               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 15a0381n.06

                                       Case No. 13-1373

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                            FILED
                                                                      May 27, 2015
MOSES WILLIAMS ,                                        )         DEBORAH S. HUNT, Clerk
                                                        )
       Petitioner-Appellant,                            )     ON APPEAL FROM THE
                                                        )     UNITED STATES DISTRICT
v.                                                      )     COURT FOR THE EASTERN
                                                        )     DISTRICT OF MICHIGAN
CINDI CURTIN,                                           )
                                                        )
       Respondent-Appellee.                             )              OPINION
                                                        )


BEFORE: DAUGHTREY, McKEAGUE, and STRANCH, Circuit Judges.

       McKEAGUE, Circuit Judge. Petitioner Moses Williams, a Michigan state prisoner

convicted of second degree murder, appeals from the denial of his petition for writ of habeas

corpus. One issue has been certified for appeal: whether the state trial court impermissibly

infringed Williams’ Sixth Amendment right to present a defense when it disallowed testimony of

a putative alibi witness because Williams failed to give timely notice of his alibi defense. The

district court denied relief holding that the state courts did not unreasonably apply clearly

established federal law. Finding no error, we affirm.

                                                I

       In December 2004, Moses Williams and Tommy Tiggs were jointly tried before two

separate juries in connection with the April 2004 shooting death of Edward Beasley in Flint,
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Michigan. The prosecution proofs showed that both men participated in the shooting. There was

little physical evidence implicating Williams.         The prosecution’s case depended on the

eyewitness testimony of Beasley’s friend, Carole Cooper. Cooper was with Beasley and the two

assailants in Beasley’s Cadillac during negotiations for the sale of the car immediately before the

shooting and was still in the car with Beasley at the time of the shooting. Cooper later identified

Williams as one of the shooters from a photo array. Williams did not testify or present any

defense proofs. After a four-day trial, Tiggs was found guilty of first degree murder and

Williams was found guilty of second degree murder. Tiggs was sentenced to life imprisonment;

Williams was sentenced to a prison term of 25 to 50 years. Both convictions were affirmed on

direct appeal.

       In his direct appeal, Williams argued that the trial court abused its discretion and

effectively denied him his right to present a defense when it refused to allow alibi witness Kessa

Peters to testify.    Peters purportedly would have testified that Williams was with her,

approximately 250 miles away in Columbus, Ohio, at the time of the shooting. Williams

acknowledges that he failed to comply with the state law requirement that he give the

prosecution written notice of intent to present an alibi defense not less than ten days prior to trial.

Mich. Comp. Laws § 768.20(1). Although Williams’ counsel was aware of a possible alibi

defense five months prior to trial, he did not give the court and prosecutor notice until Friday,

December 3, 2004, at a pretrial conference four days prior to trial. At that time, counsel advised

that he had managed to contact Peters by phone that morning and that she lived in Columbus and

did not have a telephone. Despite the late notice, the prosecutor agreed to waive objection,

provided Peters contacted the investigating officer, Sergeant Besson, before Monday afternoon




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when Besson finished her duty, i.e., 3:00 p.m. on December 6th. R. 8-7, Pretrial Hrg. Tr. at 4–5,

Page ID 539–40.

       Unfortunately, Peters did not meet this condition. Instead, she left a voicemail message

Monday at 3:51 p.m., indicating simply that she would testify that Williams was with her during

a certain time frame. She did not leave a telephone number or address. Hence, neither Sergeant

Besson nor the prosecution was able to contact Peters and question her or otherwise investigate

her story. At the start of trial Tuesday morning, the prosecution objected to the proposed late

addition of Peters as an alibi witness. Defense counsel requested more time to produce Peters,

noting “the alibi witness would probably not be called until at least Thursday afternoon.” R. 8-8,

Trial Tr. at 6, Page ID 553. The trial court noted that the time had come to pick a jury and,

unwilling to continue “playing the game,” advised Williams’ counsel that the request to allow

Peters to testify as an alibi witness would be denied unless there was anything else to support a

possible exception to the ten-day notice rule. Id. at 5–6, Page ID 552–53. Williams’ counsel did

not request a continuance but asked that the prosecutor be precluded from commenting on the

defense’s inability to produce witnesses corroborating any alibi defense. The court so instructed

the prosecutor and proceeded with jury selection.        Williams’ defense consisted solely of

counsel’s cross-examination of prosecution witnesses and counsel’s argument that the evidence

did not prove guilt beyond a reasonable doubt.

