Opinion
97 CR 307 (DLC), 00 CIV. 8277 (DLC)
August 16, 2001
Susan C. Wolff, Esq., Hoffman Pollok Pickholz, LLP, New York, NY, For Defendant
Steven R. Peikin, Esq., Assistant United States Attorney, New York, NY
OPINION AND ORDER
Through a petition pursuant to 28 U.S.C. § 2255 ("Section 2255") dated October 10, 2000, as amended in subsequent submissions, Cristinel Simoiu ("Simoiu") challenges a conviction filed by this Court on February 8, 1999, and entered by the Clerk of Court on February 23, 1999. Simoiu claims that his trial attorney ("Counsel") was ineffective during the sentencing proceeding in failing to challenge the accuracy of the computation of his guidelines range, to move for certain departures from that range, and to make certain arguments, and after sentence in giving him inaccurate advice regarding an appeal and failing to file a habeas petition on his behalf. He also claims that the Government misrepresented the extent of his cooperation at the time of sentence. Finally, he claims that he is entitled to equitable tolling to permit the consideration of this untimely petition. Following a hearing held on August 3, 2001, at which Simoiu and Counsel testified, and for the reasons described below, the request for equitable tolling is denied and petition is dismissed as untimely.
FINDINGS OF FACT
Simoiu, who is forty-four years old, was born in Bucharest, Romania, and has lived in the United States since 1981. Simoiu was arrested on November 14, 1996, following his negotiations with a confidential informant and an undercover agent to purchase over 100,000 tablets of Ecstacy, which was to begin with an initial purchase of 10,000 tablets. Following his arrest, Simoiu waived his right to counsel and admitted, among other things, to negotiating to purchase 100,000 tablets of Ecstacy.
Counsel previously represented Simoiu during an investigation of Simoiu for credit card fraud by the New York Police Department ("NYPD Investigation"). Simoiu paid Counsel a retainer for his representation during the NYPD Investigation, and Counsel billed his hourly rate from the retainer during the NYPD Investigation. Counsel was paid for his work regarding initial matters in this case from the same retainer. Counsel and Simoiu agreed that Simoiu would pay Counsel at his hourly rate. Counsel estimated for Simoiu what the case would cost based on an assumption that Simoiu, would plead guilty and cooperate with the Government since the counsel's judgment, Simoiu's post-arrest confession left little room to do otherwise. Counsel sent monthly bills to petitioners home and, when petitioner was incarcerated where he was housed Counsel received a total of about $17,000 from Simoiu for his representation of Simoiu during the NYPD Investigation, this case, and additional matters. Counsel estimates that petitioner still owes him $1700 or $1800.
Simoiu asserts that he paid Counsel a flat fee. I credit Counsel's testimony that Simoiu was charged an hourly fee, particularly in light of Counsel's testimony regarding the monthly bills that he sent to Simoiu.
Simoiu participated in proffer sessions with the Government. During these proffer sessions, which Counsel attended, Simoiu made it clear that he did not want to be deported. Simoiu never told either Counsel or the Government that he was not responsible for the 100,000 Ecstacy tablets, weighing 29.5 kilograms, with which he was charged in the arrest Complaint.
Simoiu signed a cooperation agreement with the Government on April 3, 1997. He pled guilty on April 11, 1997, to seven counts in an information charging him with credit card fraud, the transportation and deposit of stolen traveler's checks, the transfer of counterfeit money and identity cards, the transportation of stolen cars, as well as the participation in a conspiracy to distribute 29.5 kilograms (the equivalent of 100,000 tablets of Ecstacy. Counsel does not specifically remember doing a Guidelines calculation for Simoiu based upon the 100,000 tablets, but it would have been his practice to do so. Counsel had extensive discussions with Simoiu about the offenses to which Simoiu would have to plead guilty, and tried, unsccessfully to get to the number of counts reduced by the Government, but did not dispute the quantity of drugs since nothing Simoiu ever told Counsel indicated that there was a basis for such a dispute. Counsel did not discuss with the Government or Simoiu the possibility that the Government would recommend a one-level downward departure if Simoiu consented to deportation since Simoiu made it clear that he did not wish to be deported.
