GANTT v. UNITED STATES OF AMERICA

Filing 43

OPINION. Signed by Judge Robert B. Kugler on 12/5/2023. (alb, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
STEVEN GANTT,
:
:
Petitioner,
:
Civ. No. 11-6191 (RBK)
:
v.
:
:
UNITED STATES OF AMERICA,
:
OPINION
:
Respondent.
:
____________________________________:
ROBERT B. KUGLER, U.S.D.J.
I.

INTRODUCTION
Petitioner is a federal prisoner currently incarcerated at U.S.P. Terre Haute, in Terre

Haute, Indiana. Petitioner is proceeding with a motion to vacate, set aside or correct his sentence
pursuant to 28 U.S.C. § 2255. Presenting pending before this Court is Respondent’s letter
requesting reconsideration of this Court’s previous grant of a certificate of appealability on
Petitioner’s motion to refile/restore. (See ECF 39). Additionally pending before this Court are
two miscellaneous motions filed by Petitioner; namely: (1) Petitioner’s motion for jury
instruction and sentencing hearing transcripts (see ECF 35); and (2) Petitioner’s motion for a
refund of his appellate filing fee of $505.00. (See ECF 37). For the following reasons,
Respondent’s request for reconsideration (ECF 39) is granted. This Court will vacate its prior
grant of a certificate of appealability such that a certificate of appealability shall no longer issue
in this case. Petitioner’s motion for a refund of his appellate filing fee is also granted. However,
Petitioner’s motion for jury instruction and sentencing hearing transcripts is denied without
prejudice.

II.

FACTUAL AND PROCEDURAL BACKGROUND
This case, along with another § 2255 case Petitioner has filed, see No. 16-3691, have

