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noting that "fair presentation" requirement of exhaustion doctrine requires "constitutional claims to [be presented] to the highest state court"
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01 Civ. 2151 (RWS)
October 17, 2001
IVAN AGUILERA, Petitioner Pro Se Bronx, NY.
HONORABLE ELIOT SPITZER, Attorney General of the State of New York, Attorney for Defendant New York, NY.
By: SUSAN M. BARBOUR, ESQ. Assistant Attorney General, Of Counsel.
OPINION
Ivan Aguilera ("Aguilera"), an inmate at Sullivan Correctional Facility in Fallsburg, New York, brings this federal habeas corpus proceeding pursuant to 28 U.S.C. § 2254, to challenge the lawfulness of his incarceration. Aguilera contends that the August 10, 1998 judgment of the Supreme Court, New York County (Wetzel, J.), convicting him, after a jury trial, of Criminal Sale of a Controlled Substance in the Third Degree, pursuant to Penal Law § 220.39(1), is in violation of the Fifth and Fourteenth Amendments of the United States Constitution. Aguilera is currently serving an indeterminate sentence of five to ten years incarceration. He is currently incarcerated pursuant to that judgment. For the reasons stated, the petition for a writ of habeas corpus is denied.
Parties and Prior Proceedings Aguilera is an inmate at Sullivan Correctional Facility in Fallsburg, New York. James Walsh is the Superintendent of the Sullivan Correctional Facility.
Aguilera was tried for the possession and sale of crack cocaine. By a New York County Indictment filed on March 24, 1997, Aguilera was charged with one count each of Criminal Sale of a Controlled Substance in the Third Degree and Criminal Possession of a Controlled Substance in the Third Degree. Aguilera's first jury trial, before Justice Marcy Kahn, resulted in an acquittal on the possession count and a hung jury on the sale charge. A second jury trial on the sale count was held before Justice Michael Obus and also resulted in a hung jury. Aguilera's third trial began before Justice William Wetzel on July 27, 1998, and on July 28, 1998, defendant was convicted of Criminal Sale of a Controlled Substance in the Third Degree.
Aguilera filed a timely notice of appeal to the Appellate Division. On appeal, he argued that the verdict was against the weight of the evidence and that the court failed to properly instruct the jury as to how to evaluate inconsistencies in the testimony. The People of the State of New York filed a brief in response, arguing that Aguilera's claims were without merit.
On October 26, 1999, the Appellate Division, First Department, affirmed Aguilera's conviction [in a one page opinion], finding that since the verdict was not against the weight of the evidence, there was no reason to disturb the jury verdict. People v. Aguilera, 265 A.D.2d 251, 696 N.Y.S.2d 819 (1st Dept. 1999).
On December 8, 1999, the Appellate Division filed a corrected order because the original affirmed the possession charge rather than the sale charge which was at issue.
The court also determined that Aguilera's challenge to the court's charge regarding how to evaluate inconsistent statements was unpreserved, but, in any event, the court's charge "adequately conveyed the appropriate legal principle." Id. By pro se letter brief dated November 21, 1999, Aguilera sought leave to appeal the Appellate Division decision, alleging that he was a victim of double jeopardy in violation of his Fifth and Fourteenth Amendment rights. On December 22, 1999, counsel for Aguilera filed a letter application with the Court of Appeals also seeking permission to appeal the Appellate Division's opinion. The issues raised were the same issues contained in the Appellate Division brief: that (1) the verdict was against the weight of the evidence; and (2) the court gave the jury an inadequate charge regarding how to consider inconsistent statements. By letter brief dated January 7, 2000, Aguilera filed a second pro se application with the Court of Appeals seeking leave to appeal. In the second submission, Aguilera alleged that his conviction was in violation of the double jeopardy clause of the Fifth and Fourteenth Amendments of the United States Constitution, that the Appellate
Division issued and erroneous order and that he received ineffective assistance of counsel.
On February 4, 2000, the New York Court of Appeals denied leave to appeal. People v. Aguilera, 94 N.Y.2d 901 (2000).
Aguilera now files the instant petition alleging that:
(1) his conviction was in violation of the double jeopardy clause of the Fifth and Fourteenth Amendments of the United States Constitution;
(2) the verdict was against the weight of the evidence; and
(3) he was denied effective assistance of counsel.
