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April 4, 2011

SCOTUS grants cert on important AEDPA habeas issue, while also resolving another

According to the early report at SCOTUSblog, the Justices this morning granted cert in Greene v. Fisher, which this SCOTUSblog page explains concerns this issue:

For purposes of adjudicating a state prisoner's petition for federal habeas relief, what is the temporal cutoff for whether a decision from this Court qualifies as “clearly established Federal law” under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996?

As regular habeas litigators already know, this is a very important issue for state habeas cases in federal courts and one that should benefit greatly from SCOTUS attention.

In addition, the Justices today handed down its opinion in Cullen v. Pinholster, which SCOTUSblog describes this way:

Review under the federal habeas law is limited to the record that was before the state court that ruled on the claim on the merits.  Opinion is by Justice Thomas; the Ninth Circuit is reversed. There is a partial dissenting opinion by Justice Breyer; Justice Sotomayor has filed a dissent joined in part by Justices Ginsburg and Kagan.

The opinion in Cullen is available here.

April 4, 2011 at 10:10 AM | Permalink


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Two more slap downs to the 9th circus clowns. Pinholder and AZ school cases. This is bad news for killers and atheists. States rights endorsed yet again and federal courtsslapped down for creating new claims not asserted in origianl state case. Bravo! SCOTUS has also set a large precedent with significant tax implications. Lesson learned for POLs: if you want taxpayers to fund something make sure to do it with tax credits rather than direct tax rates or fees.

Posted by: DeanO | Apr 4, 2011 11:00:33 AM

This seems like a huge change, one that I'm not quite sure is warranted. But I'm also not sure anything less drastic will get the attention of either the 9th or a fair block of the 6th. It will be interesting to see what the next practice of those two courts is.

Posted by: Soronel Haetir | Apr 4, 2011 12:31:47 PM

I have an instant analysis of Cullen here: http://joshblackman.com/blog/?p=6493

Posted by: Josh Blackman | Apr 4, 2011 1:00:57 PM

This took awhile to hand down. I thought it would be splintered somewhat. A good result. On another DP case from the 9th today, an affirmance of a California death sentence, 2-1. Guess who the dissenter is? The reliable Reinhardt.

Posted by: DaveP | Apr 4, 2011 1:26:22 PM

I don't really get Sotomayor's dissent. Is there really an allegation that the failure of Pinholster to present evidence to the California courts was not chargeable to him? And I also don't understand how the dissent could conclude that the California courts acted unreasonably. You had an unrepentant bad guy. The choice was a thin abuse excuse or the mom defense. Sotomayor may think that there are certain ways that choice had to be made, but that's not her call, particularly on habeas. Moreover, her reference to his epilepsy is goofy. Since when it epilepsy an excuse for murder. (Can you picture the prosecution telling the jury that the defense really has nothing since it was trotting out epilepsy, which has almost no relevance to Pinholster's moral blameworthiness.)

Of course, this is to be expected from Sotomayor whose belief that prisoners are entitled to the franchise shows her pro-criminal ways.

Posted by: federalist | Apr 4, 2011 1:50:07 PM

I only wish Sotomayor was as pro-defendant as Alito is pro-prosecutor, so there would be more balance on the court.

Posted by: reywal | Apr 4, 2011 2:02:32 PM

DeanO, I don't think a 5-4 split is really that much of a slapdown.

Posted by: federalist | Apr 4, 2011 2:18:30 PM

Reywal, did you perchance notice that Justice Alito voted for the defense side on the main issue today, while Ginsburg, Breyer, and Kagan all voted for the prosecution?

The usual 5-4 lineup in this case was only on the far less important issue of the merits of ineffective assistance claim in the particular case.

Posted by: Kent Scheidegger | Apr 4, 2011 2:43:54 PM

One or two 5-4 decisions is not a slap down, but if you had been paying attention to the SCOTUS rulings year to date you would find a long list of 9th slap downs: All to date have been 9-0 or 8-0 or 8-1 decisions. Nasa V Nelson; LA v Humpries; Harrington v Richter; Premo v Moore; Walker v Martin; Milner v Dept Navy; Chase V McCoy....Is that enough federalist????

Posted by: DeanO | Apr 4, 2011 3:51:46 PM

I prefer to stick to habeas cases for that point, Dean0. Otherwise you have to note an exception for Matrixx (unanimous affirmance).