relatively complex and lengthy procedural histories. This Court previously outlined much of that
procedural history in a prior opinion recited below:
On September 6, 2006, a federal grand jury sitting in Camden,
New Jersey returned an Indictment against Gantt and co-defendant
Walter Johnson, charging both defendants with: (1) conspiring to
commit robbery in violation of 18 U.S.C. § 1951(a); and (2) using
and carrying a firearm during and in relation to a crime of violence
in violation of 18 U.S.C. § 924(c)(1)(A)(ii). (Crim. No. 06-699,
Docket No. 1). On December 5, 2006, a federal grand jury sitting
in Camden returned a Superseding Indictment against Gantt and
another co-defendant, Kevin Taylor, charging both defendants
with: (1) conspiring to commit robbery in violation of 18 U.S.C. §
1951(a); and (2) using and carrying a firearm during and in relation
to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii).
(Id., Docket No. 28). On June 26, 2007, a federal grand jury sitting
in Camden returned a Second Superseding Indictment against
Gantt and co-defendant Taylor. (Id., Docket No. 48). In relevant
part, the Second Superseding Indictment charged petitioner with:
(1) conspiring to commit robbery in violation of 18 U.S.C. §
1951(a); (2) eight separate counts of armed bank robbery in
violation of 18 U.S.C. § 2113(d); (3) seven separate counts of
using and carrying a firearm during and in relation to a crime of
violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (brandishing
the firearm); and (4) one count of using and carrying a firearm
during and in relation to a crime of violence in violation of 18
U.S.C. § 924(c)(1)(A)(iii) (discharging the firearm). See also
United States v. Taylor, 379 F. App’x 240, 242 (3d Cir. 2010)
(non-precedential).
After their first trial in early 2008 ended in a mistrial because the
jury could not reach a verdict, (see Crim. No. 06-699, Docket Nos.
75-113), Gantt and Taylor were retried in late February into March
2008, and the jury returned a verdict of guilty as to both defendants
on all counts of the Second Superseding Indictment. (Id., Docket
Nos. 117-142). On June 25, 2008, this Court sentenced Gantt to a
total of 1,788 months (149 years), broken down as follows: 120
months on each of Counts One, Two, Four, Six, Eight, Ten,
Twelve, Fourteen, and Sixteen; 84 months on each of Counts
Three, Five, Seven, Nine, Eleven, Thirteen, and Seventeen; and
120 months on Count Fifteen, all to be served consecutively to one
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another. (Id., Docket No. 153 at 2). This Court also sentenced
Gantt to terms of supervised release of three years for some counts
and five years for others, all to run concurrent to one another, as
well as restitution totaling in excess of $120,000. (Id. at 3, 5).
Gantt appealed, arguing that: (1) under Federal Rule of Evidence
404(b), this Court should not have admitted modus operandi
evidence concerning previous bank robberies Gantt had
committed; (2) the unavailability of a particular surveillance tape
amounted to suppression of Brady material and violated his due
process rights; (3) his sentence was unreasonable in light of the
much shorter sentence (108 months) imposed on his cooperating
co-defendant, Johnson; and (4) the government engaged in
vindictive prosecution in violation of his due process rights by
adding multiple new charges in the second superseding indictment.
The Third Circuit rejected all of Gantt's contentions and affirmed
his convictions and sentence in their entirety in an opinion filed
May 10, 2010. See Taylor, 379 F. App’x 240. The Court of
Appeals issued its certified order in lieu of a formal mandate on
June 14, 2010. See Crim. No. 06-699, Docket No. 162. Gantt did
not file a petition for certiorari with the Supreme Court.
Instead, on October 17, 2011, Gantt filed a petition to vacate his
conviction under 28 U.S.C. § 2255 (the “First Petition”), arguing
that he received ineffective assistance of counsel because counsel:
(1) stipulated that the banks Gantt was charged with robbing were
FDIC-insured, a required element of the offense; (2) failed to
conduct a meaningful investigation, for instance by interviewing
bank employees and customers and other potential witnesses; (3)
failed to move for sequestration of the Government's witnesses; (4)
failed to conduct a reasonable investigation into the missing
surveillance tape discussed in his direct appeal; (5) failed to
properly prepare potential defense witnesses to testify; (6) failed to
file a motion in limine to object to the modus operandi evidence
discussed in his direct appeal; (7) failed to seek a government
investigator's handwritten notes; and (8) poorly advised the
defendant not to testify on his own behalf. (See Civ. No. 11-6191,
Docket No. 1 at 3-7).
Because Gantt filed his petition more than a year after his
judgment of conviction became final, the Government moved to
dismiss it as untimely, and this Court granted that motion on
November 18, 2014. (Id., Docket Nos. 4, 7, 9). See also Gantt v.
United States, 2014 WL 6471478 (D.N.J. Nov. 18, 2014) (this
Court's decision dismissing the First Petition as untimely). As we
explained, Gantt's conviction became final on September 14, 2010,
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90 days after his appeal was formally dismissed. “Thus his petition
would be timely [if filed] one year from that date under [28
U.S.C.] § 2255(f)(1).” Gantt, 2014 WL 6471478, at *3. We
rejected Gantt's argument that his petition was timely on the
grounds that the Government had impeded his timely filing, id.,
and that he was entitled to equitable tolling, id. at *4-5. Thus, the
Court found that Gantt had missed the statutory deadline to file his
§ 2255 petition by just over a month (September 14, 2011 to
October 17, 2011) and dismissed the petition as untimely.
On June 22, 2016, through counsel, Gantt filed a second or
successive § 2255 petition (the “Second Petition”) based on the
then-recent case of Johnson v. United States, 135 S. Ct. 2551 (June
26, 2015), arguing that Gantt's convictions under § 924(c) must be
dismissed because the jury may have found the underlying
offenses to be crimes of violence under the “residual” clause,
which Johnson had invalidated. The Second Petition also argued
that the Court's finding at sentencing that Gantt was a career
offender was also incorrect in light of Johnson. (See Civ. No. 163671, Docket No. 1 (also docketed at Crim. No. 06-699, Docket
