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govinfo:USCOURTS-nyed-2_14-cr-00264-6
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
DERICK HERNANDEZ,
Petitioner,
MEMORANDUM AND ORDER
-against- 14-CR-0264(JS)
UNITED STATES OF AMERICA,
Respondent.
-------------------------------------X
APPEARANCES
For Petitioner: Derick Hernandez, pro se
#83519-053
Federal Correctional Complex, Allenwood USP
P.O. Box 3000
White Deer, Pennsylvania 17887
For Respondent: Michael R. Maffei, Esq.
United States Attorney’s Office
Eastern District of New York
610 Federal Plaza
Central Islip, New York 11722
SEYBERT, District Judge:
On December 13, 2019, pro se petitioner Derick Hernandez
(“Petitioner”) moved to vacate, set aside, or correct his
conviction and sentence under 18 U.S.C. § 924(c)(1)(A) pursuant to
28 U.S.C. § 2255 (hereafter, the “Motion”). (See ECF No. 606.)
On February 10, 2020, the Government opposed the Motion, arguing
that Petitioner’s § 924(c) conviction is not predicated on an
impermissibly vague statute and, as such, Petitioner’s claim has
no merit. (See Opp’n, ECF No. 616.) On April 6, 2020, Petitioner
replied, arguing that it is the elements, not the conduct, of the
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underlying offense that determines whether it is a crime of
violence. (Reply, ECF No. 615.) For the reasons that follow,
Petitioner’s Motion is DENIED.
BACKGROUND
I. The Indictment and Guilty Plea
The Court presumes familiarity with the facts underlying
this case, but provides the following summary for the reader’s
convenience. On July 28, 2015, Petitioner and his co-defendants,
all members of the Rollin 60s, a set of the Crips street gang based
in Roosevelt, New York (hereafter, the “Gang”),1 were indicted
under a sixty-six-count superseding indictment, charging counts of
various racketeering and VICAR 2 offenses, weapons possession
charges, and narcotics and firearm trafficking charges. 3 (See
Superseding Indictment, ECF No. 120.) As to Petitioner, thirty-
seven counts were brought, including: Conspiracy to Murder, in
violation of 18 U.S.C. § 1959(a)(5)(Count Forty-Six); Attempted
Murder, in violation of 18 U.S.C. § 1959(a)(5)(Count Forty-Seven);
Assault with a Dangerous Weapon, in violation of 18 U.S.C.
1 (See Plea Tr., ECF No. 212, 18:19-19:8; Opp’n at 2.)
2 “VICAR” is an acronym for “Violent Crimes in Aid of
Racketeering”.
3 After his April 17, 2013 arrest, on May 6, 2014, Petitioner was
initially indicted on one count of Conspiracy to Distribute
Controlled Substances, in violation of 21 U.S.C. §§ 846 and
841(b)(1)(A)(iii). (See Indictment, ECF No. 1.)
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§1959(a)(3) (Count Forty-Eight); Witness Retaliation, in violation
of 18 U.S.C. § 1513(a)(1)(B) and § 1513(a)(2)(B) (Count Forty-
Nine); and, Witness Retaliation Conspiracy, in violation of 18
U.S.C. § 1512(f) (Count Fifty), with each of these counts related
to the Gang’s attempted murder of Maurice Gardner (hereafter,
“Gardner Attempted Murder”). (See id. at 36-38.) Petitioner was
also indicted on Possession of a Firearm During a Crime of
Violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i)-(iii), and
924(c)(1)(C)(i), et seq., (Count Fifty-One) which was predicated
on each of the five offenses related to the Gardner Attempted
Murder (Counts Forty-Six through Fifty). (See id. at 38.)