Facts
On March 6, 1997, Detectives Robert Kearney ("Kearney"), Daniel Lettieri ("Lettieri"), Daniel Rogan ("Rogan"), and Andrew Kennedy ("Kennedy") were part of a team assigned to make undercover drug purchases in the area of Eighth to Tenth Avenues and West 46th to 52nd streets in Manhattan. Under Detective Lettieri, who was acting as Kearney's "ghost," followed Kearney at a distance, making radio reports to the back-up officers. At the corner of Ninth Avenue and West 48th Street, Kearney walked over to Tyrone O'Shea — a white man in his twenties wearing black pants, a plaid shirt, and a white jacket — and asked, "Who's out," meaning "Who is selling drugs?" O'Shea replied, "my b[o]y has twenties around the corner."
The facts as set forth are taken from the Appellate Division brief of the respondent, New York County District Attorney's Office, pursuant to the testimony elicited at petitioner's third trial. Petitioner's first two trials resulted in mistrials because the juries could not reach a verdict.
Detective Kearney then accompanied O'Shea to the corner of Eighth Avenue and West 49th Street where they met Jamel Jackson, a black man of medium build with a "lazy" eye, who was in his thirties. O'Shea asked, "Where's the loose rock at?" and Jackson said, "How many?" After Detective Kearney replied, "One," the three men walked west on West 49th Street about three-quarters of the way down the block, to the area in front of building 340. The area was both commercial and residential, and was well lit by street lamps.
Aguilera was standing on the sidewalk near building 340 with Henry Drydem, a black man wearing a maroon hooded sweatshirt and a dark jacket. O'Shea said, "Let me get one," and Aguilera dropped into O'Shea's palm what appeared to be one loose rock of crack cocaine. O'Shea then gave the rock to Detective Kearney, who in turn, handed O'Shea two ten-dollar bills of pre-recorded buy money. Holding the rock, Detective Kearney walked west to Ninth Avenue, where he waited for Detective Lettieri. Kearney recalled that the transaction with Aguilera lasted a matter of seconds.
Meanwhile, Detective Lettieri had an unobstructed view of the transaction from approximately 20 to 30 feet away on the opposite side of West 49th Street. Lettieri had seen O'Shea talk to Detective Kearney, walk over to Aguilera, and then make "some type of exchange or gesture" with Aguilera; he then saw O'Shea walk back to Kearney, but did not recall seeing an exchange between them. Detective Lettieri noticed that Aguilera stood about 5 feet 8 inches or 9 inches tall, weighed about 230 pounds, and was wearing a black or dark-colored sports coat, dress slacks, and a derby hat. As Detective Lettieri continued to watch, Detective Kearney walked toward Ninth Avenue and gave him a positive "buy sign," a prearranged signal communicating that there had been a drug sale.
After confirmatory identifications, Detective Rogan searched Aguilera, recovering $89 from his jacket pocket, including one ten-dollar bill of pre-recorded buy money. A police chemist later tested the rock-like substance handed to Detective Kearney, and determined that it contained crack cocaine.
At trial, Detective Kearney identified Aguilera as the man who handed O'Shea the loose rock of crack cocaine that O'Shea then gave to Kearney. Lettieri identified Aguilera as the seller and Rogan identified him as one of the people Sergeant Swanda and Detective Kennedy had detailed on West 49th Street that night. Detective Kearney also identified photographs of all four drug sellers.
Aguilera is Not Entitled to Habeas Corpus Relief A. The Standard for Reviewing State Court Judgments Pursuant to 28 U.S.C. § 2254 Section § 2254 of the 1996 Antiterrorism and Effective Death Penalty Act ("AEDPA") provides a federal remedy for state prisoners if their continued custody is in violation of federal law. Pub.L. No. 104-132, 100 Stat. 1214, codified at 28 U.S.C. § 2254(a); see Chandler v. Florida, 449 U.S. 560, 571 (1981) ("This Court has no supervisory authority over state courts, and, in reviewing a state court judgment, we are confined to evaluating it in relation to the Federal Constitution."). Errors of state law are not cognizable on federal habeas review. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991); Wainwright v. Sykes, 433 U.S. 72, 81 (1977). Petitioners bear the burden of proving violations of federal law by a preponderance of the evidence. See Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
Federal habeas courts must presume state courts' factual findings to be correct, 28 U.S.C. § 2254(e)(1), and may not grant relief unless they find that the state court's adjudication of the merits of the claims either:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was 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), (2); see Williams v. Taylor, 529 U.S. 362, 375-76 (2000).
Here, Aguilera has failed to show that the state court adjudication was contrary to clearly established federal law, or that it involved an "unreasonable application" of clearly established federal law.
