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                                                               New Mexico Compilation
                                                             Commission, Santa Fe, NM
                                                            '00'04- 16:51:01 2013.04.29

         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMSC-011

Filing Date: March 25, 3013

Docket No. 33,350

GABRIEL GEORGE QUINTANA,

       Petitioner-Appellee,

v.

ERASMO BRAVO, Warden,
and STATE OF NEW MEXICO,

       Respondents-Appellants.

APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
Sheri A. Raphaelson, District Judge

Gary K. King, Attorney General
Anita Carlson, Special Assistant Attorney General
Margaret E. McLean, Assistant Attorney General
Nicole Beder, Assistant Attorney General
James W. Grayson, Assistant Attorney General
Santa Fe, NM

for Appellants

Robert E. Tangora, L.L.C.
Robert E. Tangora
Santa Fe, NM

for Appellee

                                        OPINION

CHÁVEZ, Justice.

{1}     Respondents the State of New Mexico and Erasmo Bravo appeal the district court’s
grant of Petitioner George Quintana’s petition for writ of habeas corpus. The district court
granted the petition based exclusively on the allegations it contained and on those in

                                             1
Quintana’s amended petition, together with a supporting affidavit from one of Quintana’s
trial counsel admitting to being ineffective in her representation of him. The district court’s
rationale for this unorthodox decision was Respondents’ failure to timely file a response to
the amended petition and their failure to appear at a scheduled motions hearing, despite
having received notice of the hearing. The reason for Respondents’ failure to file a response
and appear at the hearing was a conflict of interest that arose when the attorney affiant went
to work for the First Judicial District Attorney (District Attorney) in the same jurisdiction.
The district court was aware of the conflict and the confusion regarding whether an attorney
from the Attorney General’s office or an attorney from a district attorney’s office from
another jurisdiction would represent Respondents. Despite acknowledging the existence of
the conflict and the confusion about who would represent Respondents, the district court
vacated Quintana’s convictions and granted him a new trial.

{2}      We hold that the conduct of the District Attorney and the Attorney General did not
rise to the level of stubborn resistance to the district court’s orders that would justify the
extreme sanction of vacating Quintana’s jury convictions without both considering a
response from Respondents and after having had a full evidentiary hearing. We reverse the
district court’s grant of Quintana’s petition for writ of habeas corpus and remand for
proceedings consistent with this opinion.

BACKGROUND

{3}     Quintana was convicted by a jury of the first-degree murder of Elisa Apodaca, who
was the mother of his estranged wife, Marisela Quintana; the attempted second-degree
murder of Marisela; aggravated battery against a household member; tampering with
evidence; and violation of a protective order. Quintana appealed his convictions to this
Court. Except for reversing the aggravated battery conviction on double jeopardy grounds,
we affirmed his convictions in a decision filed in October 2009. State v. Quintana, No.
30,847, slip op. ¶¶ 9, 35 (N.M. Sup. Ct. Oct. 19, 2009). One month later, Quintana filed a
pro se petition for writ of habeas corpus in the First Judicial District Court. District Judge
Sheri Raphaelson was assigned the case.

{4}       Judge Raphaelson ordered appointment of counsel for Quintana and a March 15,
2010 filing deadline for any amended petition. The order also required the District Attorney
to file a response within ninety days of being served either with Quintana’s amended petition
or with a declaration that he did not intend to file an amended petition, whichever occurred
first.

{5}     On February 19, 2010, Jeffery Jones entered his appearance as Quintana’s attorney.
Jones had not filed either an amended petition or a declaration that he did not intend to file
an amended petition by the March 15, 2010 deadline. However, on April 15, 2010, Jones
filed an unopposed motion for an extension of time to file an amended petition. Judge
Raphaelson granted the motion and set a deadline of August 19, 2010 for the amended
petition.

                                              2
{6}    On August 13, 2010, six days before the new court-ordered deadline for filing an
amended petition, Jones filed a second unopposed motion for an extension of time to file an
amended petition. The district court granted the motion, giving Quintana until November
18, 2010 to file an amended petition. The amended petition was filed on November 18,
2010.