On February 16, 2016, Petitioner pled to two counts of
the Superseding Indictment: County Fifty-One, i.e., Use of a
Firearm in Furtherance of a Crime of Violence (i.e., the shooting
of Maurice Gardner), in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii);
and Count Fifty-Six, i.e., Conspiracy to Distribute Controlled
Substances in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(iii)
et seq. (See Plea Tr., ECF No. 212.) During his plea, Petitioner
allocuted to the conduct as charged in Counts Forty-Six through
Fifty as the predicate for his § 924(c) conviction, including that,
in October of 2012, he and other Gang members and associates met
to discuss a plan to murder Maurice Gardner. (See id. at 19:9-
13.) Petitioner stated:
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The next day, on October 13, 2012, we
finalized the plan to murder Maurice Gardner.
The plan was for me to go to Maurice Gardner’s
house and ask him to come outside. A different
co-conspirator was then supposed to go up to
Maurice Gardner and shoot him. On October 13,
2012[,] we carried out that plan, specifically
I lured Maurice Gardner outside. A different
co-conspirator shot Maurice Gardner several
times in the back paralyzing him from the
waist down. I participated in these crimes
because that’s what was expected of me because
of my membership and position of the Crips.
(Plea Tr. 19:13-23 (emphasis added); see also id. at 20:11-16
(testifying to luring Maurice Gardner out of the house and knowing
Gardner would be shot when he came out).)
As part of his plea agreement, Petitioner agreed that he
would not file an appeal or challenge his conviction if the Court
imposed a sentence of 240 months’ incarceration or less. (See
Plea Tr. 9:7-24.) On October 13, 2016, the undersigned sentenced
Petitioner to a term of 120 months’ imprisonment on Count Fifty-
One and a term of 120 months’ imprisonment on Count Fifty-Six, to
run consecutively, followed by five years of supervised release.
(See Min. Entry, ECF No. 391; Sent’g J., ECF No. 369.)
II. Post-Conviction Proceedings
On December 13, 2019, Petitioner moved for the vacatur
of his conviction, arguing that his conviction on Count Fifty-One
is invalid because, pursuant to United States v. Davis, 139 S. Ct.
2319 (2019), conspiracy to commit murder no longer qualifies as a
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§ 924(c) crime of violence under the statute’s so-called residual
clause. (See Motion at ECF pp. 13-14.) Yet, the Government relied
upon Conspiracy to Commit Murder, 18 U.S.C. § 1951, to satisfy the
‘crime of violence’ element of § 924(c). (See id. at ECF p.4.)
The Government opposes the Motion, initially arguing that it is
barred because Petitioner waived collateral review as part of his
plea agreement (see Opp’n at 4-6), and further arguing that, even
if not barred, Petitioner’s § 924(c) conviction was premised upon
two still-valid predicate crimes of violence, i.e., attempted
murder and assault (see id. at 10-12). In reply and in reliance
upon United States v. Hill, 890 F.3d 51 (2d Cir. 2018), Petitioner
contends that in applying the categorical approach, the elements
of conspiracy to commit murder does not require a use of force;
hence, his conviction is predicated only upon the now void residual
clause of § 924(c). (Reply at 2.)
DISCUSSION
I. The § 2255 Standard
Section § 2255(a) of Title 28 of the United States Code
provides:
[a] prisoner in custody under sentence of a
court established by Act of Congress claiming
the right to be released upon the ground that
the sentence was imposed in violation of the
Constitution or laws of the United States, or
that the court was without jurisdiction to
impose such sentence, or that the sentence was
in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may
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move the court which imposed the sentence to
vacate, set aside, or correct the sentence.
28 U.S.C. § 2255(a). To obtain relief under § 2255, a petitioner
must demonstrate “a constitutional error, a lack of jurisdiction
in the sentencing court, or an error of law or fact that
constitutes a fundamental defect which inherently results in a
complete miscarriage of justice.” Cuoco v. United States, 208
F.3d 27, 30 (2d Cir. 2000) (internal quotation marks and citations
omitted). A petitioner must also show that the error had
“substantial and injurious effect” that caused “actual prejudice.”
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation
marks and citations omitted); Underwood v. United States, 166 F.3d
84, 87 (2d Cir. 1999) (applying Brecht to a § 2255 motion).
To “obtain collateral relief a prisoner must clear a
significantly higher hurdle than would exist on direct appeal.”
