Green v. Johnson
Filing
18
MEMORANDUM OPINION re: 12 Motion To Dismiss by Gene M. Johnson. (See Memorandum Opinion For Details). Signed by District Judge T. S. Ellis, III on 10/12/11. (nhall)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
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Alexandria Division
Corey C. Green,
Petitioner,
OCT 1 2 2011
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C1.
ale; . ,.. . (
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V.
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Harold W. Clarke,
Respondent.
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l:10cv!239(TSE/TRJ)
MEMORANDUM OPINION
Corey C. Green, a Virginia inmate proceeding p_ro se, has filed a petition for a writ of habeas
corpus, pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his conviction of drug
offenses in the Circuit Court of Mecklenburg County. On April 8, 2011, respondent filed a Rule 5
Answer accompanied by a Motion to Dismiss with a supporting brief. Petitioner was given the
opportunity to file responsive materials, pursuant to Roschoro v. Garrison. 528 F.2d 309 (4th Cir.
1975), and he has filed no reply. Accordingly, this matter is now ripe for disposition. For the reasons
that follow, respondent's Motion to Dismiss must be granted, and the petition must be dismissed.
I. Background
On March 4, 2008, petitioner was convicted following a bench trial of one count of
possession with intent to distribute cocaine and three counts of distribution of cocaine, in violation
of Va. Code § 18.2-248. On November 24, 2008, Green was sentenced to serve an aggregate of 70
years in prison with 63 years suspended. On direct appeal, Green challenged the sufficiency of the
evidence to sustain the convictions, but his argument was rejected and the petition for appeal was
denied in a per curiam opinion. Green v. Commonwealth. R. No. 3083-08-2 (Va. Ct. App. July 18,
2009). Green did not seek review of that decision by the Supreme Court of Virginia.
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On April 7,2010, Green filed a petition for a writ of habeas corpus with the Supreme Court
of Virginia, raising the following claims:
A.
His conviction was based on a violation ofhis right to
due process because the trial court allowed the
Commonwealth to elicit inadmissible hearsay
testimony from the police officer.
B.
He received ineffective assistance ofcounsel when his
attorney failed to object to: a) the officer's
inadmissible hearsay testimony and b) the admission
of evidence that was obtained through the use of
unauthorized interception of wire and electronic
surveillance.
C.
His conviction violated Title in of the Omnibus
Crime Control Act of 1968.
The Supreme Court ofVirginia denied Green's habeas application, holding that claims A and
C were barred from collateral review because they were non-jurisdictional issues that could have been
raised at trial and on direct appeal, and that claim B was without merit. Green v. Warden. Lunenburg
Corr. Ctr.. R. No. 100722 (Va. Aug. 12,2010).
Greentimely filedthe instant petition for § 2254 habeas corpus relief on October20,2010,1
reiterating the same claims he raised in his state habeas corpus proceeding. Subsequently, Green
sought and was granted leave to amend his petition to add additional claims. Dkt. 3 - 5. In the petition
as amended, Green raises the following issues:
1.
(a) His conviction was based on a violationofhis right to due process
because the trial court allowed the Commonwealth to elicit
inadmissible hearsay testimony from the police officer.
'Pleadings submitted to a federal court by prisoners are deemed filed when properly delivered
to prison officials for mailing. Houston v. Lack. 487 U.S. 266 (1988); Lewis v. City of Richmond
Police Dep't. 947 F.2d 733 (4th Cir. 1991). See Dkt. 1, ECF 14.
(b) His right to due process was violated because his case was
premised on perjury committed by the informant during the
preliminary hearing.
2.
(a) He received ineffective assistance of counsel when his attorney
failed to object to 1) the inadmissible hearsay testimony of a police
officer gained through the confidential informant and 2) the admission
of evidence that was obtained through the use of unauthorized
interception of wire and electronic surveillance.
(b) He received ineffective assistance of counsel when his attorney
failed to impeach the confidential informant when the informant
committed perjury.
(c) He received ineffective assistance of counsel when his attorney
failed to raise the issue of the informant's perjury on direct appeal.
