Uribe v. Smith
Filing
15
ORDER MEMORANDUM AND OPINION. For the reasons stated herein, the Court finds that the petitioner has demonstrated no basis for habeas relief under 28 U.S.C. § 2254. Therefore, the petition for a writ of habeas corpus is denied. The Clerk of the Court shall close this case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 7/27/2017. Copy of Memorandum & Opinion mailed to plaintiff on 7/27/2017. (Consalvo, Mikayla)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 15-CV-2312 (JFB)
_____________________
JUAN CARLOS URIBE,
Petitioner,
VERSUS
BRANDON SMITH,
SUPERINTENDENT, GREENE C.F.,
Respondent.
___________________
MEMORANDUM AND ORDER
July 27, 2017
___________________
JOSEPH F. BIANCO, District Judge:
V.T.L. (“V.T.L.”) § 1212), driving while
ability impaired by the combined influence of
drugs or of alcohol and any drug or drugs
(V.T.L. § 1192(4-a)), and speeding (V.T.L. §
1180(d)). 1 (Sentencing Tr., ECF No. 7-4 at
17-18.)
On April 5, 2015, petitioner Juan Carlos
Uribe (“petitioner”) petitioned this Court for
a writ of habeas corpus, pursuant to 28 U.S.C.
§ 2254, challenging his arrest and indictment
for vehicular manslaughter in the second
degree. (Pet. for Habeas Corpus (“Pet.”),
ECF No. 1.) Petitioner was found guilty of
vehicular manslaughter in the second degree
(N.Y. Penal Law (“Penal Law”) § 125.12),
reckless endangerment in the second degree
(Penal Law § 120.20), reckless driving (N.Y.
In this habeas petition, petitioner
challenges his conviction of vehicular
manslaughter in the second degree on the
ground that the evidence was legally
insufficient to establish his guilt for that
charge. (Pet. 7.) 2
1
Petitioner was acquitted of manslaughter in the
second degree (Penal Law § 125.15(1)), criminal
negligence (Penal Law § 125.10), driving while ability
impaired by drugs (V.T.L. § 1192(4)), and two counts
of assault in the third degree (Penal Law § 120.00(2)).
2
Although petitioner is no longer incarcerated (see
ECF Nos. 11, 13), petitioner is still “in custody,” as
required for habeas relief, because he is under
supervised release, which constrains his freedom.
(Response to Court’s Order, ECF. No. 14, at 1.) He is
1
I. BACKGROUND
is no evidence that the lights in and on the taxi
went out as well. (Id.)
A. Factual Background
After a few more seconds, nineteen-yearold Pietro Gaudesi (“Gaudesi”) came down
the road on a motorcycle. (Tr. Testimony
Peter Lake (“Lake T.”), ECF No. 7-2, at 66.)
Gaudesi slammed into the SUV “straight as a
pin” while going at about the speed limit.
(Mazzola at 409-10.) Upon impact, Gaudesi
was launched over the SUV. (Id. at 409.) All
of this occurred within fifteen seconds of the
initial accident. (Id. at 415.)
The following facts are adduced from the
petition and documents attached thereto, as
well as from the state court and appellate
record.
At approximately 2:20 a.m. on May 1,
2010, petitioner was travelling northbound
on Glen Cove Road. (Tr. Testimony John
Lapine (“Lapine T.”), ECF No. 7-2, at 218.) 3
Petitioner was driving his black Nissan
Murano, an SUV, at or above 70 miles per
hour. (Id. at 216.) The road was “very dark”
or “jet black dark” with only one weak light
at the end of the street. (Tr. Testimony Gary
Ferrucci (“Ferrucci T.”), ECF No. 7-2, at
321; Tr. Testimony David Mazzola
(“Mazzola T.”), ECF No. 7-2, at 408.)
Witness David Mazzola (“Mazzola”)
testified that he was going 53 miles per hour
and that petitioner, who was going
approximately 70 miles per hour, passed him
at a quick pace. (Id. at 403.)
The Emergency Medical Services
(“EMS”) arrived at the scene of the crime at
around 2:30 a.m. (Tr. Testimony Jeffrey
Matthews (“Matthews T.”), ECF No. 7-2, at
146.) Detective Ferrucci (“Ferrucci”) found
Gaudesi lying prone and face down on the
street. (Ferrucci T. 323.) Gaudesi was
pronounced dead at 2:30 a.m. (Id. at 324.)
