Gomez-Rodriguez v. USA
Filing
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ORDER denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255) for the reasons set forth in the attached Memorandum of Decision. The Clerk is directed to close this case. Signed by Judge Vanessa L. Bryant on 03/24/2020. (Nault, James)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
WILMER ANTONIO
GOMEZ-RODRIGUEZ
Petitioner,
v.
UNITED STATES OF AMERICA
Respondent.
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CIVIL CASE NUMBER
3:18-cv-00807 (VLB)
MARCH 24, 2020
MEMORANDUM OF DECISION DENYING
MOTION FOR RELIEF UNDER 28 U.S.C. § 2255 [ECF NO. 1]
Petitioner Wilmer Antonio Gomez-Rodriguez (“Mr. Gomez-Rodriguez” or
“defendant”) brings this pro se motion for habeas relief under 28 U.S.C. § 2255,
asserting a single ground for relief, namely, that Amendment 794 of the
Sentencing Guidelines should be employed to give Mr. Gomez-Rodriguez a
reduced sentence based on changes to the mitigating role sentencing
adjustment. [ECF No. 1].
For the following reasons, Mr. Gomez-Rodriguez’s Motion for Minor Role
Adjustment and Sentence Reduction is DENIED.
Background
On October 1, 2014, the Honorable William Garfinkel, United States
Magistrate Judge, authorized a criminal complaint charging Mr. Gomez-Rodriguez
with conspiracy to distribute one kilogram or more of heroin, in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A)(i), and 846. United States v. Gomez-Rodriguez,
3:14-mj-00211 (WIG), [ECF No. 1].
On October 9, 2014, a federal grand jury returned an indictment against Mr.
Gomez-Rodriguez and two co-conspirators, Omar Andrade and Joel A. Estrella-
Disla. United States v. Andrade, 3:14-cr-206, [ECF No. 9]. The indictment charged
Mr. Gomez-Rodriguez and his two co-conspirators with one count of conspiracy
to distribute and to possess with intent to distribute one kilogram or more of
heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(i), and 846, and one
count of possession with intent to distribute one kilogram or more of heroin, in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(i). Id. Mr. Gomez-Rodriguez’s
two co-conspirators pled guilty prior to trial. Id. [ECF Nos. 67 (Defendant EstrellaDisla), 72 (Defendant Andrade)].
Jury selection was completed on August 31, 2015. Id. [ECF No. 81]. Trial
commenced on September 8, 2015, id. [ECF No. 94], and was completed on the
second day, September 10, 2015. Id. [ECF No. 95]. The jury’s verdict of guilty on
both counts was entered that same day, September 10, 2015. Id. [ECF No. 96].
On July 26, 2017, the Court imposed sentence on both counts of
conviction, sentencing Mr. Gomez-Rodriguez to 87 months’ imprisonment, five
years’ supervised release, and a fine of $15,000 to be paid “if the defendant is not
deported or illegally reenters the United States following his deportation.” Id.
[ECF Nos. 169, 179]. Mr. Gomez-Rodriguez did not request, nor did the Court
afford him, a mitigating role sentencing reduction under the Sentencing
Guidelines. Id. [ECF Nos. 121 at 8-9 (PSR Final), 165 (Defendants’ Sentencing
Memorandum), 173 (Defendants’ Supplemental Sentencing Memorandum), 177
(Sentencing Minutes),195 (Sentencing Transcript)].
On August 9, 2017, Mr. Gomez-Rodriguez filed a timely notice of appeal. Id.
[ECF No. 182].
In his appeal brief, Mr. Gomez-Rodriguez asserted that his
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“sentence was procedurally unreasonable in that the Court erred in failing to
apply a two-level minor role reduction pursuant to U.S.S.G. §3B1.2.”
Brief of
Appellant at 13, United States v. Gomez-Rodriguez, No. 17-2475-cr (2d Cir. Aug.