No. 170) at 2). In March 2019, this Court ordered the Second
Petition stayed while the Third Circuit considered whether to grant
petitioner leave to file a second or successive petition. Civ. No. 163671, Docket No. 7. In August 2019, the Third Circuit did so, and
this Court reopened the Second Petition. Id., Docket No. 8.
The Government answered the Second Petition, id., Docket No. 11,
but emerging case law made clear that Gantt's argument that
Johnson entitled him to relief was meritless. Accordingly, on
September 8, 2020, Gantt withdrew his Second Petition through
counsel, stating that “significant developments in the law since
filing his motion for relief under 28 U.S.C. § 2255” established
that “[b]oth of [Gantt's] claims for relief are foreclosed by Third
Circuit precedent.” (Id., Docket No. 14 (citing United States v.
Johnson, 899 F.3d 191, 202-04 (3d Cir. 2018), which held “that
armed bank robbery is categorically a crime of violence under §
924(c)’s elements clause”; and Beckles v. United States, 137 S. Ct.
886, 897 (2017), and United States v. Folk, 954 F.3d 597, 601 (3d
Cir. 2020), which held that “a challenge to a career-offender
designation under the advisory Sentencing Guidelines is not
cognizable under § 2255”)). This Court granted the request to
withdraw the Second Petition on September 10, 2020. (Id., Docket
No. 15). In contrast, Gantt's co-defendant, Kevin Taylor, did not
withdraw his own petition that argued his § 924(c) convictions
must be vacated based on Johnson, and this Court denied that
petition on the merits and declined to issue a certificate of
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appealability. Taylor v. United States, 2021 WL 4472990 (D.N.J.
Sept. 27, 2021).
Meanwhile, even while his Second Petition was still pending,
petitioner had begun making new pro se filings under the present
case number—that of his First Petition. On June 26, 2020, he filed
a Supplemental Memorandum of Facts and Law, arguing (1) the
Government had failed to prove the essential element of the
offense of bank robbery that the banks had been FDIC-insured, (2)
the Government's expert witness should not have been allowed to
testify on the grounds that it had provided inadequate expert
disclosure, and (3) the modus operandi evidence whose admission
the Third Circuit had affirmed in 2010 was infirm because a video
regarding an earlier conviction was shown to the jury. (Civ. No.
11-6191, Docket No. 11 at 2-6). In support of his first contention,
Gantt attached a series of letters from the FDIC dated five years
earlier, September 18, 2015, apparently in response to FOIA
requests Gantt had sent. (Id. at 7-18). The FDIC's letters confirmed
that the FDIC indeed insured the deposits of each bank branch
Gantt was convicted of robbing, but also explained that “FDIC
deposit insurance does not cover losses caused to a financial
institution by robbery.” (See, e.g., id. at 7, 8).
On August 3, 2020, Gantt filed a Motion for a Writ of Mandamus
and Motion for Evidentiary Hearing. (Docket Nos. 12 and 13). In
these documents, Gantt urged the Court to act on petitioner's
claims.
Approximately a month after Gantt had, through counsel,
withdrawn his Second Petition in Civ. No. 16-3671, Gantt filed pro
se under Civ. No. 11-6191 a document styled a “Second or
Successive Motion to Correct Sentence Pursuant to 28 U.S.C.
2255.” (Docket No. 14, Oct. 16, 2020). He argued that counsel had
withdrawn his Second Petition without his consent and sought to
revive those arguments. Gantt also argued that his sentence on his
conspiracy conviction exceeded the statutory maximum.
In the summer and fall of 2021, Gantt made several additional
filings under the present case number. On July 23, 2021, he filed a
Motion to Activate § 2243 Habeas Copus [sic] (Docket No. 15),
urging the Court to grant his previous motions or order the
Government to respond promptly. On August 23, 2021, he filed a
Second Request for Production of Documents (Docket No. 16),
which appears to be seeking from the Government proof that the
banks Gantt was convicted of robbing were FDIC-insured. On
September 14, 2021, he filed a Motion for Evidentiary Hearing
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(seeking a hearing on his claims) (Docket No. 17); a Motion to
Compel Disclosure or Discovery (seeking discovery from the
Government under Fed. R. Civ. P. 37) (Docket No. 18); and a
document entitled “Issues of concern filed under § 2255” (Docket
No. 19). In that document, Gantt again raised the issues of the
FDIC insurance and a purported Confrontation Clause violation
arising from the use of a videotape to present F.R.E. 404(b) modus
operandi evidence to the jury. Gantt asked the Court to hold an
evidentiary hearing and/or in camera evidentiary review. Docket
No. 19 at 1-2.
In summary, Gantt appears to make a total of five substantive
arguments within Docket Nos. 12-18. Of those, (1) his argument
about modus operandi evidence under F.R.E. 404(b) was already
made in his appeal and his First Petition (in the context of an
ineffective assistance of counsel claim); (2) his argument about
FDIC insurance was already made in his First Petition (in the
context of an ineffective assistance of counsel claim); (3) his
argument that his § 924(c) convictions are infirm under Johnson
and Davis was already made in his Second Petition; and (4) he had
not previously asserted his arguments about inadequate expert
disclosure and an allegedly excessive sentence on his conspiracy
conviction.
United States v. Gantt, No. 11-6191, 2022 WL 1261528, at *1–4 (D.N.J. Apr. 28, 2022).
This Court then denied Petitioner’s pending motions in this action in an April 28, 2022
opinion and order. See id. at *4-5. First, this Court noted that Petitioner’s § 2255 motions are
untimely. See Gantt, 2022 WL 1261528, at *4. Second, this Court noted that even if Petitioner’s
§ 2255 motions were timely, they would be considered unauthorized second or successive §
22255 motions. See Gantt, 2022 WL 1262528, at *4-5.
On June 8, 2022, Petitioner sought permission from the United States Court of Appeals for
the Third Circuit to file a Federal Rule of Civil Procedure 60(b) and/or a second or successive §
2255 motion. (See 3d Cir. C.A. 22-2080, Dkt. No. 1-1). In that request before the Third Circuit,
Petitioner stated that he sought to challenge his convictions under 18 U.S.C. § 924(c) and his status
as a career offender because both are unconstitutionally vague pursuant to Johnson v. United