(d) He received ineffective assistance of counsel when his attorney
failed to object to the illegal use ofsurveillance equipment on Fourth
Amendment grounds and failed to raise that issue on direct appeal.
(e) He received ineffective assistance of counsel when his attorney
allowed the case to be certified from the general district court to the
circuit court after the informant committed perjury.
3.
His conviction violated Title HI ofthe Omnibus Crime Control Act of
1968.
II. Exhaustion and Procedural Bar
In reviewing a petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254, a
federal court must first determine whether the petitioner has exhausted his claims before the
appropriate state courts and whether those claims are barred by a procedural default. As a general
rule, a federal petitioner must first exhaust his claims in state court because exhaustion is a matter of
comity to the state courts; failure to exhaust a claim requires its dismissal by the federal court. See
28 U.S.C. § 2254(b); Granberrv v. Greer. 481 U.S. 129, 134 (1987); Rose v. Lundv. 455 U.S. 509,
515-19 (1982). To comply with the exhaustion requirement, a state prisoner "must give the state
courts one full opportunity to resolve any constitutional issues by invoking one complete round ofthe
State's established appellate review process." O'Sullivan v. Boerckel. 526 U.S. 838, 845 (1999).
Thus, in Virginia, a § 2254 petitioner must first have presented the same factual and legal claims to
the Supreme Court of Virginia either by way of a direct appeal, a state habeas corpus petition, or an
appeal from a circuit court's denial ofa state habeas petition. Matthews v. Evatt. 105 F.3d 907,910-
11 (4th Cir. 1997) (quoting Picard v. Connor. 404 U.S. 270, 275-78 (1971) for the proposition that
for a claim to be exhausted, "both the operative facts and the 'controlling legal principles' must be
presented to the state court."): see Pruett v. Thompson. 771 F.Supp. 1428,1436(E.D.Va. 1991), afPd
996 F.2d 1560 (4th Cir. 1993) (exhaustion requirement is satisfied when "allegations advanced in
federal court... [are] the same as those advanced at least once to the highest state court.").
This does not end the exhaustion analysis, however, because "[a] claim that has not been
presented to the highest state court nevertheless maybe treated as exhausted ifit is clear that the claim
would be procedurally barred under state law if the petitioner attempted to present it to the state
court." Baker v. Corcoran. 220 F.3d 276,288 (4th Cir. 2000) (citing Gray v. Netherland. 518 U.S.
152,161 (1996)). Importantly, however, if"the procedural bar that gives rise to exhaustion provides
an independent and adequate state-law ground for the conviction and sentence," this will "prevent[]
federal habeas review of the defaulted claim." Id (quoting Gray. 518 U.S. at 162).
Additionally, where a state court has determined that a claim has been procedurally defaulted,
its finding is entitled to a presumption ofcorrectness on federal habeas corpus review, provided two
foundational requirements are met. Harris v. Reed. 489 U.S. 255,262-63 (1989); Clanton v. Muncv.
845 F.2d 1238, 1241 (4th Cir. 1988) (citing 28 U.S.C. § 2254(d)). First, the state court must have
relied explicitly on the procedural ground to deny petitioner relief. Id Second, the state procedural
rule relied on to default petitioner's claim must be an independent and adequate state ground for
denying relief. Id at 260; Ford v. Georgia. 498 U.S. 411. 423-24 (1991). When these two
requirements have been met, federal courts may not review the barred claims absent a showing of
cause and prejudice or a fundamental miscarriage ofjustice, such as actual innocence. Harris. 489
U.S. at 260.
These principles, applied here, compel the conclusion that most ofpetitioner's present claims
are procedurally barred from federal review. Claims 1(b) and 2(b) - (e) have never been presented
to the Virginia courts, so they remain unexhausted. Matthews. 105 F.3d at 910. Moreover, it is clear
that these claims would now be barred ifpetitioner attempted to bring them in the state forum, as they
would be both untimely and successive, in contravention of Va. Code §§ 8.01-654(A)(2) and 8.01-
654(B)(2), respectively. Since the Fourth Circuit has "held on numerous occasions that the
procedural default rule set forth in § 8.01-654(B)(2) constitutes an adequate and independent statelaw ground for decision," Mackall v. Angelone. 131 F.3d 442,446 (4th Cir. 1997), claims 1(b) and
2(b) - (e) of this petition are procedurally defaulted from federal consideration.
