This edition leads off with developments in Ohio. A Sixth Circuit panel stayed the upcoming execution of Lawrence Reynold due to concerns about a repeat of Mr. Broom's botched execution. Governor Strickland then stayed all imminent executions in light of the problems with the botched execution of Mr. Broom. At this point uncertainty reigns about what will happen next in one of 2009's busiest execution chamber.
The Ninth Circuit has granted two Arizona inmates new penalty phase trials. In Danny Lee Jones v. Ryan a panel holds trial counsel failed to adequately investigate, prep and present petitioner's horrific childhood abuse, extensive head injuries and trauma, ongoing drug abuse, cognitive difficulties, and a host of mental and emotional disorders. A second Ninth Circuit Panel in Laurence K. Libberton v. Ryan likewise grants penalty phase relief as trial counsel missed, in this multiple defendant homicide, (A) petitioner's role as a mere follower; (B) that he had suffered an abusive childhood including brutalization by his father, and (C) also missed other evidence as to his mental and emotional state that could have been presented.
Two other notable grants of relief are had. The Texas Court of Criminal Appeals granted sentencing phase relief in Ex parte Carl Wayne Buntion as "[t]he nullification instruction given to applicant's jury was not a sufficient vehicle to allow jurors to give meaningful effect to the mitigating evidence presented by applicant." The Sixth Circuit in William T. Montgomery v. Bagley reverses both guilt and penalty phase verdicts as the State with held a crucial exculpatory police report
Oral argument in Smith v. Spisak is scheduled by the Supreme Court for Tuesday on IAC and Mills claims. An odd vehicle for certiorari, all eyes watching the Mills claim in this case.
In the news, Todd Willingham's probable wrongful execution continues to reverberate, Stand Down as the compete details In Arizona a state trial court judge denied relief on whether Jeffrey Landrigan''s claims that Arizona's lethal-injection procedure is unconstitutional. In Arkansas the state supreme court heard argument on whether a new law clarifying the state's lethal injection procedures is constitutional Despite problems elsewhere, Nebraska corrections officials propose to use a 3-drug combo for its new execution protocol. Finally, Michael Roy Toney died in a freak one-vehicle rollover crash in Texas one month after his release from Texas's death row.
27 Reginald Blanton* (Texas)
4 Paul Johnson* (FL
5 Khristian Oliver* (Texas)
10 Yosvanis Valle* (Texas)
10 John Allen Muhammad* (Virginia)
17 Gerald Eldridge* (Texas)
18 Danielle Simpson* (Texas)(V)
19 Robert Thompson* (Texas)
2 Cecil Johnson Jr.* (Tenn)
8 Kenneth Biros * (Ohio)
9 Devin Banks (Tenn)
Recent Stays & Reprieves
1 Jerome Marshall (Penn)
3 William Wright (Penn)
22 Noel Matos Montalvo (Penn)
22 Romell Broom* (Ohio)
24 Donald Mitchell Tedford (Penn)
24 Kenneth Mosely* (Tex)
30 John Balentine* (Tex)
5 Larry Bird Elliott* (Virginia)(reprieve until at least mid-November)
9 Lawrence Reynolds, Jr.* (Ohio)
22 Christopher Kennedy (Penn)
10 Darryl Durr* (Ohio)
8 Max Payne* (Alabama)
* "serious" execution date / (s) stay believed likely / (V) Volunteer / note this list may exclude any recently added execution date
(note that none of the Pennsylvania dates listed are likely actual execution dates)
Week of October 5, 2009 – In Favor of the Accused or Condemned (initial list)
Lawrence Reynolds v. Strickland, 2009 U.S. App. LEXIS 21816; 2009 FED App. 0356P (6th Cir. 10/5/2009) (dissent) "An Ohio inmate's motion for a stay of his execution is granted and remanded for fact-finding and evidentiary hearings on the merits in light of Ohio's revision of its execution protocol in May 2009 where the state experienced serious and troubling difficulties in executing at least three inmates, giving rise to at least two questions: 1) whether Ohio is fully and competently adhering to the Ohio lethal injection protocol given (a) their failure to have a contingency plan in place should peripheral vein access be impossible, (b) issues related to the competence of the lethal injection team, and (c) other potential deficiencies; and 2) whether these instances present sufficient new, additional factors to revive petitioner's Eight Amendment claims otherwise extinguished by Cooey v. Strickland, 479 F.3d 412 (6th Cir. 2007)." [via FindLaw]
Week of October 5, 2009 – In Favor of the State or Government (initial list)
Derrick Lon Jackosn v. Thaler, 2009 U.S. App. LEXIS 22287 (5th Cir 10/9/2009)(unpublished) COA denied "on the district court's rejection of his arguments that the 2007 judgment against him was void pursuant to Rule 60(b)(4) and should be set aside pursuant to Rule 60(d)(3) because his court-appointed attorneys perpetrated a fraud on the court."
