Opinion issued November 17, 2016




                                    In The

                             Court of Appeals
                                   For The

                        First District of Texas
                           ————————————
                            NO. 01-16-00013-CR
                          ———————————
                  EX PARTE YROOJ SHAMIM, Appellant



         On Appeal from the County Criminal Court at Law No. 3
                         Harris County, Texas
                    Trial Court Case No. 1822364-B


                        MEMORANDUM OPINION

     Yrooj Shamim appeals the trial court’s denial of his application for writ of

habeas corpus.   In two issues, Shamim argues that the trial court abused its
discretion in denying his application because (1) his trial counsel had an actual

conflict of interest and (2) new evidence exonerates him.1 We affirm.

                                     Background

Shamim’s Conviction

      Shamim was charged with the misdemeanor offense of assault of a family

member, his wife. Shamim’s father was also charged. Trial counsel represented

both Shamim and his father, but the two men were not tried together. At Shamim’s

trial, the State offered five witnesses: three Houston Police Department (HPD)

officers, the complainant, and a social worker from the Harris County District

Attorney’s Office.

      The complainant testified through an interpreter that she is from Pakistan

and came to America in 2001 after her arranged marriage to Shamim. She and

Shamim have two sons. She testified that in April 2012, while she was pregnant

with a third child, Shamim assaulted her. After sleeping on the couch, she woke

up to prepare the children for school.         When she returned home, she made

breakfast for Shamim. Shamim was angry because she had called the police the

day before about previous alleged abuse from her husband and in-laws.



1
      In a third issue, Shamim claimed the trial court abused its discretion in failing to
      issue findings of fact and conclusions of law. Because we ordered these filed and
      the trial court produced them, this issue is moot.


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      According to the complainant, Shamim pulled her by her hair and told her to

get out of the house. He then left for work, but he returned at lunch still angry.

Shamim grabbed her arm, pushed her out of her bedroom, and tried to drag her out

of the house, saying he would send her to a mental asylum. Her in-laws were

cursing her, and her father-in-law grabbed her head and pushed it against a wall.

She locked herself in a bathroom and called 911. Although she called the police

for help, the complainant testified that she was afraid to leave the house because

the family had threatened to send her children to Pakistan. Most of her injuries

depicted in photographs occurred on the day of the assault, but some were caused

by the abuse that had occurred the day before.

      The first officer on the scene, Officer P. Robles, testified that when he

arrived at the home on the morning of April 16, 2012, an older man and young

woman answered the door and claimed that another woman in the house was crazy

and causing trouble. Officer Robles spoke to the complainant, who said that

Shamim and her father-in-law had hurt her, called her names, pulled her hair,

pushed her against a wall, and thrown her to the floor.

      HPD Sergeant T. Anderson testified that the complainant initially would not

come out of the bathroom. His impression was that the complainant needed help

and had been assaulted. He saw bruises on the complainant’s eye and a large




                                          3
bruise and a golf-ball size knot on her forehead. The complainant asked for a

female officer to view her injuries.

      Officer M. Smith took photos of the complainant’s injuries. She testified

that the complainant wore a garment that covered her entire body and, before

asking her to remove the garment to take the photographs, she could only see her

hands, feet, and face. Five photos admitted into evidence depicted her injuries,

including bruises with finger marks on her upper arm and bruises on her eye,

cheekbone, forehead, and leg.

      K. Hutchinson, a social worker for the Harris County District Attorney’s

Office, testified that the complainant displayed the characteristics of a battered

woman. Hutchinson concluded that the complainant had been abused.

      The defense called three witnesses:      Shamim, his sister, and a friend.

Shamim’s sister, Uzma, testified that she had never had any disagreements with the

complainant and that her parents had been upstairs during the entire episode and

had not touched the complainant.         Uzma never saw Shamim assault the

complainant, and she saw no visible injuries on the complainant. Uzma believed

any injuries were self-inflicted.

      Shamim’s co-worker, Bakht Khattak, who had known Shamim for more

than 10 years, testified that he was with Shamim most of that afternoon traveling to




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Baytown to fix computers.      Khattak testified that Shamim acted normally all

afternoon.