In addition, when Green first raised claims 1(a) and (3) in his application for a state writ of
habeas corpus, the Supreme Court ofVirginia found that both claims were non-jurisdictional issues
that could have been but were not raised on direct appeal, and that they thus were not cognizable in
a petition for habeas corpus pursuant to Slavton v. Parriean. 215 Va. 27, 29, 205 S.E.2d 680, 682
(1974), cert, denied. 419 U.S. 1108 (1975). The Fourth Circuit has held consistently that "the
procedural default rule set forth in Slavton constitutes an adequate and independent state law ground
for decision." Mu'Min v. Pruett. 125F.3d 192,196-97 (4th Cir. 1997). Therefore, claims 1(a) and
(3) also are procedurally barred from federal review.
Federal courts may not review barred claims absent a showing of cause and prejudice or a
fundamental miscarriage of justice, such as actual innocence. Harris v. Reed. 489 U.S. 255, 260
(1989). The existence ofcause ordinarily turns upon a showing of(1) a denial ofeffective assistance
ofcounsel, (2) a factor external to the defense which impededcompliancewith the state procedural
rule, or (3) the novelty of the claim. See Coleman. 501 U.S. at 753-54; Clozza v. Murray. 913 F.2d
1092,1104 (4th Cir. 1990V Clanton v. Muncv. 845 F.2d 1238,1241-42 (4th Cir. 1988). Importantly,
a court need not consider the issue ofprejudice in the absence ofcause. See Kornahrens v. Evatt. 66
F.3d 1350,1359 (4th Cir. 1995). cert, denied. 517 U.S. 1171 (1996).
Petitioner has filed a Responsive Pleading to a Dismissal Order for Procedural Default [Dkt.
7] in which he asserts that the procedural default of his claims was caused by the ineffective
assistance rendered by his counsel. However, it is well established that "a claim of ineffective
assistance [generally must]... be presented to the statecourtsas an independent claimbeforeit may
be used to establishcause for a procedural default." Edwards v. Carpenter. 529 U.S. 446,452 (2000),
quoting Murray v.Carrier. 477U.S. 478,489 (1986). Theonlybaseson which petitioner challenged
the constitutionality of his representation in his state court proceedings were on the grounds that
counsel failed to object to the police officer's hearsay testimony and to the admission of evidence
that was obtained through the use of unauthorized interception of wire and electronic surveillance.
Since the procedural default of petitioner's federal claims occurred eitherbecause the claims were
not raised at all in the state forum or because petitioner failed to present them to the trial court,
petitioner's independently-exhausted claims of ineffective assistance are factually irrelevant to the
issue of procedural bar, and counsel's efforts therefore cannot establish cause for the procedural
default of petitioner's claims. Coleman. 501 U.S. at 753-54. Accordingly, theissueof prejudice need
not be reached, Kornahrens. 66 F.3d at 1359,and claims 1(a) - (b), 2(b) - (e) and (3) ofthis petition
are procedurally barred from consideration on the merits.
III. Standard of Review
Where a state court has addressed the merits of a claim raised in a federal habeas petition, a
federal court may not grant habeas relief unless the state court's adjudication is contrary to, or an
unreasonable application of, clearly established federal law, or is based on an unreasonable
determination ofthe facts. 28 U.S.C. § 2254(d). The evaluation ofwhether a state court decision is
"contrary to" or "an unreasonable application of federal law is based on an independent review of
each standard. Williams v. Taylor. 529 U.S. 362,412-13 (2000). A state court determination meets
the "contrary to" standard if it "arrives at a conclusion opposite to that reached by [the United States
Supreme] Court on a question of law or if the state court decides a case differentlythan [the United
States Supreme]Court has on a set ofmaterially indistinguishablefacts." Williams. 529 U.S. at 413.