{7}     In his amended petition, Quintana claimed that he was denied effective assistance of
counsel and added three new grounds to the eight grounds that he had asserted in his original
petition. As the three new grounds, Quintana asserted that his attorneys were ineffective
because they (1) did not effectively impeach his estranged wife, Marisela; (2) failed to
adequately investigate defenses that would exculpate Quintana; and (3) failed to retain an
expert and bring Marisela’s car to the courthouse to demonstrate that it would have been
impossible for Quintana to have attacked Marisela as she described during her testimony.
In support of these allegations, Quintana attached the affidavit of Cynthia Hill, one of his
trial counsel, to the amended petition. The affidavit described how Hill and co-counsel
Damian Horne were ineffective in representing Quintana.

{8}     Under the provisions of the original order, the District Attorney had until February
18, 2011 to file a response to the amended petition. The District Attorney never filed a
response. On March 11, 2011, Quintana filed a “Motion to Rule on the Pleadings and/or
Status Hearing” asking the district court to grant his amended petition for habeas corpus or
schedule a status conference. Quintana did not specify whether he had sought the
concurrence of opposing counsel to the motion. One reason advanced by the District
Attorney for not filing a response is that Hill, Quintana’s trial counsel, who admitted by
affidavit that her representation of Quintana was ineffective, went to work for the District
Attorney. This situation created a conflict of interest. See Roy D. Mercer, LLC v. Reynolds,
2013-NMSC-002, ¶¶ 16-17, 19, 292 P.3d 466.

{9}     Judge Raphaelson set a hearing on Quintana’s motion for May 26, 2011, and sent
notices to the District Attorney and the Attorney General. It is not clear why notice was sent
to the Attorney General, which had not entered an appearance. However, under certain
circumstances, the Attorney General does respond to petitions for writ of habeas corpus. See
NMSA 1978, § 8-5-2 (1975); NMSA 1978, § 8-5-3 (1933); State v. Koehler, 96 N.M. 293,
295-96, 629 P.2d 1222, 1224-25 (1981) (holding that when the district attorney delegated
a prosecution to the Attorney General, the Attorney General was compelled to proceed).

{10} When Judge Raphaelson called the case for hearing on May 26, 2011, no one entered
an appearance for Respondents. Quintana’s attorney related information from an attorney
in the District Attorney’s office, who told him that because of the conflict that was created
after employing Hill, it could not continue to represent Respondents, but believed that the
Attorney General would do so. However, when Quintana’s attorney called the Attorney
General’s office, he was told that the Attorney General was under the impression that a
district attorney’s office from another jurisdiction would represent Respondents.


                                              3
{11} When Judge Raphaelson acknowledged the State’s failure to either respond or appear
despite receiving notice, but announced her intention to hear Quintana’s motion nonetheless,
Assistant District Attorney Doug Couleur announced that he would represent Respondents.
Couleur explained that he called his office to find out why no one had appeared to represent
Respondents, learned about the conflict, and found out about the District Attorney’s belief
that the Attorney General would represent Respondents. He also stated that now that the
District Attorney had learned otherwise, they would attempt to make immediate
arrangements for a district attorney’s office from another jurisdiction to represent
Respondents.

{12} Judge Raphaelson acknowledged the conflict of interest, but said that it was the
responsibility of the Attorney General to appear or make other arrangements. Couleur
assured Judge Raphaelson that they would straighten the matter out and that the District
Attorney was at that moment trying to secure counsel for Respondents. Judge Raphaelson
was unimpressed because the District Attorney had to have been aware of the conflict for
months, had not filed a response, and no one had appeared at the hearing, despite receiving
notice of the hearing. Judge Raphaelson announced that she would grant Quintana’s motion
to rule on the pleadings. Couleur pleaded with Judge Raphaelson to allow the State to
respond. Judge Raphaelson said that she would allow the State to respond if the District
Attorney could show good cause for why it did not file a timely response. Five days later,
on May 31, 2011, Judge Raphaelson entered two orders, one granting the motion to rule on
the pleadings and the other vacating Quintana’s convictions and ordering a new trial.