"The Due Process Clause of the Fourteenth Amendment protects a petitioner in a criminal case against conviction `except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'" Ventura v. Atruz, No. 99 Civ. 12025 (AJP), 2000 U.S. Dist. LEXIS 10167 at 823, (S.D.N.Y. July 19, 2000) (citing Jackson v. Virginia, 443 U.S. 307, 315 (1979)). However, a petitioner, challenging a state criminal conviction under 28 U.S.C. § 2254 based on an alleged insufficiency of evidence necessary to convict, is entitled to habeas corpus relief only "if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Venegas v. Artuz, No. 99 Civ. 722 (SAS), 1999 U.S. Dist. LEXIS 15695 *5 (S.D.N.Y. Oct. 5, 1999).
In ground two, Aguilera claims that his conviction was "against the weight of the evidence". Aguilera contends that because the People's witnesses testified to somewhat inconsistent accounts of the incident, their testimony was rendered "incredible," thus preventing the People from proving their case beyond a reasonable doubt. Specifically, Aguilera points to the witnesses' differing accounts regarding the identification of Aguilera, the sale of crack cocaine, where Aguilera was apprehended and where the money was recovered. However, the record shows ample evidence at trial for the jury to find Aguilera guilty of Criminal Sale of a Controlled Substance in the Third Degree.
In order to prove Criminal Sale of a Controlled Substance in the Third Degree, the People were required to prove that Aguilera "knowingly and unlawfully sold a narcotic drug." (McKinney 2000). The theory of the People's case was that Aguilera was acting in concert with O'Shea. Thus, in order to attribute O'Shea's unlawful conduct to Aguilera, the People had to establish that "when acting with the mental culpability required for the commission thereof, he solicit[ed], request[ed], command[ed], importune[d], or intentionally aid[ed] . . . O'Shea . . . in such conduct." Penal Law § 20.00 McKinney 2000. In this case, the evidence established that Aguilera intentionally aided O'Shea in the sale of crack cocaine to Detective Kearney. Detective Kearney testified that when he approached O'Shea and asked who was selling drugs, O'Shea replied that his associate was selling "twenties".
O'Shea took Kearney around the corner to Jamel Jackson, who in turn led Kearney to Aguilera. O'Shea told Aguilera "let me get one" and Aguilera handed O'Shea a loose rock of cocaine, demonstrating that Aguilera knew O'Shea and was acting intentionally in the sale of cocaine. O'Shea handed Kearney the cocaine and Kearney paid him $20. Detective Lettieri, although he did not see the actual exchange, did see O'Shea talk to Kearney, walk over to Aguilera, make an exchange or gesture with Aguilera and return to Kearney. This testimony corroborates the account of Kearney.
In convicting Aguilera, the jury apparently found the witnesses to be credible and thus reconciled any conflicts in the witness testimony. Venegas v. Artuz, No. 99 Civ. 722 (SAS), 1999 U.S. Dist. LEXIS 15695 *4 (S.D.N.Y. Oct. 5, 1999). Here, Aguilera is disagreeing with the jurors assessment of the weight of the evidence and the credibility of the witnesses which is an insufficient basis for habeas relief. Fabelo v. Greiner, 1999 U.S. Dist. LEXIS 12869 at *19 (S.D.N.Y. Aug. 18, 1999). Therefore, the claim that Aguilera's conviction was against the weight of the evidence is dismissed.
Aguilera's Double Jeopardy and Ineffective Assistance of Counsel Claims are Dismissed as Procedurally Barred Legal Standards Governing Exhaustion and Procedural Default Before a federal court may address the merits of a § 2254 claim, state prisoners must "exhaust" their claims by pursuing them in the state court system until no further avenue of relief is available there. 28 U.S.C. § 2254(b), (c); see Keeney v. Tamayo-Reyes, 504 U.S. 1, 9-10, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992) (reaffirming that a state prisoner must exhaust state remedies before a writ of habeas corpus may be granted by a federal court); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).
The exhaustion requirement gives states the first opportunity to pass upon convictions rendered in their courts based upon the principle of "comity," or respect for states. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam); Duckworth v. Serrano, 454 U.S. 1 (1981); Ellman v. Davis, 42 F.3d 144, 147 (2d Cir. 1994).
In order to exhaust claims, petitioners must "fairly present" their constitutional claims to the highest state court. See Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L. Ed.2d 438 (1971); Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 124 (2d Cir. 1995); Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991). A petitioner may "fairly present" his federal constitutional claim by, for example, "mak[ing] an explicit constitutional argument," by "relying on federal and state cases that employ a constitutional analysis," by "asserting the claim in terms that `call to mind a specific right protected by the Constitution,'" or by "alleging facts that fall `well within the mainstream of constitutional litigation.'" Levine, 44 F.3d at 124 (quoting Daye v. Attorney General of the State of New York, 696 F.2d 186, 194 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984)); see N.Y. Court of Appeals Rule 500.10(a) (McKinney 1999) (requiring that criminal leave applications "identify the issues on which the application is based.").