John Alvalos Alba v. Thaler, 2009 U.S. App. LEXIS 22263 (5th Cir 10/8/2009) (unpublished) COA denied on "1. The State's decision to seek the death penalty was racially motivated 1 and therefore violated his rights under the Fifth, Sixth, Eighth, Thirteenth, and Fourteenth Amendments" and " 2. Racially motivated imposition of the death penalty is contrary to "evolving standards of decency" and violates the Eighth Amendment."
Ex parte Bobby Wayne Woods, 2009 Tex. Crim. App. LEXIS 1432 (Tex. Crim. App. 10/7/2009) "[W]e decide that applicant's additional evidence does not compellingly or dramatically undermine the previously considered substantial evidence that supports a finding that applicant is not mentally retarded. Even with a consideration of applicant's additional evidence, a rational finder of fact could still find that applicant is not mentally retarded and that applicant manufactured a mental-retardation claim in an attempt to escape the ultimate punishment for the brutal murder of an eleven-year-old girl. Applicant's current successive habeas corpus application, therefore, does not meet the requirements of Article 11.071, § 5(a)(3). " More at the CCA blog, including the oral argument.
Commonwealth v. John Amos Small, 2009 Pa. LEXIS 2105 (Penn 10/5/2009) (dissent) "A post conviction court erred by granting defendant a new trial regarding his murder conviction as defendant failed to show that the outcome of the trial would have been different had two particular witnesses been called, his then-wife's testimony did not meet the exception under 42 Pa.C.S. § 5914, and no conflict of interest was shown." [via Lexis]
Week of October 5, 2009 – Other (initial list)
Bigler Jobe Stouffer II v. Workman, 2009 U.S. App. LEXIS 22188 (10th Cir 10/8/2009) (unpublished) In Oklahoma, a death row inmate "is not entitled to earned credits because his death sentence is not a "term of imprisonment" within the meaning of Okla. Stat. tit. 57, § 138."
State v. Fry, 2009 Ohio 5315; 2009 Ohio LEXIS 2824 (Ohio 10/7/2009) Motion for continuance of oral argument denied.
Week of September 28, 2009 – In Favor of the Accused or Condemned
Danny Lee Jones v. Ryan, 2009 U.S. App. LEXIS 21634 (9th Cir 10/2/2009) "The 9th (Thomas joined by B. Fletcher and Hawkins) finds IAC in the sentencing phase of this capital prosecution for two murders. The defense lawyer failed to (1) secure appointment of a defense mental health expert; (2) seek neurological and neuropsychological testing; and (3) present additional mitigation witnesses and evidence. The mitigation related to petitioner's horrific childhood abuse, extensive head injuries and trauma, ongoing drug abuse, cognitive difficulties, and a host of mental and emotional disorders. Congratulations to AFPDs Letty Marquez and Sylvia Lett of the FPD Arizona Capital Habeas Unit." [via the Ninth Circuit blog]
Laurence K. Libberton v. Ryan, 2009 U.S. App. LEXIS 21633 (9th Cir 10/2/2009) "The 9th (W. Fletcher joined by Clifton and M. Smith) finds IAC in the sentencing phase of this capital murder. The murder was committed by three co-defendants. There was extensive evidence, not used by counsel, that the petitioner was a mere follower, and that one other co-defendant was the leader, and the other co-defendant had a violent background and was threatening to the petitioner. Petitioner also suffered from an abusive childhood, was placed in CPS for years as a result, and was brutalized by his father. Further, there was evidence as to his mental and emotional state that could have been presented. The 9th did deny relief on the guilt claims, finding that the "deal" between one co-defendant and the government was not disclosed, but was harmless given the nature of the statement the co-defendant had made previously. The 9th also found that AEDPA controlled one guilt claim because the claim had been dismissed." [via the Ninth Circuit blog]