The United States Attorney in the Southern District of New York adopted a policy "recommending, with certain exceptions, one level departures in cases in which a pleading defendant's conviction would form the basis for her deportation and in cases in which a pleading defendant is in the country illegally." This policy was discontinued on July 10, 1998, before petitioner was sentenced.
Counsel additionally informed Simoiu that he was not an immigration attorney and that Simoiu should speak to an immigration lawyer about his likelihood of deportation following his conviction. Although Counsel thought that Simoiu's deportation following a narcotics conviction was a "probability," Counsel also believed that Simoiu's unique status as a resident alien from a former communist country — Counsel understood that Simoiu had been granted asylum or had some other special status — might make deportation less likely. Simoiu did not consult with an immigration lawyer.
Simoiu was released on bail following his guilty plea, and provided the Government with information about several individuals and wore a recording device in a meeting with the target of a narcotics investigation. Approximately six months after his plea, on Octobcr 6, 1997, Simoiu was arrested by state authorities on kidnapping charges and incarcerated. These charges were ultimately dismissed approximately one year later. In the meantime, Simoiu's bail on his federal prosecution was revoked on December 12, 1997, and Simoiu remained thereafter in federal custody. At a conference on October 23, 1998, the Government asserted that it would not be providing the defendant with a 5K1.1 letter since he had rendered no assistance "whatsoever" prior to his state arrest and, because of the passage of time and his incarceration, could no longer be expected to provide any substantial assistance.
Counsel wrote a brief, submitted on December 1, 1998, detailing Simoiu's cooperation with the Government in an attempt to get the Government to reconsider its decision. Due to the persistent efforts of Counsel, the Government did file a 5K1.1 motion. The Government's 5K1.1 motion indicates that the Government sought a downward departure because: (1) Simoiu provided the Government with all the information he had; (2) Simoiu's cooperation exposed him to the risk of physical harm; and (3) in light of the dismissal of the state charges, the Government could not say that Simoiu "intentionally breached the Cooperation Agreement." Counsel did not conduct an independent investigation to determine whether any individuals about whom Simiou provided information to the Government were arrested, relying instead on the Government's independent obligation to provide that information to the Court and its superior access to that information.
Simoiu asserts, in his Declaration, that Counsel required Simoiu to pay Counsel $5,000 to write the brief. Counsel acknowledges that he may have asked Simoiu for additional money because his retainer had been exhausted, and was billing Simoiu by the hour, but denies that he threatened not to file a sentencing memorandum on Simoiu's behalf or file a less effective one. I found convincing Counsel's assertion that his reputation was more important to him than any one case or any one fee.
On February 5, 1999, this Court sentenced Simoiu principally to 78 months of imprisonment. Simoiu's Pre-Sentence Report calculated his offense level as 29, and his criminal history category as II, putting him in a Guidelines range of 97 to 121 months. The offense level was based on the 100,000 Ecstacy tablets, and because of grouping rules, was unaffected by the other crimes to which Simoiu had pled guilty. This Court downwardly departed from this sentencing range based upon petitioner's assistance to the Government.
Counsel did not move for a downward departure on any other ground. At sentencing, on February 5, 1999, the Court inquired about petitioner's deportation status, and Counsel reported:
[Simoiu] is a permanent resident alien of the United States. What will happen at the end of his period of incarceration will really be determined, obviously, by the immigration service. He would obviously prefer to remain here, and there are certain potential dangers if he doesn't, but that's up to the immigration service at some future date.
Simoiu did not otherwise comment about his immigration status.
After announcing Simoiu's sentence, the Court informed Simoiu of his right to appeal. Specifically, the Court stated:
Mr. Simoiu, to the extent you have not given up your right to appeal through entry of your guilty plea, I must advise you of your right to appeal your sentence. If you are unable to pay the cost of an appeal, you may apply for leave to appeal informa pauperis. The notice of appeal must be filed within ten days of the judgment of conviction.
Judgment was entered on February 23, 1999. Simoiu did not appeal.