       Following his conviction, the Michigan Court of Appeals rejected Williams’ claim that

the trial court abused its discretion in excluding Peters and denied him his right to present a

defense. People v. Williams, 2006 WL 2000101 (Mich. Ct. App. July 18, 2006). In evaluating

the trial court’s enforcement of the statutory alibi notice requirement, the court of appeals




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considered the factors prescribed by the Michigan Supreme Court in People v. Travis, 443 Mich.

668, 682; 505 N.W.2d 563 (1993):

       (1) the amount of prejudice that resulted from the failure to disclose, (2) the
       reason for nondisclosure, (3) the extent to which the harm caused by
       nondisclosure was mitigated by subsequent events, (4) the weight of the properly
       admitted evidence supporting the defendant’s guilt, and (5) other relevant factors
       arising out of the circumstances of the case.

Williams, 2006 WL 2000101 at *2. None of these factors was deemed to weigh in favor of

finding an abuse of discretion.

       After the Michigan Supreme Court denied leave to appeal, Williams sought post-

conviction relief. The trial court denied the motion and the Michigan Court of Appeals and

Michigan Supreme Court both denied leave to appeal. Williams petitioned for a writ of habeas

corpus, contending again, among other claims, that his right to present a defense had been

abridged when the trial court refused to allow Peters to testify. The district court denied relief,

holding that the Michigan Court of Appeals’ denial of the claim on direct review was not an

unreasonable application of clearly established federal law. R. 18, Opinion and Order at 10–11,

Page ID 1765–66, Williams v. Woods, 2013 WL 625750 at *6–7 (E.D. Mich. Feb. 20, 2013).

The district court concluded that the state court had identified and balanced the relevant factors

and had not acted arbitrarily. The court held this sufficient to satisfy the highly deferential

“benefit of the doubt” review that governed evaluation of Williams’ habeas petition, citing

Renico v. Lett, 559 U.S. 766, 773 (2010). Id. at 11, Page ID 1766, Williams, 2013 WL 625750 at

*7.

       However, the district court granted a certificate of appealability and counsel was

appointed to represent Williams in this appeal. Williams maintains he is entitled to habeas relief

because the Michigan Court of Appeals’ decision, based on state law, and devoid of citation to


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United States Supreme Court decisions establishing the governing federal law, is “contrary to”

the clearly established federal law.

                                                II

       We review the district court’s denial of habeas relief de novo.         O’Neal v. Bagley,

743 F.3d 1010, 1014 (6th Cir. 2013). As the district court observed, under the provisions of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”), habeas review of the state court’s

adjudication on the merits is extremely deferential. For claims adjudicated on the merits, habeas

relief may be granted only if the state court decision is “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court” or is “based

on an unreasonable determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d)(1) and (2).

       “A state court’s determination that a claim lacks merit precludes federal habeas relief so

long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”

Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S.

