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Parrott v. Davis

United States District Court, S.D. Texas, Houston Division

May 30, 2017

JIMMIE MARK PARROTT JR., TDCJ #1621310, Petitioner,
LORIE DAVIS, Respondent.



         Petitioner Jimmie Mark Parrott, Jr. was confined by Texas Department of Criminal Justice-Correctional Institutions Division (“TDCJ”) at the time he filed this habeas corpus petition. Petitioner seeks relief from a 15-year sentence that he received as the result of his conviction for a third degree felony, which was enhanced with one prior conviction. After carefully reviewing the petition, court records, state court opinions, motions, supplemental briefing by Petitioner and Respondent, [1] and the applicable law, the Court concludes as follows.


         On October 5, 2009, a Harris County grand jury returned an indictment charging Petitioner with theft of over $20, 000 and less than $100, 000, which is a third-degree felony offense under Texas Penal Code § 31.03(a).[2] The indictment also alleged two prior felony convictions for sentencing enhancement purposes.[3] The first enhancement was a 1997 conviction for unauthorized use of a motor vehicle (“UUMV”) in Cause No. 731089, and the second was a 1999 conviction for theft in Cause No. 808126.[4]

         Under Texas law, a third degree felony carries a punishment range of 2 to 10 years' imprisonment and a fine not to exceed $10, 000. See Tex. Penal Code § 12.34 (West 2009). A prior felony conviction may be used to enhance the punishment for a third degree felony to a second degree felony, which carries a sentence range of 2 to 20 years' imprisonment. See former Tex. Penal Code §§ 12.42(a)(3), 12.33(a) (West 2009). Thus, if an individual is charged with a third degree felony with one felony enhancement, the punishment range increases from 2 to10 years (third degree felony punishment range) to 2 to 20 years (second degree felony range). Further, if the State establishes that the defendant has two prior felony convictions, the sentence may be enhanced to a range of 25 years to life imprisonment. See Tex. Penal Code §§ 12.42(d) (West 2009). A prior state jail felony conviction, however, may not be used to enhance punishment for a third degree felony. See Campbell v. State, 49 S.W.3d 874, 878 (Tex. Crim. App. 2001) (en banc).

         Petitioner's case was assigned to the 230th District Court of Harris County, Texas, the Honorable Belinda Hill, presiding.[5] The state trial court appointed Attorney Beverly Melontree as Petitioner's defense counsel.[6]

         On January 21, 2010, Petitioner pled guilty to the theft charge set forth in the indictment based on the State's offer to recommend a sentence of 15 years' imprisonment.[7] In making that recommendation, the State abandoned the first enhancement paragraph in the indictment regarding Cause No. 731089, striking through it and noting that “the State abandons this enhancement.”[8] It is undisputed that the conviction referenced in the first enhancement paragraph (UUMV) was a state jail felony. The State also struck through the second enhancement, but then noted that “this enhancement is valid.”[9] The written admonishments confirm that Petitioner pled guilty to a third degree felony with one enhancement.[10] Petitioner placed his initials next to the all-caps “THIRD DEGREE FELONY WITH ONE ENHANCEMENT” admonishment, which stated: “if a third degree felony is enhanced with one prior felony conviction a term of not more than 20 years or less than 2 years in the [I]nstitutional Division of the Texas Department of Criminal Justice, and in addition, a fine not to exceed $10, 000.00 may be assessed.”[11]

         On January 22, 2010, the trial court sentenced Petitioner to 15 years' imprisonment based on the plea of guilty and the signed admonishments.[12] The trial court certified that Petitioner had no right to appeal because it was a plea-bargain case.[13]

         On February 10, 2010, Petitioner filed a notice of appeal.[14] On April 1, 2010, the state intermediate appellate court dismissed that appeal based on the trial court's certification that Petitioner had no right to appeal his conviction in a plea-bargain case. See Parrott v. State of Texas, No. 14-10-00160-CR, at *1 (Tex. App.-Houston [14th Dist.] April 1, 2010, no pet.).[15]