Shortly after Simoiu's sentence, Simoiu and Counsel had a conversation about an appeal. During that conversation, Counsel and Simoiu discussed "what else could be done" to reduce Simoiu's sentence. Counsel told Simoiu that he would receive credit for the time he served in state and federal facilities, and would receive good time if he behaved in prison. Counsel additionally informed Simoiu that he might serve less time if he participated in an alcohol and drug rehabilitation program, and might be eligible for release to a halfway house. Counsel did not discuss with Simoiu any reasons that Simoiu would not be eligible for early release or placement in a halfway house. Counsel explained that the best avenue for a reduced sentence was a Rule 35 motion filed by the Government for any post-conviction cooperation Simoiu could provide, and that if such a motion were made, Simoiu's participation in any prison programs reflecting his rehabiltation would be useful in any request for a reduced sentence.
Simoiu asserts that Counsel predicted that Simoiu would receive these sentence reductions.
Indeed, after Simoiu was sentenced, and for no additional fee, Counsel contacted the Government about their willingness to file a Rule 35 motion on petitioner's behalf. The Government informed Counsel that they were uninterested in petitioner's continued cooperation.
Counsel and Simoiu additionally discussed whether Simoiu should file a notice of appeal. Counsel told Simoiu that he would file a notice of appeal if Simoiu asked, but recommended that Simoiu get a new lawyer to pursue any appeal, because Counsel knew of no appealable issues in Simoiu's case and would, therefore, file an Anders brief were he asked to handle the appeal. Counsel did not tell Simoiu that Simoiu could have another attorney review the record to determine whether there was any ineffective assistance of counsel claim apparent in the record. Counsel did not tell Simoiu that Simoiu could get additional prison time if he appealed his case. Counsel and Simoiu discussed Simoiu's entitlement to file a habeas petition pursuant to 28 U.S.C. § 2255 within one year, but Counsel did not tell Simoiu that he would file a habeas petition on Simoiu's behalf. Counsel did not discuss with Simoiu the difference between an appeal and a Section 2255 petition.
Simoiu asserts that Counsel and Simoiu did not discuss whether Simoiu had any meritorious claims on appeal.
Simoiu asserts that Counsel told him that they "(did] not want to appeal, because the judge is very strict, and she could give me more time." Counsel testified that he did not make that representation to Simoiu and, regardless, knew of no legal way in which Simoiu could have been sentenced to additional time on or after an appeal, absent newly discovered evidence submitted to the Court.
Petitioner asserts that Counsel promised to file a Section 2255 petition on his behalf. I credit Counsel's testimony that, he did not make such a promise, however, in light of Counsel's representation to Simiou that there was no basis to appeal his sentence. I do not credit Simoiu's testimony that Counsel offered to file a Section 2255 petition on Simoiu's behalf for free, especially in light of Simoiu's testimony that Counsel required Simoiu to pay additional money when he filed a letter brief with the Government asking for a SK1.1 motion.
Simoiu did not ask Counsel to file a notice of appeal. Simoiu understood that he had ten days to file a notice of appeal and understood that no notice of appeal would be filed by Counslor or anyone else.
After sentencing, Simoiu spoke to Counsel on the telephone about classification problems he was having with the Bureau of Prisons based upon his state kidnapping arrest. Based upon that conversation, Counsel spoke with the Government, and the Government informed the Bureau of Prisons that Simoiu's state kidnapping charge had been dismissed. In another telephone call, Simoiu asked Counsel for assistance related to a court appearance scheduled in Virginia. Counsel's office called the Virginia courthouse on Simoiu's behalf as a result of this conversation. Counsel and Simoiu may have additionally spoken about a personal injury action that Simoiu had brought.
Simoiu contends that he called Counsel in January 2000 to ask him to file a habeas petition and that Counsel refused to do so. Counsel remembers receiving phone calls from Simoiu after Simoiu was sentenced, but does not have a specific recollection of speaking with Simoiu about a habeas petition.
On May 21, 1999, the Bureau of Prisons informed Simoiu that he was eligible to participate in alcohol and drug rehabilitation program and be released early Simoiu successfully completed the drug and alcohol rehabilitation program. Simoiu asserts that, in early August 2000, he learned that, because of an INS detainer, he would not be eligible for a sentence reduction for his participation in the drug program, nor would he be eligible for placement in a halfway house.