In addition to the exhaustion requirement, federal habeas relief is barred where the state court judgment rested on "adequate and independent state grounds." See Coleman v. Thompson, 501 U.S. 722, 726 (1991); Harris v. Reed, 489 U.S. 255, 261-62 (1989); Wedra v. Lefevre, 988 F.2d 334, 338-39 (2d Cir. 1993). Procedural rules regarding how and when claims must be raised are the sort of grounds that adequately and independently support state court judgments and bar federal habeas review, as long as the rules are "strictly and regularly followed." See Sykes, 433 U.S. at 81; Gonzalez v. Sullivan, 934 F.2d 419, 421 (2d Cir. 1991).
New York's "procedural default" rules foreclose state court relief in cases where a petitioner failed either to follow the "contemporaneous objection rule" by objecting to error at trial, N.Y. Crim. Proc. L. § 470.05(2), or to raise an issue on direct or collateral review, N.Y. Crim. Proc. L. §§ 440.10(2)(c), 440.10(3)(a), (c) (McKinney 1999), see Taylor v. Harris, 640 F.2d 1, (2d Cir. 1991).
This section provides that "[f]or purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error." N Y Crim. Proc. L. § 470.05(2) (McKinney 1999).
This section provides that "the court must deny a motion to vacate a judgment when . . . [a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him . . . ." N.Y. Crim. Proc. L. § 4410.10(2)(c) (McKinney 1999).
These provisions provide, "the court may deny a motion to vacate a judgment when . . . (a) Although facts in support of the ground or issue raised upon the motion could with due diligence by the defendant have readily been made to appear on the record in a manner providing adequate basis for review of such ground or issue upon an appeal from the judgment, the defendant unjustifiably failed to adduce such matter prior to sentence and the ground or issue in question was not subsequently determined upon appeal . . . or (c) Upon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so." N.Y. Crim. Proc. L. § 440.10(3)(a), (c) (McKinney 1999).
Where no state court has passed upon such claims, they are technically exhausted for the purpose of federal habeas petitions because no state review is available. See Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994). Procedural defaults also bar federal habeas courts from addressing the merits of the defaulted claims. See Gray v. Netherland, 518 U.S. 152, 116 S.Ct. 2074, 2080 (1996); Coleman v. Thompson, 501 U.S. at 731-32, 735 n. 1, 111 S.Ct. at 2554-55, 2557 n. 1; Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 170 (2d Cir. 2000); Taylor v. Harris, 640 F.2d 1 (2d Cir. 1981) (holding that petitioner's failure to object to instruction at trial or to raise issue on appeal amounted to a procedural default under § 470.05 that precluded federal habeas relief), cert. denied, 101 S.Ct. 3089, 452 U.S. 942, 69 L.Ed.2d 958.
Like the exhaustion doctrine, the rule barring federal habeas courts from addressing the merits of procedurally defaulted claims arises out of comity and finality for state court judgments. See McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L. Ed.2d 517 (1991) ("[T]he doctrines of procedural default and abuse of the writ are both designed to lessen the injury to a State that results through reexamination of a state conviction on a ground that the State did not have the opportunity to address at a prior, appropriate time; and both doctrines seek to vindicate the State's interest in the finality of its criminal judgments").
Where a defendant has procedurally defaulted claims by failing to raise them on direct review, the claims may be raised on habeas only if the defendant can first demonstrate either "cause" and actual "prejudice," Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 2643-2644, 91 L.Ed.2d 397 (1986); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506-2507, 53 L.Ed.2d 594 (1977), or that there is a "fundamental miscarriage of justice," see Washington v. James, 996 F.2d 1442, 1447 (2d Cir. 1993), which is generally shown only by proving that he is "actually innocent," Murray, 477 U.S. at 496, 106 S.Ct., at 2649-2650; Smith v. Murray, 477 U.S. 527, 537, 106 S.Ct. 2661, 2667-68, 91 L.Ed.2d 434 (1986). See Spence, 219 F.3d at 170; Strogov v. Attorney General of the State of New York, 191 F.3d 188, 193 (2d Cir. 1999).
