ANDERSON v. GOODWIN et al, No. 2:2008cv05183 - Document 14 (D.N.J. 2010)

Court Description: OPINION. Signed by Judge Stanley R. Chesler on 9/22/10. (dc, )

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UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY FRANK J. AIDERSGN, Civil Action No. 08 5183 (SRC) SERNARD GOODWIN, Dockets.Justia.com OPINION et al., Respondents. APPEARANCES: FRANK J. ANDERSON, Petitioner g se S 96 West 2 Street Bayonne, New Jersey 07002 KIMBERLY YONTA, ESQ. HUDSON COUNTY PROSECUTOR S OFFICE 595 Newark Avenue Jersey City, New Jersey 07306 Counsel for Respondents CHESLER, District Judge This matter is before the court pursuant to a petition for a writ of habeas corpus under 28 U.S.C. Frank J. Anderson, in October 2008. § 2254, filed by petitioner The State of New Jersey filed a response to the habeas petition on July 22, copy of the relevant state court record. On August 25, 2009, with a (Docket entry no. 9) 2009, petitioner sought additional time to reply to the State s answer. Ne also filed an application for appointment of counsel. Co January 22, 2010, petitioner filed a motion to stay his federal habeas proceedings while he exhausts his state court remedies with respect to his jury selection claim based on a recent New Jersey Supreme Court ruling applicable to his claim. Ct 0 0 S Ct I to H 4 0 0 C H C H to H C C H CD CD a a CD F H 3m Ct F C 3m Ct S Ct o o C % ¢ M F- CD i M o ¢. 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( Indictment at State s Answer, pp. 15 16; Ra5 and Docket entry no. 9-13 at pp. 16-18). Anderson pled not guilty to the charges and made a pretrial motion to suppress his statements to the police. On July 30, 1997, the Honorable Jose L. Fuentes, J.S.C., denied the motion to suppress. (2T 81:5 82 21; 85:13_85:16).1 Anderson was tried before a jury in August 1997. On August 15, 1997, the jury convicted Anderson on Counts Two, Three, Five, Ra refers to the state court record as submitted by the respondents in answer to this habeas petition. 2 T refers to the state court transcripts provided by the respondents with the state court record, as follows: iT 2T 3T 4T ST 6T 7T 8T 9T lOT liT 12T l3T 14T ST July 29, 1997 jury selection transcript July 30, 1997 motion transcript July 30, 1997 jury selection transcript August 4, 1997 jury selection transcript August 5, 1997 jury selection transcript trial transcript dated August 5, 1997 trial transcript dated August 12, 1997 (Vol. I) trial transcript dated August 12, 1997 (Vol. II) trial transcript dated August 13, 1997 (Vol. I) trial transcript dated August 13, 1997 (Vol. II) trial transcript dated August 14, 1997 trial transcript dated August 15, 1997 PCR hearing transcript dated August 5, 2004 PCR decision transcript dated October 21, 2004 sentencing transcript dated February 13, 1998 3 Six, Nine and Ten. (12T 50:8 54:14) The lurv acquitted . petitioner or the remaining Counts One, (Id.). Pour, Seven, and Eight. Judge Puentes sentenced Anderson on F ebruary 13, anaooreoae term of twenty (20) year parole disqualifier, On June 5, 1998, veers imorisonment with a ten (ST 39:13-22). Anderson filed a direct anneal from his conviction and sentence, of New Jersey, 1998 to nunc pro tunc, Appellate Division. before the Superior Court The Appellate Division affirmed the conviction and sentence in an opinion filed on December 6, 2000. (Ra8) . Anderson filed a petition for certification with the Supreme Court of New Jersey, denied on March 27, 2001. (Ra14) . which was Anderson did not file a writ of certiorari with the United States Supreme Court. On or about January 11, 2002, Anderson submitted a motion to compel discovery and release documents, relating to the police reports and investigation of the crime, all grand and petit jury lists for the years 1995 through 1999, and copies of alleged complaints and related police reports and statement made and/or filed by the victim in this matter. Exhibit D) . On March 13, (Docket entry no. 2002 and June 26, 2002, 1-2, at the state court informed Anderson by separate letters that he must file a proer post convi.ction relief ( PCR ) petition before he can make a motion to compel the discovery requested. The Court further suggested that petitioner contact the Office of the Public 4 (I] 0 Cl C) H<) HCi H- N) N) Ci N) N) Ci N) Ci N) N) C) Ci N) C) C) - C) N) C) Cl N) H) Cl o Cl ¢ o C) H<I HCi H- Ci Ci N) Ci N) N) N) N) N) Ci N) C) N) 0 Ci N) N) Ci Ci N) Ci C) Cl C) Ci H Ci 0 Cl N) -- N) Ci N) C) H Ci C) 0 Cl Ci HC) Ci H Ci N) H0 Cl N) 0 H 0 N) H0 Cl C) Ci - C) Ci H Ci 0 Cl Cl N) N) ¢ - C) Ci Cl H HCl H N) Ci N) HN) H0 Cl Ci C) H C) N) C) N) N) Ci N) Ci Ci Ci Ci 0 Ci H Ci N) Ci C) C) Ci HCi H 0 0 N) HCl H0 Cl N) Ci N) N) Ci H Ci HCi Ci Cl Ci C) N) Ci Ci C) Ci N) CD C) Ci Ci C) N) C) Cl C) C) C) N) - * C) N) Ci N) HCi <) H Ci C) 0 N) N) Ci N) Ci H Ci N) Cl 0 Ci HCi Ci C) H Ci C) C) N) Ci H- N) Cl Cl) Ci H C) C) Ci Cl C) H- Cl N) ct C). 