On August 28, 2000, Simoiu wrote Counsel, in what he misrepresented in the letter was his "second" letter, to request copies of documents from his legal file. Counsel testified that he subsequently pulled Simoiu's file from storage and sent copies of Simoiu's plea agreement and Pre-Sentence Report to Simoiu without a cover letter and without any record in his file that these documents were sent. Simoiu represents that he never received these documents from Counsel. Simoiu subsequently requested that Counsel send him his entire file. Counsel initially asked Simoiu to pay for the copying of the extensive file, and Simoiu informed Counsel that his girl friend would pick up the file from Counsel's office. Counsel made a copy for Simoiu but Simoiu's girl friend never came by Counsel's office to pick up the file. After Simoiu wrote to the Court on October 2, 2000, requesting assistance retrieving his file, Counsel sent it directly to him.
On October 10, 2000, Simoiu signed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 ("October Petition") He received his legal file from Counsel in early November 2000, and wrote a memorandum of law that supplemented his October Petition based upon those records. He sent the supplemental memorandum to the Court on November 30, 2000 ("November Memorandum"). The Government submitted a letter brief in opposition to Simoiu's Section 2255 petition and, on February 29, 2001, Simoiu filed a "Brief in Traverse" ("February Traverse") which expanded on some of his claims, and withdrew one.
On May 8, 2001, the Court appointed counsel to represent Simoiu in preparation for this hearing, which was scheduled to consider more fully the merits of Simoiu's petition and the parties' submissions. Simoiu's counsel submitted a memorandum in support of his Section 2255 petition on June 22, 2001 ("June Memorandum"). Because the June Memorandum appeared to withdraw many of Simoiu's prior claims and to reformulate others, at a July 11 conference, this Court ordered petitioner to submit an affidavit setting forth the factual basis for any claims he wished to pursue through this petition and his reasons for not filing his petition within one year after his conviction became final. Petitioner's affidavit, which is referred to as a "Declaration," was submitted to this Court on July 20, 2001. The Declaration served as a portion of the petitioner's direct testimony at the hearing.
PETITIONER'S CLAIMS
Simoiu raises a series of claims for relief in his October Petition, November Memorandum, February Traverse, June Memorandum and Declaration. Many have been abandoned by petitioner. Following are all of the claims that have been previously raised by the petitioner, and the claims that are being pressed in this petition.
In his October Petition, Simoiu asserts that: (1) the Government violated his rights by failing to inform him of his right to consult the Romanian Consulate under the Vienna Convention; and (2) Counsel was constitutionally ineffective because he did not move for a downward departure. Simoiu does not identify the bases for any such departure motion, except to the extent that he additionally asserts that he is entitled to a reduction in his sentence based upon (3) his willingness to consent to deportation; (4) "the fortuitous increase in the severity of his sentence" based on his status as a deportable alien; and (5) his past cooperation with the Government, other agencies, and law enforcement. He also argues for a reduction in sentence based upon (6) his present, post-sentence cooperation with the Government, other agencies, and law enforcement; and (7) his post-conviction rehabilitation. Petitioner additionally asserts that he is (8) entitled to relief pursuant toApprendi.
In the November Memorandum, petitioner asserts that Counsel was constitutionally ineffective for failing to move, at sentence, for a downward departure based on (3) petitioner's consent to deportation. Petitioner additionally asserts that Counsel was ineffective for (9) "failing to mount a [r]easonabLy [c]iredible [d]efense"; (10) failing to argue against deportation; (11)requiring petitioner to pay an additional $5,000, beyond Counsel's flat fee, to file a letter detailing Simoiu's cooperation with the Government; (12) misrepresenting to petitioner the amount of time petitioner would serve; (13) misrepresenting to petitioner that he would not be deported if he cooperated with the Government; (14) failing to file a habeas petition on Simoiu's behalf, as promised; (15) refusing to send petitioner his legal file for ten months; (16) giving "erroneous pre-plea advice" and "coerc[ing] [him] into taking a plea"; and (17) failing to file a notice of appeal. Petitioner additionally seeks a sentence reduction based upon (18) a combination of circumstances, including religion, remorse, and this Court's "special feel for a case." Finally, petitioner restates claims (1)-(8), raised in the October Petition.