William T. Montgomery v. Bagley, 2009 U.S. App. LEXIS 21314; 2009 FED App. 0348P (6th Cir. 9/29/2009) Relief granted in light of Brady.Specifically "The District Court issued the writ based on a finding that the State, in violation of Brady v. Maryland." "In this capital case, the State is unable to effectively rebut three crucial propositions that control the outcome: (1) the withheld report is exculpatory and should have been disclosed before trial, (2) it is "material" because, if true, it would likely change the outcome of the trial, and (3) the ultimate determination concerning the truth of the withheld report — i.e., what actually happened — is for the state courts to resolve. Because, like the District Court, we believe that the withheld, exculpatory report "undermines confidence in the verdict" as to both the guilt and sentencing phases of Montgomery's trial, we hold that Montgomery deserves a new trial where all of the relevant evidence is considered by the jury. For the reasons that follow, we affirm the District Court's issuance of the writ and later denial of the State's motion to reconsider. We pretermit the remaining issues raised in Montgomery's cross-appeal. "
Ex parte Carl Wayne Buntion, 2009 Tex. Crim. App. Unpub. LEXIS 635 (Tex. Crim. App. 9/30/2009) (unpublished) "The nullification instruction given to applicant's jury was not a sufficient vehicle to allow jurors to give meaningful effect to the mitigating evidence presented by applicant. Because the mitigating evidence presented at applicant's trial is the type of evidence for which he was entitled to a separate vehicle for consideration, we remand the case to the trial court for a new punishment hearing."
Week of September 28, 2009 – In Favor of the State or Government
Frederick Bell v. Epps, 2009 U.S. App. LEXIS 21331 (5th Cir 9/28/2009) (unpublished) Relief denied. "His argument that his trial counsel was inadequate for failure to investigate witnesses to corroborate his alibi is [ ] both waived and procedurally barred." The state supreme court's adjudiation of claims "that his trial counsel was ineffective at sentencing for failure to develop additional testimony on potential mitigating factors" was not unreasonable.
Randy Lamont Lewis v. State, 2009 Ala. Crim. App. LEXIS 123 (Ala. Crim. App. 10/2/2009) Relief denied on claims including: (A) Method of execution; (B) "Lewis's second argument is that indicting him for, convicting him of, and sentencing him for three counts of capital murder violated double jeopardy principles;" (C.) that "the State did not present sufficient evidence to support his capital murder conviction;" (D) "his trial attorneys did not properly investigate the statements of the witnesses; that, based on that failure, his trial attorneys were not able to find the cameraman from WBRC-TV Fox 6 News who videotaped Vontricesa saying that she did not know the man who was charged with killing Taurus Frost until the end of the defense testimony; that he was not able to subpoena the cameraman to authenticate the videotape; and that he was not able to introduce the videotape for the purpose of impeaching Davis;" and (E) Statutory review. Convictions vacated for robbery and kidnapping as they were subsumed in the charges of capital robbery-murder and capital kidnapping-murder.
Vernon Lamar Yancey v. State, 2009 Ala. Crim. App. LEXIS 126 (Ala. Crim. App. 10/9/2009) On return from remand, judicial override of sentencing jury's life recommendation affirmed. Remand previously had to reweigh and memorialize the weight given sentencing jury's life recommendation
Commonwealth v. Craig Williams, 2009 Pa. LEXIS 2096 (Penn 10/2/2009) (dissent) "Relief denied on a fairly strong claim about failure of trial counsel to conduct a reasonable investigation. Good language about the judicial adoption of the prosecution's proposed order on postconviction review. An order of the Post-Conviction Relief Act, 42 Pa.C.S. § 9541 et seq., court denying appellant a new penalty hearing on remand was upheld since each of his claims of ineffective assistance of counsel were found meritless under 42 Pa.C.S. § 9543." [via Lexis]
Commonwealth v. Cam Ly, 2009 Pa. LEXIS 2043 (Penn 10/1/2009) (dissent) Relief denied, most notably, as the dissent notes, on claims relating to "trial counsel [ ] conducted effectively no pre-trial penalty-phase investigation and, indeed, did not so much as ask Appellant about his background. It is undisputed that, prior to the penalty hearing, counsel also did not even attempt to learn what aggravating circumstances the Commonwealth intended to pursue." Lexis examines the decision this way: "[u]nder U.S. Const. amend. XIV, conflicting identifications made by a witness of another person involved in a shooting should have been disclosed because they could have been used to question her identification of appellant as the shooter. Appellant was not prejudiced, however, as the witness never wavered in identifying appellant as the shooter."