Under the "unreasonable application" clause, the writ should be granted ifthe federal court finds that
the state court "identifies the correct governing legal principle from [the Supreme] Court's decisions
but unreasonably applies that principle to the facts ofthe prisoner's case." Id Moreover, this standard
of reasonableness is an objective one. Id at 410.
IV. Merits
In Claim 2(a), the sole claim cognizable on the merits in this federal proceeding, petitioner
argues that he received ineffective assistance of counsel in two respects. To establish ineffective
assistance ofcounsel, a petitioner must show that (1) "counsel's performance was deficient" and (2)
"the deficient performanceprejudiced the defendant." Strickland v. Washington. 466 U.S. 668,687
(1984). To prove that counsel's performance was deficient, a petitioner must show that "counsel's
representation fell below an objective standard of reasonableness" id at 688, and that the "acts and
omissions" of counsel were, in light of all the circumstances, "outside the range of professionally
competent assistance." Id at 690. Such a determination"must be highly deferential," with a "strong
presumption that counsel's conduct falls within the wide range ofreasonable professional assistance."
Id at 689; see also. Burket v. Angelone. 208 F.3d 172,189 (4th Cir. 2000) (reviewing court "must
be highly deferential in scrutinizing [counsel's] performance and must filter the distorting effects of
hindsight from [its] analysis"); Spencer v. Murray. 18 F.3d 229, 233 (4th Cir. 1994) (court must
"presume that challenged acts are likely the result of sound trial strategy.").
To satisfy Strickland's prejudice prong, a "defendant must show that there is a reasonable
probabilitythat, but for counsel's unprofessional errors,the result ofthe proceedingwould have been
different." Strickland. 466 U.S. at 694. And, in this respect, "[a] reasonable probability is a probability
sufficient to undermine confidence in the outcome." Id; accord. Lovitt v. True. 403 F.3d 171,181
(4th Cir. 2005). The burden is on the petitioner to establish not merely that counsel's errors created
the possibilityof prejudice, but rather "that they worked to his actual and substantial disadvantage,
infecting his entire trial with errors of constitutional dimension." Murray v. Carrier. 477 U.S. 478,
494 (1986) (citations omitted, emphasis original). The two prongs ofthe Strickland test are "separate
and distinct elements of an ineffective assistance claim," and a successful petition "must show both
deficient performance and prejudice." Spencer. 18 F.3d at 233. Therefore, a court need not review
the reasonableness ofcounsel's performance ifa petitioner fails to show prejudice. See Ouesinberrv
v. Tavlore. 162 F.3d 273,278 (4th Cir. 1998).
In claim 2(a)(1), petitioner contends that trial counsel rendered ineffective assistance when
he failed to object to inadmissible hearsay testimony of a police officer which had been gained
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through the confidential informant. When Green made this same argument in his state habeas
proceeding, it was rejected by the Supreme Court of Virginia on the following holding:
In a portion ofclaim (B), petitioner alleges he was denied the effective
assistance ofcounsel because counsel failed to object when the police
officer gave hearsay testimony, consisting of information the officer
obtained
from
the
confidential
informant
and
the
electronic
surveillance.
The Court holds that this portion of claim (B) satisfies neither the
'performance' nor the 'prejudice' prong ofthe two-part test enunciated
in Strickland v. Washington. 466 U.S. 668, 687 (1984). The record,
including the trial transcripts and the affidavit of counsel,
demonstrates that defense counsel's strategy was to undermine the
credibility of the informant by eliciting information provided to the
officer by the informant that was inconsistent with the officer's
testimony. Counsel allowedthe officerto testify without interruption
so that the officer would be less guarded and hesitant. Any objection
to the officer's testimony would have been non-productive and would
have been counter to the defense strategy. Thus, petitioner has failed
to demonstrate that counsel's performance was deficient or that there
is a reasonable probability that, but for counsel's alleged error, the
result of the proceeding would have been different.
Green v. Warden, supra, slip op. at 2.