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The court found Anderson s nerrectveness of counsei claims to be without any merit, especially n view of has confession and toe overwhelming evidence consent. of guilt uroduced at trial to counter the defense of The court further held petitioner s claim of a grossly disproportionate sentence to be clearly without merit. (Ra36) . Anderson filed a letter in lieu of a formal petition for certification before the New Jersey Supreme Court. Certification was denied on October 22, Thereafter, on or about October 16, this habeas petition under 28 U.S.C. 2007. (Ra37) (Ra41) 2008, Anderson filed § 2254, forth the following grounds for habeas relief: His petition sets (A) Petitioner was denied due process and equal protection by the state court s refusal to reverse the conviction based on the State s failure to Pursuant to the prison mailbox rule, a habeas petition is deemed filed on the date the prisoner delivers it to prison officials for mailing, not on the date the petition is ultimately filed with the court. See Houston v. Lack, 487 U.S. 266, 270 71 (1988); see also Burns v. Morton, 134 F.3d 109, 112 13 (3d Cir. 1988) (applying prison mailbox rule set forth in Houston, which dealt with filing of an appeal, to a pro se prisoner s filing of a habeas petition) Although the Court is unable to determine the exact date that Anderson handed his petition to prison cff_cals for Adersc soec a certrfcatc of petition on Cctcb6,235. e HenOer son v. rrank, ibr ad 159, 163 64 (3d Cir. 1988) (using date prisoner signed petition as date he handed it to prison officials for purposes of calculating timeliness of habeas petition) Accordingly, the Court finds t5iat October 16, 2008 was the date this petition was filed for purposes of calculating the timeliness of the petition, and not the date the petition was received by the Clerk of the Court on October 20, 2008. . . . discj.ose Brady material; 4 (B) Petitioner was denied his Sixth Amendment right to effective assistance of trial counse l; Petitioner did cot receive a full, (C) fair and adequate hearing with respect to his state PCR proceeding; and (D) Petitioner s counsel on appeal from denial of h.is state PCR petition was ineffec 3 tive. Petitior at ¶ 12A D) On July 22, 2009, the State answered the habeas petition and provided the relevant state court record. The State asserts that petitioner s claims lack merit and fail to raise federal constitutional claims for relief. The State also argues that some of the claims are unexhausted, is time barred. (Docket entry no. On January 22, 2010, and that the petition itself 9) Anderson filed a motion to stay his habeas proceedings and for appointment of counsel. Anderson s request for a stay and abeyance of his federal habeas petition was based on a recent New Jersey Supreme Court ruling, Osorio, 199 N.J. 486 (2009), State v. regarding the standard for establishing a prima facie case of group bias during jury selection. (Docket entry no. 12) . However, Anderson has not raised this issue on collateral review in state court at this Brady v. Maryland, 373 U.S. 83 (1963) This claim of ineffective assistance of state PCR counse l is subject to dismissal pursuant to 28 U.S.C. § 2254(i). 