Deputy Medical Examiner Brian O’Reilly
(“Examiner O’Reilly”) testified that Gaudesi
suffered “multiple blunt force injuries,”
which included, inter alia, extensive injuries
to his head, a significant laceration of his
right lung, and right chest cavity. (Tr.
Testimony Brian O’Reilly (“O’Reilly T.”),
ECF No. 7-3, at 516.) Examiner O’Reilly
testified that the injuries to Gaudesi were
consistent with a motor vehicle accident
being the cause of death. (Id. at 517.) There
were also trace amounts of hydrocodone and
diehydrocodeine, two narcotics, found in
Gaudesi’s urine. (Id. at 520.) Significantly,
the fact that the hydrocodone was found in his
urine indicated that it was no longer actively
affecting him at the time of the crime. (Id.)
Petitioner did not swerve or attempt to
break before crashing straight into a tree. (Id.
at 403-04.) Petitioner was driving at a speed
significant enough for his SUV to bounce off
the tree and block traffic in the southbound
lane on Glen Cove Road. (Id. at 404.) All of
the lights in and on the vehicle went out,
which made the vehicle nearly invisible to
oncoming vehicles. (Id. at 403.) Despite the
efforts of Mazzola, who had stopped beside
the crash site to assist and to signal to
oncoming cars about the crash, a taxi came
upon the scene seconds after petitioner’s
vehicle crashed, and the taxi crashed into
petitioner’s disabled SUV. (Id. at 404.) The
SUV moved a “little bit,” and it was even
harder to see for oncoming cars. (Id.) There
Ambulance medical technician Jeffrey
Matthews (“Matthews”) testified that he
“definitely” smelled a stench of alcohol
coming from petitioner. (Matthews T. 148.)
currently receiving drug treatment for violation of his
parole. (Id. at 1-2.)
3
2
Citations to “T.” refer to the trial court transcript.
driving, was found to be at the “high end” of
therapeutic levels. (Id. at 568.) Moreover,
when hydrocodone is combined with alcohol,
it has an “additive effect” on the individual.
(Id. at 569.)
Petitioner also had “heavily” slurred speech
and was jumbling his words. (Id.) Officer
Michael Marotta (“Marotta”) testified that
petitioner had bloodshot, glassy eyes and
seemed “a little out of it.” (Tr. Testimony
Michael Marotta (“Marotta T.”), ECF No. 72, at 93.) Later that morning, at 4:25 a.m.,
petitioner’s blood was taken in North Shore
University Hospital by hospital staff. (Tr.
Testimony Frank Kassell (“Kassell T.”), ECF
No. 7-2, at 306.) The blood sample results
revealed 0.02 of one per centum by weight of
alcohol in petitioner’s blood. (Id.) Doctor
William Closson testified that the blood
alcohol content (“BAC”) likely in
petitioner’s body at the time of the crash was
0.05 to 0.06. (Tr. Testimony William Closson
(“Closson T.”), ECF No. 7-3, at 570.)
The Nissan Murano that petitioner was
driving was found to have no defects to
suggest that the crash was caused from
anything else but petitioner’s actions.
(Kassell T. 233.) There was no evidence that
petitioner was struck by another car prior to
the crash, as he claimed, nor that any object
or animal caused him to crash. (Mazzola T.
403-04; O’Reilly T. 517.)
Petitioner was convicted by a jury of
vehicular manslaughter in the second degree
(Penal Law § 125.12), reckless endangerment
in the second degree (Penal Law § 120.20),
reckless driving (V.T.L. § 1212), driving
while ability impaired by the combined
influence of drugs or of alcohol and any drug
or drugs (V.T.L. § 1192(4-a)), and speeding
(V.T.L. § 1180(d)), and sentenced on January
30, 2012 (Pet. 1). Following his conviction,
petitioner appealed to the New York
Supreme Court, Appellate Division, Second
Department, on the following grounds: (1)
there was insufficient evidence to establish
petitioner’s guilt for vehicular manslaughter
in the second degree beyond a reasonable
doubt; (2) the verdict of guilty for vehicular
manslaughter in the second degree was
against the weight of the evidence; and (3) the
trial court erred in its original charge with
respect to the definition of “cause of death.”
The Appellate Division affirmed petitioner’s
conviction on September 11, 2013. See
People v. Uribe, 109 A.D.3d 844 (N.Y. App.