         On March 10, 2010, while his direct appeal was pending, Petitioner filed his first application for a state writ of habeas corpus, arguing that his enhanced sentence was illegal.[16] In particular, Petitioner argued that punishment for his third degree felony conviction was enhanced improperly with the second enhancement paragraph of the indictment, which referenced his theft conviction in Cause No. 808126, because that offense was only a state jail felony. As such, this prior felony was not properly used to enhance his punishment. The state habeas court appointed Mr. Adam Brown as counsel to represent Petitioner during his first habeas proceeding on May 26, 2010.[17] In its Answer in Cause No. 1227343-A, the State agreed that Petitioner's sentence was not authorized because the enhancement referenced in the second paragraph of the indictment was a state jail felony and was not valid for enhancement purposes.[18] On October 4, 2010, the state habeas court recommended that the Texas Court of Criminal Appeals (“TCCA”) grant relief.[19] On December 15, 2010, the TCCA dismissed the application without reaching the merits because Petitioner's direct appeal was pending at the time the application was filed.[20]

         On December 27, 2010, Petitioner, apparently proceeding pro se, [21] filed a second application for habeas relief in state court in Cause No. 1227343-B, alleging that his sentence was illegally enhanced.[22] He amended his application to add claims for ineffective assistance of counsel and denial of due process of law.[23] On February 22, 2011, the state habeas court ordered briefing on the following issues: (1) whether petitioner was denied effective assistance of counsel, and (2) whether the applicant was illegally confined due to an illegal sentence.[24]

         The record reflects that Assistant District Attorney Andrew J. Smith certified that he served a copy of the “State's Proposed Findings of Fact, Conclusions of Law and Order” to Petitioner at his assigned prison unit on March 23, 2011.[25] The State attached three exhibits authenticated as business records from the TDCJ, which detailed three alternate prior felony convictions that would each support Petitioner's 15-year enhanced sentence.[26] In particular, the State tendered certified TDCJ records indicating that Petitioner had a 1982 robbery conviction in Harris County Cause No. 344734; a 1985 theft-by-receiving conviction in Harris County Cause No. 417926; and a 1998 arson conviction in Montgomery County Cause No.96-05-00693-CR.[27]

         On June 6, 2011, the State filed its Answer, denying the factual allegations in the application, but acknowledging that Petitioner's “conviction for the state jail felony offense of theft in Cause No. 808126 cannot be used to enhance [Petitioner's] punishment for the third degree felony offense of theft.”[28] On June 7, 2011, one day after the State filed its Answer and allegedly before Petitioner had an opportunity to respond to the State's evidence of his prior convictions, the state habeas court adopted the State's proposed Findings of Fact and Conclusions of Law.[29] In doing so, the state habeas court recommended that relief be denied because although the state jail felony conviction in Cause No. 808126 could not be used to enhance Petitioner's punishment, the State had proffered several other valid felony convictions which could be used to support Petitioner's enhanced sentence.[30] The state habeas court's findings and conclusions were allegedly forwarded to the TCCA before Petitioner's objections, filed pro se, were filed on June 15, 2011.[31]

         On September 28, 2011, the TCCA requested briefing on the doctrine of invited error and on whether enhancement of the challenged sentence was limited to the enhancement paragraphs in the indictment or whether other convictions could be used to make the sentence proper.[32] On January 9, 2013, the Texas Court of Criminal Appeals (“TCCA”) denied the application in a written opinion, with three justices dissenting. See Ex parte Parrott, 396 S.W.3d 531, 533 (Tex. Crim. App. 2013). The TCCA noted that the State did not dispute that a state jail felony was improperly used to increase Petitioner's punishment range to 2 to 20 years. See Id. The majority determined that Petitioner had “demonstrated a cognizable error” on state habeas review, but that he had “failed to establish that he was harmed by that error because his sentence is in accordance with his criminal history, admonishments, and plea-bargain agreement.” Id. at 538. The majority reasoned that Petitioner failed to make that showing because the record reflected multiple, alternative prior convictions that could be used to enhance his sentence. Id. The majority also held that Petitioner had notice and an opportunity to be heard because state habeas proceedings allow for “proof [to] be developed through evidence beyond the appellate record, ” id. at 534, and that Petitioner “presented no evidence revealing any legal impediment to the use of his prior felony convictions for enhancement purposes.” Id. at 536. The TCCA further found that trial counsel was not ineffective because she could have made the strategic decision not to object to the enhancement in the indictment in order to prevent the State from proffering the other prior convictions that could have further increased the potential punishment range. See Id. at 534 n.5.