30, 2018). Mr. Gomez-Rodriguez argued that the Ninth Circuit’s holding in United
States v. Quintero-Leyva, 823 F.3d 519 (9th Cir. 2016), namely, that Amendment
794 applies retroactively and that the district court in that case should have
considered the new factors set forth in the Amendment, supported his position
that the Court erred in failing to apply a two-level minor role reduction pursuant
to U.S.S.G. §3B1.2, given that he, like the appellant in Quintero-Leyva, was only a
minor participant in the drug trafficking offenses of which he was convicted.
On May 10, 2018, Mr. Gomez-Rodriguez filed the instant “Motion for Minor
Role Adjustment and Sentence Reduction Based on United-States v. Quintero-
Leyva and Pursuant to Amendment 794 and 28 U.S.C. §2255.” Gomez-Rodriguez
v. United States, 3:18-cv-00807 (VLB), [ECF No. 1 at 1].
On June 4, 2019, the Second Circuit, via Summary Order, affirmed Mr.
Gomez-Rodriguez’s conviction and sentence, rejecting Mr. Gomez-Rodriguez’s
arguments regarding the Court’s failure to apply a minor role reduction:
The record amply supports the conclusion that Gomez-Rodriguez
played a significant role in the criminal activity—well beyond that of
a ‘minor participant’ under the Sentencing Guidelines. The evidence
shows that he knew he was facilitating the distribution of a kilogram
of heroin; helped orchestrate the scheme through text messages,
phone calls, and a visit to the supplier; served as a trusted associate
of the supplier, allowing the deal to go through; and ultimately
delivered the heroin to the buyer. The District Court discussed his
role in the scheme and reasonably concluded that he had 'very
intimate involvement with drug dealers or this particular drug dealer.’
We therefore discern no error . . . in the omission of a minor-role
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reduction in the District Court’s calculation of Gomez-Rodriguez’s
offense level.
United States v. Gomez-Rodriguez, 775 F. App’x 709, 712 (2d Cir. 2019) (quoting
Sentencing Hearing Transcript at 42, United States v. Gomez-Rodriguez, 3:14-cr00206-3 (VLB), [ECF No. 195]).
Legal Standard
Section 2255 enables a prisoner in federal custody to petition a federal
court to vacate, set aside, or correct a sentence. 28 U.S.C. § 2255(a). Relief under
Section 2255 is generally available to rectify three irregularities, namely, “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
complete miscarriage of justice.” Graziano v. United States, 83 F.3d 587, 589-90
(2d Cir. 1996) (quoting United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)).
The strictness of this standard embodies the recognition that collateral
attack upon criminal convictions is “in tension with society’s strong interest in
[their] finality.” Ciak v. United States, 59 F.3d 296, 301 (2d Cir. 1995).
“A [petition for habeas relief] may not relitigate issues that were raised and
considered on direct appeal.” United States v. Perez, 129 F.3d 255, 260 (2d Cir.
1997) (declining to review plea withdrawal claim that had already been argued on
appeal because petitioner was “rehash[ing] the same arguments here.”); Riascos-
Prado v. United States, 66 F.3d 30, 33 (2d Cir. 1995) (“It is clear that ‘section 2255
may not be employed to relitigate questions which were raised and considered on
direct appeal.’”) (quoting Cabrera v. United States, 972 F.2d 23, 25 (2d Cir. 1992)).
This “so-called mandate rule bars re-litigation of issues already decided on direct
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appeal.” Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010). “The mandate rule
prevents re-litigation in the district court not only of matters expressly decided by
the appellate court, but also precludes re-litigation of issues impliedly resolved
by the appellate court’s mandate.” Id.; see also United States v. Ben Zvi, 242 F.3d
89, 95 (2d Cir. 2001).
“It is within the district court’s discretion to determine whether a hearing is
warranted.” Pham v. United States, 317 F.3d 178, 184 (2d Cir. 2003) (holding that
even where factual issues may exist, Second Circuit precedent permits a “middle
road” of deciding disputed facts on the basis of written submissions); see also
Johnson v. Fogg, 653 F.2d 750, 753 (2d Cir. 1981) (holding that district court was
not required to provide a hearing to a pro se litigant who did not raise issues
sufficient to warrant a hearing).