Div. 2013). The New York Court of Appeals
denied petitioner’s motion for leave to appeal
on May 29, 2014. See People v. Uribe, 23
N.Y.3d 969 (2014).
Having twice refused to give permission
to the police to have his blood tested,
petitioner was required by a court order to
submit to a blood test. (Marotta T. 101-02.)
His blood was drawn at 5:58 a.m. on May 1,
2010 by the Police Department. (Id. at 102.)
The results of that blood test showed 47
MG/ML of Tramadol, 43 MG/ML
hydrocodone, 8.5 MG/ML cyclobenzaprine,
less than 0.10 MG/ML of trazodone, and his
BAC to be 0.00. (Parties’ Stipulation, Trial
Tr. 306.) As of 5:58 a.m., the drugs found in
his system were within therapeutic limit. (Id.)
Each of the drugs found in petitioner’s
body has a half life, which refers to the
amount of time it takes for a drug to be
reduced by one half. (Closson T., ECF No. 73, at 566.) Since most of the drugs and the
alcohol found in petitioner’s system had an
“additive effect,” in which the effects are
intensified by mixing with one another, it was
found that petitioner was under the combined
influence of these drugs and alcohol when
driving. (Id. at 574.)
The hydrocodone, which affects the
central nervous system and can impair
3
B. Procedural History
28 U.S.C. § 2254(d). “‘Clearly established
Federal law means ‘the holdings, as opposed
to the dicta, of [the Supreme] Court’s
decisions as of the time of the time of the
relevant state-court decision.’” Green v.
Travis, 414 F.3d 288, 296 (2d Cir. 2005)
(quoting Williams v. Taylor, 529 U.S. 362,
412 (2000)).
Petitioner filed a pro se petition for writ
of habeas corpus on April 5, 2015. Petitioner
challenges his conviction on the ground that
the evidence was legally insufficient to
establish his guilt of vehicular manslaughter
in the second degree. (Pet. 6.) Respondent
filed a memorandum of law in opposition on
July 22, 2015. (Resp.’s Mem. Opp’n Writ
Habeas Corpus (“Resp.’s Br.”) ECF No. 7.)
Petitioner submitted a reply to the opposition
on October 8, 2015. (Pet.’s Mem. Reply
Supp. Writ Habeas Corpus (“Pet.’s Reply
Br.”), ECF No. 10.) This matter is fully
submitted, and the Court has fully considered
the submissions of the parties.
A decision is “contrary to” clearly
established federal law, as determined by the
Supreme Court, “if the state court arrives at a
conclusion opposite to that reached by [the
Supreme Court] on a question of law” or “if
the state court decides a case differently than
[the Supreme Court] has on a set of materially
indistinguishable facts.” Williams, 529 U.S.
at 412-13. A decision is an “unreasonable
application” of clearly established federal
law if a state court “identifies the correct
governing legal principle from [the Supreme
Court’s] decisions but unreasonably applies
that principle to the facts of [a] petitioner’s
case.” Id. at 413.
II. STANDARD OF REVIEW
To determine whether a petitioner is
entitled to a writ of habeas corpus, a federal
court is required to apply the standard of
review set forth in 28 U.S.C. § 2254, as
amended by the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), which states,
in relevant part,
AEDPA establishes a deferential
standard of review: “a federal habeas court
may not issue the writ simply because that
court concludes in its independent judgment
that the relevant state-court decision applied
clearly established federal law erroneously or
incorrectly. Rather that application must also
be unreasonable.” Gilchrist v. O’Keefe, 260
F.3d 87, 93 (2d Cir. 2001) (quoting Williams,
529 U.S. at 411). Additionally, while “[s]ome
increment of incorrectness beyond error is
required . . . the increment need not be great;
otherwise, habeas relief would be limited to
state court decisions so far off the mark as to
suggest judicial incompetence.” Gilchrist,
260 F.3d at 93 (quoting Francis S. v. Stone,
221 F.3d 100, 111 (2d Cir. 2000)). Finally, “if
the federal claim was not adjudicated on the
merits, ‘AEDPA deference is not required,
and conclusions of law and mixed findings of
fact . . . are reviewed de novo.’” Dolphy v.