{13} On the same day the two orders were entered, Todd Heisey from the Second Judicial
District Attorney’s Office was appointed as a special prosecutor. On June 2, 2011, Heisey
entered his appearance on behalf of Respondents and filed a motion for an extension of time
to file a response to the amended petition. On June 24, 2011, Heisey filed a motion to
reconsider the two orders with a supporting brief and requested a hearing on the motion to
reconsider. Judge Raphaelson issued a notice that she would not consider the motion
because it did not include a response and a reply, as required by Local Rule LR1-306(G)
NMRA. Quintana did not respond to the motion to reconsider. Heisey later resubmitted the
motion and the brief to the district court, pointing out that Quintana’s failure to respond was
to be deemed consent to the motion under LR1-306(D). However, on August 15, 2011,
almost two and one-half months after the motion to reconsider was filed, Quintana filed a
motion asking Judge Raphaelson to uphold her prior orders and to deny the motion to
reconsider because Quintana did not consent to the motion.

{14} Judge Raphaelson held a hearing on October 17, 2011 on Respondents’ motion to
reconsider. Heisey introduced an affidavit from Damian Horne, Quintana’s other trial
attorney, that disputed the allegations in the amended petition. Judge Raphaelson said that
the affidavit would not be relevant unless and until she agreed to allow the District Attorney
to file a late response to the amended petition. After hearing argument from Heisey, Judge
Raphaelson summarized her understanding of the events leading up to the hearing. She
indicated that other than vague efforts to secure substitute counsel, the District Attorney had

                                              4
not made a showing of excusable neglect for filing a late response. To emphasize her strong
disapproval with how the District Attorney had handled the habeas corpus proceeding, Judge
Raphaelson said that it was not excusable neglect but incompetence on the District
Attorney’s part. The motion to reconsider was denied.

{15} Respondents appealed as of right to this Court under the provisions of Rule 5-
802(H)(1) NMRA. The appeal was timely because it was filed within thirty days of the
district court’s order denying the motion to reconsider. Id.; Rule 12-201(A)(2) NMRA; see
also NMSA 1978, § 39-1-1 (1917); Allen v. LeMaster, 2012-NMSC-001, ¶ 17, 267 P.3d 806
(post-conviction habeas corpus proceedings are a continuation of the defendant’s criminal
case); State v. Gonzales, 110 N.M. 218, 226, 794 P.2d 361, 369 (Ct. App. 1990) (Section 39-
1-1 applies in criminal cases).

DISCUSSION

{16} With plenty of blame to go around, we acknowledge that this habeas corpus
proceeding was not a model of diligence, cooperation, or fair play. Nor was it, however, a
case that even remotely warranted a district judge vacating a jury verdict without considering
a response from the State and/or conducting an evidentiary hearing.

        [J]ury verdicts reached after painstaking consideration of the evidence at trial
        and thorough deliberation should not be precipitously disregarded and
        overturned. Rather, jury verdicts should be disturbed only upon a court’s
        firmest conviction and belief—formed after the most searching and
        comprehensive review of all of the evidence and issues—that a miscarriage
        of justice has occurred and a defendant’s fundamental constitutional rights
        violated.

United States v. Koubriti, 336 F. Supp. 2d 676, 679 (E.D. Mich. 2004). A defendant who
believes that his or her conviction was unconstitutional may pursue a constitutional
procedural device that has become know as the “Great Writ”—the writ of habeas corpus.
Cummings v. State, 2007-NMSC-048, ¶¶ 18, 21-22, 142 N.M. 656, 168 P.3d 1080
(describing the procedure for a habeas corpus petitioner to exercise his or her
long-established constitutional right to petition this Court for the Great Writ).

{17} In Caristo v. Sullivan, 112 N.M. 623, 818 P.2d 401 (1991), to emphasize the need
for the courts and the litigants to carefully and diligently process petitions for writs of habeas
corpus, we restated what has been written by the United States Supreme Court about the
importance of the writ of habeas corpus. Because we are alarmed, not so much by this case,
but by what we have seen in other habeas corpus proceedings, we repeat what we wrote in
Caristo:

        “[T]here is no higher duty of a court, under our constitutional system, than
        the careful processing and adjudication of petitions for writs of habeas

                                                5
       corpus. . . .” Harris v. Nelson, 394 U.S. 286, 292 (1969). Because the writ
       of habeas corpus protects our most basic right of freedom from illegal
       restraint on personal liberty, the writ must be construed to afford “‘a swift
       and imperative remedy in all cases of illegal restraint or confinement,’” Fay
       v. Noia, 372 U.S. 391, 400 (1963) (quoting Secretary of State for Home
       Affairs v. O’Brien, 1923 App. Cas. 603, 609), and therefore requires “prompt
       adjudication of the validity of the challenged restraint,” Peyton v. Rowe, 391
       U.S. 54, 59 (1968) (emphasis in original). “The writ of habeas corpus,
       challenging illegality of detention, is reduced to a sham if the trial courts do
       not act within a reasonable time.” Jones v. Shell, 572 F.2d 1278, 1280 (8th
       Cir. 1978).

