Opinion
19 Cr. 846-1 (KPF) 23 Civ. 200 (KPF)
07-30-2024
UNITED STATES OF AMERICA v. VAN WHITMORE, Defendant. VAN WHITMORE, Movant, v. UNITED STATES OF AMERICA, Respondent.
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge
From at least as early as May 2017 through 2019, Van Whitmore headed the AK Houses Crew (or the “Crew”), a wide-ranging drug organization that operated in and around an apartment complex known as the “AK Houses,” located at East 128th Street in Harlem. In June 2021, Mr. Whitmore pleaded guilty to controlled substance and firearms charges pursuant to a written plea agreement with the Government, and in June 2022 he was sentenced principally to an aggregate term of imprisonment of 176 months. In January 2023, Mr. Whitmore moved for vacatur of one of his counts of conviction under 28 U.S.C. § 2255, claiming ineffective assistance of counsel in the form of a failure to file a notice of appeal. For the reasons set forth in the remainder of this Opinion, the Court denies his motion.
Unless otherwise indicated, references to docket entries in this Opinion pertain to the docket in the criminal case, United States v. Whitmore, No. 19 Cr. 846-1 (KPF). The Court refers to Mr. Whitmore's Revised Final Presentence Investigation Report as the “PSR” (Dkt. #304); to his plea transcript as “Plea Tr.” (Dkt. #161); to his sentencing transcript as “Sent. Tr.” (Dkt. #315); to his opening brief in support of his Section 2255 motion as “Def. Br.” (Dkt. #351); to the Government's brief in opposition as “Gov't Opp.” (Dkt. #360); and to the Affidavit of Thomas Ambrosio as “Ambrosio Aff.” (23 Civ. 200 Dkt. #4). References to Mr. Whitmore's submission use the pagination provided by this Court's Electronic Case Filing (“ECF”) system.
A. Factual Background
Van Whitmore, a/k/a “V-High,” led the AK Houses Crew, which included 13 charged defendants and numerous unindicted co-conspirators. (See Dkt. #2 (12-defendant operative indictment (the “Indictment”)); United States v. McPhee, No. 19 Cr. 745 (RMB) (S.D.N.Y.) (separate prosecution of coconspirator)). During the time period charged in the Indictment, from May 2017 through November 2019, the Crew is estimated to have sold more than 17 kilograms of crack cocaine to its customers. (PSR ¶ 18; Dkt. #297 (Government sentencing submission) at 2)).
Along with managers Ronald Nixon and Barry Williams, Mr. Whitmore was responsible for obtaining supplies of powder cocaine; converting that cocaine into crack; distributing the crack to customers through the Crew's network of street-level dealers; and maintaining order and discipline within the Crew, including with threats of violence. (PSR ¶¶ 13-14 (outlining hierarchy of charged conspiracy); see also id. ¶¶ 16-18 (outlining specific offense conduct attributable to Mr. Whitmore)). The Crew had access to multiple “stash houses” that were maintained in apartments in the AK Houses and elsewhere for the purpose of storing drugs and weapons. (See, e.g., id. ¶¶ 16, 21-22, 2526).
Between in or about June 2018 and September 2019, Crew members sold more than 374 grams of crack to undercover law enforcement officers in the vicinity of the AK Houses over the course of approximately 70 transactions, each of which was documented by hidden recording devices. (PSR ¶ 14). Also during the period of the charged narcotics conspiracy, Mr. Whitmore and several other co-defendants possessed and facilitated the possession of firearms in furtherance of the Crew's crack dealing, including for the purposes of (i) enforcing the collection of payments for drugs and (ii) selling firearms, including to undercover law enforcement officers, in connection with crack sales. (Id.).
B. Procedural Background
1. The Indictment and the Arrest
On November 21, 2019, Mr. Whitmore and eleven co-defendants were charged in a two-count sealed indictment. (Dkt. #2). As relevant here, Mr. Whitmore was charged in Count One with conspiring to distribute, and to possess with the intent to distribute, 280 grams and more of crack cocaine, in violation of Title 21, United States Code, Sections 841(a)(1), 841(b)(1)(A), and 846; and in Count Two with using, carrying, or possessing a firearm in furtherance of the charged narcotics conspiracy, and aiding and abetting the same, in violation of Title 18, United States Code, Sections 924(c)(1)(A)(i) and 2.