7 time, even though he seeks a stay of these federal habeas proceedins for that p.uYpose. The State filed opposition to petitioner s request for a stay and a.beyance on February 1, 2010. The State contends that the Osorio case involves the state court s interpretation of a state constitutional issue, constitutional question. thus there is no federal Moreover, nothing precludes petitioner from returning to state court to arguing his state constit utional claim. Finally, the State argues that the claim is time barred, and therefore a stay is not appropriate especially where the new claim was not raised in his original untimely petition filed on October 16, 2008. (Docket entry no. II. 13) FACTUAL BACKGROUND The facts of this case were recounted below and this Court, affording the state court s factual determinations the appropriate deference, see 28 U.S.C. § 2254 (e) (1), will simply reproduce the factual recitation as set forth in the unpub lished opinion of the Superior Court of New Jersey, decided on December 6, 2000, Appellate Division, with respect to petitioner s direct appeal from his judgment of conviction and sentence: Defendant was charged with sexually assaulting a woman identified as M.Q. M.O. testified that wh.ile in bed in h.er apartment in Bayonne, she awoke and found defendant sitting on top of her, pressing a knife against her, and demanding tnat she sutmit to his sexua± acts. She cescribed her unsuccessful attempts to free herself or persuade defend ant to leave, and she also described his activities, includi ng vaginal penetration, all accomplished while he threate ned her with a knife. Eventually, NbC. said, after she persuaded defendant to release her to get a drink of water, she seized a pellet gun she had in her apartment, threatened defendant with the pun, and forced him to leave with all his clothing left behind. 1.o. then called the police, they arrived, identified defendant from the driver s license and other papers in his ciothino, and proceeded to arrest him. Defendant s version of the incident was that he and P.O. had engaged in consensual sex until, at a point when he was unable to perform further because of intoxication, she drew the pellet gun and chased him from the apartment. He denied using a knife or employing any force or coercion. (R2, May 1, 2003 Appellate Division Opinion, III. A. at pp. 2 7) ANALYSIS Pro Se Pleading Anderson brings his habeas petition as a pro se litigant. A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. 97, 106 (1976) ; Haines v. Kerner, Estelle v. 404 U.s. 519, Gamble, 520 429 U.s. (1972) . A pro se habeas petition and any supporting submissions must be construed liberally and with a measure of tolerance. v. Hahn, 151 F.3d 116, 118 General, 878 F,2d 714, 721-22 Brierley, U.S. 912 414 E.2d 552, (1970). 555 (3d Cir. 1998); (3d Cir. (3d Cir. Lewis v. Attorney 1989); 1969), See Royce United States v. cart. denied, 399 b. Statute of Limitations ana±vss The State argues that this habeas petition is untimely and should be dismissed pursuant to 28 U.S.C. § 2244 d . The limitation period for a § 2254 habeas petition is set forth in § 2244d), which provides in pertinent part: (1) A 1-year period of limitations shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (2) The time during which a properly filed application for State post conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this section. Thus, pursuant to § 2244(d)-, evaluation of the timeliness of a § 2254 petition requires a determination of, pertinent judgment became final, and, first, second, when the the period of time during which an application for state post-conviction relief was properly filed and pending. For the reasons set forth infra, the Court agrees that the petition is time-barred, but does not concur with the State s calcul.ation of the limitations period as set forth in respondent s answer. Section 2244 Cd) became effective on April 24, 1996 when the Antiterrorism and Effective Death Penalty Act of 1996 ( AEDPA ) was signed into law. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998); Duarte v. Herschberger, 947 F. Supp. 146, 147 (D.N.J. 1996) 10 A state court criminal judgment becomes final within the meaning of § 2244 d I) by the couclus ion of direct review or by the expiration of time for seeking such review, including the 90- day neriod for filino a netition for writ of certiorari in the United States Supreme Court. See Swartz v. 419 (3d Cir. porn, Cir. 1999); Here, 2000); Morris v U.S. R. 337 n.i (3d 13. 