      Shamim testified in his own defense, disputing that any assault occurred. He

speculated that his wife slept on the couch because she must have been mad about

something. He claimed that his wife developed anger issues after her parents died

and that she must have called the police because she was angry about something.

On the day in question, he woke up and “had a good chat” with his wife, and she

cooked his breakfast. He asked her to give him the telephone number for the

police officer she had called the night before, but she refused. When he came

home for lunch, his parents were upstairs and remained there. He was surprised

when the police called him later that day, and he maintained that he did not cause

any of the injuries shown in the photographs.

      On January 25, 2013, a jury found Shamim guilty of assault, and the trial

court assessed punishment at one year’s confinement in the Harris County Jail,

probated for two years. Shamim filed a motion for new trial, claiming his trial

counsel was ineffective because he failed to investigate, keep Shamim reasonably

informed, and call a material witness at trial. During the hearing on the motion for

new trial, Shamim’s appellate counsel questioned his trial counsel extensively

about the suggested conflict of representing both Shamim and his father, the extent

of his pretrial investigation, and his failure to call as a witness Shamim’s friend,



                                         5
Sarwar Syed, who was interviewed on the scheduled trial date. Shamim’s trial

counsel stated he did not believe there was a conflict because both Shamim and his

father adamantly maintained that no assault had occurred. Trial counsel testified

that he investigated the case by meeting with his clients, reading the offense

reports from the April 16 incident as well as from the incident the day before, and

talking with Shamim’s family. Trial counsel talked to Syed, who said he had heard

the complainant recant her statement that Shamim’s father had assaulted her.

Counsel did not find this helpful to Shamim and decided not to call Syed as a

witness. Further, trial counsel talked to the State and learned that the complainant

never recanted.

      Shamim’s motion for new trial was denied. On appeal, this Court affirmed

Shamim’s conviction. See Shamim v. State, 443 S.W.3d 316, 328 (Tex. App.—

Houston [1st Dist.] 2014, pet. ref’d).

The Habeas Proceeding

      Almost three years after his conviction, Shamim filed an application for writ

of habeas corpus, alleging that his trial counsel had a conflict of interest that denied

him his Sixth Amendment right to counsel and that newly discovered evidence

exonerated him.     Attached to his application were five affidavits:        two from

Shamim’s friends, one from his brother-in-law, and the last two from Shamim and




                                           6
his father. In the first affidavit, his friend Sarwar R. Syed—who was not called as

a witness in his assault trial—stated:

             On January 5th 2013 (Saturday) on or about 2:00 am I
             asked [the complainant] (who shortly before admitted in
             front of family/friend that her father in law had not beat
             her and she lied about the whole incident) how can we
             trust her when she is constantly changing her stories. She
             asks for forgiveness and told me that her husband is a
             very loving man and that he had not beaten her once.
             She admitted that she made false allegations to put the
             family into trouble for reasons unknown.
      The second affidavit, with language almost identical to Sarwar Syed’s, was

from another friend, Syed Imran Ahmed.         Ahmed recounted overhearing the

complainant’s alleged recantation to Syed. Shamim’s brother-in-law, Muhammad

Inam Khan, stated in his affidavit that, on the evening of the alleged assault, he

saw no bruises on the complainant and saw the complainant run outside with a

duffle bag and get into a car with a stranger. Khan further stated that some of

Shamim’s documents, including identification and immigration paperwork, were

found to be missing, and he believed the complainant planned this incident with

other people. Finally, Shamim and his father stated in their affidavits that their

trial counsel had an undisclosed conflict of interest because he represented them

both and that if he had only represented Shamim the verdict might have been

different.




                                         7
      The State filed a response, contending Shamim’s trial counsel did not have

an actual conflict of interest and that Shamim failed to prove actual innocence by

clear and convincing evidence. The State attached to its response an affidavit from

the complainant in which she stated she had never recanted.

      The trial court denied the application. At Shamim’s request, we issued an

order directing the trial court to file findings of fact and conclusions of law. The

trial court concluded that Shamin failed to establish a conflict of interest or that

“new evidence” established actual innocence.

                               Standard of Review

      When reviewing a trial court’s grant or denial of habeas relief, we “review

the facts in the light most favorable to the trial judge’s ruling” and “uphold it

absent an abuse of discretion.” Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex.