The length of the Ninth's streak of habeas reversals and the number that have been unanimous are both remarkable.

Posted by: Kent Scheidegger | Apr 4, 2011 4:08:04 PM

DeanO, I have been paying attention, and I don't take a back seat to anyone when it comes to criticizing various members of the Ninth Circuit. But pointing to a 5-4 decision and talking about "slapdowns" isn't the strongest argument, IMHO. I don't think that there was a ton of merit to Pinholster's arguments, but given cases like Wiggins, Rompilla and that hackneyed slogan "death is different", the Ninth's decision wasn't all that unexpected.

Posted by: federalist | Apr 4, 2011 4:22:35 PM

Kent, I think "the main issue today" for Pinholster was whether the state can execute him. Alito said yes. Has Alito ever ruled for a defendant on the merits in a case that wasn't 9-0? I can't think of any such case, but I would love to stand corrected if you or anyone else can.

Posted by: reywal | Apr 4, 2011 5:15:42 PM

I think you guys might be missing the impact of this one. If state courts choose not to permit new evidence, they can make sure it never sees the light of day, provided they then rule on the merits. Pack up the tent.

Posted by: RW | Apr 4, 2011 5:25:19 PM

Federalist asks, "Is there really an allegation that the failure of Pinholster to present evidence to the California courts was not chargeable to him?"

This is what the Ninth Circuit opinion said: "Pinholster exercised diligence in pursuing an evidentiary hearing in state court regarding his mitigation ineffective assistance claim. By withdrawing its order to show cause and dismissing Pinholster's habeas petition on the merits, the state court denied Pinholster any further opportunity to develop the factual record in state court."

Federalist also says, "[Sotomayor's] reference to his epilepsy is goofy. Since when it epilepsy an excuse for murder[?]"

Epilepsy has never been an "excuse" for murder. But the link between postictal (i.e., post-seizure) symptoms and violence is pretty clearly potentially mitigating. Unfortunately, as Judge Smith pointed out, "the jurors [in Pinholster's trial] lacked any accompanying expert testimony to explain the ramifications . . . about that evidence."

And just BTW, the Ninth Circuit's opinion en banc here was authored by Milan Smith, a George W. Bush appointee.

Disclosure: I'm an RSW at the office that represented Pinholster in this litigation, though I did not participate in the case.

Posted by: Michael Drake | Apr 4, 2011 5:34:43 PM

(Er, an RWS, that is.)

Posted by: Michael Drake | Apr 4, 2011 5:37:31 PM

Glad I don't work in the CHU's today, Mr. Drake. Not sure what there is left to do anymore. What a blow. This should help reduce some of those unsightly exonerations, anyway.

Posted by: RW | Apr 4, 2011 6:01:26 PM

"Kent, I think 'the main issue today' for Pinholster was whether the state can execute him."

Sure, for Pinholster. But for all the other cases pending on federal habeas or headed for it, Part II of the Court's opinion -- which Alito did not join and Ginsburg, Breyer, and Kagan did -- is vastly more important than Part III. That is many thousands of cases.

Posted by: Kent Scheidegger | Apr 4, 2011 8:11:26 PM

Gimme a break, Michael, epilepsy didn't cause Pinholster to do this, and arguments along those lines are a reach, to put it mildly, that Sotomayor swallowed it says a lot about her. And the time that the California Supreme Court dismissed his case was the second time on state habeas.

Face it--this guy had a weak mitigation case (esp. in 1984, I think juries were probably tougher then) or a mom's mercy case. The defense team picked one and not the other. And the California Supreme Court didn't get it unreasonably wrong when it said that Strickland wasn't violated.

Posted by: federalist | Apr 4, 2011 10:01:16 PM

" that Sotomayor swallowed it says a lot about her."

Two Bush appointees on the en banc panel "swallowed it" as well, so I wouldn't have thought it says much about anything at all, though I guess it makes it clear enough that their appetite for "finality" doesn't compare with yours. (Mirabile dictu.)