Analysis
The Sentencing Guidelines provide for a downward adjustment to the
defendant’s offense level at sentencing if the defendant’s conduct constituted a
relatively minor role in a multiple-defendant criminal case.
U.S. Sentencing
Guidelines Manual § 3B1.2 (2016). Entitled the “Mitigating Role” adjustment, id.,
this adjustment suggests that, “[b]ased on the defendant’s role in the offense,”
courts can “decrease the offense level” by four levels if the defendant was a
“minimal participant in any criminal activity,” two levels if the defendant was a
“minor participant in any criminal activity,” and three levels for conduct falling
between these two cases.
Id.
The Sentencing Guidelines define a minimal
participant as one who is “plainly among the least culpable of those involved in
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the conduct of the group,” whereas a “minor participant” is defined as one who is
“less culpable than most other participants in the criminal activity, but whose role
could not be described as minimal.” Id. cmts. 4, 5.
On November 1, 2015, Amendment 794 to the Sentencing Guidelines
became effective. This Amendment did not alter the language of the mitigating
role adjustment, nor increase the number of levels reduced under this section,
but rather provided a “non-exhaustive list of factors” that courts “should
consider” in determining whether a mitigating role adjustment applies.
U.S.
Sentencing Guidelines Manual, supp. to app. C, Nov. 1, 2012 through Nov. 1,
2015, Amend. 794 at 117. The non-exhaustive list of factors includes:
(i)
the degree to which the defendant understood the scope and
structure of the criminal activity;
(ii)
the degree to which the defendant participated in planning or
organizing the criminal activity;
(iii)
the degree to which the defendant exercised decision-making
authority or influenced the exercise of decision-making authority;
(iv)
the nature and extent of the defendant’s participation in the
commission of the criminal activity, including the acts the defendant
performed and the responsibility and discretion the defendant had in
performing those acts;
(v)
the degree to which the defendant stood to benefit from the criminal
activity.
Id. at 116.
Mr. Gomez-Rodriguez asserts that he is entitled to resentencing with a twolevel decrease in offense level because he was a “minor participant” in the
narcotics distribution conspiracy at issue in this case. [ECF No. 1 at 4]. This is
so, according to Mr. Gomez-Rodriguez, first because Amendment 794 to the
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Sentencing Guidelines, which became effective on November 1, 2015, is
retroactive, according to Quintero-Leyva, and therefore applied at his sentencing.
Id.
Mr. Gomez-Rodriguez addresses the retroactive nature of Amendment 794
at length in his petition, discussing the nature of Amendment 794 as a “clarifying
amendment,” the Amendment’s resolution of a circuit split, and several other
factors that are normally considered when addressing retroactivity, as all
pointing to Amendment 794 applying retroactively and thus at his sentencing. Id.
Finally, Mr. Gomez-Rodriguez prays for relief: “Petitioner asserts eligibility
under §3B1.2’s amendment 794 as being not as culpable as the other participants
in the criminal activity. Petitioner respectfully asks this Honorable Court to apply
the proper reduction and resentence accordingly.” [ECF No. 1 at 4].
The Government first notes that Amendment 794 “add[ed] a list of factors a
sentencing Court ‘should consider,’” implying that they are not mandatory. [ECF
No. 5 at 2-3 (quoting Amend. 794 at 117).
The Government also notes that
Amendment 794 did not lower the applicable Guideline range, it only added the
non-exhaustive list of factors courts “should consider.” Id. at 3 (quoting Amend.
794 at 117).
The Government also contends that Mr. Gomez-Rodriguez’s claim that
Amendment 794 applies retroactively is incorrect, because Quintero-Leyva is
inapposite as it was a direct appeal case, not a habeas action, and because other
courts have ruled that retroactive application of Amendment 794 in the habeas
context is improper. [ECF No. 5 at 3-4 (citing Quintero-Leyva, 823 F.3d 519 and
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Riner v. United States, No. CV 316-093, 2016 U.S. Dist. LEXIS 180665 (S.D. Ga.