Crim. App. 2006). When the trial court makes written findings and conclusions in

support of its denial, we also review those for abuse of discretion. See Ex parte

Garcia, 353 S.W.3d 785, 787–88 (Tex. Crim. App. 2011). We defer to the trial

court’s findings of fact that are supported by the record. See Ex parte Amezquita,

223 S.W.3d 363, 367 (Tex. Crim. App. 2006). We afford the same deference to

the trial court’s application of law to the facts if that ruling is based on the

credibility or demeanor of witnesses. See Ex parte Peterson, 117 S.W.3d 804, 819

(Tex. Crim. App. 2003), overruled in part on other grounds, Ex parte Lewis, 219



                                         8
S.W.3d 335, 371 (Tex. Crim. App. 2007). If resolution turns only on application

of legal standards and does not involve evaluation of credibility, we review that

decision de novo. See id.; State v. Collazo, 264 S.W.3d 121, 126 (Tex. App.—

Houston [1st Dist.] 2007, pet. ref’d).

                          No Actual Conflict of Interest

      In his first issue, Shamim claims his trial counsel’s conflict of interest denied

him his Sixth Amendment right to counsel. Shamim further contends that his trial

counsel provided ineffective assistance because there was a conflict of interest in

representing both Shamim and his father. The State responds that Shamim failed

to establish the existence of an actual conflict and thus, has not shown an abuse of

discretion by the trial court in denying the application on this ground.

      The purpose of the Sixth Amendment is to ensure that a criminal defendant

receives a fair trial. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052,

2065 (1984). The Sixth Amendment guarantee of the right to counsel “includes

the right to ‘conflict-free’ counsel.” Goody v. State, 433 S.W.3d 74, 78 (Tex.

App.—Houston [1st Dist.] 2014, pet. ref’d) (op. on reh’g). Defense attorneys are

ethically obligated “to avoid conflicting representations and to advise the court




                                          9
promptly when a conflict of interest arises during the course of trial.” Cuyler v.

Sullivan, 446 U.S. 335, 346, 100 S. Ct. 1708, 1717 (1980).2

      Defense counsel is in the best position both “professionally and ethically to

determine when a conflict of interest exists or will probably develop in the course

of a trial.” See id. Although representation of multiple defendants may constitute

ineffective assistance, representation of multiple defendants is not a per se

violation of the constitutional guarantee of effective assistance. See Holloway v.

Arkansas, 435 U.S. 475, 482, 98 S. Ct. 1173, 1178 (1978); James v. State, 763

S.W.2d 776, 778 (Tex. Crim. App. 1989) (en banc). Generally, a trial court may

assume that either that no conflict exists despite multiple representation or the

lawyer and client both knowingly accepted any conflict that may exist.                  See

Sullivan, 446 U.S. at 346–47, 100 S. Ct. at 1717.

      When a defendant asserts ineffective assistance based on an actual conflict

of interest, the defendant must establish that an actual conflict existed and that it

adversely affected the adequacy of counsel’s representation. See Sullivan, 446

U.S. at 349–50, 100 S. Ct. at 1719; Kegler v. State, 16 S.W.3d 908, 912 (Tex.


2
      The Disciplinary Rules of Professional Conduct state that a lawyer shall not
      represent a person if representation involves a matter related to that of another
      client of the lawyer and the clients’ interests are “materially and directly adverse.”
      Tex. Rules Disciplinary P. R. 1.06(b)(1), reprinted in TEX. GOV’T CODE ANN., tit.
      2, subtit. G, app. A-1 (West 2013). Moreover, a lawyer shall not represent a party
      if representation of that client may be adversely limited by the lawyer’s
      representation of another client. See id. at R. 1.06(b)(2).

                                            10
App.—Houston [14th Dist.] 2000, pet. ref’d). Until the defendant shows “counsel

actively represented conflicting interests, he has not established the constitutional

predicate for his claim of ineffective assistance.” See Sullivan, 446 U.S. at 350,

100 S. Ct. at 1719.

      The Texas Court of Criminal Appeals has held that an actual conflict of

interest exists when “one defendant stands to gain significantly by counsel

adducing probative evidence or advancing plausible arguments that are damaging

to the cause of a co-defendant whom counsel is also representing.” See James v.