Posted by: Michael Drake | Apr 4, 2011 11:07:41 PM

Michael, just a wee bit different. Usually things are a little more vetted at SCOTUS. And Milan Smith isn't exactly what I'd call a conservative judge. That Sotomayor has company for her stupidity and her solicitude of capital murderers isn't exactly a defense. And I note that you've given up the "potentially mitigating" argument. It's potentially mitigating only if the prosecution would have stuck its head in the sand and not questioned it. I mean really, oh yeah, this guy did all these bad things and is acting like a bad guy now because epilepsy made him do it. Actually, come to think of it, the defense guys should have made that argument . . . . they may have won due to ineffective rep. That Sotomayor would endorse a strategy that, if the prosecution is paying attention, would have been a dead loser shows that she is a criminal coddling hack.

Posted by: federalist | Apr 5, 2011 8:57:18 AM

"I note you've given up the "potentially mitigating" argument"

Well, let's review. I stated that epilepsy is clearly potentially mitigating. I also pointed out that that view was endorsed by two Republican judges on the en banc panel, both of whom were appointed by George W. Bush. Other than that, I said nothing about the matter.

Now, I myself would find it difficult to confuse that sequence of remarks with "giving up" on the view that epilepsy is clearly potentially mitigating. Yet you have managed to do just that. So let me just say it in a way that resists even your impressive capacity for misunderstanding: Epilepsy. Is. Clearly. Potentially. Mitigating.

Last word's yours if you want it.

Posted by: Michael Drake | Apr 5, 2011 10:12:53 AM

Michael--the probative value of his epilepsy is pathetically weak. Epilepsy doesn't cause people to commit goal-directed extreme violence. You don't dispute that. So all we have is the poor baby has epilepsy defense--pretty thin gruel. But Sotomayor played it up to the hilt. And whether or not two "W" judges signed off on it is irrelevant. My point, which you have done nothing to shake, is that Sotomayor swallowed defense lawyer spin that has very little factual basis. Calling it "potentially mitigating" (nice weasel words) doesn't address the issue.

Posted by: federalist | Apr 5, 2011 11:55:20 AM

So, Kent, I guess you can't think of a single opinion that wasn't 9-0 in which Alito has voted in favor of relief for the defendant. Can anyone else?

Posted by: reywal | Apr 5, 2011 1:21:55 PM

A plurality opinion isn't a beat down. The longest reversal streak currently, or at least the last time I looked, is the 6th.

Posted by: anon | Apr 5, 2011 4:20:45 PM

I have a question for Kent or Bill Otis or some of the more thoughtful legal minds on here: Let's suppose RW is correct when he says "If state courts choose not to permit new evidence, they can make sure it never sees the light of day, provided they then rule on the merits. Pack up the tent." Let's also consider a hypothetical: a state court considers evidence of juror misconduct for soliciting extrinsic evidence that relates directly to a mitigation defense regarding mental illness. the supposed expert from whom said extrinsic evidence is solicited by a juror provides an affidavit in the direct appeal. The state supreme court concludes there was, indeed, misconduct, but concludeds, based entirely on the assertions in the affidavit, that no prejudice can be shown. State court proceedings do not allow the record to be expanded via discovery depositions or the like from the supposed expert. In federal court discovery and evidentiary hearing, however, it becomes clear that the supposed expert's affidavit was 100% false, directly undercutting the entire basis for the state court's merits ruling. Following Pinholster, and adopting RW's reading of it, that evidence cannot be considered. How do you propose righting that wrong? Do you see any problem with literally ignoring uncontested evidence that demonstrably disproves the state court's merits determination? How should the federal courts deal with this hypothetical scenario? After all, the state court adjudication was arguably reasonable on the basis of the factual record it had in front of it. But that factual record was simply incorrect. I am genuinely interested in any thoughtful responses.

Posted by: ALB | Apr 5, 2011 4:23:33 PM

Anon: It wasn't a plurality opinion. Every part of Justice Thomas's opinion was joined by at least four other Justices, even though only three Justices joined all of it. The one part of the opinion that Justice Alito (who would been the fourth Justice to sign on to the whole opinion, along with the Chief Justice and Justices Scalia) didn't join, Justices Ginsburg and Kagan joined. (Justice Breyer may have joined that part as well.) The bottom line is that Justice Thomas's opinion was writing for a majority of at least five--and as many as eight--Justices throughout; it's the Opinion of the Court, not a plurality decision.