Commonwealth v. Jerry Chambers, 2009 Pa. LEXIS 2039 (Penn 9/30/2009) "On direct appeal, there was sufficient evidence to support defendant's death sentence and conviction for first-degree murder (18 Pa.C.S. § 2502) based on the evidence that he beat the three-year-old victim regularly, struck her so hard on the night of her death that she hit a radiator and was thrown behind a bed where she suffocated." [via Lexis]
Ex parte Rubern Ramirez Cardenas, 2009 Tex. Crim. App. Unpub. LEXIS 652 (Tex. Crim. App. 9/30/2009) (unpublished) Relief summarily denied.
Ex parte Sheldon Aaron Ward, 2009 Tex. Crim. App. Unpub. LEXIS 640 (Tex. Crim. App. 9/30/2009) (unpublished) Relief summarily denied.
Ex parte David Lee Powell 2009 Tex. Crim. App. Unpub. LEXIS 632, (Tex. Crim. App. 9/30/2009) (unpublished) Relief summarily denied.under Article 11.071, § 5.
Week of September 28, 2009 – Other
Week of September 21, 2009 – In Favor of the Accused or Condemned
State v. Neyland, 2009 Ohio 5015; 2009 Ohio LEXIS 2686 (Ohio 9/25/2009) Order enlarging the record.
- People v. Laurence Lovejoy, 2009 Ill. LEXIS 1302 (Ill 9/24/2009) The People committed a discovery violation in not turning over certain purported conclusions reached by its experts. Specifically, the prosecution furnished in discovery an expert's report indicating that the substance in which a footprint, linked to the Defendant, was made was not blood, at trial, however, the expert would testify the substance in which the print was made was indeed blood. The trial court denied defense requests to strike the testimony, grant a continuance to bring in a defense expert, and reopen proofs. The State supreme court orders a new trial ordered in light of the discovery violation and because the Defense's request for a continuance should have been granted.
Week of September 21, 2009 – In Favor of the State or Government
- United States v. Alfonso Rodriguez, Jr., 2009 U.S. App. LEXIS 20921 (8th Cir 9/22/2009) (dissent) Relief denied on this direct appeal, most notably on, the Government's closing, its denigration of mitigation, and its use of banned argument (including arguing nexus between mitigation and the events of the crime). The Clerk's Office notes that the "[d]istrict court did not err in denying defendant's motion for a change of venue based on pretrial publicity; court did not abuse its discretion by denying defendant's request for additional funding for further venue studies; jury selection plan did not systematically exclude minorities and did not violate defendant's right to a fair and impartial jury; district court did not err in denying defendant's Batson challenges as the government offered race- neutral grounds for its strikes; district court did not err in excluding two venire persons who expressed reservations about their ability to impose the death penalty; no error in admitting acid-phosphate evidence under Rule 702; no err in admitting evidence of defendant's two prior sexual assault convictions; no error in admitting victim impact statements during the penalty phase of this death penalty case; victim's father's act of shaking hands with the prosecutor after the completion of his testimony did not improperly bolster the father's testimony or suggest that the family desired a death sentence; prosecutor's comments did not misstate the law concerning the burden of proof for mitigating factors and did not direct the jurors to disregard the factors if they did not have a nexus to the killing; government's comments about sentences for kidnapping and kidnapping resulting in murder misstated the law, but did not require a new trial; prosecutor's comment regarding the effect a death sentence might have on defendant's family were not improper in context of the court's comments and the prosecutor's clarification of the argument; in any event, the jury found the impact on defendant's family was a mitigating factor, thereby showing it did not disregard the factor as irrelevant; prosecution's comments on the fact that defendant offered to plead guilty in exchange for a life sentence (thereby showing the mitigating factor of acceptance of responsibility) did not prejudice defendant or require a mistrial; while the prosecution should not disparage the defendant's mitigation evidence by arguing that he was just "put[ting] stuff up and hop[ing] it sticks," or suggesting counsel was "selling" the case, the comments did not require a new trial; asking the jurors to imagine what the victim went through was permissible; while asking the jurors to imagine the victim's "raw fear" was an impermissible "golden rule"argument, as the government did not produce any evidence of her fear, the comments did not affect defendant's substantial rights; a prosecutor's brief claim to "speak for" the victim is improper if, in the context of the surrounding statements, it appeals excessively to the jurors' emotions; here, however, the surrounding statements focused on the government's case, not sympathy for the victim or her family, and the comment was not improper; any error in the prosecutor's comments characterizing defendant's prior criminal history for sexual assault was harmless; no error in admitting defendant's prior convictions to establish the aggravating factor in 18 U.S.C. Sec. 3592(c)(4) as the previous victims' testimony established they suffered serious bodily injury during defendant's sexual assaults; no error in penalty-phase instructions; constitutional challenges to federal death penalty rejected. Judge Melloy, concurring in part and dissenting in part."
