investigate on his behalf in his motion for new trial; and
failing to ask for a continuance so as to obtain a completed trial
record.1
(Am.
Pet.
8,
doc.
18.)
To
prevail
on
a
claim
of
ineffective assistance of counsel on appeal, a petitioner must make
a showing that had counsel performed differently, he would have
prevailed on appeal. Sharp v. Puckett, 930 F.2d 450, 453 (5th Cir.
1991) (citing Strickland, 466 U.S. at 687)). Appellate counsel is
1
It does not appear that these claims were exhausted in the state courts
as required by 28 U.S.C. § 2254(b)(1)(A). Nevertheless, a court may deny a claim
on the merits notwithstanding a failure to exhaust. Id. § 2254(b)(2).
13
not required to urge every possible argument, regardless of merit.
Smith v. Robbins, 528 U.S. 259, 288 (2000); Sharp, 930 F.2d at 452.
It is counsel’s duty to choose among potential issues, according to
his judgment as to their merits and the tactical approach taken.
Jones v. Barnes, 463 U.S. 745, 749 (1983). Petitioner fails to
raise any meritorious claims in this petition. Prejudice does not
result from appellate counsel’s failure to assert meritless claims
or arguments.
See United States v. Wilkes, 20 F.3d 651, 653 (5th
Cir. 1994). Thus, it follows that counsel was not ineffective for
failing to raise one or more of Petitioner’s claims in his motion
for new trial and/or on appeal.
2.
Violation of Rights under the Fourth, Fifth, Eighth, and
Fourteenth Amendments
Petitioner claims his constitutional rights under the Fourth,
Fifth, Eighth, and Fourteenth Amendments were violated because of
the prosecution’s tampering with and fabricating physical evidence,
prosecutorial misconduct, mishandling of the physical evidence,
vindictiveness, “aggravated perjury,” conspiracy, and collusion.
(Am. Pet. 7, doc. 18.) According to Petitioner, the
female
assistant prosecutor initially assigned to his case was a friend of
the victim and “had it out for” Petitioner and was romantically
involved
with
the
trial
judge.
(Pet’r’s
Mem.
3,
doc.
19.)
Petitioner further alleges that the trial judge engaged in “court
overreach” by allowing “changes in the pretrial transcripts” in
favor of the prosecution and that the judge was biased against
14
Petitioner based upon several comments he made. (Id. at 4-5.)
However, absent evidence in the record, a court cannot consider
such bald assertions, unsupported and unsubstantiated by anything
else in the record, to be of probative evidentiary value. Ross v.
Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983).
Petitioner also asserts that his constitutional rights under
the Fourth, Fifth, Eighth, and Fourteenth Amendments were violated
“in the manner in which the state conducted their finding of fact
and conclusion of law which rendered the results in error.” (Id. at
6.) However, alleged defects in state habeas proceedings are not a
basis for federal habeas relief. Trevino v. Johnson, 168 F.3d 173,
180 (5th Cir. 1999); Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir.
1995).
Further,
a
paper
hearing
is
sufficient
to
afford
a
petitioner a full and fair hearing, especially where, as here, the
trial judge and the state habeas judge are one and the same. Murphy
v. Johnson, 205 F.3d 809, 816 (5th Cir. 2000).
C. Evidentiary Hearing/Expansion of the Record
Petitioner seeks an evidentiary hearing and/or expansion of
the record for purposes of further developing the record in support
of his claims. See 28 U.S.C. § 2254(e)(2); Rules Governing Section
2254 Cases 7. However, review under § 2254(d)(1) is generally
limited
to
the
record
that
was
before
the
state
court
that
adjudicated the claim(s) on the merits. Cullen v. Pinholster, 563
U.S. 170, 181-82 (2011). Further, §
15
2254(e)(2) provides:
(e)(2) If the applicant has failed to develop the
factual basis of a claim in State court proceedings, the
court shall not hold an evidentiary hearing on the claim
unless the applicant shows that–
(A)
the claim relies on–
(i) a new rule of constitutional
law, made retroactive to cases on
collateral review by the Supreme
Court,
that
was
previously
unavailable; or
(ii) a factual predicate that
could not have been previously
discovered through the exercise of
due diligence; and
(B) the facts underlying the claim would
be sufficient to establish by clear and
convincing evidence that but for constitutional
error, no reasonable factfinder would have found
the applicant guilty of the underlying offense.
Id.
Petitioner has not met the statutory criteria and further
development of the record is not necessary in order to assess the
claims.
VI.
Conclusion
For the reasons discussed, the Court DENIES Petitioner’s
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Further, a certificate of appealability will not be issued.
Such a certificate may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). “Under this standard, when a district court
denies habeas relief by rejecting constitutional claims on their
merits, ‘the petitioner must demonstrate that reasonable jurists
16
would find the district court’s assessment of the constitutional
claims debatable or wrong.’” McGowen v. Thaler, 675 F.3d 482, 498
(5th Cir. 2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)). Petitioner has not made a showing that reasonable jurists
would
question
this
Court’s
resolution
of
his
constitutional
claims. Therefore, a certificate of appealability should not issue.
SIGNED November 28, 2017.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
17
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