Mr. Whitmore was presented in this District on January 7, 2020, and arraigned one day later before Judge Andrew L. Carter, Jr., to whom the case was originally assigned. (Dkt. #33; Minutes Entries Dated January 7-8, 2020). On April 15, 2020, the case was reassigned to the undersigned. (Minute Entry Dated April 15, 2020). Thereafter, the Court held several pretrial conferences in the matter, which conferences were held telephonically because of the ongoing COVID-19 pandemic. (See, e.g., Dkt. #92, 109, 121, 137, 147 (scheduling orders)).
2. The Guilty Plea
On June 2, 2021, Mr. Whitmore entered a plea of guilty to a lesser-included offense of Count One and to Count Two during a conference with the Court that was conducted in part by video and in part by telephone. (Plea Tr.). The plea was entered pursuant to a written plea agreement with the Government (the “Plea Agreement” or “Plea Agmt.”). (See Plea Tr.; PSR ¶ 6). In the Plea Agreement, the parties stipulated that Mr. Whitmore's sentencing range under the United States Sentencing Guidelines (“U.S.S.G.” or the “Guidelines”) was 322 to 387 months' imprisonment, which included a mandatory minimum sentence of 60 months' imprisonment on Count One and a mandatory consecutive sentence of 60 months' imprisonment on Count Two. (PSR ¶ 6). As part of the Plea Agreement, Mr. Whitmore agreed to waive his right to appeal, or to collaterally challenge, including by means of an application under 28 U.S.C. § 2255, any sentence of imprisonment within or below that range.
During the plea proceeding, the Court began by confirming with Mr. Whitmore and his counsel, Thomas Ambrosio, that Mr. Whitmore was waiving his right to have the proceedings take place in person. (Plea Tr. 2-6). It further confirmed that Mr. Whitmore wished to plead guilty to the lesser-included offense of Count One of the Indictment, which charged him with a crack cocaine conspiracy that implicated the lower penalties set forth in 21 U.S.C. § 841(b)(1)(B), as well as the Count Two firearms offense. (Id. at 7-8). The Court then placed Mr. Whitmore under oath, and asked him questions to determine his competence to plead guilty. (Id. at 8-12). After finding him competent, the Court confirmed with Mr. Whitmore that he had reviewed with his counsel the charges to which he proposed to plead guilty, any defenses that he might have to those charges, and the consequences of entering a guilty plea. (Id. at 12-13). Mr. Whitmore also represented that he was satisfied with Mr. Ambrosio's representation of him in the matter. (Id. at 13). Thereafter, the Court reviewed with Mr. Whitmore the rights that he had, and would be waiving, by entering a plea of guilty. (Id. at 13-18).
From there, the Court directed one of the prosecutors to outline for the Court and for Mr. Whitmore the elements of the two offenses to which he proposed to plead guilty; at the conclusion, Mr. Whitmore confirmed that he understood “that if you were to go to trial, that is what the government would have to prove at that trial[.]” (Plea Tr. 18-21). The Court then reviewed the penalties associated with the offenses, including the relevant mandatory minimum provisions. (Id. at 21-25).
The Court next confirmed with Mr. Whitmore that he was pleading guilty pursuant to a written plea agreement with the Government, and reviewed with him the terms of that agreement, including its waiver provisions. (Plea Tr. 2936; see also id. at 29 (“[Y]ou are agreeing not to appeal or to bring a collateral challenge to any sentence within or below the stipulated guidelines range of 322 to 387 months' imprisonment.”)). Mr. Whitmore then allocuted to the narcotics conspiracy and firearms offenses by responding to a series of questions from the Court that addressed the elements of each offense. (Id. at 36-38). At the end of the proceeding, the Court accepted Mr. Whitmore's guilty plea. (Id. at 40).