United States v. Frady, 456 U.S. 152-53, 166 (1982). A court must
exercise its discretion sparingly because § 2255 applications “are
in tension with society’s strong interest in the finality of
criminal convictions.” Elize v. United States, No. 02-CV-1530,
2008 WL 4425286, at *5 (E.D.N.Y. Sept. 30, 2008) (internal
quotation marks and citation omitted); see also Brecht, 507 U.S.
at 633–34.
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II. The Appeal Waiver Issue
As a threshold matter, the Court addresses whether
Petitioner’s Motion is barred by his appeal waiver in his plea
agreement. Generally, “[a] defendant’s knowing and voluntary
waiver of the right to . . . collaterally attack his conviction
and/or sentence is enforceable.” Sanford v. United States, 841
F.3d 578, 580 (2d Cir. 2016) (per curiam). A defendant knowingly
agrees to an appeal waiver where he “fully understood the potential
consequences of his waiver.” United States v. Monzon, 359 F.3d
110, 116 (2d Cir. 2004) (internal quotation marks omitted).
“[E]xceptions to the presumption of the enforceability of a waiver,
however, occupy a very circumscribed area of our jurisprudence.”
United States v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000).
For example, “[a] violation of a fundamental right warrants voiding
an appeal waiver.” United States v. Riggi, 649 F.3d 143, 147 (2d
Cir. 2011).
Here, under the plea agreement, Petitioner agreed not to
appeal or otherwise challenge his conviction if the Court imposed
a term of imprisonment of 240 months’ incarceration or less. (See
Plea Tr. 9:7-24.) Upon that agreement, the Government argues
Petitioner’s Motion must be denied because the Court imposed a
sentence of 240 months’ imprisonment. (See J., ECF No. 369.)
Indeed, Petitioner does not argue that his waiver was unknowing or
involuntary. See Garcia-Santos v. United States , 273 F.3d 506,
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508 (2d Cir. 2001) (per curiam) (affirming that an appeal waiver
was knowing and voluntary where a petitioner failed to claim that
he did not understand the waiver in a plea agreement); Elliott v.
United States, No. 17-CR-0127, 2019 WL 6467718, at *4 (E.D.N.Y.
Dec. 2, 2019) (finding the petitioner’s appeal waiver was
enforceable where he did “not argue that his waiver was not knowing
or voluntary.”). However, in this instance, where Petitioner seeks
habeas relief premised upon Davis, the Court finds Petitioner’s
appeal waiver is not enforceable.
Courts within this Circuit are divided whether, when a
petitioner has agreed to a collateral attack waiver in a plea
agreement, the waiver is enforceable when the petitioner seeks
habeas relief pursuant to Davis. Compare Bonilla v. United States,
No. 07-CR-0097, 2020 WL 489573, at *3 (E.D.N.Y. Jan. 29, 2020)
(deeming a collateral attack waiver unenforceable because “‘[a]
violation of a fundamental right warrants voiding an appeal
waiver’” and the petitioner’s “due process right to challenge his
conviction under a statute that the Supreme Court has retroactively
declared unconstitutional [in Davis] is such a right” (quoting
United States v. Riggi, 649 F.3d 143, 147 (2d Cir. 2011)), and
United States v. Lewis, No. 10-CR-0622, 2020 WL 2797519, at *5
(E.D.N.Y. May 22, 2020) (same), with Elliott, 2019 WL 6467718, at
*4 (finding collateral attack waiver enforceable where the
petitioner raised a Davis claim because “[c]ourts in this circuit
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have consistently rejected § 2255 petitions . . . when criminal
defendants waived those challenges in their plea agreements, even
when the law subsequently changed in those defendants’ favor”);
but see Sanford, 841 F.3d at 579-81 (agreeing that a collateral
attack waiver in a petitioner’s plea agreement barred a successive
§ 2255 motion based upon a Johnson claim challenging petitioner’s
sentence); Leyones v. United States, No. 10-CR -0743, 2018 WL
1033245, at *3 (E.D.N.Y. Feb. 22, 2018) (where the petitioner
raised a Johnson claim, declining to decide whether waiver was
enforceable as the § 2255 motion failed on the merits). The Second
Circuit has not yet specifically addressed waiver enforceability
in the context of habeas challenges brought pursuant to Davis.