State, 763 S.W.3d 776, 779 (Tex. Crim. App. 1989). Stated another way, an actual

conflict arises if counsel is required to make a choice between advancing one

client’s interests to the detriment of the other client’s interest. Acosta v. State, 233

S.W.3d 349, 355 (Tex. Crim. App. 2007). “[A] potential conflict may become an

actual conflict but we [may not] speculate about a strategy an attorney might have

pursued . . . in the absence of some showing that the potential conflict became an

actual conflict.” Routier v. State, 112 S.W.3d 554, 585 (Tex. Crim. App. 2003).

      In James v. State, a case somewhat similar to this one, the defendant and co-

defendant were both represented by the same attorney. 763 S.W.2d at 778. Unlike

Shamim’s case, however, the defendant and his co-defendant were tried together.

See id. at 777. The two defendants presented “mutually exclusive alibi defenses”

and did not incriminate each other. Id. Nor did any witness testify in favor of one



                                          11
defendant to the detriment of the other. See id. The trial court found no actual

conflict existed. Id. The Court of Criminal Appeals upheld this ruling, finding that

“potential, speculative conflicts of interest” never rose to the level of “actual,

significant conflicts.” Id. at 781–82. Because the defense strategy had been that

neither defendant could have committed the crime and their testimony never

deviated or incriminated the other defendant, the Court held that the only evidence

of a conflict was the “speculative argument from appellants’ counsel on appeal”

regarding “the ‘likelihood that the defense attorney could have, would have and

should have’ advanced evidence and arguments advantageous to each defendant

but did not do so because of the multiple representation problem.” Id. at 781

(emphasis in original).

      The distinction between James and cases holding there was proof of an

actual conflict is that potential conflicts in those cases became actual conflicts “due

to the inculpatory or exculpatory nature of testimony or the strategy adopted by

defense counsel in the particular case.” Id. (citing Ex parte Parham, 611 S.W.2d

103 (Tex. Crim. App. 1981) (trial attorney testified actual conflict arose because he

could have called one brother to testify and exculpate other brother) and Gonzales

v. State, 605 S.W.2d 278 (Tex. Crim. App. 1980) (trial strategy to call one

defendant to rebut State version of events backfired when defendant inculpated

other two defendants)); see Ex parte Acosta, 672 S.W.2d 470 (Tex. Crim. App.



                                          12
1984) (after State rested, defendant advised counsel he was guilty and co-

defendant was not).

      There is no proof that Shamim or his father inculpated the other or that a

trial strategy backfired. Shamim claims trial counsel could have offered proof that

his father was the perpetrator. But his argument fails, as it did in James, because it

is based on what could have occurred, viewed with hindsight, without proof that an

actual conflict arose. See James, 763 S.W.2d at 781–82. This presents only

speculation and not proof of an actual conflict. See id.

      Shamim contends that he has established the existence of an actual conflict

by showing that trial counsel had to make a choice between advancing his interest

or his father’s interest when counsel spoke to the last-minute potential witness,

Sarwar Syed. Just before trial, counsel spoke with Syed but decided not to call him

as a witness because his testimony may have been viewed as detrimental to

Shamim.     According to trial counsel, Syed stated that the complainant had

previously said Shamim’s father was not involved in the assault. Such testimony

may have lessened any doubt in the jury’s minds that Shamim was the one who

caused the complainant’s injuries. After hearing this proposed testimony, trial

counsel decided not to call Syed as a witness in Shamim’s trial.

      Shamim and his father were tried separately. This reduced the risk that any

potential conflict would rise to the level of an actual conflict. As the Supreme



                                         13
Court noted in a similar context, “[t]he provision of separate trials [for Shamim

and his father] significantly reduced the potential for a divergence in their

interests.” Sullivan, 446 U.S. at 347, 100 S. Ct. at 1718. Even if Syed’s alleged

potential testimony reflected a possible conflict, it did not adversely affect

counsel’s performance at trial or deny Shamim a fair trial. See Routier, 112

S.W.3d at 585–86 (discussing cases in which actual conflicts were established

through proof either that trial counsel “had to forego an effective strategy or that a

strategy backfired due to an actual conflict that arose during trial.”). Without other

evidence that an actual conflict developed, the “[f]ailure to emphasize the

culpability of one defendant over the other does not create an actual conflict.”