3. The Sentencing
The Probation Office prepared the Presentence Investigation Report for Mr. Whitmore's sentencing. Its Guidelines calculations largely tracked those to which the parties had stipulated in the Plea Agreement; however, the Probation Office found that Mr. Whitmore had one more criminal history point and thus was in Criminal History Category IV, yielding a Guidelines range of 352 to 425 months' imprisonment. (Compare PSR ¶ 6, with id. ¶¶ 40-64). In its Sentencing Recommendation, the Probation Office recommended a below-Guidelines sentence of 310 months' imprisonment, comprising 250 months on Count One and 60 months on Count Two, citing Mr. Whitmore's own history of substance abuse, his family ties, and potential legislative enactments that would reduce the disparity between crack and powder cocaine sentences. (Id., Sentencing Recommendation). Mr. Whitmore filed a sentencing submission requesting the mandatory minimum term of 120 months' imprisonment (Dkt. #286), while the Government filed a sentencing submission requesting a below-Guidelines sentence within the range of 248 to 295 months' imprisonment (Dkt. #292).
Sentencing took place on June 28, 2022. (Sent. Tr.; see also Dkt. #303 (judgment)). During the sentencing proceeding, the Court confirmed with the parties that they had each had an adequate opportunity to review the Presentence Investigation Report and discussed several proposed modifications or corrections to the Report. (Sent. Tr. 3-6). The Court also discussed with the parties the mechanism by which Mr. Whitmore could receive credit against his federal sentence for certain time served in state custody. (Id. at 10-13). The Court then discussed with the parties certain factual disputes regarding Mr. Whitmore's conduct as to which it sought clarification. (Id. at 13-25). Each side presented its oral sentencing arguments, and Mr. Whitmore was given an opportunity to speak in mitigation. (Id. at 25-28).
After taking a recess to consider the matter, the Court imposed sentence. After calculating the Guidelines in the same manner as had the Probation Office, the Court discussed the impact of the EQUAL Act, if passed, on the Guidelines calculations and the manner in which it would (i) credit Mr. Whitmore for the time he had served in state custody and (ii) run the instant sentence concurrently with any remaining portion of Mr. Whitmore's state sentence. (Sent. Tr. 49-51). The Court then explained its sentencing rationale:
At times in your life, sir, you have been involved in selling drugs; and with particular respect to the charged
conspiracy, that's not enough to say that you yourself had an addiction problem because the work that you performed and the responsibilities that you held in this conspiracy - and that's the one that I have got in front of me - belie the severity of any addiction that you might have suffered.
But I have other concerns about the charged conduct as well. You were, and you stipulated to being, a leader of the conspiracy charged in the indictment in this case and the government's evidence that was outlined for me earlier confirms your leadership role. You had, and your colleagues had, and exerted a stranglehold on the AK Houses. You poisoned a neighborhood, and you did that despite your own and your family members' struggles with drug abuse. And when you were arrested on charges related to this case, you tried to continue the sale of drugs to get your bail money, and there was a degree to which, although I know you dispute the government's view on this, you did direct the conspiracy even from jail. And while you yourself may not have engaged in violence other than the fistfight incident, you led a group that employed violence and the threat of violence to maintain order in the territory.
What I think troubles me the most is that you and some of your colleagues are responsible for bringing up or instructing a new generation of drug dealers, the younger members of this conspiracy. I have met them, and I have sentenced them, and their lives are changed dramatically for having interacted with you. And in some respects and in some cases their lives are ruined because of the influence that you and others brought to bear on their lives.
I have thought about the Equal Act and I am thinking about this case, as I have other cases, other sentencings in this conspiracy, based on what the Equal Act range is.
I have thought about the early acceptance of responsibility and the efforts of Mr. Ambrosio and Mr. Ricco and others to work out a resolution that resulted
in the conservation of judicial and prosecutorial resources.
I have thought about the conditions of confinement because I have been hearing about those for two full years and they are horrible and there seems to be nothing that I can do as a judge to make them better. And the only resort I have other than complaining whenever given the opportunity is to reduce sentences in part because of the conditions of confinement.
The question for me has been what time is necessary, given the age, given the other factors that have been cited to me? ... I cannot justify a sentence of more than 210 months even for Mr. Whitmore. I do not think incrementally another month, another six months, another year is going to make a difference for the sentencing factors. I do not think that Mr. Whitmore is going to be more or less deterred, nor do I think the public will be more or less deterred with a sentence in excess of 210 months.
I am reducing the sentence for the time on a related case. I am imposing a term of 176 months concurrent with the remainder of the sentence on the state court case.(Sent. Tr. 51-55). After imposing sentence, the Court advised Mr. Whitmore of his appellate rights. (Id. at 56-57).