112 N.M. at 628, 818 P.2d at 406. It is important for the litigants and the courts to promptly
process petitions for writs of habeas corpus to avoid denying the petitioner constitutional due
process. See Jones, 572 F.2d at 1280 (a fourteen-month delay by the court in processing the
petitioner’s petition for writ of habeas corpus denied the petitioner due process).

{18} One remedy we fashioned for the delay in processing a petition for writ of habeas
corpus in Caristo was a default judgment, reserved as a sanction in those extreme cases in
which the state is guilty of lengthy and unwarranted delay. 112 N.M. at 630, 818 P.2d at
408. We also left it to the discretion of the judge in those extreme cases to decide whether
to order an evidentiary hearing or to rule on the merits of the petitioner’s claim without
considering a response from the state. Id. However, after we fashioned such a remedy in
Caristo, we were unwilling to impose the remedy in favor of the petitioners, despite the fact
that their respective petitions had been pending for as long as five years. Id. at 624, 818 P.2d
at 402. In addition, the Caristo petitioners only sought a writ seeking their resentencing, as
opposed to a writ vacating their convictions. Id. at 625, 626, 818 P.2d at 403, 404. Although
we acknowledged that the state’s conduct in Caristo was not a model of diligent attention
to the pending habeas corpus proceedings, we did not believe that the state’s conduct
“reached the point of stubborn resistance to the district court’s orders that would justify” the
extreme sanction of a default judgment. Id. at 624, 818 P.2d at 402.

{19} The question in this case is whether the State’s delay in responding to the amended
petition was the kind of extreme case that warranted the sanction of the district court
vacating a jury verdict and ordering a new trial without considering either a response from
the State or holding an evidentiary hearing. The answer is absolutely not.

{20} Within one month of our having affirmed Quintana’s conviction, he filed a pro se
petition for a writ of habeas corpus. Quintana, No. 30,847, slip op. ¶ 35. Judge Raphaelson
expeditiously reviewed the petition and appointed the Public Defender Department to
represent Quintana, and allowed Quintana to either file an amended petition by March 15,
2010 or a declaration that an amended petition would not be filed. Neither document was
filed before the district court’s deadline. Instead, Quintana filed an untimely but unopposed
motion for an extension of time to file an amended petition. Quintana subsequently filed a

                                               6
second unopposed motion for extension of time to file an amended petition, which was
granted. From all appearances, at this time Jones and the District Attorney were working
professionally and in the spirit of cooperation to process Quintana’s petition. Finally, on
November 18, 2010, Jones filed an amended petition on Quintana’s behalf.

{21} Pursuant to the district court’s original order setting deadlines, a response to the
amended petition should have been filed before February 18, 2011. Respondents did not file
a response and the spirit of cooperation had ended. Quintana’s attorney, without conferring
with Respondents’ attorney, filed a “Motion to Rule on the Pleadings and/or Status Hearing”
just three weeks after the February 18, 2011 deadline had expired. A hearing on Quintana’s
motion was scheduled for May 26, 2011.

{22} During that hearing, it became apparent that the District Attorney had a conflict of
interest because the attorney affiant who had signed an affidavit in support of Quintana’s
petition went to work for the District Attorney. It also became apparent that efforts had been
made to have the Attorney General represent Respondents, but apparently those efforts failed
for reasons that are not clear in the record. As such, Respondents were not represented at
the May 26, 2011 hearing.