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States, 576 U.S. 571 (2015). (See 3d Cir. C.A. 22-2080, Dkt. No. 1-1 at 2). On July 19, 2022, the
Third Circuit denied Petitioner’s request to file a second or successive § 2255 motion, but stated
it expressed no opinion on the merits of any Rule 60(b) motion Petitioner might file in this Court.
(See 3d Cir. C.A. 22-2080, Dkt. No. 7).
Petitioner then filed a motion to restore/refile in this action on August 5, 2022. (See ECF
28). 1 Petitioner’s motion to restore/refile requested “permission to resubmit the Johnson’s
motion that was withdrawn without consent” and asked the Court “to allow . . . an opportunity to
consider the merits of his application.” (ECF 28 at 4). This Court construed that motion as a
motion filed pursuant to Federal Rule of Civil Procedure 60(b) as seeking relief from a final
order or judgment. (See ECF 29 at 1). Ultimately, on July 10, 2023, this Court denied the motion
noting that it had not been filed within a reasonable time. (See id. at 2-3).
Petitioner then filed a notice of appeal. (See ECF 30). On July 31, 2023, this Court
granted a certificate of appealability (“COA”) on whether Petitioner’s motion to restore/refile
should have bene granted. (See ECF 33). In so ruling, this Court stated “that a COA should issue
in this case because we denied the habeas petition on procedural grounds without reaching the
prisoner’s underlying constitutional claim, and jurists of reason could find it debatable whether
the petition states a valid claim of the denial of a constitutional right[.]” (Id. at 2).
On August 3, 2023, Petitioner then filed a motion for jury instruction and sentencing
hearing transcripts. (See ECF 35). This Court then received Petitioner’s $505.00 filing fee for his
appeal. On August 21, 2023, Petitioner sought a refund of his $505.00 filing fee. (See ECF 37).
Before describing that motion, this Court must first address a bookkeeping matter. As
Respondent notes, this motion to restore/refile should have been filed/docketed in Petitioner’s
2016 § 2255 motion, No. 16-3671 as it relates to the claims Petitioner raised in that § 2255
motion. This Court agrees and will have that motion (along with all subsequent documents filed
in this action – as they all flow from that motion – in Petitioner’s 2016 § 2255 action along with
this opinion and accompanying order.
1