Kegler, 16 S.W.3d at 913.

      Shamim finds support for his argument that denial of his writ was an abuse

of discretion in the fact that his father’s writ was granted. But his father’s habeas

application contained several grounds, and the trial court’s order does not state on

which ground it was granted. Thus, the fact that Shamim’s father’s application

was granted does not demonstrate that an actual conflict existed.

      Because Shamin has not demonstrated the existence of an actual conflict, we

must apply the Strickland standard to determine if he has shown that his trial

counsel provided ineffective assistance. See Kegler, 16 S.W.3d at 912. Under

Strickland, an appellant must show that his “counsel’s representation fell below an



                                         14
objective standard of reasonableness” and that this deficient performance

prejudiced the appellant. See Strickland, 466 U.S. at 688, 691, 104 S. Ct. at 2064,

2066–67. Trial counsel testified during the new-trial hearing that his investigation

was limited to talking to Shamim, his father, other family members, and reviewing

medical records, telephone records, and the State’s file. He noted that Shamim had

no alibi. Trial counsel testified that his strategy was to attempt to restrict evidence

to events of the day of the assault so that the jury would not receive evidence of

earlier accusations of assault or view this as ongoing behavior. His strategy was to

have the jury focus on the one behavior charged in the indictment—that Shamim

assaulted the complainant by pushing her. Even if we were to determine that trial

counsel’s performance was deficient—a matter we do not address—Shamim has

not shown that he was prejudiced.

      To show prejudice resulting from trial counsel’s performance, Shamim

would have to show a reasonable probability that the result of his trial would have

been different. See Hernandez v. State, 726 S.W.2d 53, 59 (Tex. Crim. App. 1986)

(en banc).     Shamim contends counsel should have attempted to inculpate

Shamim’s father, but counsel did raise this possibility during closing argument.

Even if counsel had presented evidence inculpating Shamim’s father, this does not

raise a reasonable probability that the result of the trial would have been different.

Ample evidence supported a finding that Shamim assaulted his wife.                 The



                                          15
complainant testified at length about Shamim assaulting her. The police officers

testified to their observations at the scene and to the complainant’s injuries. And,

the photographic evidence corroborated the complainant’s testimony. We overrule

Shamim’s first issue.

              No Newly-Discovered Evidence of Actual Innocence

      In his next issue, Shamim argues that the trial court abused its discretion in

denying habeas relief on his claim of newly-discovered evidence of actual

innocence. Shamim presented three affidavits in support of this argument. Two of

these affidavits were from his friends, Sarwar Syed and Syed Imran Ahmed. In

their affidavits, Syed and Ahmed stated that on January 5, 2013, roughly two

weeks before the trial, they heard the complainant admit that she had lied about the

assault.   Shamim’s brother-in-law, Muhammad Imran Khan, stated in a third

affidavit that, on the day after the assault, he saw no bruises on the complainant

and he saw her run outside and get in the car with a stranger. Muhammad also

stated that documents were discovered to be missing and, based on what he saw, he

believed the complainant had planned the incident.

      No hearing required when evidence is not newly-discovered

      Shamim contends the trial court should have held a hearing to make a

finding on witness credibility under Ex parte Harmon, 116 S.W.3d 778 (Tex.

Crim. App. 2002). Although the trial court in Harmon held a hearing and found



                                        16
the complainant’s recantation in that case was credible, Harmon does not hold or

state that a hearing is required in every case in which a witness claims that the

complainant has recanted. See id. at 779. Generally, a trial court is not required to

hold a hearing on a habeas application, particularly if the habeas judge presided

over the applicant’s trial. See Ex parte Gonzalez, 323 S.W.3d 557, 559–60 (Tex.

App.—Waco 2010, pet. ref’d). The trial judge who denied Shamim’s application

for habeas relief also presided over his trial.

      But an evidentiary hearing is required if an actual-innocence claim is raised

and is supported by newly-discovered evidence.        See Ex parte Franklin, 310

S.W.3d 918, 922 (Tex. App.—Beaumont 2010, no pet.). “Trial judges who are

confronted with contradictory affidavits, each reciting a plausible version of the

events, ought to convene an evidentiary hearing to see and hear the witnesses and

then make a factual decision based on an evaluation of their credibility.” Manzi v.

