Travion Terrett Ford v. Soto
Filing
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ORDER TO SHOW CAUSE re Dismissal of Petition by Magistrate Judge Arthur Nakazato. The Court finds this action is untimely. Accordingly, Petitioner shall have until 8/26/2013, to file a written response and show cause why his Petition should not be dismissed with prejudice because it is time-barred. See document for additional orders. (ts)
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FILED - SOUTHERN DIVISION
CLERK, U.S. DISTRICT COURr
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~UG -6 2013]
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CENTRAL DISTniCT OF CALIFORNIA
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DEPUTY
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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WESTERN DIVISION
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TRAVION TERRETT FORD,
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Petitioner,
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v.
SOTO, Warden,
Case No. CV 13-05115 GW (AN)
ORDER TO SHOW CAUSE RE
DISMISSAL OF PETITION FOR
WRIT OF HABEAS CORPUS BY A
PERSON IN STATE CUSTODY AS
TIME-BARRED
Respondent.
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I. BACKGROUND
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Before the Court is a petition for writ of habeas corpus ("Petition") brought by
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Travion Terrett Ford ("Petitioner"), a state prisoner proceeding prose. The Petition
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is brought pursuant to 28 U.S.C. § 2254 and raises four claims directed at his August
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31, 2009 conviction the California Superior Court for Los Angeles County. Petitioner
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was convicted of second degree murder and was sentenced to an indeterminate term
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of 16 years to life in state prison. (case no. BA346953).
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For the reasons set forth below, Petitioner is ordered to show cause why his
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Petition should not be dismissed with prejudice because it is time-barred.
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II. DISCUSSION
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A.
Standard of Review
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Rule 4 ofthe Rules Governing Section 2254 Cases in the United States District
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Courts ("Habeas Rules"), 28 U.S.C. foll. § 2254, requires a judge to "promptly
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examine" a habeas petition and "[i]f it plainly appears from the petition and any
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attached exhibits that the petitioner is not entitled to relief in the district court, the
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Rule 72-3.2 of this Court also provides "[t]he Magistrate Judge promptly shall
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examine a petition for writ of habeas corpus, and if it plainly appears from the face of
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the petition and any exhibits annexed to it that the petitioner is not entitled to relief,
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the Magistrate Judge may prepare a proposed order for summary dismissal and submit
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it and a proposed judgment to the District Judge." C.D. Cal. R. 72-3.2. Further, an
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untimely habeas petition may be dismissed sua sponte if the court gives the petitioner
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adequate notice and an opportunity to respond. Day v. McDonough, 547 U.S. 198,
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209-10, 126 S. Ct. 1675 (2006); Herbst v. Cook, 260 F.3d 1039, 1043 (9th Cir. 2001 ).
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B.
Statute of Limitations
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The Petition is governed by the Antiterrorism and Effective Death Penalty Act
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of 1996 ("AEDPA"), which establishes a one-year statute of limitations for state
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prisoners to file a federal habeas petition. 28 U.S.C. § 2244(d)(1). In most cases, the
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limitations period is triggered by "the date on which the judgment became final by
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conclusion of direct review or the expiration of the time for seeking such review." 28
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U.S.C. § 2244(d)(l)(A).
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The face of the Petition, attached exhibits, and relevant state court records!!
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establish the following facts. Petitioner was convicted of the above offense on August
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31, 2009, and sentenced on October 29, 2009. On July 8, 2011, the California Court
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of Appeal affirmed the judgment (case no. B220313 ). The California Supreme Court
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then denied review of the court of appeal's decision on October 12, 2011 (case no.
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S 195712). Petitioner has not alleged, and it does not appear, that he filed a petition for
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certiorari with the United States Supreme Court. (Pet. at 2-3; state court records.)
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Therefore, for purposes of AEDPA's limitations period, Petitioner's judgment
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became final on January 10, 2012, the ninetieth day after the state high court denied
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his petition for review and the last day for him to file a petition for certiorari with the
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Supreme Court. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). The statute of
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limitations then started to run the next day, on January 11, 2012, and ended a year later
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on January 11, 2013. 28 U.S.C. § 2244(d)(l)(A); see also Patterson v. Stewart, 251
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F.3d 1243, 1245-47 (9th Cir. 2001) (the limitations period begins to run on the day
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after the triggering event pursuant to Fed. R. Civ. P. 6(a)). Petitioner did not
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constructively file his pending Petition until July 9, 2013 -- 179 days after the
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expiration of the limitations period.Y Accordingly, absent some basis for tolling or an
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The Court takes judicial notice of Internet records relating to this action in
the state appellate courts (available at http://appellatecases.courtinfo.ca.gov) ("state
court records"). See Smith v. Duncan, 297 F.3d 809, 815 (9th Cir. 2002) (federal
courts may take judicial notice of related state court documents), overruled on other
grounds as recognized in Cross v. Sisto, 676 F.3d 1172 (9th Cir. 2012).
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Pursuant to the "mailbox rule," a prose prisoner's federal habeas petition
is deemed to be filed on the date the prisoner delivers the petition to prison authorities
for mailing to the clerk. Houston v. Lack, 487 U.S. 266, 270-71, 108 S. Ct. 2379
(1988); Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001); see also Habeas Rule
3(d). For purposes of the timeliness analysis, and absent any evidence to the contrary,
the Court finds Petitioner constructively filed the Petition by delivering it to the prison
mail system on July 9, 2013, the date written and initialed by a prison official on the
(continued ... )
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alternative start date to the limitations period under 28 U.S.C. § 2244(d)(l), the
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pending Petition is time-barred.