         After the TCCA denied Petitioner's motion for rehearing on March 27, 2013, Petitioner filed his federal petition for habeas relief in this Court on April 2, 2013.[33] In that petition, Petitioner sought federal habeas relief on the following claims: (1) he was denied due process because his sentence was not authorized under State law[34]; (2) he was denied effective assistance of counsel because his attorney failed to research and investigate the enhancement paragraphs in the indictment[35]; (3) the trial court lacked jurisdiction to adjudicate the alleged offense because the indictment does not allege a violation of the Texas Penal Code[36]; and (4) he was punished a second time on state habeas review for the same offense in violation of the double jeopardy clause.[37]

         The Respondent filed a motion for summary judgment, which the Court denied without prejudice to filing a supplemental motion addressing certain issues.[38] On December 17, 2015, the Court appointed counsel for Petitioner and thereafter requested that the parties submit further briefing on whether the TCCA: (1) unreasonably applied Oyler v. Boles, 368 U.S. 448 (1962), when it upheld Petitioner's sentence based on convictions not listed in the indictment; (2) employed a harm analysis that comports with Brecht v. Abrahamson, 507 U.S. 619 (1993), when it concluded that Petitioner did not show harm; and (3) unreasonably applied Strickland v. Washington, 466 U.S. 668 (1984), when it concluded that Petitioner's defense counsel was not ineffective.[39]

         In his supplemental briefing, Petitioner contends that: (1) his due process rights were violated when the TCCA upheld his sentence without adequate notice and an opportunity to be heard, resulting in an unreasonable application of Supreme Court precedent in Oyler v. Boles, 368 U.S. 448, 452 (1962); (2) his right to counsel was violated when he was “resentenced” on state habeas review in contravention of Mempha v. Rhay, 389 U.S. 128 (1967); (3) harmless error analysis does not apply because harm is presumed for structural errors; and (4) the Court need not reach Petitioner's claim that he was denied effective assistance of counsel in connection with his plea and original sentencing.[40] Respondent has filed a response, [41] and this § 2254 case is now ripe for adjudication.


         The federal writ of habeas corpus affords an important, but limited, examination of a state inmate's conviction and sentence. See Harrington v. Richter, 562 U.S. 86, 103 (2011) (noting that “state courts are the principal forum for asserting constitutional challenges to state convictions”). The Anti-terrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), codified as amended at 28 U.S.C. § 2254(d), “imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt”; it also codifies the traditional principles of finality, comity, and federalism that underlie the limited scope of federal habeas review. Renico v. Lett, 559 U.S. 766, 773 (2010) (quotations omitted).

         AEDPA “bars relitigation of any claim ‘adjudicated on the merits' in state court, subject only to the exceptions in [28 U.S.C.] §§ 2254(d)(1) and (d)(2).” Richter, 562 U.S. at 98. “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Id. at 99.

         To the extent that Petitioner exhausted his claims, they were adjudicated on the merits by state courts. This Court, therefore, can only grant relief if “the state court's adjudication of the merits was ‘contrary to, or involved an unreasonable application of, clearly established Federal law.'” Berghuis v. Thompkins, 560 U.S. 370, 378 (2010) (quoting 28 U.S.C. § 2254(d)(1)). The focus of this well-developed standard “is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). Where a claim has been adjudicated on the merits by the state courts, relief is available under § 2254(d) only in those situations “where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with” Supreme Court precedent. Richter, 562 U.S. at 102.

         Whether a federal habeas court would have, or could have, reached a conclusion contrary to that reached by the state court on an issue is not determinative under § 2254(d). Id. (“Even a strong case for relief does not mean that the state court's contrary conclusion was unreasonable.”). Thus, AEDPA serves as a “guard against extreme malfunctions in the state criminal justice systems, ” not as a vehicle for error correction. Id. (citation omitted); see also Wilson v. Cain, 641 F.3d 96, 100 (5th Cir. 2011). “If this standard is difficult to meet, that is because it was meant to be.” Richter, 562 U.S. at 102.