Judgment was entered on July 12, 2022, reflecting the 176-month sentence, which itself comprised a term of 116 months' imprisonment on Count One, followed by 60 months' imprisonment on Count Two. (Dkt. #303). Mr. Whitmore did not appeal from his convictions or sentence.
4. The Instant Motions
In January 2023, Mr. Whitmore moved to vacate or set aside one of his convictions pursuant to 28 U.S.C. § 2255, claiming ineffective assistance from his prior counsel - citing, in particular, Mr. Ambrosio's alleged failure to file a notice of appeal from Mr. Whitmore's conviction on Count Two. (Dkt. #351). In response, and given the nature of his allegations, this Court forwarded to Mr. Whitmore an attorney-client privilege waiver form (Dkt. #352), which he then returned. Mr. Ambrosio filed his affidavit on February 9, 2023. (23 Civ. 200 Dkt. #4). The Government filed its opposition submission on April 7, 2023. (Dkt. #360).
In his affidavit, Mr. Ambrosio begins by noting that he has reviewed both the Section 2255 motion and Mr. Whitmore's attorney-client privilege waiver. (Ambrosio Aff. ¶¶ 3-4). According to Mr. Ambrosio, he met with Mr. Whitmore on July 7, 2022, approximately one week after this Court had sentenced Mr. Whitmore to an aggregate term of imprisonment of 176 months, which term was within the range that triggered Mr. Whitmore's waiver of his right to appeal or collaterally challenge that component of his sentence. (Id. ¶¶ 6-9). According to Mr. Ambrosio, he advised Mr. Whitmore “that I did not believe he had any viable issues for appeal and that if he did file an appeal, the Second Circuit Court of Appeals was likely to dismiss the appeal upon motion to the Government that any such appeal was barred by the terms of the appeal waiver in his plea agreement.” (Id. ¶ 10). After further discussion about his appellate waiver, Mr. Whitmore advised Mr. Ambrosio that he did not wish to file an appeal (id. ¶ 11), and Mr. Ambrosio proceeded accordingly (id. ¶ 12).
DISCUSSION
A. Applicable Law
1. Motions Under 28 U.S.C. § 2255
A prisoner in federal custody may seek to have his sentence vacated, set aside, or corrected on the grounds that it “was imposed in violation of the Constitution or laws of the United States, or that the [trial] 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[.]” 28 U.S.C. § 2255(a). However, the grounds for such a collateral attack under Section 2255 are much more limited than those available on a direct appeal. See United States v. Addonizio, 442 U.S. 178, 185 (1979). Relief may lie “only for 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.'” United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)); accord Cuoco v. United States, 208 F.3d 27, 30 (2d Cir. 2000).
The caselaw refers to a person who files a Section 2255 motion alternatively as a “movant,” a “petitioner,” a “prisoner,” or a “defendant.”
In resolving a motion under 28 U.S.C. § 2255, the district court is required to hold a hearing “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see also, e.g., Pham v. United States, 317 F.3d 178, 185 (2d Cir. 2003) (noting that 28 U.S.C. § 2255 does not permit summary dismissals of motions that present facially valid claims). That said, the filing of a Section 2255 motion does not automatically entitle the movant to a hearing - as, for example, in instances in which a movant's allegations are “vague, conclusory, or palpably incredible.” Machibroda v. United States, 368 U.S. 487, 495 (1962). Rather, it is within the district court's discretion to determine the scope and nature of a hearing. See Chang v. United States, 250 F.3d 79, 85-86 (2d Cir. 2001) (“It was, therefore, within the district court's discretion to choose a middle road [requiring a detailed affidavit from counsel] that avoided the delay, the needless expenditure of judicial resources, the burden on trial counsel and the government, and perhaps the encouragement of other prisoners to make similar baseless claims that would have resulted from a full testimonial hearing.”).
2. Ineffective Assistance of Counsel Claims
One potential basis for relief under Section 2255 occurs when a defendant has received the ineffective assistance of counsel. A defendant in a criminal proceeding has a right under the Sixth Amendment to effective assistance from his attorney at all critical stages of the proceeding. See, e.g., Hill v. Lockhart, 474 U.S. 52, 58 (1985). In order to succeed on a claim of ineffective assistance of counsel, a movant must meet the two-pronged test established by Strickland v. Washington, 466 U.S. 668 (1984). First, the movant must show that his counsel's representation was deficient, falling below the objective standard of reasonableness. See id. at 687-88. Second, the movant must establish that his counsel's errors resulted in actual prejudice. See id. at 694.