{23} Judge Raphaelson was understandably concerned about the facts that Respondents
did not file a response to the amended petition and they were not represented at the hearing.
Her response was to vacate Quintana’s convictions and grant him a new trial. This action
was inappropriate. At the May 26, 2011 hearing, both Quintana’s attorney and Assistant
District Attorney Couleur informed Judge Raphaelson about the conflict of interest and
efforts to secure counsel for the Respondent. Given this information, at a minimum Judge
Raphaelson should have held a hearing to determine why a response was not filed and why
Respondents were not being represented. Both Quintana’s attorney and Assistant District
Attorney Couleur informed Judge Raphaelson about the conflict of interest and efforts to
secure counsel for Respondents. What was described by the attorneys at the May 26, 2011
hearing was far from evidence of Respondents’ stubborn resistance to the district court’s
order, or even a lengthy and unwarranted delay in responding. If Judge Raphaelson
remained skeptical, she should have summoned representatives from the District Attorney’s
office and the Attorney General’s office to conduct a hearing to determine if in fact
Respondents were stubbornly resisting her order to respond and appear, or if the failure to
respond to the amended petition and appear at the hearing was as a result of negligent
conduct. If the situation was the latter, vacating a jury verdict without giving Respondents
an opportunity to respond and without an evidentiary hearing would not have been
warranted.

{24} Despite general statements from the attorneys concerning Respondents’ failure to
appear at the hearing, most details remained unknown, including when affiant Hill became
an employee of the District Attorney, when the District Attorney discovered the conflict in
the Quintana case, what efforts the District Attorney made to arrange Attorney General
representation for Respondents, when the District Attorney made these efforts, what were

                                              7
the results of these efforts, why the Attorney General did not enter an appearance on behalf
of Respondents, whether the District Attorney and the Attorney General were simply
ignoring the Quintana habeas corpus proceedings, whether there was miscommunication
between the District Attorney and the Attorney General, and why this miscommunication
occurred. More questions than answers arose as a result of what was described to Judge
Raphaelson by the lawyers who spoke during the May 26, 2011 hearing.

{25} The standard we set forth in Caristo for granting a petition for writ of habeas corpus
without a response from the state requires a determination of whether the state’s conduct
“reached the point of stubborn resistance to the court’s orders that would justify such an
extreme sanction.” 112 N.M. at 624, 818 P.2d at 402. This was the standard to which Judge
Raphaelson should have adhered, not the “excusable neglect” standard. The “excusable
neglect” standard relied upon by the district court is found in Rule 1-006(B) NMRA of the
Rules of Civil Procedure. We noted in Caristo that habeas corpus proceedings are not civil
actions. Id. at 628-29, 818 P.2d at 406-07. When reviewed under the appropriate standard,
the record before us is void of any evidence that Respondents were stubbornly resisting the
orders of the district court.

{26} Indeed, as represented by Assistant District Attorney Couleur during the May 26,
2011 hearing, the record supports the inference that the District Attorney was immediately
attempting to find a different district attorney’s office to represent Respondents. On June
2, 2011, the Second Judicial District Attorney’s designee was appointed, and the appropriate
oaths and acceptance of the appointment, an entry of appearance, and a request for an
extension of time to respond to the amended petition were filed with the district court.

{27} On June 24, 2011, Respondents filed a request for hearing and a motion to reconsider
the grant of Quintana’s petition for writ of habeas corpus with a supporting brief. Judge
Raphaelson then filed a “Notice of Court’s Refusal to Act on ‘Motion to Reconsider Grant
of Petition for Writ of Habeas Corpus’ Due to Failure of the Respondent to Comply with
LR1-306G.”1 Respondents filed a notice of compliance with LR1-306(G) on August 3,
2011, and noted that because Quintana had not responded to the motion to reconsider, under
LR1-306(D) and Rule 1-007.1 NMRA, he was to be deemed as having consented to the
motion. Respondents’ pleadings noted the conflict of interest, gave a vague description of
efforts to have the Attorney General represent Respondents, and set out in some detail why
Quintana’s petition lacked merit. On August 15, 2011, Quintana filed a pleading asking the
district court to uphold the grant of his petition for writ of habeas corpus and to deny the
motion to reconsider.

{28}   A hearing on the pending motion to reconsider was held on October 17, 2011. During


       1
        We note that Judge Raphaelson did not file a similar notice when Quintana filed his
“Motion to Rule on the Pleadings and/or Status Hearing” without complying with LR1-
306(G).