         “Review under § 2254(d)(1) focuses on what a state court knew and did.” Cullen v. Pinholster, 563 U.S. 170, 182 (2011). Reasoning that “[i]t would be strange to ask federal courts to analyze whether a state court's adjudication resulted in a decision that unreasonably applied federal law to facts not before the state court, ” Pinholster explicitly held that “[i]f a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that state court.” Id. at 185. Thus, “evidence introduced in federal court has no bearing on § 2254(d)(1) review.” Id.


         A. Due Process Claim Under Oyler

         Petitioner's primary claim is that the process used to uphold his sentence was constitutionally deficient under Oyler v. Boles, 368 U.S. 448, 452 (1962), particularly because Petitioner was not afforded notice and an opportunity to be heard relative to the newly-proffered prior convictions that were raised on state habeas review.[42] Petitioner contends, therefore, that the state court's decision to uphold his sentence is contrary to or an unreasonable application of Oyler, which holds that “a defendant must receive reasonable notice and an opportunity to be heard relative to the recidivist charge even if due process does not require that notice be given prior to trial on the substantive offense.” 368 U.S. at 452. Respondent contends that this claim was not properly raised in state court and is, therefore, unexhausted. Assuming that this claim was properly raised, Respondent argues in the alternative that it was rejected by the state courts, meaning that AEDPA deference applies.

         1. Exhaustion

         A review of the record indicates that Petitioner raised a due process claim in his state application and brief in support. In particular, his brief submitted to the TCCA raises the issue that he did not have notice or an opportunity to be heard before the habeas court conclusively found the alternative convictions to be true and valid for the purposes of enhancement.[43]Petitioner argued as follows in state court:

The purpose of the enhancement allegation is to provide the accused with notice of the prior conviction relied on by the State. Cole v. State, 611 S.W.2d 79, 82 (Tex. Crim. App. [Panel Op.] 1981). Prior convictions used as enhancements must be pled in some form, although not necessarily in the indictment. Brooks v. State, 957 S.W.2d 30, 34 (Tex. Crim. App. 1997). The accused is entitled to a description of the judgment of former conviction that will enable him to find the record and make preparation for a trial on the question of whether he is the convict named in the judgment. Villescas v. State, 189 S.W.3d 290, 293 (Tex. Crim. App. 2006) (quoting Hollins v. State, 571 S.W.2d 873, 875 (Tex. Crim. App. 1978)). The State has the burden of proof to show that any prior conviction used to enhance a sentence was final under the law and that the defendant was the person previously convicted of that offense. Flowers v. State, 220 S.W.3d 919, 922 (Tex. Crim. App. 2007). The State's obligation in this regard is to make a prima facie showing that the prior conviction used for enhancement is valid. This may be done by introducing the prior judgment and sentence. The burden then shifts to the defendant to prove that it is void and unavailable for enhancement. Johnson v. State, 583 S.W.2d 399, 403 (Tex. Crim. App. [Panel Op.] 1979).[44]

         Petitioner argued further that he was entitled to relief because he was not provided notice and an opportunity to be heard on the “unpleaded enhancement allegations in post-conviction challenges.”[45] Petitioner contended that allowing the State to proffer new convictions in post-conviction habeas review of his sentence would render “the procedures by which such allegations are tested [] essentially optional.”[46] These contentions are arguably sufficient to present a due process claim for review.

         Notably, the TCCA considered Petitioner's due process claim and cited to the United States Supreme Court's decision in Oyler for the proposition that a “‘defendant must receive reasonable notice and an opportunity to be heard relative to the recidivist charge even if due process does not require that notice be given prior to the trial on the substantive offense.'” Parrott, 396 S.W.3d at 537 n.8 (quoting Oyler, 368 U.S. at 452). The TCCA concluded that Petitioner received adequate notice of the prior convictions that could be used to enhance his conviction and had the opportunity to contest those allegations in post-conviction collateral review proceedings, but did not do so. Id. at 538. Based on this record, the Court concludes that Petitioner exhausted his remedies in state court on this issue and that the TCCA rejected Petitioner's claim on the merits. Therefore, this claim is exhausted and is subject to review under the deferential AEDPA standard. See Richter, 562 U.S. at 98.