An attorney's post-sentencing performance may be constitutionally deficient if her “performance costs a defendant an appeal that the defendant would have otherwise pursued.” Garza v. Idaho, 586 U.S. 232, 235 (2019). Accordingly, when a criminal defendant's attorney fails to file a direct appeal after her client tells her to do so, the attorney's conduct is professionally unreasonable and prejudice is presumed; the defendant is entitled to a new appeal, even “when the client waived appeal in his plea agreement,” and even when the attorney “believes the requested appeal would be frivolous.” Campusano v. United States, 442 F.3d 770, 771-72, 775 (2d Cir. 2006); see also Garcia v. United States, 278 F.3d 134, 137 (2d Cir. 2002) (citing Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000)). Importantly, however, a defendant must first demonstrate that he specifically instructed his attorney to file a notice of appeal. Campusano, 442 F.3d at 773.
B. Analysis
1. The Court Will Not Enforce Mr. Whitmore's Appellate Waiver, Nor Will It Find Procedural Bar
While there are potential antecedent hurdles to Mr. Whitmore's motion - in the form of his appellate waiver and the “cause and prejudice” standard set forth in cases like Murray v. Carrier, 477 U.S. 478 (1986) - the Court will proceed to consider the merits of that motion. It does so on the theory that ineffectiveness of counsel, if proven by Mr. Whitmore, would suffice to surmount these procedural issues. See United States v. Hernandez, 242 F.3d 110, 113-14 (2d Cir. 2001) (noting procedural unfairness of using waiver provision to bar claims of ineffectiveness); see also Massaro v. United States, 538 U.S. 500, 508-09 (2003) (holding that “failure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255”).
2. Mr. Whitmore Has Not Shown Ineffective Assistance of Counsel
The Second Circuit has observed that a defendant's request to file an appeal generally “involves off-the-record interactions with his trial counsel and therefore cannot be determined by examining the motion, files, and records before the district court” - that is, without further supplement of the record. Chang, 250 F.3d at 85; accord Brown v. United States, No. 20-3404-pr, 2022 WL 17420465, at *2 (2d Cir. Dec. 6, 2022) (summary order) (“The district court accordingly committed clear error when it summarily denied Brown's § 2255 motion on the basis of Brown's inconsistent statements without holding a testimonial hearing or, in the alternative, ordering a more limited method of supplementing the evidentiary record, such as directing Brown's sentencing counsel to submit a responsive affidavit.”). In consequence, a district court may not dismiss a defendant's claim of failure to file a notice of appeal without some development of the record. See, e.g., Thomas v. United States, 93 F.4th 62, 66 (2d Cir. 2024). However, as the Second Circuit recently clarified:
A Campusano inquiry does not need to be burdensome, and a “district court has discretion to determine if a testimonial hearing will be conducted.” [Campusano, 442 F.3d at 776] (citing Chang v. United States, 250 F.3d 79, 85-86 (2d Cir. 2001)). In many cases, the district court may discharge this obligation by accepting
affidavits from the defendant's prior counsel, including those filed as part of the government's opposition papers. See, e.g., Dolney v. United States, No. 07-cv-4040, 2011 WL 73076, at *4 (E.D.N.Y. Jan. 10, 2011) (Garaufis, J.) (dismissing the § 2255 petition when the government opposition filing included an affidavit from the petitioner's attorney, stating that “[a]t no time did [the petitioner] request that I file a notice of appeal”).Id.; cf. Abreu v. United States, No. 22-13, 2023 WL 6632951, at *3 (2d Cir. Oct. 12, 2023) (summary order) (vacating summary denial of Section 2255 motion where denial was based on allocution of defendant on appellate waiver at plea and sentencing, finding that “[b]ecause the record does not conclusively establish that Abreu was independently aware of his right to appeal and chose not to exercise that right, the district court should have conducted a hearing on Abreu's § 2255 motion”).