                                             8
the hearing, an affidavit from Damian Horne, Quintana’s other trial counsel, was marked,
without objection, as Exhibit 1. This affidavit purported to rebut Hill’s affidavit. Judge
Raphaelson declined to consider the affidavit unless Respondents could persuade her that
their failure to file a timely response was due to excusable neglect. Because Respondents
were unable to detail whether the District Attorney had actually requested Attorney General
King or his Chief Deputy to consider representing Respondents, Judge Raphaelson was
persuaded that what the District Attorney had done in the case was not excusable neglect,
it was just incompetence. The motion to reconsider was denied.

{29} The conduct of the District Attorney and the Attorney General is not to be
commended. During oral argument in this case, we ordered that representatives of both the
District Attorney and the Attorney General appear and answer questions from the district
court designed to make sure that they know that prompt attention to habeas corpus
proceedings is essential. The failure of communication in this case was evidently due to the
informality with which the District Attorney approached the Attorney General to request
representation for Respondents. Although the conduct of the State is not to be commended,
we do not find that the State was resisting, much less stubbornly resisting, Judge
Raphaelson’s order that a response be filed within ninety days of when the amended petition
was filed.

{30} Judge Raphaelson should have explored alternative sanctions or orders under the
circumstances of this case. As an example, during the May 26, 2011 hearing she could have
ordered the District Attorney to find substitute counsel within a short time period under
penalty of deciding the merits of Quintana’s petition without a response from the State.
However, immediately deciding the merits of Quintana’s petition, without a response, and
with the accepted fact that a conflict of interest existed, along with some effort by the
District Attorney to find substitute counsel, was against logic, reason, and impartiality.
Quintana did not file an amended petition for eight months past the original deadline. At the
time that Respondents filed their motion to reconsider with a brief detailing why Quintana’s
petition lacked merit, the delay in responding was only four months.

{31} Respondents argue that if this Court reverses the district court and remands for an
evidentiary hearing, we should also order the First Judicial District Court to reassign the case
to a different judge. See State v. Bonilla, 2000-NMSC-037, ¶ 15, 130 N.M. 1, 15 P.3d 491
(judge’s comments warranted a remand to a different judge to avoid any appearance of
impropriety). Respondents contend that “Judge Raphaelson did not treat both parties with
an even hand.” As evidence of disparate treatment, Respondents note that Judge Raphaelson
(1) did not sanction Quintana when he failed to comply with the deadline to file an amended
petition as provided for in her initial order; (2) held that Respondents were deemed to have
consented to Quintana’s motion to rule on the pleadings when a response was not timely
filed, but did not make the same ruling against Quintana when Quintana did not timely
respond to Respondents’ motion to reconsider; and (3) did not file a notice declining to
review Quintana’s motion to rule on the pleadings, despite the fact that Quintana violated
LR1-306(D), whereas she did file such a notice when Respondents filed their motion to

                                               9
reconsider without complying with LR1-306(D). We agree that on remand this matter
should be reassigned to a different judge.

{32} Finally, Respondents have included an argument in their brief regarding why
Quintana’s petition for writ of habeas corpus lacks merit. We decline to comment on the
merits of Quintana’s petition.

CONCLUSION

{33} We reverse the district court and remand for reassignment to a different judge, with
instructions to the new judge to enter a scheduling order requiring a response from
Respondents and a reply from Quintana. In addition, the district court should schedule an
evidentiary hearing on the merits of Quintana’s petition because of the factual issues created
by the competing affidavits of Quintana’s trial counsel.

{34}   IT IS SO ORDERED.

                                              _______________________________
                                              EDWARD L. CHÁVEZ, Justice

WE CONCUR:

____________________________________
PETRA JIMENEZ MAES, Chief Justice

____________________________________
RICHARD C. BOSSON, Justice

____________________________________
CHARLES W. DANIELS, Justice

____________________________________
BARBARA J. VIGIL, Justice

Topic Index for Quintana v. Bravo, No. 33,350

ATTORNEYS
Conflict of Interest
Effective Assistance of Counsel
Substitution or Withdrawal of Counsel

CRIMINAL PROCEDURE
Delay in Filing
Effective Assistance of Counsel

                                             10
Pro Se
Time Limitations
Vacating Judgment
Verdict
Writ of Habeas Corpus

JUDGMENT
Default Judgment

REMEDIES
Writ of Habeas Corpus




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