652, 664 (2004)). This standard is difficult to meet by design. Id. A federal court may “not

lightly conclude that a State’s criminal justice system has experienced the ‘extreme

malfunctio[n]’ for which federal habeas relief is the remedy.” Burt v. Titlow, 134 S. Ct. 10, 16

(2013) (quoting Harrington, 131 S. Ct. at 786).1


       1
         Williams cites Sixth Circuit precedent for the notion that “modified AEDPA deference”
applies where, as here, the state court decision under review contained little analysis of the
substantive constitutional issue. Vasquez v. Jones, 496 F.3d 564, 569 (6th Cir. 2007). In
Harrington, however, the Court made it clear that AEDPA’s highly deferential review applies to
the result of the state court decision, irrespective of whether the state court decision includes
citation to Supreme Court cases or any reasoning at all. Harrington, 131 S. Ct. at 784.
Consequently, since Harrington, the notion of “modified AEDPA deference” lacks continuing
vitality. See Jackson v. Smith, 745 F.3d 206, 209–10 (6th Cir. 2014); Piscopo v. Michigan,
479 F. App’x 698, 703–04 (6th Cir. 2012); Smith v. Coleman, 453 F. App’x 625, 627 (6th Cir.
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       Williams contends under § 2254(d)(1) that the Michigan Court of Appeals’ decision is

“contrary to” the clearly established federal law. The “contrary to” standard is met only if the

state court applied “a rule that contradicts the governing law set forth in [Supreme Court] cases.”

Williams v. Taylor, 529 U.S. 362, 405 (2000). The standard is met if the state court decision is

diametrically different from, or opposed in character or nature to, clearly established precedent.

Id. at 405–06. Or, the “contrary to” standard is met if the state court confronted a set of facts

materially indistinguishable from facts presented in a Supreme Court case and yet reached a

result different from that reached by the Supreme Court. Id. at 406.

       Our review requires us to first identify the clearly established federal law. Marshall v.

Rodgers, 133 S. Ct. 1446, 1449 (2013). Federal law is clearly established under § 2254(d)(1) by

the holdings, as opposed to the dicta, in Supreme Court decisions. White v. Woodall, 134 S. Ct.

1697, 1702 (2010).     Because circuit precedent is not “clearly established Federal law, as

determined by the Supreme Court,” it “cannot form the basis for habeas relief under AEDPA.”

Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012); see also Glebe v. Frost, 135 S. Ct. 429, 431

(2014) (per curiam); White, 134 S. Ct. at 1702 n.2.

                                                III

       The parties agree on the source and substance of the clearly established law that governs

here. In Taylor v. Illinois, 484 U.S. 400 (1988), the Court recognized that an accused has a

fundamental right to present witnesses in his own defense under the Sixth Amendment. But the

right is not unfettered.   “The right may, in appropriate cases, bow to accommodate other

legitimate interests in the criminal trial process.” Rock v. Arkansas, 483 U.S. 44, 55 (1987)

(quoting Chambers v. Mississippi, 410 U.S. 284, 295 (1973)) (internal quotation marks omitted).

2011). See also Treesh v. Bagley, 612 F.3d 424, 429 (6th Cir. 2010) (consistent with
Harrington).
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The right is subject to “rules of procedure that govern the orderly presentation of facts and

arguments to provide each party with a fair opportunity to assemble and submit evidence to

contradict or explain the opponent’s case.” Taylor, 484 U.S. at 411. “The trial process would be

a shambles if either party had an absolute right to control the time and content of his witnesses’

testimony.” Id. The Taylor Court expressly recognized the salutary purposes served by notice-

of-alibi rules. Considering the ease with which an alibi defense can be fabricated, the Court

recognized that such discovery rules serve the prosecution’s interest in protecting itself against

an eleventh-hour defense as well as the public interest in a full and truthful disclosure of critical

facts. Id. at 411–12.

       The Taylor Court declined to prescribe a comprehensive standard to guide the exercise of

discretion in every conceivable case. Instead, the Court discussed countervailing interests that

would often come into play and need to be considered:

               [A] trial court may not ignore the fundamental character of the defendant's
       right to offer the testimony of witnesses in his favor. But the mere invocation of
       that right cannot automatically and invariably outweigh countervailing public
       interests. The integrity of the adversary process, which depends both on the
       presentation of reliable evidence and the rejection of unreliable evidence, the
       interest in the fair and efficient administration of justice, and the potential
       prejudice to the truth-determining function of the trial process must also weigh in
       the balance.