In the February Traverse, submitted in opposition to the Goverment's response, petitioner defended claims (1), (3), (4), (6), and (7), and withdrew claim (8). Petitioner explained, in connection with the third claim listed above, that he merited a downward departure at sentence for his willingness to consent to deportation because several members of the "Romanian underworld" have learned that Simoiu was a Government informant and warned Simoiu's parents that he should "Be Careful" when he is deported to Romania. Simoiu additionally asserted, in connection with the sixth claim listed above, that he merited a reduction in his sentence based upon the coopsration he has provided the Government regaxding individuals incarcerated at DCI-Fairton.
In the June memorandum, filed with the assistance of counsel, Simoiu asserts that Counsel was ineffective because he did not move for a downward departure based upon (3) Simoiu's willingness to consent to deportation or based upon (4) the privileges Simoiu would be denied during incarceration due to his alienage, and because Counsel did not (17) consult with Simoiu regarding the bases for a possible appeal nor did he file a notice of appeal on Simoiu's behalf or (19) challenge the amount of Ecstacy attributable to him under the Sentencing Guidelines. Simoiu additionally asserts that (20) the Government's SK1.1 letter did not fully describe the results of Simoiu's cooperation.
At the August 3, 2001 hearing on petitioner's claims, the Court described the claims raised by petitioner in his previous filings, and confirmed with petitioner and his counsel those claims that petitioner was pressing and those he no longer sought to press. Based upon that conversation, petitioner and his counsel agree that the only claims being pressed in this petition are: (A) the Government's 5K1.1 letter did not fully describe the results of Simoiu's cooperation; Counsel was ineffective at sentence for (B) failing to challenge the amount of Ecstacy attributable to him under the Sentencing Guidelines, (C) failing to bring to the Court's attention that one individual had been arrested prior to petitioner's sentence, (D) failing to move for a downward departure based upon petitioner's consent to deportation, (E) failing to move for a downward departure based on petitioner's ineligibility for designaton in a minimum security facility or early release based upon his participation in a drug and alcohol rehabilitation program, and (F) failing to argue for a downward departure based upon petitioner's deportation status, including that petitioner would be returned to Romania, where he had not lived for twenty years, and might suffer retaliation there. Petitioner additionally asserts that Counsel was ineffective after sentence based upon (G) his discussions with Simoiu regarding his appeal. Specifically, in association with this claim, Simoiu asserts that Counsel incorrectly told Simoiu that Simoiu could get a higher sentence if he appealed, did not explicitly tell Simoiu that he could file both an appeal and a habeas petition, did not advise Simoiu that he could have a new attorney review the record and base an ineffective assistance of counsel claim on appeal upon apparent errors in the record, and gave Simoiu erroneous advice in that he told Simoiu he would be serving a shorter sentence — based upon a twelve month reduction for his participation in a rehabilitation program and six months in a halfway house — than he would actually serve. Simoiu additionally asserts that Counsel was ineffective after sentence for (H) failing to file a habeas petition. Specifically, petitioner asserts that Counsel told Simoiu that he would file a habeas petition and then told Simoiu in January 2000 that he would not do so. In addition, although petitioner iS not maintaining a separate claim that — Counsel required petitioner to pay an additional $5,000 to write a letter detailing Simoiu's cooperation or that Counsel refused to give petitioner his legal file, he contends these events occurred and that they provide background for his ineffective assistance claim and his request that this Court equitably toll petitioner's time to file this petition, respectively.
CONCLUSIONS OF LAW
Section 2255 provides that the one-year statute of limitations for filing a habeas petition under that provision runs
from the latest of —
(1) the date on which the judgment of conviction becomes final;. . . . or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2255. In a criminal case, a notice of appeal must be filed "within 10 days after the . . . entry of . . . the judgment," Fed.R.App.P. 4(b)(1)(A), and if the defendant fails to file a notice of appeal, the conviction becomes final. Judgment in this case was entered by the Clerk on February 23, 1999. See Houston v. Greiner, 174 F.3d 287, 289 (2d Cir. 1999). Allowing for weekends and holidays, United States v. Hoooer, 43 F.3d 26, 27 (2d Cir. 1994), Simoiu's conviction became final on March 10, 1999, one day after the ten-day period in which he could have appealed his conviction. Pursuant to Section 2255, Simoiu's time to file a 2255 petition presumably expired on March 11, 2000. He did not, however, file his petition until seven months later.