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Petitioner attached a notice from the United States Court of Appeals for the Third Circuit which
noted that a filing fee for his notice of appeal was not necessary given Petitioner had been
awarded in forma pauperis status in his underlying criminal matter. (See ECF 37 at 2). The Third
Circuit stated that Petitioner should seek a refund for that filing fee from this Court.
On August 27, 2023, Respondent filed a letter requesting reconsideration of this Court’s
grant of a COA on the issue of whether Petitioner’s motion to restore/refile should have been
granted. (See ECF 39). Respondent argues that a COA should not issue because jurists of reason
would not debate that Petitioner failed to state a valid claim of the denial of a constitutional right.
(See id. at 2-3). Petitioner opposes Respondent’s request for reconsideration of this Court’s prior
grant of a COA. (See ECF 40). The Third Circuit stayed Petitioner’s appeal pending this Court’s
resolution of Respondent’s request for reconsideration on the grant of a COA. (See ECF 41).
III.

LEGAL STANDARD
Local Civil Rule 7.1 allows a party to seek a motion for re-argument or reconsideration of

“matter[s] or controlling decisions which the party believes the Judge or Magistrate Judge has
overlooked. . . .” Local Civ. R. 7.1(i). Whether to grant a motion for reconsideration is a matter
within the Court's discretion, but it should only be granted where such facts or legal authority
were indeed presented but overlooked. See BeLong v. Raymond Int't Inc., 622 F.2d 1135, 1140
(3d Cir. 1980), overruled on other grounds by Croker v. Boeing Co., 662 F.2d 975 (3d Cir.
1981); see also Williams v. Sullivan, 818 F. Supp. 92, 93 (D.N.J. 1993). Federal Rule of Civil
Procedure 59(e) provides that a motion for reconsideration be filed no later than twenty-eight
(28) days after the entry of the judgment.
To prevail on a motion for reconsideration, the movant must show: “(1) an intervening
change in the controlling law; (2) the availability of new evidence that was not available when

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the court ... [rendered the judgment in question]; or (3) the need to correct a clear error of law or
fact or to prevent manifest injustice.” U.S. ex rel. Shumann v. Astrazeneca Pharm. L.P., 769 F.3d
837, 848-49 (3d Cir. 2014) (citing Max's Seafood Cafe ex rel. Lou–Ann, Inc. v. Quinteros, 176
F.3d 669, 677 (3d Cir. 1999)). The standard of review involved in a motion for reconsideration is
high and relief is to be granted sparingly. See United States v. Jones, 158 F.R.D. 309, 314
(D.N.J. 1994). Mere disagreement with the Court's decision is not a basis for reconsideration. See
United States v. Compaction Sys. Corp., 88 F. Supp. 2d 339, 345 (D.N.J. 1999).
IV.

DISCUSSION
Respondent seeks reconsideration on this Court’s grant of a COA on whether Petitioner’s

motion to restore/refile was properly denied by this Court. Pursuant to 28 U.S.C. § 2253(c),
unless a circuit justice or judge issues a COA, an appeal may not be taken from a final order in a
proceeding under 28 U.S.C. § 2255. A certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could
disagree with the district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed further.” MillerEl v. Cockrell, 537 U.S. 322, 327 (2003). In Slack v. McDaniel, 529 U.S. 473, 484 (2000), the
United States Supreme Court held: “[w]hen the district court denies a habeas petition on
procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA
should issue when the prisoner shows, at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was correct in its procedural ruling.” Id.

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In this case, Respondent requests this Court to revisit the COA grant arguing that
Petitioner has failed to state a valid claim of the denial of a constitutional right. For the following
reasons, this Court agrees with Respondent such that their request for reconsideration will be
granted as Petitioner fails to show that either of this claims that he seeks this Court to
restore/refile state a valid claim of the denial of a constitutional right.
A. Claim I
As detailed supra, Petitioner’s first substantive claim is that his convictions under 18
U.S.C. § 924(c) are invalid because his underlying predicate convictions do not constitute
“crimes of violence,” under that statute. Section 924(c) of Title 18 of the United States Code
makes it a crime for any person who uses or carries a firearm during and in relation to any crime
of violence or drug trafficking crime. See 18 U.S.C. § 924(c)(1)(A). A crime of violence under
the statute is defined as an offense that is a felony and that “(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).
Subsection (A) is commonly referred to as the “elements clause” and subsection (B) is
commonly referred to as the “residual clause.” In United States v. Davis, 139 S. Ct. 2319 (2015),
the United States Supreme Court held the residual clause, § 924(c)(3)(B), was unconstitutionally
vague. However, Davis left the elements clause intact. Thus, moving forward, an offense can still
be a “crime of violence” within the meaning of the statute if it meets the definition contained in
the elements clause, § 924(c)(3)(A).
Petitioner’s argument that his § 924(c) convictions are invalid is incorrect. As previously
noted, Petitioner was convicted of several counts of armed bank robbery in violation of 18