1998. He had appealed from the conviction and and the New Jersey Supreme Court denied certification on March 27, concluded, Ct. F.3d 333, 204 F.3d 417, Anderson s judgment of conviction was entered on February 13, sentence, Sup. 187 Meyers, 2001. Thus, under § 2241(d) (1), direct review and Anderson s judgment of conviction became final 90 days after March 27, 2001, had one year from June 26, or on June 26, 2001, 2001. Thus, Anderson or until June 26, 2002, to timely file his federal habeas petition. However, by statute, the limitations period may be tolled during the time a properly filed application for state postconviction relief is pending. 28 U.S.C. § 2244 (d) (2) . An application for state post-conviction relief is considered pending within the meaning of § 2244 (d) (2) period is statutorily tolled, , and the limitations iron the time it is roperly filed, during t.he period betwe.en a lower state court s decisio n An application is properly filed when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form 11 and th.e filir.g of a notice of appeal to a higher court, Sattoin, b .S. ±4 appeal could be filed, v. Meyers, 327, 332 (00z), and tnrougn tOe tome on wruicn an even if the appeal is never filed, 204 E.3d at 420 24. (2007) Carey v See Lawrence v. Swar.tz Florida, 549 U.S. ( [Tjhe statute of limitations is tolled only woole stare courts review a stare post convIctIon applIcatIon. ) Nevertheless, the time during which a state prisoner may file a petition for writ of certiorari in the United States Supreme Court from the denial of his state post-conviction petition does not toll the one year statute of limitations under 28 U.S.C. § 2244(d) (2) Philadelphia, 959 (2001); Stokes v. . 247 District Attorney of the County of F.3d 539, 542 see also Lawrence, Moreover, (3d Cir.), 549 U.S. cert. denied, at 333. the limitations period of § 2244(d) to equitable tolling under limited circumstances. 240 F.3d 239, Jones v. 244 Morton, (3d Cir.), 195 F.3d 153, Jersey State Dept. 1998) . cert. Generally, 159 of Corrections, 534 U.S. denied, (3d Cir. may be subject Fahy v. 534 U.S. 944 Horn, (2001); 1999); Miller v. 145 F.3d 616, 618 New (3d Cir. a litigant seeking equitable tolling bears of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filino fee. In some jurisdictions the filing requirements also include, for example, preconditions imposed on particular abusive filers, or on all filers generally. But in common usage, the question whether an application has been properly filed is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar. Artuz v. Bennett, 531 U.S. 4, 8-9 (2000) (footnotes and citations omitted) 12 the 8urden of establishino two elements: pursuing his rights diligently, and circstance stood in his way. 408, 416 17(2005). (2) (I) that he has been that some extraordinary Pace v. DiGuolielmo, 544 U.S. The Third Circuit instructs that equitable tolling is appropriate when principles of equity would make the rigid application of a limitation period unfair, such as when a state prisoner faces extraordinary circumstances that prevent him from filing a timely habeas petition and the prisoner has exercised reasonable diligence in attempting to investigate and bring his claims. Cir. 2005). Miller, LaCava v. Kyler, 398 F.3d 271, 275 76 (3d Mere excusable neglect is not sufficient. 145 F.3d at 618 19; Jones, 195 F.3d at 159. Extraordinary circumstances permitting equitable tolling have been found where: misled; (2) (1) the petitioner has been actively the petitioner has been prevented from asserting his rights in some extraordinary way; (3) the petitioner timely asserted his rights in the wrong forum, 159, or (4) Jones, the court has misled a party regarding the steps that the party needs to take to preserve a claim, Vaughn, (2005) . 195 F .3d at 398 F.3d 225, 230 (3d Cir.), cert. Brinson v. denied, 126 S.Ct. Even w.here extraordinary circumstances exist, 473 however, The Third Circuit has expressly held that, in non-capital cases, attorney error, miscalculation, inadequate research, or other mista}es are not the extraordinary circumstances necessary to establish equitable tolling. Johnson v. Hendricks, 314 P.3d 159, 163 (3d Cir. 2002), cert. denied 538 U.S. 1022 (2003); Fahy, 240 E.3d at 244. 