Posted by: guest | Apr 5, 2011 6:01:04 PM


If I understand your hypothetical correctly, the state court denied relief after assuming (but without finding) that the petitioner's facts were true. The federal court concludes: "if those were actually the facts, then the petitioner would win even under AEDPA because the state court's adjudication of the petitioner's claim would be an unreasonable application of Supreme Court precedent." As it turns out, however, the factual predicate for the petitioner's claim -- which the state courts assumed to be true -- isn't true.

Under that circumstance, I don't think an evidentiary hearing would be barred, for the reasons stated in Justice Breyer's concurrence. Indeed, the federal court should hold a hearing to make sure that the petitioner's purported facts are the facts before granting the writ.

I also don't think a hearing would be barred if the petitioner made an appropriate offer of proof during the state court proceedings in the manner called for under state rules but the state courts (unreasonably) declined to hold a hearing or if state rules don't permit a hearing.

Where Pinholster will bite is when the petitioner tries to really put new facts before the federal court that no one tried to put before the state courts. In that circumstance, I think the answer is going to be that the federal court can't consider the state courts' adjudication to be unreasonable on the basis of facts that no one presented to them.

Posted by: guest | Apr 5, 2011 6:09:23 PM

Guest: some of what you understood is correct, other parts are not. Here's the crux of it: state court did, indeed, make factual findings on which they denied relief. Evidence developed in federal habeas discovery and evidentiary hearing demonstrates those factual findings are just plain wrong. But under Pinholster, the federal court would now no longer be allowed to consider the evidence developed in federal court, leaving the (factually incorrect) state court record unchallenged. So to apply Pinholster, the federal courts now will be required to operate under the fiction that the state court adjudication was reasonable, even though the FULL factual record says otherwise. In short: look at Sotomayor's 8th footnote, which describes the situation almost perfectly: "...the majority fails to explain how a diligent petitioner with new evidence supporting an existing claim can present his new evidence to a federal court." The only difference is that in my hypothetical, the new evidence has already been presented to the federal court, but now the federal court will have to willfully ignore this new evidence. So Sotomayor's question is still valid and unanswered.

Posted by: ALB | Apr 6, 2011 8:21:48 AM


I think the point is that there isn't to be "evidence developed in federal habeas discovery" or a federal evidentiary hearing if the state courts either (1) conducted an evidentiary hearing or (2) determined reasonably, on the basis of the record presented and facts proffered to it, that no evidentiary hearing was necessary. (Unless the petitioner can qualify for the narrow section 2254(e)(2) safety hatch.)

And, although I'm sure that every general rule has its exceptions, I'm not sure I understand why a diligent petitioner can't be expected to develop the factual record in state court (or make an appropriate proffer in state court as to why discovery and/or an evidentiary hearing is necessary). I think Justice Sotomayor's footnote has a lot of big assumptions buried in there: a "diligent petitioner" who nevertheless has "new evidence" supporting an "existing claim." Why does the diligent petitioner have new evidence that he didn't attempt to present to the state courts? Is it attributable to some deficiency in the state's postconviction procedures? Or was the petitioner, including state postconviction counsel, really not that "diligent" after all?

Posted by: guest | Apr 6, 2011 10:51:30 AM

Your next to last sentence is the key here. There are some states (includin the jurisdiction in which I work) where the state proceedings do not allow for development of evidence through discovery or are otherwise wholly insufficient to provide even a super-duper-diligent petitioner any opportunity to present evidence to the state courts. And one can hardly proffer that which has not been developed and expect that to be sufficient evidence. So it's not really an exception to the rule, as much as the rule itself in many jurisdictions that diligent petitioners will be unable to develop evidence in state court.

And lets assume that the evidence in my hypothetical has already been developed in fed court pre-Pinholster, and petitioner was diligent in state court but prevented from developing the evidence there. There's no plausable way to argue that the claim in fed habeas is "new" because it's not like the Brady claim scenario discussed in Pinholster that suddenly arrises. But at the same time, the newly developed evidence in fed court directly contradicts the factual basis for the state court's adjudication. Now what?