               A trial judge may certainly insist on an explanation for a party's failure to
       comply with a request to identify his or her witnesses in advance of trial. If that
       explanation reveals that the omission was willful and motivated by a desire to
       obtain a tactical advantage that would minimize the effectiveness of cross-
       examination and the ability to adduce rebuttal evidence, it would be entirely
       consistent with the purposes of the Compulsory Process Clause simply to exclude
       the witness’ testimony.

               The simplicity of compliance with the discovery rule is also relevant. As
       we have noted, the Compulsory Process Clause cannot be invoked without the
       prior planning and affirmative conduct of the defendant. Lawyers are accustomed
       to meeting deadlines. Routine preparation involves location and interrogation of
       potential witnesses and the serving of subpoenas on those whose testimony will

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        be offered at trial. The burden of identifying them in advance of trial adds little to
        these routine demands of trial preparation.

Id. at 414–16 (footnotes and citations omitted). In light of these considerations, the Taylor Court

upheld the exclusion of testimony of late-noticed witnesses. Even as it acknowledged that

alternative sanctions were available and that prejudice to the prosecution could have been

avoided, the Court held that exclusion was justified because of willful misconduct, as the record

supported the inference that “witnesses are being found that really weren’t there” and that notice

was given late to obtain tactical advantage. Id. at 416–17.

                                                 IV

        Williams acknowledges that the Michigan Court of Appeals decision is not contrary to

clearly established federal law simply because it does not cite Taylor. He maintains, however,

that both the reasoning and result of the decision contradict the holding of Taylor. Yet, several

of the factors considered are common to both decisions. And the holdings of both decisions are

facially consistent: upholding the trial court’s exercise of discretion to exclude testimony in

enforcement of a discovery rule. In both cases, the defendant’s right to present his defense

bowed to the prosecution’s interest in protecting itself from an eleventh-hour defense, the court’s

interest in protecting the integrity of the adversary process, and the public’s interest in the

truthful disclosure of critical facts.

        Still, despite these consistencies, Williams identifies two shortcomings in the Michigan

Court of Appeals decision that he says render it so contrary to the teaching of Taylor as to

compel agreement among all fairminded jurists that the Michigan Court of Appeals erred and

that he is entitled to habeas relief. In particular, Williams contends that the state court’s opinion

falls short because it includes no consideration of his fundamental right to present a defense.



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The state court’s analysis is thus said to contravene Taylor’s instruction that the fundamental

character of his right not be ignored.

       To be sure, the Michigan Court of Appeals opinion contains little explicit recognition of

the importance of Williams’ right to present a defense. But neither is the right completely

ignored. The state court’s implicit recognition is evidenced first by its acknowledgement that the

trial court did not automatically deny Williams’ initial request, even though the request was

made six days after the statutory deadline and a mere two working days before the start of trial,

and even though Williams’ counsel, even then, was still unable to provide Kessa Peters’ contact

information to the prosecution. Williams, 2006 WL 2000101 at *2. The court of appeals

recognized that the trial court, instead of summarily denying the request as untimely, went along

with the prosecution’s proposed accommodation in an effort to preserve Williams’ right to

present an alibi defense. But Williams also failed to meet the prosecution’s condition the day

before trial was to begin. The court of appeals thus recognized that the trial court did not

actually deny Williams’ request until the day of trial. At that point, Williams still had failed to

provide the prosecution with notice that would have permitted verification of Peters’ supposed

testimony and investigation of the putative alibi. Then, as the trial court announced its intention

to deny the eleventh-hour request, it gave Williams’ counsel a final opportunity to address the

court—either to clarify his objection or propose an alternative remedy. Hearing neither, the trial

court proceeded with jury selection. But, as the court of appeals also recognized, the trial court

further honored Williams’ right to present a defense by acknowledging that he remained free to

testify and present other witnesses’ testimony in support of the alibi defense—without comment

by the prosecutor on Williams’ failure to otherwise corroborate the defense. Id. No, Williams’

right to present a defense was not ignored by the state courts.