Nov. 30, 2016) (citing cases))].
The Government next argues that Mr. Gomez-Rodriguez’s discussion
regarding the retroactivity of Amendment 794 is misplaced because the
Amendment was actually in place at the time of Mr. Gomez-Rodriguez’s
sentencing, given that the Amendment became effective on November 1, 2015,
and Mr. Gomez-Rodriguez was sentenced on July 26, 2017. Moreover, notes the
Government, the Second Circuit, “[i]n rejecting the defendant’s minor role claim, .
. . pointed out that the defendant had not sought a role reduction in the district
court,” and stated that the Court had considered the various factors in
sentencing. [ECF No. 5 at 4 (citing Gomez-Rodriguez, 775 F. App’x at 712)].
Next, the Government argues that the Second Circuit, unlike the Ninth
Circuit, does not require a sentencing court to enumerate all the factors listed in
Amendment 794, citing United States v. Soborski, 708 F. App’x 6, 12 n.1 (2d Cir.
2017) (“Although a district court would generally do well to consider the factors
officially proposed by the Sentencing Commission, the commentary provides that
a district court ‘should consider’ the listed factors, language that we interpret as
a recommendation, rather than a mandate.”). [ECF No. 5 at 4-5]. The Government
states that “[t]here is nothing in the record to suggest that this Court failed to
discharge its duty fully and correctly at the time of the sentencing, including
giving consideration to Amendment 794.” Id. at 5.
Finally, the Government cites the mandate rule as a basis for denying Mr.
Gomez-Rodriguez’s motion, because he raised the same issue on direct appeal,
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and the Second Circuit rejected Mr. Gomez-Rodriguez’s claim that he was entitled
to such a role reduction at sentencing. Id. at 5-6 (citing Gomez-Rodriguez, 775 F.
App’x at 712). The Government argues that the “mandate rule bars re-litigation of
issues already decided on direct appeal.” Id. at 5 (citing Mui, 614 F.3d at 53). The
Court agrees with the Government.
First, the mandate rule bars the Court from entertaining Mr. GomezRodriguez’s motion for role reduction because he “may not relitigate issues that
were raised and considered on direct appeal.” Perez, 129 F.3d at 260 (declining
to review plea withdrawal claim that had already been argued on appeal because
petitioner was “rehash[ing] the same arguments here.”); Riascos-Prado, 66 F.3d
at 33 (“It is clear that ‘section 2255 may not be employed to relitigate questions
which were raised and considered on direct appeal.’”) (quoting Cabrera, 972 F.2d
at 25); Mui, 614 F.3d at 53 (holding that the “mandate rule bars re-litigation of
issues already decided on direct appeal.”).
Here, Mr. Gomez-Rodriguez asks the Court to rule on one of the exact same
grounds that he raised on direct appeal, namely, that he was entitled to a
mitigating role sentencing reduction. But the Second Circuit, via Summary Order,
has already convincingly rejected Mr. Gomez-Rodriguez’s argument in this
regard:
The record amply supports the conclusion that Gomez-Rodriguez
played a significant role in the criminal activity—well beyond that of
a ‘minor participant’ under the Sentencing Guidelines. The evidence
shows that he knew he was facilitating the distribution of a kilogram
of heroin; helped orchestrate the scheme through text messages,
phone calls, and a visit to the supplier; served as a trusted associate
of the supplier, allowing the deal to go through; and ultimately
delivered the heroin to the buyer. The District Court discussed his
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role in the scheme and reasonably concluded that he had 'very
intimate involvement with drug dealers or this particular drug dealer.’
. . . We therefore discern no error . . . in the omission of a minor-role
reduction in the District Court’s calculation of Gomez-Rodriguez’s
offense level
Gomez-Rodriguez, 775 F. App’x at 712. Because of this, the Court may not ignore
the Second Circuit’s ruling and grant Mr. Gomez-Rodriguez’s petition.