- Mack Arthur King v. State, 2009 Miss. LEXIS 449, (Miss 9/24/2009 ) (dissent) Relief denied on a substantial Ake v. Oklahoma challenge as to experts and "the opportunity to fully develop evidence of mental retardation." Other claims on which relief is denied include: A.) "Mississippi's lethal injection procedure creates a substantial risk of serious harm in violation of the Eighth Amendment;" B.) "The trial court erred in failing to allow presentation of mitigation evidence;" C.) Ineffective assistance of counsel ("King asserts that counsel was ineffective for failure to: 1) challenge the sufficiency of the indictment; 2) preserve the issue of residual doubt for appeal; 3) challenge Mississippi's lethal injection protocol; 4) raise Panetti v. Quarterman on rehearing; and 5) properly litigate King's mental retardation claim."); D.) King is mentally retarded as defined by state case law; E.) Cumulative error; and F.) Proportionality.
- Jonathan Kyle Binney v. State, 2009 S.C. LEXIS 463 (S.C. 9/24/2009)(dissent) "In this case, we granted a writ of certiorari to review an order of the post-conviction relief (PCR) court denying Petitioner's motion for (1) the return of his trial file from the Attorney General's Office (AGO) and (2) the disqualification of the AGO attorneys who viewed the file. Petitioner argues that his attorney-client privilege was violated when, after he filed an application for PCR, trial counsel turned over his entire trial file to the AGO. We find that Petitioner's attorney-client privilege was not violated by the disclosure of his entire trial file to the AGO and affirm the PCR court's order." "Petitioner completely waived his attorney-client privilege pursuant to S.C. Code Ann. § 17-27-130 because the allegations made in his application for PCR were so broad as to encompass in effect nearly the entire scope of trial counsel's obligations in Petitioner's defense."
- Christopher Coleman v. Thaler, 2009 U.S. App. LEXIS 20991 (5th Cir 9/22/2009)(unpublished) The use of Rule 60(b) in this case was tantamount to successive petition.
- Arthur Tyler v. Strickland (Cooey II v. Strickland), 2009 U.S. App. LEXIS 21140 (6th Cir. 9/23/2009) (unpublished) Lethal injection challenge denied in this post-"Broom botch" case to Ohio death row inmate holding that Circuit precedent does not recognize exceptions to the circuit precedent sought by Tyler.
- Duane Buck v Thaler, No. 06-70035 (5th Cir 9/25/2009)(unpublished) Application for COA denied on "whether he was deprived of due process or equal protection by the prosecution's reference to Dr. Quijano's testimony citing race as a future-dangerousness factor."
- Michael James Jackson v. State, 2009 Fla. LEXIS 1578 (FL 9/24/2009) Relief denied on "the following issues: (1) whether the trial court erred in denying Jackson`s motion for judgment of acquittal; (2) whether the trial court erred in failing to suppress evidence found in a locked safe inside a South Carolina motel room; (3) whether the trial court erred in failing to suppress recordings of telephone calls made by Jackson while he was incarcerated in South Carolina; (4) whether the trial court erred in admitting evidence that Jackson solicited his cellmate to assist him in escaping from jail; (5) whether the trial court erred in introducing the out-of-court statements of a non-testifying codefendant in violation of Jackson`s confrontation rights; (6) whether the trial court erroneously gave great weight to the jury`s recommendation without providing an alternative means for the jury to be advised of the available mitigation evidence; (7) whether this Court`s comparative proportionality review is unconstitutional; (8) whether Jackson`s death sentences are disproportionate; and (9) whether Florida`s capital-sentencing scheme violates due process, the Sixth Amendment, and Ring v. Arizona."