State, 88 S.W.3d 240, 255 (Tex. Crim. App. 2002) (Cochran, J., concurring). The

Court of Criminal Appeals has held that the credibility of newly-discovered

evidence should be tested at a hearing. See Ex parte Brown, 205 S.W.3d 538, 546

(Tex. Crim. App. 2006) (citing Franklin, 72 S.W.3d at 678).

      Although Shamim raises an actual-innocence claim, the evidence supporting

it does not constitute newly-discovered evidence. “Newly discovered evidence” is

evidence that was not known to the applicant at trial and could not have been



                                           17
discovered with the exercise of due diligence. Id. at 545. The applicant “cannot

rely upon evidence or facts that were available at the time of his trial, plea, or post-

trial motions, such as a motion for new trial.” Id.

      The trial court could determine, without holding an evidentiary hearing, that

Shamim’s habeas evidence was not newly discovered. The evidence regarding

trial counsel’s representing both Shamim and his father was known by Shamim

before trial.    Additionally, the evidence about the complainant’s alleged

recantation in January 2013 was known before trial. Because the habeas judge had

presided over the trial, she had previously heard testimony about the conflict of

interest and the alleged recantation and, therefore, was able to determine without

an evidentiary hearing that Shamim’s habeas proof did not constitute newly-

discovered evidence. Thus, no evidentiary hearing was required.

      Proof of innocence not clear and convincing

      Additionally, Shamim’s three affidavits did not establish that he is actually

innocent. As the State asserts, a person who has been convicted in a fair trial may

not collaterally attack that conviction “without making an exceedingly persuasive

case that he is actually innocent.”      Brown, 205 S.W.3d at 545.         The habeas

applicant making an actual-innocence claim must show “by clear and convincing

evidence that, despite the evidence of guilt that supports the conviction, no

reasonable juror could have found the applicant guilty in light of the new



                                          18
evidence.” Id. at 545; see Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim.

App. 1996). To determine whether Shamim met this standard, the habeas court

was required to examine the habeas proof “in light of the evidence presented at

trial.” Ex parte Thompson, 153 S.W.3d 416, 417 (Tex. Crim. App. 2005). And the

newly-discovered evidence “must constitute affirmative evidence of the applicant’s

innocence.” Franklin, 72 S.W.3d at 678.

      The affidavits Shamim presented do not clearly establish his innocence. The

trial court concluded that Khan’s affidavit concerning the complainant’s lack of

apparent injuries was not credible because it was contradicted by photographic

evidence and the testimony of four trial witnesses.     All three affidavits were

contradicted, not only by photographic evidence, but also by the testimony of three

HPD officers who observed at least some of the complainant’s injuries, her

agitated and fearful state, and the statements and demeanor of other members of

the household. Moreover, the complainant testified to the verbal and physical

abuse, and photographic evidence depicted bruises and facial swelling consistent

with her testimony. She has not recanted that testimony. On the contrary, her

affidavit attached to the State’s response to Shamim’s habeas application is

consistent with her trial testimony.

      Because a reasonable juror might have convicted Shamim on the basis of the

photographic evidence and the complainant’s testimony, notwithstanding the three



                                        19
affidavits presented in the habeas application, Shamim failed to meet his heavy

burden to establish actual innocence. See Ex parte Navarijo, 433 S.W.3d 558,

570–71 (Tex. Crim. App. 2014) (holding that inculpatory evidence of abuse

distinguished case from those where habeas relief was granted on basis of

recantation partly because in those cases there was no physical or medical evidence

establishing abuse had actually occurred). We overrule Shamim’s second issue.

                                   Conclusion

      Shamim had the burden to show the trial court abused its discretion in

denying habeas relief on the basis of an actual conflict of interest that adversely

affected his trial counsel’s performance or that newly discovered evidence

constituted clear and convincing proof that no reasonable juror would have

convicted him in light of that new evidence. We conclude that Shamim did not

meet this burden. Accordingly, we affirm.




                                                Harvey Brown
                                                Justice


Panel consists of Justices Keyes, Brown, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).




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