Next, even if the mandate rule did not bar the Court from granting Mr.
Gomez-Rodriguez’s motion, the Court could not do so because “collateral attack
on a final judgment in a criminal case is generally available under § 2255 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
complete miscarriage of justice.’” Graziano, 83 F.3d at 589-90 (quoting Bokun, 73
F.3d at 12).
Mr. Gomez-Rodriguez argues neither constitutional error nor lack of
jurisdiction in the Court on sentencing, so he cannot prevail unless “an error of
law . . . constituted ‘a fundamental defect which inherently results in a complete
miscarriage of justice.’” Reed v. United States, No. 3:16-cv-1356 (SRU), 2017 U.S.
Dist. LEXIS 191049, at *15 (D. Conn. Nov. 20, 2019) (quoting United States v.
Addonizio, 442 U.S. 178, 185 (1979)); see also Graziano, 83 F.3d at 590 (applying
“fundamental defect” standard to “claims regarding a sentencing court’s error in
failing to properly apply the Sentencing Guidelines”).
Mr. Gomez-Rodriguez
“bears the burden of showing that [the Court’s] failure to apply Amendment 794
constituted a ‘fundamental defect.’” Reed, 2017 U.S. Dist. LEXIS 191049, at *15.
This he cannot do for two reasons.
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First, “[b]arring extraordinary circumstances, . . . an error in the application
of the Sentencing Guidelines cannot be raised in a [Section] 2255 proceeding.”
Reed, 2017 U.S. Dist. LEXIS 191049, at *16 (quoting United States v. Foote, 784
F.3d 931, 940 (4th Cir. 2015)). This is because the Sentencing Guidelines are
“advisory” and “do not constrain [a court’s] discretion,” id. (quoting Beckles v.
United States, 137 S. Ct. 886, 894 (2017)), which means that “misapplication of the
Sentencing Guidelines generally ‘do[es] not amount to a complete miscarriage of
justice.’” Id. (quoting Graziano, 83 F.3d at 590 and citing cases). In sum, “‘a
fundamental defect or complete miscarriage of justice’ cannot occur ‘in a
situation in which [the defendant] was . . . sentenced under an advisory
Guidelines scheme.’” Id. at *17 (quoting Foote, 784 F.3d at 941) (emphasis in
original).
Second, even if a discretionary sentence meted out under the advisory
Sentencing Guidelines could constitute a fundamental defect constituting a
complete miscarriage of justice, Mr. Gomez-Rodriguez has not remotely shown
that such a fundamental defect exists here. He does not even argue that the
Court made any error at sentencing. Rather, he simply asks the Court “to grant
relief and apply the minor role adjustment . . . [of] Amendment 7941 . . . [because
Mr. Gomez-Rodriguez’s arguments as to the retroactivity of Amendment 794 are
irrelevant because Amendment 794, which became effective on November 1,
2015, was in effect when Mr. Gomez-Rodriguez was sentenced on July 26, 2017.
“The court shall use the Guidelines Manual in effect on the date that the
defendant is sentenced . . . [unless] the court determines that use of the
Guidelines Manual in effect on the date that the defendant is sentenced would
violate the ex post facto clause of the United States Constitution, [in which case]
the court shall use the Guidelines Manual in effect on the date that the offense of
conviction was committed.” U.S. Sentencing Guidelines §§ 1B1.11(a), (b)(1).
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he was] not as culpable as the other participants in the criminal activity.” [ECF
No. 1 at 1, 4]. Mr. Gomez-Rodriguez does not explain how he was not as culpable
as the other participants in the heroin distribution ring of which he was a
member.
In sum, Mr. Gomez-Rodriguez is asking for a “do-over,” which, as
should be clear from the caselaw cited above, is not available on collateral attack.