See, e.g., United States v. Bonner, 826 F. App’x 52, 56 n.2 (2d
Cir. Sept. 11, 2020) (noting, without deciding, that the
“Government has conceded that the appellate waiver in the parties’
plea agreement does not bar [petitioner’s] Davis challenge to his
§ 924(c) conviction”); see also Negron v. United States, No. 99-
CR-1044(1), 2021 WL 633817, at *4 (E.D.N.Y. Feb. 18, 2021)
(recognizing that the Second Circuit had not yet addressed “whether
a Davis claim, in and of itself, vitiates an appeal waiver,” but
finding the Circuit Court’s mandate “suggests that the Second
Circuit does not view the appeal waiver in this case[-- which
raises a Davis challenge to the underlying § 924(c) conviction--]
as a bar to the [§ 2255] petition” (internal citation omitted)).
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As in Negron and Bonilla, here, Petitioner challenges
the constitutionality of his underlying conviction based upon the
Supreme Court’s Davis decision. (See Motion at ECF p.4); see also
Negron, 2021 WL 633817, at *3 (“In Bonilla v. United States, like
here, the court considered whether an appellate waiver can bar a
§ 2255 claim that a § 924(c) conviction is invalid under Davis.”
(citation omitted)); see id. at *4 (collecting cases holding appeal
waiver unenforceable in the face of Davis challenges to
convictions); Bonilla, 2020 WL 489573, at *2 (rejecting the
applicability of Sanford, which dealt with challenges to the
sentence imposed, as opposed to the basis of the conviction itself,
like in Davis, and refusing to deem the appellate waiver a bar to
relief). Finding the Negron and Bonilla courts’ reasoning on the
issue of the unenforceability of an appeal waiver in the face of
a Davis challenge to an underlying § 924(c) conviction to be
persuasive, this Court follows it. Accordingly, Petitioner’s
appeal waiver does not bar the Court’s consideration of the merits
of Petitioner’s Motion, to which the Court now turns.
4
4 There is no issue of procedural default where the Court sentenced
Petitioner prior to Johnson and Davis. See, e.g., Aquino v. United
States, No. 13-CR-0536, 2020 WL 1847783, at *2 (S.D.N.Y. Apr. 13,
2020) (“The Court finds that there was no procedural default in
failing to raise a Johnson-type argument before Johnson was
decided.”).
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III. The Merits of Petitioner’s Motion
A. The Relevant Law
In Johnson v. United States, the Supreme Court held that
the Armed Career Criminal Act’s residual clause, that defined a
“violent felony,” was unconstitutionally vague and violated due
process because it left “grave uncertainty about how to estimate
the risk posed by a crime.” 576 U.S. 591, at 593-97 (2015).
Following Johnson, litigants sought to apply its holding to other
statutes including, as relevant here, § 924(c). See, e.g., Davis,
139 S. Ct at 2325. A defendant violates § 924(c) if he used or
carried a firearm during and in relation to, or possessed a firearm
in furtherance of, a “crime of violence” or “drug trafficking
crime.” 18 U.S.C. § 924(c)(1)(A). Section 924(c)(3) defines a
crime of violence as “an offense that is a “felony” and
(A) has as an element the use, attempted use,
or threatened use of physical force against
the person or property of another, or
(B) that by its nature, involves a substantial
risk that physical force against the person or
property of another may be used in the course
of committing the offense.
18 U.S.C. § 924(c)(3)(A) & (B). Subsection (c)(3)(A) is often
referred to as the elements or force clause (hereinafter, the
“Elements Clause”), with subsection (c)(3)(B) often called the
residual or risk-of-force clause (hereinafter, the “Residual
Clause”). See Davis, 139 S. Ct. at 2324.