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C.
Statutory Tolling
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AEDPA includes a statutory tolling provision that suspends the limitations
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period for the time during which a "properly-filed" application for post-conviction or
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other collateral review is "pending" in state court. 28 U.S.C. § 2244(d)(2); Waldrip v.
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Hall, 548 F.3d 729, 734 (9th Cir. 2008); Bonner v. Carey, 425 F.3d 1145, 1148 (9th
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Cir. 2005). An application is "pending" until it has achieved final resolution through
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the state's post-conviction procedures. Carey v. Saffold, 536 U.S. 214,220, 122 S. Ct.
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2134 (2002). However, to qualify for statutory tolling, a state habeas petition must be
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filed before the expiration ofAEDPA's limitations period. See Ferguson v. Palmateer,
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321 F.3d 820, 823 (9th Cir. 2003) ("[S]ection 2244(d) does not permit the reinitiation
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of the limitations period that has ended before the state petition was filed."); see also
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Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000) ("A state-court petition []
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that is filed following the expiration of the limitations period cannot toll that period
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because there is no period remaining to be tolled.").
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Neither the face of the Petition, attached exhibits, nor relevant state court
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records establish Petitioner has filed any state habeas petitions challenging his
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judgment of conviction. (Pet. at 3; state court records.) Consequently, Petitioner is not
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entitled to any statutory tolling.
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D.
Alternative Start of the Statute of Limitations
State-Created Impediment
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1.
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In rare instances, AEDPA's one-year limitations period can run from "the date
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on which the impediment to filing an application created by State action in violation
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of the Constitution or laws of the United States is removed, if the applicant was
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( ... continued)
back of the envelope containing the Petition.
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prevented from filing by such State action." 28 U.S.C. § 2244(d)(1)(B). Asserting that
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the statute of limitations was delayed by a state-created impediment requires
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establishing a due process violation. Lott v. Mueller, 304 F.3d 918, 925 (9th Cir.
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2002). The Petition does not set forth any facts for an alternate start date of the
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limitations period under this provision.
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2.
Newly Recognized Constitutional Right
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AEDPA provides that, if a claim is based upon a constitutional right that is
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newly recognized and applied retroactively to habeas cases by the United States
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Supreme Court, the one-year limitations period begins to run on the date which the
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new right was initially recognized by the Supreme Court. 28 U.S.C. § 2244(d)(1)(C).
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The Petition does not set forth any facts for an alternate start date of the limitations
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period under this provision.
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3.
Discovery of Factual Predicate
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AEDPA also provides that, in certain cases, its one-year limitations period shall
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run from "the date on which the factual predicate of the claim or claims presented
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could have been discovered through the exercise of due diligence." 28 U.S.C. §
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2244(d)(1)(D); Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012). The Petition
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does not set forth any facts for an alternate start date of the limitations period under
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this provision.
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E.
Equitable Tolling
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AEDPA's limitations period "is subject to equitable tolling in appropriate
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cases." Holland v. Florida,--- U.S.---, 130 S. Ct. 2549,2560 (2010). Specifically, "a
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litigant seeking equitable tolling bears the burden of establishing two elements: (1)
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that he has been pursuing his rights diligently, and (2) that some extraordinary
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circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408,418, 125 S. Ct.
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1807 (2005); Lawrence v. Florida, 549 U.S. 327, 336, 127 S. Ct. 1079 (2007).
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However, "[e]quitab1e tolling is justified in few cases" and "the threshold
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necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions
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swallow the rule." Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (quoting
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Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)). Additionally, although "we
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do not require [the petitioner] to carry a burden of persuasion at this stage in order to
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merit further investigation into the merits of his argument for [equitable] tolling,"
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Laws v. Lamarque, 351 F.3d 919, 924 (9th Cir. 2003), "[w]here the record is amply
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developed, and where it indicates that the [alleged extraordinary circumstance did not]
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cause the untimely filing of his habeas petition, a district court is not obligated to hold
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evidentiary hearings to further develop the factual record, notwithstanding a
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petitioner's allegations .... " Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010);
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see also Elmore v. Brown, 378 Fed. Appx. 664, 666 (9th Cir. 2010) ("[W]here the
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record is sufficient to permit the district court - and us on appeal - to evaluate the
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strength of the petitioner's [equitable tolling] claim, the district court does not
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necessarily abuse its discretion if it denies the petitioner a hearing.") (cited pursuant
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to 9th Cir. R. 36-3).
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The Petition does not set forth any facts for equitable tolling.
ORDER
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Based on the foregoing, the Court finds this action is untimely. Accordingly,
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Petitioner shall have until August 26, 2013, to file a written response and show cause
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why his Petition should not be dismissed with prejudice because it is time-barred. In
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responding to this Order, Petitioner must show by declaration and any properly
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authenticated exhibits what, if any, factual or legal basis he has for claiming that the
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Court's foregoing analysis is incorrect, or that AEDPA's one-year statute of
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limitations should be tolled, or the start date extended.
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Petitioner is warned that if a timely response to this Order is not made,
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Petitioner will waive his right to respond and the Court will, without further
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notice, issue an order dismissing the Petition, with prejudice, as time-barred.
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Further, if Petitioner determines the Court's analysis is correct and the
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Petition is time-barred, he should consider filing a Request For Voluntary
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Dismissal of this action pursuant to Fed. R. Civ. P. 41(a)(l) in lieu of a response.
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IT IS SO ORDERED.
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DATED: August 6, 2013
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