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U.S.C. § 2113(d). In United States v. Johnson, 899 F.3d 191, 204 (3d Cir. 2018), the United
States Court of Appeals for the Third Circuit found that armed bank robbery under § 2113(d)
does qualify as a crime of violence. First, the Third Circuit observed that § 2113(d) provides
penalties for a person who “in committing . . . any offense defined in subsections (a) and (b) of
this section, assaults any person, or puts in jeopardy the life of any person by the use of a
dangerous weapon or device.” Id. at 203–04. Then, the Court reasoned that “assault[ing]
someone or putting a life in jeopardy . . . by the use of a dangerous weapon,” satisfies the
elements clause because it “has as an element the use, attempted use, or threatened use of
physical force.” Id. at 204 (alteration in original) (quoting § 924(c)(3)(A)) (internal quotation
marks omitted). Ultimately, the Third Circuit concluded that one “cannot assault a person, or
jeopardize his or her life with a dangerous weapon, unless one uses, attempts to use, or threatens
physical force.” Id. Accordingly, the Third Circuit found that armed bank robbery under §
2113(d) is categorically a crime of violence under the elements clause of § 924(c). See Johnson,
899 F.3d at 204.
Petitioner's convictions for armed bank robbery remain valid predicates for his § 924(c)
convictions. Thus, Petitioner fails to show that he has alleged a denial of a constitutional right
with respect to his first § 2255 claim in his motion to restore/reopen.
B. Claim 2
Petitioner’s second claim in his motion to refile/restore was that he should no longer be
considered a “career offender” under the United States Sentencing Guidelines because it has a
similar residual clause in § 924(c) that was previously found unconstitutionally vague. Following
Johnson, the United States Supreme Court has held that the advisory Sentencing Guidelines are
not subject to void for vagueness challenges. See Beckles v. United States, 137 S. Ct. 886, 897

11

(2017); see also United States v. Folk, 954 F.3d 597, 601 (3d Cir. 2020) (holding that purported
incorrect career offender designation claim under the advisory Sentencing Guidelines is not
cognizable under § 2255). Thus, Petitioner fails to allege a denial of a constitutional right with
respect to the second claim raised in his motion to restore/refile.
Given that Petitioner failed to allege a denial of a constitutional right, he is not entitled to
a COA as jurists of reason would not debate this finding. Accordingly, Respondent’s request for
reconsideration is granted. This Court’s previous grant of a certificate of appealability will be
vacated and a certificate of appealability shall no longer issue in this case.
C. Motion for Refund of Fees
Petitioner seeks the refund of his appeal filing fee. This motion will be granted. The
Third Circuit has indicated that a filing fee for that appeal was not due in this matter as Petitioner
received indigency status in his underlying criminal case. (See ECF 37 at 2). Thus, Petitioner’s
motion will be granted. The Clerk will be ordered to refund Petitioner’s filing fee on his notice of
appeal.
D. Motion for Jury Instruction and Sentencing Transcripts
Petitioner has also filed a motion for jury instruction and sentencing hearing transcripts.
Given that a COA has now been denied by this Court as Petitioner fails to state the denial of a
constitutional right on either of his claims, this motion will be denied as there is no longer
anything pending before this Court. Petitioner though is free to seek such transcripts from the
Third Circuit should he elect to file a request for a COA from that Court.
V.

CONCLUSION
For the foregoing reasons, Respondent’s request for reconsideration is granted. This

Court’s prior order granting Petitioner a certificate of appealability is vacated and a certificate of

12

appealability shall not issue. Petitioner’s motion for a refund of fees for his appeal is granted.
Petitioner’s motion for jury instruction and sentencing hearing transcripts is denied without
prejudice. An appropriate order will be entered.

DATED: December 5, 2023

s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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