Palmer v. USA
Filing
6
OPINION AND ORDER: For the reasons set forth above, Palmer's motion is denied. Because Palmer has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C.§ 2253(c)(2); Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000). Pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies that any appeal from this Order would not be taken in good faith. See Coppedge v. UnitedStates, 369 U.S. 438, 445-46 (1962). SO ORDERED. (Signed by Judge Sidney H. Stein on 7/21/2015) (ama)
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 7/21/2015
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA
‐against‐
12‐Cr‐0712 (SHS)
14‐Cv‐9307 (SHS)
RICHARD PALMER,
Defendant.
OPINION & ORDER
SIDNEY H. STEIN, U.S. District Judge.
Richard Palmer brings this motion pursuant to 28 U.S.C. § 2255 to
vacate, set aside, or correct his sentence. Because Palmer has waived his
right to collaterally attack his sentence and because his claims fail on the
merits, Palmer’s motion is denied.
I.
BACKGROUND
Palmer was charged in an indictment with one count of conspiring to
distribute and possess with intent to distribute (1) five kilograms and more
of cocaine, in violation of 21 U.S.C. § 841(b)(1)(A); (2) 280 grams and more
of crack, also in violation of 21 U.S.C. § 841(b)(1)(A); and (3) a quantity of
marijuana, in violation of 21 U.S.C. § 841(b)(1)(D). (Indictment, Dkt. No. 93,
¶¶ 1‐3.) Palmer was also charged with one count of possessing and using a
firearm in connection with the charged narcotics conspiracy, in violation of
18 U.S.C. § 924(c)(1)(A)(i). (Id. ¶ 4.)
On October 17, 2013, pursuant to a written plea agreement, Palmer
pleaded guilty before Magistrate Judge Sarah Netburn to a lesser‐included
offense of conspiracy to distribute and possess with intent to distribute 500
grams or more of cocaine, in violation of 21 U.S.C. § 841(b)(1)(B). (Plea Tr.,
Dkt. No. 241, at 16; Plea Agreement, Ex. A to Gov’t’s Opp’n, Dkt. No. 546,
at 1.) This Court accepted the plea on December 6, 2013. (Dkt. No. 243.) The
plea agreement included a waiver of Palmer’s right to appeal or collaterally
attack his sentence pursuant to 28 U.S.C. § 2255 if his sentence fell within or
below 135 to 168 months’ imprisonment, the Guidelines range that the
parties stipulated was applicable. (Plea Agreement 4‐5.)
At Palmer’s sentencing on February 26, 2014, this Court found that his
total offense level was 31, his criminal history category was IV, and the
applicable Sentencing Guidelines range was 151 to 188 months’
imprisonment. (Sentencing Tr., Dkt. No. 453, at 20.) Palmer’s attorney urged
the Court to impose the statutory mandatory minimum sentence of 60
months’ imprisonment. (Id. at 10; Sentencing Submission of Richard Palmer,
Dkt. No. 314, at 1, 9.) This Court rejected that argument, reasoning that
Palmer’s conduct warranted a sentence “substantially above minimum,
given the volume of drugs he was involved with, .40 caliber weapon, body
armor, packaging, ten cell phones, [and] ordering large quantities of drugs
for resale.” (Sentencing Tr. 5; see also id. at 19.) Nonetheless, “in large part
due to [Palmer’s] very difficult upbringing,” the Court sentenced him to 120
months’ imprisonment, which was below the Guidelines range to which the
parties had stipulated. (Id. at 19‐20.)
Palmer did not appeal his sentence, and his time to file an appeal has
expired. On November 19, 2014, Palmer filed this pro se motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Mot. to Vacate,
Dkt. No. 540.)
II. DISCUSSION
Palmer asks the Court to vacate his sentence on the grounds that his
counsel was ineffective for failing to object to this Court’s determination of
his criminal history category, offense level, and applicable Sentencing
Guidelines range. As a threshold matter, Palmer argues that his waiver of
his right to collaterally attack his sentence of 120 months’ imprisonment is
unenforceable because he did not enter into his plea and waiver knowingly
and voluntarily due to ineffective assistance of counsel.
Because Palmer is appearing pro se, the Court construes his motion
liberally and interprets it to raise the strongest arguments that it suggests.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007); McPherson v. Coombe, 174 F.3d
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276, 280 (2d Cir. 1999). The Court is also mindful that Palmer is entitled to
an evidentiary 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 Gonzalez v. United States, 722 F.3d 118, 130 (2d Cir. 2013).
“To warrant a hearing, the motion must set forth specific facts supported by
competent evidence, raising detailed and controverted issues of fact that, if
proved at a hearing, would entitle [the movant] to relief.” See Gonzalez, 722
F.3d at 131. A hearing is not necessary, however, where the petitioner’s
claims are “vague, conclusory, or palpably incredible.” Pham v. United
States, 317 F.3d 178, 185 (2d Cir. 2003) (quoting Machibroda v. United States,
368 U.S. 487, 495 (1962)).
A. Palmer’s Enforceable Collateral Attack Waiver Bars His Claims
In order to mount a challenge to his sentence, Palmer must first
overcome the procedural barrier presented by the fact that in his signed plea
agreement, Palmer waived his right to collaterally attack any sentence
within or below 135 to 168 months’ imprisonment. Under a liberal reading
of Palmer’s motion, he challenges the validity of his plea and waiver on the
grounds that his counsel was ineffective in (1) explaining the plea
agreement, (2) counseling him on the sentence he would likely receive, and
(3) advising him to accept a plea bargain from which he derived no benefit.