Simoiu acknowledges that he knew that counsel would not file an appeal on his behalf, and that he had twelve months in which to file a Section 2255 petition. He asserts that he knew from January 2000, that Counsel would not file the petition for him. Simoiu did not, despite this knowledge, file his habeas petition until October 10, 2000, one year and seven months after his conviction became final. Thus, unless an exception applies, Simoiu's petition is barred by Section 2255's statute of limitations.
In a letter accompanying his Declaration, Simoiu asserts that, despite the facts that Simoiu and Counsel did consult regarding an appeal, and Simoiu agreed that Counsel should not file an appeal on his behalf, Simoiu's petition is not time barred because the Section 2255 limitations period should run from the date Mr. Simoiu received notice from the Bureau of Prisons, in or about August 2000, that he was not eligible for a "time reduction for his participation in the drug and alcohol abuse program," because that is the date "on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2255(4).
With one exception, this fact is irrelevant to Simoiu's petition. Simoiu's discovery in or about August 2000 regarding the length of his sentence is relevant only to sentence statement that Simoiu would receive credit for his participation in a drug and alcohol rehabilitation program. As a factual matter, this Court finds that Counsel did not promise Simoiu that he would receive such a credit. Even if Counsel had made such a statement, however, it would have been unreasonable for Simoiu to rely on that statement because Counsel had informed Simoiu that he was not an immigration lawyer and encouraged him to speak to an immigration attorney regarding the collateral consequences of his conviction based upon his deportation status. Accordingly, I conclude that the statute of limitations on Simoiu's claim, began to run on March 10, 1999, and expired on March 11, 2000.
In the alternative, Simoiu asserts that, based upon a combination of circumstances, Simoiu is entitled to the benefit of "equitable tolling." Equitable tolling is available only in "rare and exceptional circumstance(s]" when "extraordinary circumstances prevented (a petitioner] from filing his petition on time," and petitioner can show that he "acted with reasonable diligence throughout the period he seeks to toll." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (citation omitted) Petitioner asserts that he could not timely file his petition because he did not have access to Counsel's file, despite repeated requests to Counsel for a copy of the file.
In support of this claim, Simoiu asserts that he wrote Counsel once sometime in January 2000, following a telephone conversation, to request his legal fi1e Simoiu asserts that he did not receive a response from Counsel. Simoiu asserts that he wrote Counsel a second letter sometime before April 2000, in which he asked for information from his legal file but did not ask for its entire contents. At the hearing regarding petitioner's ineffective assistance of counsel claim, Counsel reviewed "copies" of both letters — the first was allegedly copied by hand and the second was allegedly photocopied — and testified that he had never received either of these letters. I find that Simoiu did not send letters to Counsel in early 2000 asking for legal papers or information. As Simoiu acknowledged during his cross-examination, his cell-mate told Simoiu that the fact that Simoiu did not have his legal papers would be a good basis to equitably toll the statute of limitations on his habeas petition. I credit Counsel's testimony that he never received these letters, that he does not have copies of these letters in his file, and that it is his practice to keep copies of all the letters he receives from his clients. Accordingly, this Court concludes that Simoiu knew that Counsel was not going to file a Section 2255 petition on Simoiu's behalf and first wrote to Counsel regarding his legal file in August 2000. five months after the statute of limitations on his Section 2255 petition had run. Moreover, Simoiu ultimately filed the October Petition a month before he received Counsel's file. There is, in sum, no evidence to suggest that extraordinary circumstances prevented Simoiu from filing his petition in a timely manner. Accordingly, Simoiu's Section 2255 petition is time barred, and his claims are dismissed.
I also find, based upon my familiarity with this case, that Simoiu was represented by Counsel who fought tirelessly on his behalf. I note, particularly, Counsel's efforts before sentence to secure for Simoiu a SK1.1 motion by the Government, and Counsel's attempts after sentence to obtain a Rule 35 motion for Simoiu.
CONCLUSION
For the reasons stated, Simoiu's petition for a writ of habeas corpus is dismissed. The Clerk of Court shall close the case.
I further decline to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriguez v. Scully, 905 F.2d 24 (2d Cir. 1990). In addition, I find, pursuant to 28 U.S.C. § 1915 (a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438 (1962).
SO ORDERED.