Mr. Whitmore attests in his motion papers that he “told [his] counsel [he] wanted to file a notice of appeal for [his 18 U.S.C. § 924(c)(1)(A)(i)] conviction and [he] found out [counsel] never did it.” (Def. Br. 4). However, Mr. Whitmore provides no specifics as to the date and time on which this request was made, nor as to why he only sought to challenge his conviction on Count Two. By contrast, Mr. Ambrosio provides a much more detailed account of the parties' meeting on July 7, 2022. Mr. Ambrosio begins by discussing the Plea Agreement pursuant to which Mr. Whitmore pleaded guilty; the enforceable appellate waiver contained therein; and the Court's below-Guidelines sentence that implicated the appellate waiver. (Ambrosio Aff. ¶¶ 6-8). Thereafter, Mr. Ambrosio explains that, during his meeting with Mr. Whitmore on July 7, 2022, the two discussed the interplay between the appellate waiver that Mr. Whitmore had executed and any possible appeal that could be brought, with Mr. Ambrosio opining on the difficulty such an appeal would encounter. (Id. ¶ 10). After and as a result of those discussions, Mr. Whitmore advised Mr. Ambrosio that “he did not wish to file an appeal.” (Id. ¶ 11). Based on that conversation, plus counsel's own understanding of the effect of Mr. Whitmore's appellate waiver, Mr. Ambrosio did not file a notice of appeal on Mr. Whitmore's behalf. (Id. ¶ 12).
This Court concludes that the record before it has been developed sufficiently to permit the Court to find that Mr. Whitmore, after consultation with his counsel, made the final decision against filing an appeal from his conviction, and, by extension, that Mr. Ambrosio did not provide ineffective assistance in failing to file a notice of appeal. See Thomas, 93 F.4th at 66 (noting that obligation to develop a record may be discharged “by accepting affidavits from the defendant's prior counsel, including those filed as part of the government's opposition papers”), see also, e.g., United States v. Bello, No. 20 Cr. 301-3 (PKC), 2023 WL 6881599, at *7 (S.D.N.Y. Oct. 18, 2023) (“The Court need not conduct a hearing to weigh Bello's broad and self-serving assertions against the sworn declarations of his former attorneys, see Chang, 250 F.3d at 86, and concludes that Bello has not identified ineffective assistance based on his attorneys' failure to file a notice of appeal on his behalf.”); United States v. Guzman-Cabrera, No. 18 Cr. 868 (SHS), 2023 WL 4558522, at *2 (S.D.N.Y. July 17, 2023) (“Despite the Second Circuit's strict standard regarding a failure to file a notice of appeal, see Campusano v. United States, 442 F.3d 770 (2d Cir. 2006), a defendant cannot support his petition by making wholly conclusory assertions that have no basis in the record.”); Gist v. United States, No. 16 Cr. 656-6 (GHW), 2021 WL 3774289, at *19 (S.D.N.Y. Aug. 24, 2021) (“Conclusory statements such as Mr. Gist's, without detail or supporting documentation, have been found inadequate to support a claim of ineffective assistance in the face of a credible and contradictory affidavit by counsel.” (internal quotation marks and citations omitted)); see also Berrios v. United States, No. 07 Civ. 4441 (JS), 2009 WL 2226757, at *3 (E.D.N.Y. July 23, 2009) (“When an attorney's affidavit credibly contradicts a habeas petitioner's ineffective assistance of counsel claim, the Court is entitled to deny the petition without holding an evidentiary hearing.” (citations omitted)). In the absence of any showing of ineffectiveness, the Court must deny Mr. Whitmore's motion.
CONCLUSION
For the reasons stated above, the Court DENIES Mr. Whitmore's motion under 28 U.S.C. § 2255. Because Mr. Whitmore has not made a substantial showing of the denial of a constitutional right with respect to his motion, the Court will not issue a certificate of appealability. See 28 U.S.C. § 2253(c). The Court further certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this Opinion and Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is directed to terminate the motion at docket entry 351 in Case No. 19 Cr. 846-1, to close Case No. 23 Civ. 200, and to mail a copy of this Opinion to Mr. Whitmore at the following address:
Van Whitmore
Reg. No. 87635-054FCI Berlin
Federal Correctional Institution
P.O. Box 9000
Berlin, NH 03570
SO ORDERED.