Mantello, 552 F.3d 236, 238 (2d Cir. 2009)
(d) An application for a writ of habeas
corpus on behalf if a person in custody
pursuant to the judgment of a State court
shall not be granted with respect to any
claim that was adjudicated on the merits
in State court proceedings unless the
adjudication of the claim—
(1) resulted in a decision that was
contrary to, or involved an unreasonable
application of, clearly established Federal
law, as determined by the Supreme Court
of the United States; or
(2) resulted in a decision that was based
on an unreasonable determination of the
facts in light of the evidence presented in
the State court proceedings.
4
(quoting Spears v. Greiner, 459 F.3d 200,
203 (2d Cir. 2006)).
66 (2d Cir. 1994) (quoting Jackson, 443 U.S.
at 326).
III. DISCUSSION
When considering the sufficiency of the
evidence of a state conviction, “[a] federal
court must look to state law to determine the
elements of the crime.” Quartararo
v.
Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999).
Accordingly, in this case, the Court looks to
New York law for the elements of vehicular
manslaughter in the second degree. Under the
pertinent New York law, “[a] person is guilty
of vehicular manslaughter in the second
degree when he or she causes the death of
another person, and operates a motor vehicle
. . . and as a result of . . . the combined
influence of drugs or of alcohol and any drug
or drugs, operates such motor vehicle . . . in a
manner that causes the death of [an]other
person.” Penal Law § 125.12(1). “Combined
influence of drugs or alcohol” means that
“the person’s ability to operate such motor
vehicle is impaired by the combined
influence of drugs or of alcohol and any drug
or drugs.” V.T.L. § 1192(4-a). When a
defendant’s conduct is the actual cause of
death of another and that defendant is found
to have been operating a motor vehicle while
intoxicated or impaired, a “rebuttable
presumption [arises] that, as a result of . . .
[the] combined influence of drugs or of
alcohol and any drug or drugs, such person
operated the motor vehicle . . . in a manner
that caused such death . . .” Penal Law §
125.12. Once a rebuttable presumption
arises, where there is a rational way for the
factfinder to conclude that petitioner’s
intoxication led him to operate the vehicle in
a way that resulted in another person’s death,
a jury can presume that a defendant driving
while intoxicated caused the death. People v.
Drouin, 115 A.D.3d 1153, 1154 (N.Y. Sup.
Ct. 2014). For example, in People v. Stickler,
a passenger struck his head and died after
falling out of a car driven by a drunk driver
who had briefly lost control of the car and
swerved. People v. Stickler, 97 A.D.3d 854,
Petitioner challenges his conviction on
the ground that the evidence was legally
insufficient to establish his guilt of vehicular
manslaughter in the second degree. For the
following reasons, this Court concludes that
petitioner’s claim is without merit and denies
the petition in its entirety.
A. Applicable Law
The law governing habeas relief on
grounds of insufficiency of the evidence is
well-established. A petitioner bears a “very
heavy burden” when challenging the legal
sufficiency of the evidence in a state criminal
conviction. Einaugler v. Supreme Court of
State of N.Y., 109 F.3d 836, 840 (2d Cir.
1997). If, “after viewing the evidence in the
light most favorable to the prosecution, any
rational trier of facts could have found the
essential elements of the crime beyond a
reasonable doubt,” a criminal conviction in
state court will not be reversed. Jackson v.
Virginia, 443 U.S. 307, 319 (1979) (emphasis
in original); see e.g. Flowers v. Fisher, 296 F.
App’x 208, 210 (2d Cir. 2008) (summary
order); Policano v. Herbert, 507 F.3d 111,
115-16 (2d Cir. 2007); Ponnapula v. Spitzer,
297 F.3d 172, 179 (2d Cir. 2002). A criminal
conviction will stand so long as “a reasonable
mind ‘might fairly conclude guilt beyond a
reasonable doubt.’” United States v. Strauss,
999 F.2d 692, 696 (2d Cir. 1993) (quoting
United States v. Mariani, 725 F.2d 862, 865
(2d Cir. 1984)). Even when “faced with a
record of historical facts that supports
conflicting inferences [a court] must
presume—even if it does not affirmatively
appear on the record—that the trier of fact
resolves any such conflicts in favor of the
prosecution, and must defer to that
resolution.” Wheel v. Robinson, 34 F.3d 60,
5
prosecution, the Court concludes that a
rational trier of fact could have found the
essential elements of the crime of vehicular
manslaughter in the second degree beyond a
reasonable doubt, and, thus, there is no
ground for habeas relief with respect to
petitioner’s conviction. See Jackson, 443
U.S. at 319.