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In light of its recent holdings in Johnson and in
Sessions v. Dimaya, 138 S. Ct. 1204 (2018), in Davis, the Supreme
Court invalidated the Residual Clause of § 924(c) as
unconstitutionally vague. See Davis, 139 S. Ct. at 2325-27. Thus,
a conviction under § 924(c) survives only if a predicate offense
is a “crime of violence” under the Elements Clause. See, e.g.,
Rosario Figueroa v. United States, No. 16-CV-4469, 2020 WL 2192536,
at *2 (S.D.N.Y. May 6, 2020); Vilar v. United States, No. 16-CV-
5283, 2020 WL 85505, at *1 (S.D.N.Y. Jan. 3, 2020).
As reiterated by the Davis Court, courts apply a
categorical approach to determine whether an offense is a crime of
violence under the Elements Clause. See United States v. Hill,
890 F.3d 51, 55 (2d Cir. 2018) (citing Taylor v. United States,
495 U.S. 575, 600 (1990)). Under the categorical approach, an
offense is a crime of violence where the “minimum conduct necessary
for a conviction of the predicate offense” involves violence. See
id. at 55–56; see also United States v. Culbert, 453 F. Supp. 3d
595, 597 (E.D.N.Y. 2020). Courts “look only to the statutory
definitions--i.e., the elements--of the offense,” to resolve
whether “such conduct amounts to a crime of violence under §
924(c)(3)(A).” Hill, 890 F.3d at 55–56 (internal quotation marks
and alterations omitted).
The categorical approach saves courts from determining
the level of violence at issue on a case-by-case basis or from
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making the general inquiry into “the kind of conduct that the crime
involves in the ordinary case.” Davis, 139 S. Ct. at 2326 (citing
Dimaya, 138 S. Ct. at 1216). A predicate crime will not support
a conviction under the Elements Clause if there is “a realistic
probability, not a theoretical possibility, that the statute at
issue could be applied to conduct that does not” constitute a crime
of violence. Hill, 890 F.3d at 56 (internal quotation marks and
citation omitted).
B. Application of the Law to Petitioner’s Claim
Petitioner claims that conspiracy to commit murder
cannot serve as the predicate crime of violence for his § 924(c)
conviction because, pursuant to Davis, it no longer qualifies as
a “crime of violence”. (See Motion at ECF p. 14.) This is so.
See United States v. Heyward, 3 F.4th 75, 78 (2d Cir. 2021)
(holding conspiracy to commit murder does not qualify as a
predicate crime supporting a § 924(c) conviction); see also United
States v. Erbo, No. 97-CR-1105, 2020 WL 6802946, *2 (S.D.N.Y. Nov.
19, 2020) (“Following Davis, a mere conspiracy to commit a crime
of violence will ordinarily fail to qualify under Section 924(c)’s
force[, i.e., elements,] clause.” (citing United States v.
Barrett, 937 F.3d 126, 127 (2d Cir. 2019), and Ianelli v. United
States, 420 U.S. 770, 777 (1975))). However, another offense may
serve as a predicate if there is “legally sufficient proof that
the crime was, in fact, committed.” See Johnson v. United States,
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779 F.3d 125, 129 (2d Cir. 2015)(hereafter, the “Circuit Johnson
Case”)(“Every circuit court to have considered the issue has
concluded that § 924(c) does not require the defendant to be
convicted of (or even charged with) the predicate crime, so long
as there is legally sufficient proof that the predicate crime was,
in fact, committed.” (collecting cases)); United States v. Rivera,
679 F. App’x 51, 55 (2d Cir. 2017) (summary order) (denying a
petitioner’s Johnson claim where the defendant’s plea allocution
provided sufficient proof for a predicate offense that was later
dismissed at sentencing). Here, conspiracy to commit murder was
not the only predicate crime for Petitioner’s § 924(c) conviction.