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        Williams also contends the Michigan Court of Appeals’ decision is contrary to

established law because it failed to address the trial court’s failure to consider alternative

sanctions before applying the drastic sanction of preclusion. To the contrary, the foregoing

discussion demonstrates the court of appeals’ recognition that the trial court did not rush to apply

preclusion as a sanction simply because the deadline passed, but patiently worked with the

parties to protect the relevant interests.

        Moreover, the Taylor Court did not hold that the availability of alternative sanctions

would preclude use of the preclusion sanction. Far from it. Taylor actually upheld preclusion

even as it recognized that “a less drastic sanction is always available.” Taylor, 484 U.S. at 413.

The Court noted that “[p]rejudice to the prosecution could be minimized by granting a

continuance or a mistrial to provide time for further investigation” and that “further violations

can be deterred by disciplinary sanctions against the defendant or defense counsel.” Id. But

despite the availability of alternative sanctions, the Taylor Court upheld the exclusion of

testimony in enforcement of the discovery rule. The Court reasoned that use of alternative

sanctions, though facially suitable in a particular case, “would be less effective than the

preclusion sanction” and, in some cases, “would perpetuate rather than limit the prejudice to the

State and the harm to the adversary process.” Id. After all, the Court noted, “[o]ne of the

purposes of the discovery rule itself is to minimize the risk that fabricated testimony will be

believed.” Id. In an observation no less apt in the instant case, the Taylor Court noted that it is

“reasonable to presume that there is something suspect about a defense witness who is not

identified until after the 11th hour has passed.” Id. at 414.

        There has been no finding in this case that Williams’ late notice was willful or

deliberately designed to gain unfair tactical advantage. It is undisputed, however, that his


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counsel was aware of the possibility of an alibi defense a full five months before trial. Yet, he

offered no explanation for the late notice except that, after trying unsuccessfully for a couple of

weeks, he did not manage to contact Kessa Peters until four days prior to trial. This does not

necessarily evidence willfulness but, at a minimum, it bespeaks a lack of due diligence. If

Carole Cooper’s identification of Williams as the second shooter really were erroneous, and if

Williams really were 250 miles away in Columbus at the time of the murder, due diligence

would have demanded a much more timely and thorough development of the defense. If counsel

had undertaken such efforts and been stymied by Peters’ elusiveness, then it should nonetheless

have been a simple matter for him to give timely notice of Williams’ intent to rely on the alibi

defense, alert the court and prosecution to his inability to contact Peters, and show cause for a

continuance of trial. The fact that defense counsel did not proceed in this manner is not

damning, but it is telling. As the Supreme Court noted in Taylor, “The simplicity of compliance

with the discovery rule is also relevant” in evaluating the appropriateness of preclusion.2 Id. at

415.

       It follows that the state courts’ failure to more explicitly consider alternative sanctions

does not render their decision contrary to clearly established federal law. Instead, the manifest

reasons to question the truthfulness of the supposed alibi defense render the result reached by the

Michigan Court of Appeals entirely consonant with established federal law, as reflected in both

the analysis and result in Taylor.

       2
         No less telling is the fact that the record is still devoid of evidence of what Peters’
testimony would have been—even after direct review, collateral review, and these habeas
proceedings—if she had appeared to testify. To date, we have nothing more than trial counsel’s
representation as to what Peters told him over the phone. But counsel did not offer to make a
proffer establishing the contents of the anticipated testimony. Peters was not subpoenaed, never
appeared to testify, was never interviewed by the prosecution or defense counsel, and has not
even signed an affidavit.