- Ray Jackson v. State, 2009 Fla. LEXIS 1577 (FL 9/24/2009) "On appeal, Jackson presents the following claims: (1) he is entitled to a new trial because of improper impeachment by the State coupled with improper argument to the jury by the prosecutor; (2) the trial court erred in allowing into evidence matters that were irrelevant and prejudicial; (3) the trial court erred in denying Jackson's request for an instruction regarding circumstantial evidence; (4) the trial court erred in denying Jackson's motion for judgment of acquittal on the ground that evidence failed to show that the victim died by the criminal agency of another; (5) the trial court erred in denying Jackson's requested jury instructions in the penalty phase; (6) the trial court imposed the death penalty upon an erroneous finding that the murder was committed in a cold, calculated, and premeditated manner (CCP); and (7) Jackson's sentence of death is disproportionate."
- William Matthew Wilson v. State, 2009 Miss. LEXIS 450 (Miss 9/24/2009) "Wilson raises five assignments of error for this Court's review: (1) whether the trial court abused its discretion and arbitrarily refused to accept the first guilty plea on March 5, 2007, thus preventing Wilson from accepting the plea-bargain agreement for life imprisonment, or in the alternative, Wilson was denied effective assistance of counsel that resulted in his loss of the enforcement of the original plea-bargain agreement, all in violation of the state and federal constitutions; (2) whether the prosecution committed misconduct by improperly cross-examining a mitigation witness, thus depriving Wilson of a fundamentally fair sentencing hearing; (3) whether the admission of testimony by Dr. Hayne was improper and a result of ineffective assistance of counsel; (4) whether the victim impact testimony was improper and in violation of Wilson's constitutional rights; and (5) whether cumulative error requires reversal of Wilson's conviction and death sentence."
State v. Ronald Davis, 2009 Ohio 5175; 2009 Ohio App. LEXIS 4385 (Ohio 5th App 9/24/2009) "[T]he trial court was without jurisdiction to hear Appellant's motion for new trial . . . .the trial court did not err in denying Appellant's request for leave to file said motion."
State v. Rodriguez, 2009 Ore. LEXIS 287 (Ore 9/24/2009) State mandatory minimum disproportionate under Article I, Section 16 of the state constitution.
- Gattis v. Phelps, 2009 U.S. App. LEXIS 20402 (3rd Cir 9/14/2009)(unpublished) Remand ordered on section 1983 claim as to Delaware death row inmate's access to certain "First Amendment" materials. "Here, the District Court dismissed Gattis' complaint during the § 1915 screening process, assuming that administratively segregated prisoners are subject to the same rationale as the plaintiffs in [prior cases]. On remand, the District Court should consider whether the defendants should be afforded an opportunity to develop the factual record and explain how, if at all, the regulation reasonably applies to inmates in Gattis' situation."
Wagner v. Smith, No. 07-2129 (6th Cir 9/24/209) "In habeas proceedings arising from petitioner's murder conviction, district court's denial of relief is vacated and remanded as three of petitioner's claims have not been properly exhausted because the claims were not fairly presented to the state courts." [via FindLaw]
US v. Katz, No. 08-2341 (7th Cir 9/22/2009) "In a prosecution for possession of firearm by a felon, district court's denial of defendant's motions for judgment of acquittal and for a new trial is reversed and remanded for the district court to enter a judgment of acquittal on the felon-in-possession count as the evidence was not sufficient to support the verdict." [via FindLaw]
- US v. Gray, No. 08-3598 (8th Cir 9/21/2009) "Defendant's firearm possession conviction is reversed where the district court failed to inform defendant, prior to accepting his guilty plea, of the maximum sentence he could face if found to be an armed career criminal under 18 U.S.C. section 924(e), or of the court's obligation to calculate the applicable Sentencing Guidelines range and to consider such range, possible departures under the Sentencing Guidelines, and other sentencing factors under 18 U.S.C. section 3553(a)." [via FindLaw]
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