854-55 (N.Y. Sup. Ct. 2012). Upholding the
conviction, the Appellate Division reasoned
that the evidence that defendant was
intoxicated and was operating a vehicle gave
rise to a rebuttable presumption that his
intoxicated driving caused the events that led
to the other man’s death. Id. at 856. The court
went on to conclude that this presumption
allowed a rational juror to conclude that
defendant’s intoxicated driving was the cause
the other man’s death, even if the manner of
death was not foreseeable and the other man
played a role in his own demise. Id.; see, e.g.
Drouin, 115 A.D. at 1154; People v. Rosado,
168 A.D.2d 579 (N.Y. Sup. Ct. 1990); People
v. Gallo, 133 A.D.3d 1088 (N.Y. Sup. Ct.
2015); People v. Davis, 112 A.D.3d 959
(N.Y. Sup. Ct. 2013).
Strong evidence was presented at trial
establishing petitioner “cause[d] the death of
[Gaudesi],” and that he was “operat[ing] a
motor vehicle . . . [and] as a result of [his]
intoxication or impairment by the use of []
alcohol and any drug or drugs, operate[d]
such motor vehicle . . . in a manner that
cause[d] the death of [Gaudesi].” Penal Law
§ 125.12(1). The trial record establishes, and,
petitioner does not dispute, that he drove the
SUV himself, that he was impaired when he
drove the SUV, and that his collision with a
tree started a chain of events that led to the
death of Gaudesi. (See Marotta T. 91
(petitioner admits he drove vehicle); id. at 93
(petitioner smelled like alcohol immediately
after the accident and had glassy, bloodshot
eyes); Mazzola T. 403-05 (petitioner drove
into a tree without attempting to stop or
swerve, there was no malfunction in
petitioner’s vehicle that caused the crash, no
other vehicle hit the SUV before it crashed,
and there was no apparent material reason
that caused petitioner to swerve); Matthews
T. 520 (petitioner smelled like alcohol
immediately after the accident); Closson T.
568, 570 (testing indicated petitioner had a
BAC of at least 0.05 or 0.06 at time of
accident, there were several narcotic drugs in
his system, and there were “additive effects”
experienced by petitioner due to the
combination of these drugs); O’Reilly T. 517
(Gaudesi’s death was caused by collision
with petitioner’s SUV); Pet. 5-6 (petitioner
admits his operated the vehicle “under the
influence of a combination of drugs” and that
he was driving at a speed of 70 miles per hour
in a 40 miles per hour zone).) As such, there
More generally, causation has been found
in a variety of situations in the more general
criminal context. Indeed, it is well-settled law
in New York that an unbroken chain of events
caused by a defendant that leads to a victim’s
death establishes causation. People v.
DaCosta, 6 N.Y.3d 181, 184 (2006). In
DaCosta, for example, a police officer
chased a defendant onto a highway and the
police officer was struck and killed by a
driver. Id. at 183. In upholding the
conviction, the appellate court reasoned that
the defendant set in motion the chain of
events that caused the police officer’s death.
Id. at 185; see also Matter of Anthony M., 63
N.Y.2d 270 (1984) (causation established
where an elderly woman died of a heart attack
several days after an attempted robbery);
People v. Prue, 8 A.D.3d 894 (N.Y. Sup. Ct.
2004)
(causation
established
where
passenger choked on his own vomit after a
crash).
B. Analysis
After reviewing the petition and the
parties’ submissions, and viewing the
evidence in the light most favorable to the
6
at 1154; Rosado, 168 A.D.2d at 579. Thus,
the jury did not need to determine that
Gaudesi’s death was a reasonably foreseeable
in order to find him guilty.
was “a rebuttable presumption that, as a
result of [petitioner’s] impairment by the use
of alcohol or a drug . . . [he] operated the
motor vehicle . . . in a manner that caused
[Gaudesi’s] death.” Penal Law § 125(12)(3).
Moreover, it is irrelevant that Gaudesi
may have been able to avoid the crash by
using another lane or if he had not been
potentially under the influence of drugs
himself. The statute, which controls this
Court’s analysis, does not provide relief from
criminal liability due to the negligent or
reckless driving of another person, but
instead focuses solely on the impaired driver
and the effect he or she has on other drivers
through his or her own driving. See Penal
Law § 125.12. In other words, once the
relevant elements can be established by a
rational factfinder, what another driver could
have done differently is irrelevant. Whether
Gaudesi could have also stopped in time or
taken another route is thus not only
speculation, but it is irrelevant.