         2. Illegal Sentence

         At its core, Petitioner's claim is based on the premise that he has been subjected to an illegal sentence because the charges in the indictment, together with the invalid enhancement, do not authorize a 15 year sentence under Texas state law. Texas state courts have carefully considered Petitioner's claim and determined that, although Petitioner has shown a “cognizable error, ” he has not shown the requisite harm to establish his right to relief under Texas law. See Parrott, 396 S.W.3d at 538. The TCCA rejected his illegal sentence claim based on state law, and issues of state law are not cognizable on federal habeas corpus review. See Estelle v. McGuire, 502 U.S. 62, 67-68, (1991) (“[I]t is not the province of a federal habeas court to re-examine state court determinations of state law questions.”); Young v. Dretke, 356 F.3d 616, 628 (5th Cir. 2004) (“[I]n our role as a federal habeas court, we cannot review the correctness of the state habeas court's interpretation of state law.”). Therefore, this Court may review Petitioner's illegal sentence claim only to the extent that he establishes a violation of federal due process in connection with his sentence.

         3. Federal Due Process

         Petitioner contends that he had a federal due process right to notice and an opportunity to defend against the newly-proffered recidivist charges in his state habeas proceedings based on Oyler v. Boles, 368 U.S. 448 (1962). In Oyler, the United States Supreme Court held that “a defendant must receive reasonable notice and an opportunity to be heard relative to the recidivist charge even if due process does not require that notice be given prior to trial on the substantive offense.” Id. Petitioner contends that the TCCA unreasonably applied Oyler when it upheld his 15-year sentence based on enhancement convictions not listed in the indictment without giving Petitioner adequate notice or opportunity to challenge those prior convictions. In particular, Petitioner notes that the state habeas court adopted the State's proposed Findings of Fact and Conclusions of Law one day after they were filed and before he had a chance to file his objections. Petitioner claims that the state habeas court did not acknowledge his objections and did not reconsider its findings in light of his submission.[47] Petitioner argues, therefore, that he “had no opportunity to review or respond to the State's new evidence before that evidence was accepted as conclusive by the Texas courts.”[48]

         In Texas, state habeas review allows for the presentation of evidence outside the appellate record; in fact, the “introduction of new evidence is a key distinguishing feature of habeas corpus.” Parrott, 396 S.W.3d at 534 (citing Rouse v. State, 300 S.W.3d 754, 762 n. 17 (Tex. Crim. App. 2009)). The TCCA held that Petitioner “received adequate notice of his convictions that support the punishment range within which he was sentenced” and had the opportunity, during review by the TCCA, to dispute that those prior convictions support the trial court's judgment. Id. at 537-38 & n. 8 (citing Oyler, 368 U.S. at 508). TCCA specifically noted that Petitioner “could have challenged the validity of those [alternative] convictions and requested an evidentiary hearing to enable the trial court to resolve any factual dispute, but he has not.” Id. at 538. The TCCA also found that Petitioner “has presented no evidence revealing any legal impediment to the use of his prior felony convictions for enhancement purposes.” Id. at 536.[49]Thus, the TCCA concluded that, “[a]lthough he has demonstrated a cognizable error, [Petitioner] has failed to establish that he was harmed by that error because his sentence is in accordance with his criminal history, admonishments, and plea-bargain agreement.” Parrott, 396 S.W.3d at 538.

         TCCA's factual finding that Petitioner had notice and an opportunity to contest evidence proffered on state habeas review, based on Texas's habeas corpus procedures allowing for the introduction of evidence, is entitled to deference. See 28 U.S.C. § 2254(d), (e)(1). Petitioner does not dispute that Texas procedure allows for the introduction of evidence in state habeas proceedings and he does not dispute that he did not present evidence to show that all of the newly proffered convictions were invalid for purposes of enhancement. Therefore, the TCCA's conclusion that Petitioner had notice and opportunity to contest the newly-proffered alternative convictions was not unreasonable.