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       To the extent Williams’ “contrary to” argument rests on Michigan v. Lucas, 500 U.S. 145

(1991), it is plainly wrong. In Lucas, the Court overturned a decision holding that preclusion of

evidence for violation of a discovery rule is a per se violation of a defendant’s Sixth Amendment

right to present a defense. The Lucas Court simply vacated the ruling and remanded for further

proceedings in light of the teaching of Taylor v. Illinois. Lucas, 500 U.S. at 152–53. Citing dicta

in Lucas, Williams would have us construe Taylor as holding that the interests in favor of

enforcement of a discovery rule must be found to outweigh, or justify limitation of, the

defendant’s right to present a defense before the rule can be enforced to exclude evidence. But

dicta appearing in a Supreme Court opinion will not make out “clearly established Federal law,

as determined by the Supreme Court.” Only the opinion’s holding does that. White, 134 S. Ct.

at 1702.

       Moreover, the Supreme Court, in Nevada v. Jackson, 133 S. Ct. 1990, 1993 (2013) (per

curiam), recently rejected the very construction of Lucas that Williams urges us to adopt. The

Jackson Court stated that Lucas “did not even suggest, much less hold, that it is unconstitutional

to enforce such a [notice] rule unless a case-by-case balancing of interests weighs in favor of

enforcement.” Id. at 1993. Instead, as Jackson notes, Lucas expressed no opinion as to whether

preclusion was justified in that case and remanded the matter to the state court for assessment in

light of the considerations outlined in Taylor. Id.3

       Thus, Taylor’s holding, properly understood, teaches that various factors are potentially

relevant in evaluating the appropriateness of the preclusion sanction; it does not prescribe a


       3
        Williams’ reliance on our decision in Ferensic v. Birkett, 501 F.3d 469 (6th Cir. 2007),
is similarly misplaced. Ferensic, of course, is not a holding of the Supreme Court and is
therefore not “clearly established Federal law” under AEDPA. Parker, 132 S. Ct. at 2155.
Further, Ferensic relies in part on the same construction of Lucas that the Supreme Court
expressly disavowed in Jackson.
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comprehensive standard, and it does not mandate interest-balancing. It follows, that because

Taylor’s “rule” is a general one, state courts whose rulings are reviewed under AEDPA as being

contrary to or unreasonable applications of such rule, are entitled to “more leeway . . . in

reaching outcomes in case-by-case determinations.” Harrington, 131 S. Ct. at 786 (quoting

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

       In this case, as both parties concede, the governing clearly established federal law is

made out by the holding of Taylor v. Illinois. The Michigan Court of Appeals’ decision, albeit

devoid of citation to Taylor, is not diametrically different from or opposite in character to the

Supreme Court’s ruling in Taylor.       The Michigan Court of Appeals’ decision rested on

consideration of several factors identified in Taylor as relevant considerations and the result

reached, upholding preclusion of testimony based on those considerations, is consistent with

Taylor. Our review, under the deferential standard prescribed by AEDPA, does not reveal such

an arbitrary enforcement of the preclusion sanction that all fairminded jurists would necessarily

find it to be contrary to Taylor and therefore violative of Williams’ Sixth Amendment right to

present a defense.

                                                  V

       Finding no “extreme malfunction” of the state’s criminal justice system, we have no

warrant to grant habeas relief. Accordingly, we AFFIRM the district court’s judgment denying

Williams’ petition for writ of habeas corpus.




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       STRANCH, J., concurring.     I write separately only to address footnote one of the

majority opinion. I acknowledge that our court has held, since the Supreme Court decided

Harrington v. Richter, 131 S. Ct. 770 (2011), that modified AEDPA deference should no longer

be applied. Jackson v. Smith, 745 F.3d 206, 209–10 (6th Cir. 2014); Piscopo v. Mich., 479 F.

App’x 698, 703–04 (6th Cir. 2012); Smith v. Coleman, 453 F. App’x 625, 627 (6th Cir. 2011).

Since Harrington, our court has also applied modified AEDPA deference in two published cases.

Peoples v. Lafler, 734 F.3d 503, 516–17 (6th Cir. 2013); Moore v. Mitchell, 708 F.3d 760, 795

(6th Cir. 2013). Our conflicting case law leaves me unable to agree with the conclusion in

footnote one.




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