Reed, 2017 U.S. Dist. LEXIS 191049, at *15 (“The grounds provided [for relief] in
section 2255 . . . are narrowly limited, and it has ‘long been settled law that an
error that may justify reversal on direct appeal will not necessarily support a
collateral attack on a final judgment.’”) (quoting Addonizio, 442 U.S. at 185).
Denying Mr. Gomez-Rodriguez’s request for a do-over is especially
appropriate here because the Court did consider the Amendment 794 factors at
sentencing, as the Second Circuit found. Gomez-Rodriguez, 775 F. App’x at 712.
The sentencing hearing transcript makes this clear, as the Court discussed the
extent to which Mr. Gomez-Rodriguez texted other participants in the proposed
drug buy in an effort to plan and coordinate the event, Sentencing Hearing
Transcript at 42, Gomez Rodriguez, 3:14-cr-00211, [ECF No. 195]), which
implicates the first two Amendment 794 role reduction factors. These factors
concern “the degree to which the defendant understood the scope and structure
of the criminal activity,” and “the degree to which the defendant participated in
planning or organizing the criminal activity.” Amendment 794 at 116. The Court
Here, Amendment 794 “is a clarifying amendment resulting in no change to the
substantive law,” Riner, 2016 U.S. Dist. LEXIS 180665, at *4, so the ex post facto
clause is not implicated. Because of that, the Court was required to use the
Sentencing Guidelines in effect when it sentenced Mr. Gomez-Rodriguez on July
26, 2017, which it did, and which included Amendment 794. Ergo, the retroactive
effect of Amendment 794 is irrelevant.
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also discussed that the reason Mr. Gomez-Rodriguez engaged in the drug
trafficking activity that formed the basis for his conviction was that he was going
to be paid for his efforts, Sentencing Hearing Transcript at 16-17, Gomez
Rodriguez, 3:14-cr-00211, [ECF No. 195]), implicating the final Amendment 794
factor, which is “the degree to which the defendant stood to benefit from the
criminal activity.”
Amendment 794 at 116.
The Court was not required to
expressly discuss each Amendment 794 factor, because they are only a nonexhaustive list of factors a court “should consider,” U.S. Sentencing Guidelines
Manual § 3B1.2, as the Second Circuit has held. Soborski, 708 F. App’x at 12 n.1
(“Although a district court would generally do well to consider the factors
officially proposed by the Sentencing Commission, the commentary provides that
a district court ‘should consider’ the listed factors, language that we interpret as
a recommendation, rather than a mandate.”).
In sum, the Court, as the Second Circuit found, appropriately considered
the Amendment 794 role reduction factors in deciding Mr. Gomez-Rodriguez’s
sentence. For this reason, and the other reasons set forth above, Mr. GomezRodriguez’s Motion for Minor Role Adjustment and Sentence Reduction, [ECF No.
1], is DENIED.
Conclusion
There is no need for the Court to conduct a hearing on this habeas motion.
Although courts generally “look with disfavor on summary rejection of a habeas
petition,” United States v. Aiello, 900 F.2d 528, 534 (2d Cir. 1990) (quotation
omitted), the text of § 2255 provides that the Court need not conduct a hearing
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where “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) (2014); see also Aiello,
900 F.2d at 534 (finding no reversible error in the failure to conduct a hearing
where, as here, the district court had presided over the trial and was therefore
“intimately familiar with the detailed factual record” and where petition’s
“allegations were patently meritless.”); see also Johnson v. Fogg, 653 F.2d at 753
(holding that district court was not required to provide hearing to pro se litigant
who did not raise issues sufficient to warrant a hearing). Mr. Gomez-Rodriguez is
not entitled to relief on his claims.
Therefore, this Motion for Minor Role
Adjustment and Sentence Reduction pursuant to 28 U.S.C. § 2255 is DENIED. The
Court denies a certificate of appealability because jurists of reason would not find
this procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 478 (2000).
The Court CERTIFIES under 28 U.S.C. § 1915(a)(3) that any appeal would not be
taken in good faith.
IT IS SO ORDERED.
_______/s/________________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: March 24, 2020
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