Posted by: ALB | Apr 6, 2011 1:23:43 PM

or you just might be like that poor guy in texas that the glorious retard supeme court just shafted without oil where for 14 YEARS the state prosecutors office had HIDDEN the evidence that their entire body of evidence against him in TWO trials was FAKE and misleading. That the evidence they had HIDDEN prove someone else comitted the crime!

these 9 retards are fast outliving their right to live!

Posted by: rodsmith | Apr 6, 2011 1:36:57 PM


Maybe I'm not sure I understand what you mean by "developing" evidence. And why would a state's rules be insufficent to allow even a "super-duper-diligent" petitioner to make even an offer of proof as to why discovery and/or an evidentiary hearing is required, e.g., "we have evidence indicating X; for the following reasons, we believe that Y and Z are also true but require discovery or an evidentiary hearing at which hostile witnesses can be questioned under oath to prove it." If the state court's "even if these are the facts, the petitioner still loses," decision is potentially unreasonable, I can understand why discovery and/or a hearing in federal court might be necessary and appropriate.

I still don't understand what inadequacy in state law prevents a diligent petitioner from telling the state courts (e.g., in the course of trying to make a showing that argument and/or a hearing is necessary) what he later tries to put before the federal courts. That is, I'm not sure I understand why the real problem isn't simply (particularly in capital cases), the petitioner's lawyers do a more extensive or otherwise different investigation than was done at trial or during the state postconviction procedures and simply want to argue in federal court for relief on the basis of evidence that could have been presented (or proffered) to the state courts, but wasn't.

Posted by: guest | Apr 6, 2011 5:28:02 PM

In a normal, reasonable world, you might be spot-on. But unfortunately a petitioner's ability to get discovery in p.c. is SEVERELY curtailed in the jurisdiction in which I work. Sure, you can file a motion seeking discovery, but it will almost always be denied or just left unadjudicated. And, the state law provides zero ability to obtain discovery on a motion for new trial, which is where this "hypothetical" scenario was raised. Note that the claim was properly raised in direct appeal proceedings, since it arose out of matters on the record and was thus only able to be raised on direct appeal...raising the claim in state p.c. would be and was of no avail, since it would be and was dismissed as res judicata since it was already raised on direct appeal. The nifty little result of these myriad Catch-22s is that there was (and is) no mechanism by which discovery could be developed in state court, specifically in my "hypothetical," and generally for most cases here. And one can't proffer evidence to the state courts if one has not been allowed to conduct discovery (including the ability to depose under oath) to develop the facts. But Thomas's opinion in Pinholster provides no recognition of this reality that, I fear, is probably not unique to my jurisdiction. And I'm still curious what you or anyone else would propose as a course of action as to my "hypothetical." Set aside your speculations about whether this law or that law would or would not allow the evidence to be developed in state court, and accept for argument's sake that the petitioner was prevented by operation of state law and/or state courts from conducting discovery to present evidence to the state courts. The evidence that blatantly contradicts the facts on which the state supreme court based its "no prejudice" finding was only developed and presented for the first time in federal habeas proceedings. Yet Pinholster now seems to say that the fed courts are prohibited from considering any of this evidence, because there was a merits adjudication on the juror misconduct claim by the state court. Surely even the most avid supporters of Pinholster would agree that is an unjust result? The question now is what to do? How can that injustice be corrected by the federal courts under AEDPA as interpreted by the SCOTUS.

Posted by: ALB | Apr 6, 2011 6:02:59 PM


If you have a situation in which the petitioner files a proper discovery motion under state law, explaining with reasonable clarity what the petitioner is seeking and why it really is reasonably necessary for a fair adjudication of the petitioner's postconviction claim; and the state courts deny the motion and then deny postconviction relief (or fail to rule on the motion for discovery and then deny postconviction relief), I don't see why Pinholster would bar discovery in federal court, provided that the petitioner shows that there's actually a fair prospect that the evidence sought (but access to which was denied in state court) would allow the petitioner to show that the state courts' ruling on the merits of his claim was unreasonable -- as opposed simply to a fishing expedition.

And, just out of curiosity, what kind of discovery are we talking about, that can't reasonably be obtained without a court order? Discovery of the prosecutor's file or the police's files? The ability to depose fact witnesses under oath? Surely you're not referring to the ability to get a declaration or affidavit from trial/direct appeal counsel. In my experience, they're (usually) only too happy to sign almost whatever declaration or affidavit subsequent counsel challenging their effectiveness draft for their signature.