As noted in its foregoing opinion, the Supreme Court of Virginia was provided with the
affidavit ofdefense counsel Jonathan E. Green, Esquire in the state habeas proceeding. In connection
with the claim under discussion, counsel attested to the following facts:
Mr. Green alleges that I provided ineffective assistance of counsel in
that I allowed a police officerto testify to the fact that the informant
identified Mr. Green as the person who sold him drugs on three
separate occasions. Mr. Green's argument ignores or glosses over
several very important facts. First, the informant, Michael Reynolds,
testified in court as the Commonwealth's first witness. During his
testimony,he identified Mr. Green as the party who sold drugs to him
on three separate occasions. Second, our defense strategy was to
undermine the credibility of the informant. As such, we needed to
elicit testimony from the officer about what the officer had observed
and what the informant had told the officer in order to point out
discrepancies in the informant's testimony. Mr. Green was aware of
and agreed to this overall strategy. Third, each drug buy was subject
to audio and video surveillance. While two of these three tapes were
dark and all had poor sound quality, the third video clearly showed Mr.
Green interacting with the informant. The tape was viewed by the
court during the trial, having been previously made available to the
defense during discovery.
As noted above, the informant was called as the Commonwealth's first
witness during the trial. The informant testified about each drug
purchase and identified Mr. Green as the party who sold the drugs to
him. The informant also testified that surveillance equipment was
used on each occasion and that he made notes about each transaction
after it was completed. In response to questions from the prosecutor,
Mr. Reynolds described what Mr. Green was wearing each time and
gave other information about the circumstances surrounding each
transaction. Thus, the identity of Mr. Green was clearly in evidence
by the time Mr. Reynolds left the stand.
InvestigatorPenningtonwas the Commonwealth's second witness. At
the time he took the stand, the informant had already testified and
identified the defendant. Thus, any information about the seller's
identity that the officer received from the informant had already been
introduced in the informant's earlier testimony about each transaction.
Green Aff, Mo. to Dismiss, Ex. 3, at 1 - 2.
It is well established in federaljurisprudence that '"strategic choices made [by counsel] after
thorough investigation... are virtuallyunchallengeable....'" Gray v. Branker. 529 F.3d 220,229 (4th
Cir.), cert, denied. 129 S. Ct. 1579 (2009), quoting Strickland. 446 U.S. at 690-91. In particular,
"[w]here a defendant, fully informed of the reasonable options before him, agrees to follow a
particular strategy at trial, thatstrategy cannot laterform thebasisof a claimof ineffective assistance
ofcounsel." United States v. Weaver. 882 F.2d 1128,1140 (7th Cir. 1989). In this case, the Supreme
Court ofVirginiarecognized that counsel's reasonable defense strategyofattempting to undermine
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the confidential informant's credibilityby highlighting discrepancies betweenhis in-courtand prior
statementswas furtheredby counsel's decision allowthe policeofficer to testifywithout interruption.
In arriving at its decision, the Court expressly relied on the controlling authority ofStrickland. so its
decision was not contrary to clearly established federal law. In addition, based on counsel's affidavit,
the Court reasonably applied the principles outlined in Strickland to the facts of petitioner's case.
Accordingly, no federal habeas remedy is appropriate for the claim that counsel's failure to interpose
objections to the police officer's testimony amounted to ineffective assistance. See Williams. 529
U.S. at 412-13.
In claim 2(a)(2), petitioner contends that counsel provided constitutionally deficient
representationby failing to object to the admissionofevide"nee that was obtained through the use of
unauthorized interception of wire and electronic surveillance. In rejecting this claim, the Supreme
Court of Virginia found as follows:
In another portion of claim (B), petitioner alleges he was denied the
effective assistance of counsel because counsel failed to object to
evidence obtained by 'the use of unauthorized] interception of wire
and electronic surveillance.'
The Court holds that this portion of claim (B) satisfies neither the
'performance' nor the 'prejudice' prongofthetwo-parttest enunciated
in Strickland. The record, including the trial transcript and affidavit
of counsel, demonstrates that the informant was a party to the oral
communication and gave consent to the interception of the
communication. Counsel is not ineffective for failing to object when
the objection has no legal basis. Thus, petitioner has failed to
demonstrate that counsel's performance was deficient or that there is
a reasonableprobability that, but for counsel's alleged error, the result
of the proceedingwould have been different.