         Moreover, the Oyler case is distinguishable from the case presented here. Whereas Oyler concerned whether due process notice requirements were met at trial, Petitioner is challenging proceedings that were conducted on state habeas review. Due process concerns that arise during criminal proceedings and direct appellate review of a conviction are fundamentally different from the civil proceedings on collateral attack of that conviction. See Pennsylvania v. Finley, 481 U.S. 551, 556-57 (1987). As the United States Supreme Court has repeatedly explained, “postconviction relief is even further removed from the criminal trial than is discretionary direct review” such that “it is not part of the criminal proceeding itself, and it is in fact considered civil in nature.” Id. The Supreme Court has explained that habeas applicants, unlike defendants at trial, are in a “fundamentally different position.” Id. at 559. In the habeas context, “[s]tates have substantial discretion to develop and implement programs to aid prisoners seeking to secure postconviction review.” Id. Further, “the Due Process Clause of the Fifth Amendment does not establish any right to an appeal . . . and certainly does not establish any right to collaterally attack a final judgment of conviction.” United States v. MacCollom, 426 U.S. 317, 323 (1976) (citations omitted) (noting that habeas corpus is not contained in the Due Process Clause but in the Suspension Clause of the Constitution).

         Thus, although Oyler stands for the proposition that, post-conviction and pre-punishment, a defendant at his criminal trial has the right to notice of the recidivist charge, Petitioner does not cite, and the Court has not found, Supreme Court precedent addressing the due process requirements for proffering evidence to demonstrate harm or lack thereof on collateral review. “[I]t is not ‘an unreasonable application of' ‘clearly established Federal law' for a state court to decline to apply a specific legal rule that has not been squarely established by this Court.” Knowles v. Mirzayance, 556 U.S. 111, 121 (2009) (citing cases). Because Oyler does not address the situation here, an alleged lack of notice during state habeas proceedings, Oyler does not squarely establish the specific rule Petitioner urges in this case.

         Further, although Petitioner characterizes the State's introduction of new evidence of his recidivism on collateral review as a “resentencing, ” he cites no authority to support the premise that the procedure used could be construed as reopening his criminal case for a new sentencing proceeding. Even if Oyler were ambiguous such that it could possibly be construed to have some application in the habeas context, this Court cannot overrule the state court's judgment on that basis. See Mitchell v. Esparza, 540 U.S. 12, 17 (2003) (“A federal court may not overrule a state court for simply holding a view different from its own, when the precedent from [the Supreme Court] is, at best, ambiguous.”). Because the TCCA's decision does not conflict with the reasoning or the holdings of Supreme Court precedent, the Court concludes that the TCCA's decision was not “contrary to . . . clearly established Federal law.” Id. Accordingly, the TCCA did not unreasonably apply Supreme Court precedent under Oyler regarding its evidentiary procedures on state habeas review, and its determination of the facts was not unreasonable in light of the evidence presented in the state court proceeding.

         Moreover, to the extent that Petitioner's claim essentially challenges defects in his state habeas proceedings, it is well established that defects on state habeas review are not grounds for federal habeas relief. See Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992), cert. denied, 507 U.S. 1056 (1993) (citation omitted); Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995) (“An attack on a state habeas proceeding does not entitle the petitioner to habeas relief in respect to his conviction, as it is an attack on a proceeding collateral to the detention and not the detention itself.” (internal quotation marks and citations omitted)). In this regard, Petitioner's claim that he did not have notice and an opportunity to challenge the State's evidence before the habeas court adopted the State's proposed Findings of Fact and Conclusions of Law fails under Fifth Circuit precedent. See Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir.), cert. denied, 527 U.S. 1056');">527 U.S. 1056 (1999). Similar to the scenario alleged in this case, the petitioner in Trevino complained that the state habeas court adopted the proposed findings and conclusions tendered by the State within three hours of filing, before he had any notice or opportunity to respond. Id. ...

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