1.
Legal Standard
A defendant’s collateral attack waiver as part of a plea agreement with
the government is presumptively enforceable. See Garcia‐Santos v. United
States, 273 F.3d 506, 509 (2d Cir. 2001) (per curiam). A waiver is
unenforceable, however, where the record reveals that the waiver or the
plea was not knowing and voluntary. United States v. Ready, 82 F.3d 551,
556‐57 (2d Cir. 1996); Garafola v. United States, 909 F. Supp. 2d 313, 323–24
(S.D.N.Y. 2012). A defendant knowingly waives his right to collaterally
attack his sentence if the record demonstrates that he “fully understood the
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potential consequences of his waiver.” United States v. Monzon, 359 F.3d 110,
116 (2d Cir. 2004) (internal quotation marks omitted).
Similarly, a waiver is not enforceable when the defendant’s counsel
rendered ineffective assistance in conjunction with the process by which the
defendant agreed to plead guilty. See Frederick v. Warden, Lewisburg Corr.
Facility, 308 F.3d 192, 195‐96 (2d Cir. 2002). In order to show that his counsel
was ineffective, Palmer must demonstrate that “(1) his attorneyʹs
performance ‘fell below an objective standard of reasonableness’” under
prevailing professional norms, and (2) “‘there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.’” Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir.
2009) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)); see also
Oliver v. United States, 07 Civ. 5921, 2008 WL 190487, at *3 (S.D.N.Y. Jan. 22,
2008). To meet Strickland’s prejudice requirement in the context of plea
negotiations, the movant must demonstrate a reasonable probability that,
but for his counsel’s errors, “he would not have pled guilty and would have
proceeded to trial.” United States v. Arteca, 411 F.3d 315, 320 (2d Cir. 2005)
(citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)). In particular, where the
petitioner claims that counsel “misled him as to the possible sentence which
might result from a plea of guilty, . . . the issue is whether the defendant was
aware of actual sentencing possibilities, and if not, whether accurate
information would have made any difference in his decision to enter a plea.”
Id.
2.
Application of the Legal Standard to Palmer’s Motion
As an initial matter, Palmer’s argument that his collateral attack waiver
is unenforceable is not itself barred by that waiver because Palmer “connects
the alleged ineffectiveness of [his] attorney with the voluntary nature of his
plea.” Parisi v. United States, 529 F.3d 134, 139 (2d Cir. 2008); see also Frederick,
308 F.3d at 195‐96. Nonetheless, Palmer’s attempt to invalidate his waiver
fails.
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a.
Palmer cannot show that his attorney failed to adequately
explain the plea agreement or that he did not understand the
consequences of admitting responsibility for five to fifteen
kilograms of cocaine.
Palmer urges that his plea and waiver were not knowing and voluntary
because, as a result of ineffective assistance of counsel, “he did not know or
understand [] that he could be sentenced for a crime in which he did not
plead guilty.” (Reply Mem., Dkt. No. 546, at 4.) Essentially, Palmer argues
that although he voluntarily pleaded guilty to 21 U.S.C. § 841(b)(1)(B) (five
hundred grams or more of cocaine), he was ultimately sentenced for a
violation of the indictment’s original charge of 21 U.S.C. § 841(b)(1)(A) as a
result of the plea agreement’s stipulation that he was responsible for
between five and fifteen kilograms of cocaine. Palmer swears that “it was
explained to me that my mandatory minimum was five years, for the crime
that I committed, I was never told that five kilograms of cocaine or more
was a separate charge with a ten (10) year mandatory minimum.” (Aff. of
Richard Palmer dated Nov. 11, 2014 (“Palmer Aff.”), Ex. A to Mot. to Vacate,
at ¶ 4.) He argues that his collateral attack waiver is unenforceable because
he did not knowingly and voluntarily plead guilty to an offense with a ten‐
year mandatory minimum sentence.
Palmer’s allegations have no basis in fact. Contrary to his assertions,
Palmer was neither convicted of nor sentenced for a violation of 21 U.S.C.
§ 841(b)(1)(A). Palmer contends that because he received a sentence of 120
months’ imprisonment, the Court must have imposed the ten‐year
mandatory minimum required by section 841(b)(1)(A). (See Reply Mem. 5.)
But the sentencing transcript clearly shows that the Court understood that
Palmer was subject to a 60‐month mandatory minimum sentence. (See
Sentencing Tr. 5.) After considering all the factors set forth in 18 U.S.C.
§ 3553(a), however, the Court concluded that notwithstanding the 60‐month
mandatory minimum, a sentence of ten years’ imprisonment was
warranted. (Sentencing Tr. 5, 19‐20.) