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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                                                            FILED
                                       No. 12-70014                       August 4, 2014

                                                                          Lyle W. Cayce
BILLY JACK CRUTSINGER,                                                         Clerk

                                                  Petitioner–Appellant
v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                  Respondent–Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:07-CV-703


Before DAVIS, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
                         ON PETITION FOR REHEARING
       Treating the petition for rehearing en banc as a petition for panel
rehearing, the petition for rehearing is GRANTED. We WITHDRAW our earlier
opinion, Crutsinger v. Stephens, 540 F. App’x 310 (5th Cir. 2013), in its entirety,
and SUBSTITUTE the following:




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                   No. 12-70014

      Petitioner–Appellant Billy Jack Crutsinger was convicted of capital
murder and sentenced to death in Tarrant County, Texas. Crutsinger now
requests a certificate of appealability (“COA”) to appeal the district court’s denial
of his petition for federal habeas relief. For the following reasons, his request for
a COA is DENIED.


                                  Background
      On April 6, 2003, Crutsinger fatally stabbed eighty-nine-year-old Pearl
Magouirk and her seventy-one-year-old daughter, Patricia Syren. A Texas jury
convicted him of capital murder, and, based on the jury’s answers to the special
issues in the court’s charge, the trial judge sentenced him to death. The Texas
Court of Criminal Appeals (“TCCA”) affirmed the conviction and sentence on
direct appeal, and the U.S. Supreme Court denied Crutsinger’s petition for writ
of certiorari. Crutsinger v. State, 206 S.W.3d 607, 608 (Tex. Crim. App. 2006),
cert. denied, 549 U.S. 1098 (2006).
      While his direct appeal was pending, Crutsinger filed a state habeas
corpus application, raising eighteen claims for relief. On November 7, 2005, the
state trial judge issued findings of fact and conclusions of law recommending
that relief be denied. Two years later, the TCCA adopted the trial judge’s
findings and conclusions and denied relief. Ex parte Crutsinger, No. WR-63,481-
01, 2007 WL 3277524, at *1 (Tex. Crim. App. Nov. 7, 2007). Crutsinger then
sought federal habeas relief, and new counsel was appointed to represent him
in federal court.
      On May 8, 2008, before filing his federal habeas petition, Crutsinger
sought funding for investigative and expert assistance in the development of his
claim that his trial counsel was ineffective in failing to timely initiate a social
history investigation. The district court determined, however, that this specific
ineffective-assistance-of-counsel (“IAC”) claim was procedurally barred from

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review. Crutsinger attempted to establish an exception to the exhaustion
requirement under 28 U.S.C. § 2254(b)(1)(B)(ii) by arguing that circumstances
existed that rendered the state corrective process ineffective to protect his rights.
Specifically, Crutsinger claimed that “during the time that his state habeas
application was pending, the general ineffectiveness of state habeas counsel
appointed throughout Texas rendered the entire state habeas process ineffective
to protect the rights of death-row habeas petitioners.” The court rejected this
“innovative and far-reaching construction of th[e] statutory exception” and
instead denied the pre-petition funding based on “an abundance of case law
establishing that the ineffective assistance of state habeas counsel cannot justify
a failure to comply with the exhaustion requirement or excuse any resulting
procedural default.”
      Crutsinger then filed a habeas petition under 28 U.S.C. § 2254, alleging
three grounds for relief, including the IAC claim for which he had previously
sought funding. Crutsinger alleged that (1) the trial court failed to suppress
evidence resulting from his illegal arrest in violation of the Fourth Amendment,
(2) his trial counsel provided ineffective assistance in failing to timely initiate a
social history investigation, which caused counsel to overlook evidence of his
mental impairments caused by alcohol addiction, head trauma, depression, and
low intelligence, and (3) actual innocence. After determining that Stone v.
Powell, 428 U.S. 465, 494 (1976), barred consideration of Crutsinger’s Fourth
Amendment claim, the court addressed the IAC claim.
      Though the court had found that the substance of the IAC claim was not
developed in state court, the Government did not assert a procedural bar and
instead argued the merits of the claim. Under these circumstances, the court
declined to apply a procedural bar sua sponte and instead reviewed the claim de
novo because “the record contain[ed] sufficient facts to make an informed
decision on the merits.” The court determined that Crutsinger was unable to

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show either that his counsel’s performance fell below an objective standard of
reasonableness or that he was prejudiced by counsel’s deficient performance.
See Strickland v. Washington, 466 U.S. 668, 694 (1984). As a result, the court
rejected Crutsinger’s IAC claim, and, finding his actual innocence claim to also
lack merit, denied his habeas petition and denied COA.
       Shortly thereafter, Crutsinger moved to alter the judgment under Federal
Rule of Civil Procedure 59(e). After the district court denied that motion,
Crutsinger initiated the present proceeding, requesting that this Court issue a
COA.
                                  Discussion
       Under the Antiterrorism and Effective Death Penalty Act of 1996,
petitioners may not appeal the denial of habeas relief without securing a COA.
28 U.S.C. § 2253(c)(1); Miller–El v. Cockrell, 537 U.S. 322, 335–36 (2003). To
obtain a COA, the petitioner must make “a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree with the district
court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.”
Miller–El, 537 U.S. at 327.
       On review, we must issue a COA if “reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.” Id.
at 338. “[A] claim can be debatable even though every jurist of reason might
agree, after the COA has been granted and the case has received full
consideration, that petitioner will not prevail.” Id. “This threshold inquiry does
not require full consideration of the factual or legal bases adduced in support of
the claims.” Id. at 336. It requires only “an overview of the claims in the habeas
petition and a general assessment of their merits.” Id. For death penalty cases,



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“any doubts as to whether the COA should issue are resolved in favor of the
petitioner.” Moore v. Quarterman, 534 F.3d 454, 460 (5th Cir. 2008).
      Crutsinger requests a COA for his claim that his trial counsel provided
ineffective assistance by failing to adequately investigate and develop evidence
in all phases of the trial. Although Crutsinger presented an IAC claim in the
state habeas proceeding based on trial counsels’ alleged failure to investigate
generally, the district court determined that the federal iteration of Crutsinger’s
IAC claim—one concerned with the timing of the investigation rather than the
general failure to adequately conduct one—had not been developed in state
court. The court nevertheless reviewed the claim de novo, declining to raise the
procedural bar sua sponte.        Our review, therefore, is limited to whether
reasonable jurists would find debatable or wrong the district court’s
determination of Crutsinger’s IAC claim.
A.    IAC Claim
      “The Sixth Amendment provides for the right to counsel, and the Supreme
Court has recognized that ‘the right to counsel is the right to effective assistance
of counsel.’” Neville v. Dretke, 423 F.3d 474, 482 (5th Cir. 2005) (quoting
Strickland, 466 U.S. at 686). To establish a denial of that right, the petitioner
must demonstrate (1) that counsel’s performance “fell below an objective
standard of reasonableness,” and (2) that the deficient performance prejudiced
the petitioner’s case. Strickland, 466 U.S. at 688–92. Failure to satisfy either
prong is fatal to an IAC claim.
      In evaluating Strickland’s first prong, counsel’s performance is measured
against an objective standard of reasonableness under prevailing professional
norms.   Rompilla v. Beard, 545 U.S. 374, 380 (2005). Because there are
countless ways to provide effective assistance, the petitioner must overcome “a
strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689. “In judging the

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defense’s investigation, as in applying Strickland generally, hindsight is
discounted by pegging adequacy to counsel’s perspective at the time
investigative decisions are made and by giving a heavy measure of deference to
counsel’s judgments.” Rompilla, 545 U.S. at 381 (internal quotation marks and
citations omitted).
      During the underlying criminal proceedings, the trial court appointed, on
counsel’s motion, a forensic psychologist, Dr. Kelly Goodness, as a mitigation
specialist to investigate Crutsinger’s social history. In their affidavit to the state
habeas court, Crutsinger’s trial counsel explained that Dr. Goodness’s evaluation
would not have benefitted Crutsinger at punishment and that the use of her
report would have allowed the State to present evidence based on its own
expert’s evaluation. The district court determined that both this decision and
the underlying investigation into Crutsinger’s social history were reasonable and
that, even if counsel’s performance had been deficient, Crutsinger failed to
establish that the performance prejudiced his case.
      Rather than challenge the substance of the district court’s determination,
Crutsinger now, as in his motion to alter the judgment, argues that the district
court misconstrued his IAC claim and denied relief on a weaker claim that he
never asserted. Specifically, he claims that his argument is that trial counsel
should have investigated further into his mental health based on the “red flags”
raised in Dr. Goodness’s report—not that trial counsel should have presented Dr.
Goodness’s testimony at trial. He claims that only “after further investigation
and sufficient development of evidence of brain impairment, and the psycho-
social history of Mr. Crutsinger, could counsel then make an informed decision
on whether to present such evidence or not.”
      Despite Crutsinger’s claim to the contrary, the district court addressed the
arguments that he raised in his habeas petition. The essence of Crutsinger’s
IAC claim was that trial counsel failed to timely investigate Crutsinger’s social

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history and, because the investigation was conducted too late, trial counsel
lacked sufficient information to develop a viable strategy.         For example,
Crutsinger argued that a timely investigation would have revealed that one of
the critical themes running throughout the case was his alcohol addiction,
which, together with scientific information about the disease of alcohol addiction,
would have provided a basis for trial counsel to (1) assert that Crutsinger’s
confession was nonvoluntary, (2) negate mens rea, and (3) offer a credible
response to the prosecution’s assertion that Crutsinger was “evil.” Similarly,
Crutsinger argued that Dr. Goodness’s report revealed that he had several
mental impairments and had suffered prior head trauma, both of which were
factors that, had they been discovered earlier, could have been used to undercut
the voluntariness of his confession and his criminal responsibility.
      The district court rejected these specific arguments. First, the court
determined that the investigation was timely and adequate. The court found
that Crutsinger’s assumption that trial counsel did not consult Dr. Goodness
until the day she issued her written report was contradicted by Dr. Goodness’s
indication that she would first make an oral report to trial counsel and prepare
a written report only if requested. Additionally, the court found that even if
Crutsinger could show that trial counsel made strategic decisions without the
benefit of Dr. Goodness’s investigation, he still could not establish prejudice.
The court found no evidence, either in the record or in the materials Crutsinger
submitted with his habeas petition, to support any of the defenses Crutsinger
claimed he could have asserted.
      It is only now in his application for COA that Crutsinger asserts that his
true argument was that trial counsel should have investigated further upon
learning of certain “red flags” in Dr. Goodness’s report. But even if this were the
argument he presented in his habeas petition, the district court’s reasoning
encompasses it. The critical issue in both of Crutsinger’s arguments is whether

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the investigation was reasonable, and the district court determined that it was.
As the district court noted,
      Counsel here hired a forensic psychologist who, with the assistance
      of a social worker and psychological associate, conducted a
      mitigation investigation that is documented in a twenty-three page
      report. That report is supported by interviews with Petitioner’s
      friends and family, document review summaries, a criminal history,
      fourteen hours of clinical interviews with Petitioner, and the
      administration of nineteen different psychological instruments.

We find no reason to dispute the district court’s determination that this
investigation was reasonable. Indeed, Crutsinger himself does not challenge the
thoroughness of Dr. Goodness’s report, relying instead on the red flags within it
that should have alerted trial counsel of the need for further testing. Counsels’
decision to terminate the investigation, however, was made after a thorough
investigation by Dr. Goodness, and “strategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable.” Strickland, 466 U.S. at 690; see also Wiggins v. Smith, 539
U.S. 510, 533 (2003) (“Strickland does not require counsel to investigate every
conceivable line of mitigating evidence no matter how unlikely the effort would
be to assist the defendant at sentencing.”).
      We find that the evidence supports the district court’s determination that
counsel conducted a thorough investigation.        Based on that investigation,
counsel made the strategic decision not to present Dr. Goodness’s testimony and
not to pursue further investigation. Though Crutsinger now challenges the
failure to pursue further investigation, he has not explained what the additional
investigation he requests would reveal nor how it would have changed the result
of his trial and sentence. Consequently, Crutsinger has failed to cast doubt on
the district court’s conclusion that “[c]ounsels’ investigation in this case was not
deficient, but was guided by sufficient information upon which a reasonable


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strategic decision could be made.” Under these circumstances, fairminded
jurists could not disagree with the district court’s determination of Crutsinger’s
IAC claim. We therefore deny Crutsinger’s application for COA.




B.    Denial of Funding Under 18 U.S.C. § 3599
      Crutsinger purports to challenge the district court’s denial of his
application for investigative funding under 18 U.S.C. § 3599(f). But Crutsinger
did not move to amend the underlying § 3599 application decision, nor did he
include the denial of his funding application in his notice of appeal. Therefore,
there is an initial question whether we have jurisdiction to review the district
court’s denial of Crutsinger’s funding application.
      Under Federal Rule of Appellate Procedure 3(c)(1)(B), a notice of appeal
must “designate the judgment, order, or part thereof being appealed.” Fed. R.
App. P. 3(c)(1)(B). In evaluating the notice of appeal, the general rule is that
this court “has no jurisdiction to review any . . . issues [that] are not expressly
referred to and [that] are not impliedly intended for appeal.” Woodward v. Epps,
580 F.3d 318, 333 (5th Cir. 2009) (internal quotation marks omitted). That said,
“[a]n appeal from a final judgment preserves all prior orders intertwined with
the final judgment.” N.Y. Life Ins. Co. v. Deshotel, 142 F.3d 873, 884 (5th Cir.
1998) (internal quotation marks omitted).
      In Woodward, we concluded that we had jurisdiction to review a denial of
funding even though the petitioner had only sought appeal on his habeas
petition.   We reasoned that an appellate court’s consideration of a district
court’s denial of funding to investigate an IAC claim “will often implicate the
merits of a petitioner’s habeas claim.” 580 F.3d at 333 (citing Smith v. Dretke,
422 F.3d 269, 288 (5th Cir. 2005)). “Even if there was a mistake in designating
the judgment, a mistake in designating orders to be appealed should not bar

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review ‘if the intent to appeal a particular judgment can be fairly inferred, and
if the appellee is not prejudiced or misled by the mistake.’” Id. at 333–34. Thus,
in determining whether Crutsinger intended to appeal the district court’s
decision denying funding, we not only examine his notice of appeal, but we may
also consider his request for a COA in the district court and his opening
appellate brief.       See id. at 334.      We also consider whether the state was
prejudiced by the petitioner’s failure to designate the funding denial in his
appeal. Id.
       Here, Crutsinger could have appealed the denial of funding, but he did not.
In his notice of appeal, Crutsinger indicated only that he was seeking appeal
from the denial of his habeas petition and the denial of his motion to amend or
alter judgment under Rule 59(e). Yet Crutsinger’s request for a COA and his
accompanying brief clearly show an intent to appeal the denial. Crutsinger’s
repeated reference to the funding denial and arguments for relief from that order
have given the state notice and an opportunity to respond to those arguments.
Therefore, we will review Crutsinger’s appeal of the denial of funding.1
       Section 3599 provides that a district court may authorize a defendant’s
attorneys to obtain investigative, expert, or other services upon a finding that
such services “are reasonably necessary for the representation of the defendant.”
18 U.S.C. § 3599(f).2 If the court finds that such services are reasonably
necessary, it “shall order the payment of fees and expenses therefor.” Id.
Reasonably necessary in this context means “that a petitioner must demonstrate

       1
          Crutsinger also could have moved for the district court to alter or amend its funding
ruling under Rule 59(e) within 28 days of the order, but he did not. Therefore, our review of
Crutsinger’s appeal of his motion under Rule 59 does not encompass the issue of whether the
district court abused its discretion in denying Crutsinger’s funding application under § 3599.
Crutsinger raises no other issues on review of his Rule 59(e) motion, and so any remaining
arguments are waived. In any case, we review Crutsinger’s appeal from the denial of funding
itself, so our lack of jurisdiction to review the Rule 59 claim is of no consequence.
       2
           The statute also requires a showing of indigence, an issue not in dispute here.

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‘a substantial need’ for the requested assistance.” Riley v. Dretke, 362 F.3d 302,
307 (5th Cir. 2004) (quoting Clark v. Johnson, 202 F.3d 760, 768 (5th Cir. 2000)).
“A petitioner cannot show a substantial need when his claim is procedurally
barred from review.” Id. Similarly, the denial of funding will be upheld when
it would only support a meritless claim or when it would only supplement prior
evidence. Woodward, 580 F.3d at 334. We review a district court’s denial of a
§ 3599 funding application for abuse of discretion. Id.
      First, Crutsinger argues that the district court erred by refusing to raise
sua sponte a procedural bar in reviewing his IAC claim in his habeas petition
even though the court had four years earlier denied his application for funding
because his claim was procedurally defaulted. This discrepancy, he argues,
means the court should have revisited its decision and granted him funding for
investigative and expert assistance in the development of his IAC claim under
18 U.S.C. § 3599. Second, Crutsinger argues that the district court’s decision to
deny funding was incorrect in light of an intervening change in law in Martinez
v. Ryan, 132 S. Ct. 1309 (2012).
      We hold that the district court’s decision to address the merits of the claim
does not establish an abuse of discretion for its first funding decision. The court
relied on our well-established rule in denying funding to investigate a claim that
would be procedurally barred from review. See Riley, 362 F.3d at 307. It was
only after Crutsinger applied for habeas relief and the State did not seek to
apply the procedural bar that the court decided to reach the merits. The decision
not to apply the procedural bar sua sponte was within the district court’s
discretion. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas
corpus may be denied on the merits, notwithstanding the failure of the applicant
to exhaust the remedies available in the courts of the State.”); Magouirk v.
Phillips, 144 F.3d 348, 360 (5th Cir. 1998) (“We conclude that a federal district
court may, in the exercise of its judicial discretion, raise procedural default sua

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sponte.”). That decision, however, does not undercut the court’s justification for
the initial denial of funds—the claim the court reviewed was still procedurally
defaulted and raised for the first time on federal habeas review. Additionally,
the court even implied that it was unnecessary to revisit its prior funding
decision when it determined that “the record contain[ed] sufficient facts to make
an informed decision on the merits.” Crutsinger has presented no argument to
contradict this point. He simply asserts that “[h]ad the funding request been
granted, the petition would have been resolved in a different manner than it
was.” This conclusory statement is insufficient to establish that the district
court abused its discretion in denying Crutsinger’s funding request.
      Crutsinger next argues that the district court’s decision to deny funding
was incorrect in light of the intervening change in the controlling law. In
Martinez, the Supreme Court held,
      Where, under state law, claims of ineffective assistance of trial
      counsel must be raised in an initial-review collateral proceeding, a
      procedural default will not bar a federal habeas court from hearing
      a substantial claim of ineffective assistance at trial if, in the initial-
      review collateral proceeding, there was no counsel or counsel in that
      proceeding was ineffective.

132 S. Ct. at 1320. In 2013, the Supreme Court confirmed that Martinez applied
to Texas prisoners who technically had the ability to bring their IAC claim on
direct appeal of their conviction, but for all intents and purposes had to bring it
in their first habeas petition. Trevino v. Thaler, 133 S. Ct. 1911, 1921 (2013).
Crutsinger argues that after Martinez, the district court’s justification for the
denial of funds—that the ineffective assistance of state habeas counsel could not
excuse any procedural default—is no longer correct.
      Even under Martinez, however, Crutsinger could not show cause to excuse
his procedural default. Under Martinez, Crutsinger has to establish that his
underlying IAC claim is “substantial” and that his state habeas counsel was


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ineffective. 132 S. Ct. at 1318–19.               He has not met the first of these
requirements for overcoming the procedural default: Crutsinger has failed to
show that his underlying IAC claim is substantial—that is, that it has “some
merit.” Id. at 1318. Martinez makes this substantiality standard equivalent to
the standard for obtaining a COA. Id. at 1318–19 (citing Miller–El v. Cockrell,
537 U.S. 322 (2003) (describing the standard for granting a COA)); see also
Detrich v. Ryan, 740 F.3d 1237, 1245 (9th Cir. 2013) (en banc) (noting that “the
[Martinez] Court incorporated [the COA standard] in its definition of
substantiality”); cf. Cook v. Ryan, 688 F.3d 598, 610 n.13 (9th Cir.) (noting that
Martinez referenced Miller–El as “generally analogous support”), cert. denied,
133 S. Ct. 81 (2012). So, if a petitioner’s IAC claim is not substantial enough to
earn a COA, it is also not substantial enough to form the basis for excusing the
procedural default. Here, since we have already denied the COA on Crutsinger’s
IAC claim because his claim was not “substantial,” Crutsinger has also failed to
satisfy the Martinez substantiality requirement. Therefore, remand is not
necessary, and we conclude that the district court did not abuse its discretion in
denying Crutsinger’s funding application even after Martinez.3
       Finally, Crutsinger makes a far-reaching argument that Martinez
“obligated the district court to provide pre-petition funding” because it “tacitly
acknowledges that litigating IAC claims requires not merely an effective
attorney, but also one that had adequate resources to demonstrate the
underlying claim is a substantial one in order to overcome procedural default.”
Martinez, however, does not mandate pre-petition funding, nor does it alter our
rule that a prisoner cannot show a substantial need for funds when his claim is
procedurally barred from review. It provides only that “[i]nadequate assistance


       3
          We express no opinion on whether Crutsinger has made an adequate showing that
his state habeas counsel was ineffective. See Martinez, 132 S. Ct. at 1318 (citing Strickland,
466 U.S. at 694).

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of counsel at initial-review collateral proceedings may establish cause for a
prisoner’s procedural default of a claim of ineffective assistance at trial.”
Martinez, 132 S. Ct. at 1315. Without both a showing under Strickland that
state habeas counsel was ineffective and a demonstration that the underlying
IAC claim “has some merit,” id. at 1318, Martinez offers no relief from a
potential procedural default. Because Crutsinger has failed to show that his
claim was substantial, Martinez does not provide excuse for Crutsinger’s
procedural default.
      Therefore, the district court did not abuse its discretion.
                                  Conclusion
      For the foregoing reasons, we AFFIRM the district court’s denial of
Crutsinger’s § 3599 funding application. Additionally, because reasonable
jurists could not disagree with the district court’s determination of Crutsinger’s
IAC claim, Crutsinger’s request for a COA is DENIED.




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