The Double Jeopardy Claim and the Ineffective Assistance of Counsel Claim are Barred Aguilera failed to raise the double jeopardy claim and the ineffective assistance of counsel claim in his brief to the Appellate Division. In a brief submitted by counsel, the only issues raised were that: (1) the guilty verdict was against the weight of the evidence because of the inconsistencies in the witness testimony; and (2) Aguilera was denied a fair trial because the judge failed to properly charge the jury how to treat the inconsistencies in the witness testimony.
In ground one of his application, Aguilera claims that his Fifth Amendment right against double jeopardy was violated when he was tried three separate times for the same crime. It was only after Aguilera's conviction was affirmed in the Appellate Division that he presented a submission to the Court of Appeals seeking review of his conviction on the grounds that his conviction was in violation of the Double Jeopardy Clause of the Fifth Amendment.
In ground three of his application, Aguilera claims that he was denied ineffective assistance of counsel because "he was assigned three different counsels [which] rendered his defense perfunctory" and that after the second trial, motions were not made to prevent a third trial. This claim was never raised in a motion pursuant to Criminal Procedure Law § 440.10 motion and, although it was raised with the Court of Appeals by way of a pro se letter, it was never raised in the Appellate Division.
Because the claims were not presented to the Appellate Division, Aguilera did not satisfy the exhaustion requirement. Warren v. McClellan, 942 F. Supp. 168, 170 (S.D.N.Y. 1996) ("Exhaustion requires a petitioner to have fairly presented at each available level of the state courts the same federal constitutional claims, . . . so that the state courts will have had the opportunity to pass on them.") (citation omitted).
Additionally, under the authority cited above, Aguilera's double jeopardy and ineffective assistance claims are procedurally defaulted and considered waived "absent a showing of cause for the procedural default and prejudice resulting therefrom." Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991); Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 2643-2644, 91 L.Ed.2d 397 (1986). Aguilera cannot show cause for the default or prejudice resulting therefrom.
The double jeopardy and ineffective assistance issues raised here were evident at the time Aguilera's counsel submitted his brief to the Appellate Division. However, Aguilera does not offer a reason his claims were not presented to the Appellate Division. Thus, the claims are dismissed as procedurally barred. Even if Aguilera made a plausible claim of good cause for failure to raise the double jeopardy issue, he cannot demonstrate prejudice because the Double Jeopardy Clause of the Fifth Amendment does not bar Aguilera's three trials. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); United States v. Castellanos, 478 F.2d 749. A genuinely deadlocked jury is the classic example of a legitimately declared mistrial which does not prohibit retrial. Castellanos, 478 F.2d 749, 751-52. Since Aguilera does not contend, or offer evidence to suggest, that the two mistrials were improperly declared, retrial was proper and the Double jeopardy clause was not implicated.
Read liberally, Aguilera's petition also contends that the retrials violated his rights under the Due Process Clause. Aguilera relies on United States v. Ingram, 412 F. Supp. 384 (D.D.C. 1976). In that case, the trial judge's dismissal of the indictment after mistrials because of the jury's failure to agree was upheld on appeal — not under the Double Jeopardy Clause but under principles of due process. Some courts have recognized that, even though re-prosecution is not barred by double jeopardy, the trial judge has "inherent authority to terminate a prosecution" where previous trials have resulted in deadlocked juries. Annot. 4 A.L.R.4th 1274, 1283 (1981) (citations omitted). Such cases are distinguishable from the present one because they involve a review of a trial judge's finding that justice demanded that further prosecution be terminated. For example, in State v. Moriwake, 647 P.2d 705, the court held that a trial judge had the inherent judicial power to "sua sponte dismiss an indictment with prejudice following the declaration of one or more mistrials because of genuinely deadlocked juries, even though the defendant's constitutional rights are not yet implicated." 647 P.2d at 712. However, the court recognized that a third or even more trials may be appropriate "in certain circumstances." 647 P.2d at 713.
Accordingly, since Aguilera's double jeopardy and ineffective assistance claims are procedurally barred and no exceptions apply, the claims are dismissed. The double jeopardy claim fails on its merits in any event under the authority cited above.
A Certificate of Appealability Will Be Denied As Aguilera has failed to make a substantial showing of the denial of any constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253 (as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")); see United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011, 1016 (2d Cir. 1997). I certify pursuant to the Prisoner Litigation Reform Act of 1996 ("PLRA"), 28 U.S.C. § 1915(a)(3), that any appeal from this opinion would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
Conclusion
For the aforementioned reasons, the petition for a writ of habeas corpus is denied and a no certificate of appealability will issue.
It is so ordered.