During his guilty plea, Petitioner allocated to conduct
consistent with both attempted murder (Count Forty-Seven) and
assault (Count Forty-Eight), and admitted to aiding and abetting
the use, discharge, or possession thereof of a firearm in
connection with, or in furtherance of, the attempted murder and
assault of Maurice Gardner. (See Plea Tr. 17-20.) Thus, while
one of the predicate offenses for Petitioner’s § 924(c) conviction
was conspiracy to commit murder, his plea allocution provides
legally sufficient proof that the predicate crimes of attempted
murder and assault were also, in fact, committed. (See id. at
19:9-21 (Petitioner allocating to: having met with other Gang
members to plan murdering Maurice Gardner; then carrying out the
Gang’s plan by luring Maurice Gardner outside so that a co-
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conspirator could shoot Gardner; the co-conspirator then shooting
Gardner “several times in the back paralyzing him from the waist
down”); see id. at 20:11-16 (Petitioner further explaining that he
lured Maurice Gardner outside knowing that he was going to get
shot when he came out of the house).) This is enough to establish
Petitioner committed the predicate crimes of attempted murder and
assault. See Circuit Johnson Case, 779 F.3d at 129-30 (“The plain
language of § 924(c) requires only that the predicate crime of
violence . . . have been committed; the wording does not suggest
that the defendant must be separately charged with that predicate
crime and be convicted of it.”); see also Simmons v. United States,
___ F. App’x ___, 2021 WL 2308831, at *2 (2d Cir. June 7,
2021)(quoting Circuit Johnson Case; affirming district court’s
denial of § 2255 habeas relief where district court found
petitioner’s plea allocution of admitting to attempted Hobbs Act
Robbery, even though that offense was not referenced in
petitioner’s plea agreement, was sufficient to establish a
predicate crime in upholding petitioner’s § 924(c) conviction).
Moreover, this conclusion is buttressed by Petitioner’s concession
at sentencing that the underlying predicate crimes for his § 924(c)
conviction were the attempted murder and assault of Maurice
Gardner, which satisfied the Elements Clause of § 924(c). (See
Sent’g Tr., ECF No. 391, 16-17.) Hence, (1) based upon the record
before the Court, there is an adequate factual basis to support a
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finding that Petitioner committed attempted murder and assault,
see Rivera, 679 F. App’x at 55 (holding the plain language of §
924(c) requires only that the predicate crime had been committed
and that the petitioner need not be charged with that predicate
crime so long as there is legally sufficient proof that the crime
was committed); (2) attempted murder and assault are “crimes of
violence” under § 924(c)’s Elements Clause, see, e.g., United
States v. Scott, 681 F. App'x 89, 95 (2d Cir. 2017) (summary order)
(attempted murder is crime of violence); United States v.
Medunjanin, No. 10-CR-19, 2020 WL 5912323, at *5 (E.D.N.Y. Oct. 6,
2020) (attempted murder and assault with a deadly weapon are crimes
of violence); Abrue v. United States, No. 16-CV -5052, 2020 WL
4570338, at *4 (S.D.N.Y. Aug. 7, 2020) (attempted murder is a crime
of violence); and (3) this criminal conduct, admitted to by
Petitioner, continues to serve as predicate crimes supporting
Petitioner’s § 924(c) conviction. Thus, since Petitioner’s §
924(c) conviction was predicated upon two crimes of violence that
are not implicated by Davis, he is unable to satisfy his § 2255
burden.
CONCLUSION
Accordingly, for the foregoing reasons, IT IS HEREBY
ORDERED that Petitioner’s Motion (ECF No. 606) is DENIED.
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IT IS FURTHER ORDERED that the Court: (1) declines to
issue a certificate of appealability because Petitioner has not
made a substantial showing that he was denied a constitutional
right, see 28 U.S.C. § 2253(c)(2); and, (2) certifies that any
appeal of this Order would not be taken in good faith, and thus
his in forma pauperis status is denied for the purposes of any
appeal. See Coppedge v. United States, 369 U.S. 438, 444-45
(1962).
IT IS FURTHER ORDERED that the Clerk of the Court: (1) mark
CLOSED the corresponding civil case, Case No. 19-CV-7138; and (2)
mail a copy of this Order to the pro se litigant at his address of
record.
SO ORDERED.
_/s/ JOANNA SEYBERT_____
Joanna Seybert, U.S.D.J.
Dated: August _5 , 2021
Central Islip, New York
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