Green v. Warden, supra, slip op. at 2 - 3.
In his affidavit, defense counsel explains as follows:
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Mr. Green's second allegation seems to be that I did not object to the
video tape evidence being produced in his case. He claims that such
surveillance was not properly authorized under federal law and that I
should have objected to it on that basis.
Each of the three transactions in this case concerned face to face
exchangesbetween Mr. Green and the informant,Mr. Reynolds. Prior
to each transaction, Mr. Reynolds received audio and video
surveillance equipment which were concealed on his person. These
devices were left from the time Mr, Reynolds left the presence of the
investigating officer until the time he returned to the officer and
surrendered the equipment to him. The devices recorded events that
happened in and around the person of the informant and did not
involve the recording of telephone calls, text messages, e-mails, or
other forms of electronic communication.
Tapesof all three transactions weremade available to me prior to the
trial during the discoveryprocess. I viewedthese tapes on November
7,2007, in the company ofInvestigatorPennington. I was aware that
some or all of the tapes would be used at trial and reviewed the
contents of the tapes with Mr. Green. Prior to trial, we discussed the
strengths and shortcomings of this evidence and planned our trial
strategy with the knowledge thatthe tapes would be used.
Toward the end of Investigator Pennington's testimony, the
Commonwealth introduced the video and audio recordings of one of
the three drug transactions. This tape, of the February 9, 2007
transaction, clearlyshowed Mr. Green interacting with the defendant,
[sic]... [T]he recording corroborated theinformant's testimony about
Mr. Greenbeingpresentat the timeof the buy. More importantly, the
tape confirmed that Mr. Green had called the informant back to discuss
information Mr. Green had that the informant was working for the
police, a fact thatMr. Reynolds had testified to when on the stand.
...[I]t appears that [Green] is attempting to apply legal requirements
governing wiretaps or the interception of electronic communications
to this case. As the recorded actions in this case involved a face to
face meeting andconversations between twoindividuals, oneofwhom
wasaware of thepresence of therecording equipment, I do notbelieve
Mr. Green's argument has merit....
Green Aff., Mo. to Dismiss, Ex. 3, at 2 - 3.
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As counsel observed in his affidavit, petitioner's understanding of the law regarding the
gathering of electronic evidence is mistaken. It has been held repeatedly that a person has no
expectation of privacy in, and no basis to suppress, conduct and conversation that occurs in the
presence ofan informant. See UnitedStatesv. Caceres. 440 U.S. 741,750-51 (1979). "H]f a person
consents to the presence at a meeting of another person who is willing to reveal what occurred, the
Fourth Amendment permits the government to obtain and use the best available proof of what the
latter person would have testified about." United States v. Lee. 359 F.3d 194, 200 (3d Cir.), cert,
denied. 543 U.S. 955 (2004). Additionally, under Virginia law, it is not a criminal offense "for a
person to intercept a wire, electronic or oral communication, where such person is a party to the
communication or one of the parties to the communication has given prior consent to such
interception." Va. Code § 19.2-62(B)(2).
In the light of this controlling law, it is apparent that the Supreme Court of Virginia
reasonablyapplied the principles ofStrickland to the facts ofpetitioner's case. Had counsel objected
to the admission of the video tape evidence, the objection rightfully would have been overruled, so
petitioner cannot demonstrate that he was prejudiced when counsel failed to do so. Moreover, even
if there had been a lawful basis on which to exclude the electronic evidence, the informant's live
testimony at trial provided the court with the same information. Under these circumstances, the
Virginia Court's rejection of this claim was neither contrary to clearly established federal law nor
based on an unreasonable determination of the facts, so the same result is compelled here. See
Williams. 529 U.S. at 412-13.
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V. Conclusion
For the foregoing reasons, respondent's Motion to Dismiss must be granted, and this petition
must be dismissed. An appropriate Order shall issue.
Entered this
12 day of
tU
2011.
Alexandria, Virginia
T.S.Ellis, HI
United States District Judge
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