Because there was a rebuttable
presumption that causation existed, as a
matter of law, the jury could have presumed
that petitioner caused Gaudesi’s death so
long as there was a rational way for the
factfinder to conclude that petitioner’s
intoxication led him to operate the vehicle in
a way that resulted in another person’s death.
Drouin, 115 A.D.3d at 1154. The Court finds
that there was a rational way for the factfinder
to reach this conclusion. In particular, there
was evidence, including witness testimony,
that petitioner was driving over 70 miles per
hour when the speed limit was 40 miles per
hour, and that he drove through other lanes
without turning at a bend in the road.
(Mazzola T. 442; Lake T. 75; Marotta T. 89.)
It was rational for the jury to conclude, based
upon this information, that petitioner’s
intoxication led him to operate the vehicle in
this way, and that petitioner’s speeding and
failure to follow the bend resulted in
petitioner crashing the SUV, the taxi’s
subsequent collision with the SUV, and
Gaudesi’s subsequent collision with the
SUV, and, thus, ultimately, in Gaudesi’s
death.
Ultimately, it is plain that petitioner
operated a vehicle under the combined
influence of drugs and alcohol and the death
of Gaudesi resulted, a rebuttable presumption
of causation therefore arose, and there was a
rational way for the jury to conclude that
petitioner’s intoxication led him to operate
his SUV in a way resulting in that death. As
such, the jury was able to presume causation
as a matter of law. See Drouin, 115 A.D.3d at
1154. As in Stickler and other analogous
cases, although petitioner may not have
known exactly how a death would occur, and
there may have been acts outside of
petitioner’s control that contributed to the
ultimate death, those additional facts do not
impact petitioner’s criminal liability under
the circumstances. See Stickler, 97 A.D.3d at
854-55 (finding causation where passenger
fell out of car); DaCosta, 6 N.Y.3d at 184
(upholding conviction where police officer
chased defendant onto a highway and was
struck and killed by a car).
Despite this, petitioner argues that
causation could not be established because
Gaudesi’s death was not reasonably
foreseeable after the taxi pushed the SUV a
distance down the street, and that Gaudesi
could have avoided the accident by being
“reasonably prudent,” or alternatively, by
“driving in the right hand lane.” Pet. 6-a.
As a threshold matter, reasonable
foreseeability is not an element of vehicular
manslaughter in the second degree. See
Stickler, 97 A.D.3d at 856; Drouin, 115 A.D.
7
represented by Sarah M. Spatt, Nassau
County District Attorney’s Office, on behalf
of Madeline Singas, Nassau County District
Attorney, 262 Old Country Road, Mineola,
NY 11501.
Based on the foregoing, petitioner has
failed to meet his “very heavy burden” in
challenging the legal sufficiency of the
evidence supporting his conviction. See
Einaugler, 1098 F.3d at 840. Having viewed
the evidence in a light most favorable to the
prosecution, Jackson, 443 U.S. at 319, the
Court concludes that a rational trier of fact
could find beyond a reasonable doubt that
petitioner was guilty of vehicular
manslaughter in the second degree. Thus,
petitioner’s request for habeas relief is denied
in its entirety.
IV. CONCLUSION
For the foregoing reasons, the Court finds
that the petitioner has demonstrated no basis
for habeas relief under 28 U.S.C. § 2254.
Therefore, the petition for a writ of habeas
corpus is denied. Because petitioner has
failed to make a substantial showing of a
denial of constitutional right, no certificate of
appealability shall issue. See 28 U.S.C. §
2253(c)(2). The Court certifies pursuant to 28
U.S.C. § 1915(a)(3) that any appeal from this
Order would not be taken in good faith and
therefore in forma pauperis status is denied
for purpose of any appeal. See Coppedge v.
United States, 369 U.S. 438, 444-45 (1962).
The Clerk of the Court shall close this case.
SO ORDERED.
________________________
JOSEPH F. BIANCO
United States District Judge
Date:
July 27, 2017
Central Islip, NY
*
*
*
Petitioner is proceeding pro se, 7 Clement
Street Glen Cove, NY 11542. Respondent is
8
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