13 [i]f the person seeking equitable tolling has not exercised reasonable diligence in attempting to file after the extraordinary circumstances began, the link of causation between the extraordinary circumstances and the faiiure to file is broken, and the extraordinary circumstances therefore did not prevent timely filing. Brown v, Cir.) (cuoting Valverde v. 2000)), cert. denied, In this case, Shannon, Stinson, 539 U.S. 948 322 F.3d 768, 224 F.3d 129, 134 773 (3d (2d Cir. (2003) it is apparent from the state court record, which petitioner does not dispute, state PCR motion on February 27, that Anderson filed his first 2003, almost eight months after the one year statute of limitations period had expired under 28 U.S.C. § 2244(d) (1), on June 26, 2002. Therefore, because there was no pending state 9CR petition on or before June 26, 2002, Anderson cannot invoke statutory tolling under 28 U.S.C. 2244 Cd) (2), for any of the one-year time period between June 26, 2001 through June 26, Consequently, 26, 2002. because no statutory tolling applies from June 2001 through February 27, 9CR petition, 2003, when Anderson filed his state a total of 661 days had elapsed from when his one year limitations period becan to rcn. While Anderson s state 9CR petitio ¢ ¢n was deemed timely filed under state law, February 27, § 2003 through October 22, 2007, the time from when the state 9CR proceedings were under review in state court, would have otherwise served to toll the limitations period if the limitations period had not already expired. at 332 he 1 ( T statute of limitations Lawrence, is 549 tolled cmlv while state. courts review a state post conviction apolication. ) Anderson filed his federal habeas petition sn or about October 16, 2008, or 360 days after state collateral review ended on October 22, 2007. total of 971 days, under § 2244 (d) . Thus, this habeas petition was untimely for a well beyond the one-year limitations period Accordingly, the petition must be dismissed as time-barred. Moreover, Anderson fails to provide any basis for equitable tolling. First, Anderson does not expressly address the issue of time bar in this matter. arguing However, he spends considerable time that his efforts to obtain discovery and release of documents was thwarted or ignored by his PCR counsel. This would appear to suggest that petitioner was diligent in pursuing his claims. Nevertheless, Anderson cannot show any of the extraordinary circumstances necessary to allow equitable tolling. He does not allege that he was actively misled or prevented from timely asserting his rights in a PCR proceeding in some extraordinary way. He also dces not show that he asserted his rights in the wrong forum or that th.e court misled him. At best, Anderson can allege that he filed a motion to compel discovery in state court in error. However, the state court expressly informed Anderson several times by letter that he must file a proper PCR petitio n 15 and sugqested that petitioner seek the Public Defender s Office for assistance. nderson did not heed this guidance until eight months after the limitations period had expired when he filed a se PCP. petition on February 27, Thus, at best, 2003. it wouid appear that Anderson may be suggesting that no time bar should apply because he diligently pursued his rights in state court, strict application of § 2244 (d) and he should not be held to a The Court assumes that Anderson . may be contending that his state PCR petition was filed in good faith within the five year time period allowed under state law. But this argument presumes that as long as a petitioner attempts to exhaust state-court remedies prior federal court, initiating suit in then any state PCR application can serve to toll the limitations period, even if filed outside the one year federal statute of limitations. by the Supreme Court in Pace. A similar argument was declined There, the Supreme Court The United States Supreme Court has held that where a state court has rejected a PCR petition as untimely, it is not properly filed for purposes of statutory tolling under 28 U.S.C. § 2244 (d) (2) Pace v. Diguglielmo, 544 U.S. 408 (2005) In cormoon understanding, a petition filed after a time limit, and which does not fit within any exceptions to that limit, is no more properly filed than a petition filed after a time limit that permits no exception. Pace, 544 U.S. at 413. Thus, where a state court has rejected a state FCR petition as untimely, it was not properly filed and petitioner is not entitled to statutory tolling under § 2244 (d) (2) This is so even where, in the alternative, the state court addresses the merits of the petition in addition to finding it untimely. Carey, 536 U.S. at 225 26 ( If the California Supreme Court had clearly ruled that Saffold s 4 month delay was unreasonable, that would be the end of the matter, regardless of whether it . . 