Posted by: guest | Apr 6, 2011 6:34:31 PM

And if there really was no available or effective procedure to obtain discovery in state court, regardless of the merits of the request, I also wouldn't see how Pinholster precludes discovery and/or a hearing in federal court . . . provided that the evidence sought really has the potential to show that the state's "even so, the petitioner's decision" was unreasonable within the meaning of sec. 2254(d), as opposed to the petitioner simply wanting to reinvent his claims in federal court.

Posted by: guest | Apr 6, 2011 6:39:15 PM

Nope, I'm talking about, at least for my hypo purposes, fact witness deposition under oath, or even to compel the witness to provide a signed, sworn affidavit. But help me understand: where in Pinholster does Thomas allow for the situation you described? In fact, what you described was already the controlling paradigm; in Pinholster, Thomas decrees that, if there is an adjudication on the merits by the state courts, evidence developed in federal court (even if ok to develop under 2254(e)(2)) may not be used to assess whether the state court's merits ruling was unreasonable. And if the state court's merits ruling cannot be shown to be unreasonable, the petitioner cannot obtain relief based on 2254(d)(1). And 2254(d)(2) is of no help, since it is EXPLICITLY confined to adjudications based on unreasonable determinations of the facts BEFORE THE STATE COURT. That is obviously not the case here, when evidence is developed in fed court. The only answer to your scenario that Thomas allows is that such a situation might present a "new claim." Well, that's not always the case for non-Brady claims. If my hypothetical has no argument that there is a "new claim" created by the evidence developed in federal habeas, but only additional factual evidence that shows the state court's factual findings are wrong, then what recourse remains? On what basis are you asserting that a petitioner WOULD be allowed to develop evidence in federal court if only he was diligent in state court, and that fed-court-developed evidence can be used to assess the habeas claim? That's exactly what Thomas rejected, is it not? So on what basis are you asserting that "I don't see why Pinholster would bar discovery in federal court, provided that the petitioner shows that there's actually a fair prospect that the evidence sought (but access to which was denied in state court) would allow the petitioner to show that the state courts' ruling on the merits of his claim was unreasonable -- as opposed simply to a fishing expedition"?

Posted by: ALB | Apr 6, 2011 6:48:54 PM

Re your second comment: that's the whole point. Regardless of whether a petitioner would be entitled to conduct discovery or be entitled to an evidentiary hearing under 2254(e)(2), Pinholster clearly says that such evidence is impermissible for the fed courts to consider if deciding a habeas claim under the limitations of 2254(d)(1). The state courts can and do certainly issue merits adjudications after denying discovery. If they do, then 2254(d) (arguably) applies, in which case nothing more than the state court record can be considered by the fed court; ergo, federal court discovery and evidentiary hearings will be denied. You state that you don't see how Pinholster precludes discovery and/or an evidentiary hearing in federal court, provided that the evidence sought really has the potential to show that the state's "even so, the petitioner's decision" was unreasonable within the meaning of sec. 2254(d). But that's the rub, is it not? That because there is a "merits adjudication" by the state court, 2254(d)(1) now PROHIBITS the federal courts from considering ANY newly developed evidence in their assessment of the habeas claim under 2254(d)(1). Only if there is no merits adjudication by the state courts would your scenario still apply, since 2254(d)(1) would not apply in that situation. Of course, that means that the logic espoused by Brown v. Smith in the 6th Circuit and Winston v. Kelly in the 4th Circuit is the best solution: if new evidence developed in fed court affects consideration of the claim, then there can be no adjudication on the "merits" by the state court, since the state court didn't have the whole factual picture in front of it, and the fed courts review the claim without 2254(d)(1)'s limitations. But Pinholster rejects that approach, as I read Thomas's opinion.

Posted by: ALB | Apr 6, 2011 7:00:06 PM

Not sure it goes that far. I read it as addressing the fairly common situation where the petitioner simply tries to win habeas relief on a more extensive factual showing than the one he tried to make in the state courts -- kind of like treating the state proceedings like the proverbial "tryout on the road" rather than "the main event." We'll see, I guess.

Posted by: guest | Apr 6, 2011 7:28:41 PM

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Posted by: Big pony | Apr 11, 2011 6:02:37 AM

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