16 observed thac a state orisoner could toll the statute of limitations at will simp.ly by filing untimely state ostconviction petitions. This would turn § 2244 d (2) into a cia fact.o ¬.xtension mechanism, quite contrary to the purpose of AEDPA, and open the door to abusive delay. Therefore, 544 U.S. at 413. while Anderson s state PCR petition may not have been untimely under state law, it certainly was untimely under the federal statute of limitations for habeas actions. Consequently, Anderson s state PCR petition did not serve to toll the limitations period under § 2244(d) (2) Moreover, this Court finds that Anderson can not claim his ignorance of the law or his miscalculation of the statute of limitations to excuse his late habeas petition under equitable tolling. Federal courts have consistently held t5at miscalculation of the time remaining on a limitations period does not constitute extraordinary circumstances to permit equitable tolling. See Fahey, Hendricks, 538 U.S. 240 F.3d at 244; 314 F.3d 159, 1022 (2003) . 161, 163 (3d Cir. Furthermore, also Johnson v, 2002), cert. denied, even if Anderson was ignorant of the fact that his limitations period began to run on June 26, 2001, this ignorance of the law, even for an incarce.rated oro also addressed the merits of the claim, or ruling was entangled with the merits. ); F.3d 839, 841 (7Cir. 2002) ( Thoth aspects decision (substance and procedure) must be 17 whether its timeliness Brooks v. Walls, 301 of a dual ground respected ) petitioner, Johnson, US. generally does not excuse prompt filing. 174 1164 F.3d 710, (2001). 1999), denied, 531 264 F.3d 7, 15 (1st Cir. 2001); see 195 F. 3d at 159 60. Therefore, this Court will dismiss Anderson s § 2254 habeas petition as time-barred under 28 U.S.C. C. cer7. se prisoner misreads or misunderstands the lelaney v. Matesanz, also Jones, (5Ci r. Courts have been loathe to excuse la.te..filings simply because a law, 714 Fisher v. § 2244(d). Motions for a Stay and Appointment of Counsel Because this Court has determined that the habeas petition must be dismissed as time-barred, petitioner s motion for a stay and abeyance of this action so that he can return to state court to address a state constitutional issue, filed in state court, which he has not yet and his motion for appointment of counsel, are denied as moot. IV. CERTIFICATE OF APPEALABILITY The Court next must determine whether a certificate of appealability should issue. Rule 22.2. See Third Circuit Local Appellate The Court may issue a certificate of appealability only if the petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c) (2). When a court denies a h.. abeas petition on procedural grounds without reaching the underlying constitutional claim, the prisoner must demonstrate that jurists of reason would find it debatable: (1) whether the petition states a valid claim of the 18 denial of a constitutional right; correct in its orocedural rulinc. 473, 484 (2OOC . and (2) whet.her the court was Slack v. McDaniel, 529 U.S. Where a nlain procedural bar is present and the district court is correct to invoke it to dispos e of the case, a reasonable urist could not conclude eicher that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further. For the reasons discussed above, clearly time-barred. . this § 2254 habeas petition is The Court also is persuaded that reasonable jurists would not debate the correctness of this conclusion. Consequently, a certificate of appealability will not be issued. CONCLUS ION For the foregoing reasons, this Court finds that the petition for a writ of habeas corpus under 28 U.S.C. time-barred pursuant to 28 U.S.C. § 2244(d). appealability will issue pursuant to 28 U.S.C. § 2254 is No certificate of § 2253(c) (2). Petitioner s motions for a stay of habeas proceedings and for appointment of counsel are dismissed as moot. An appropriate order follows. -l 2 STANLEY P. CHESLER United States District Judge DATED: 19

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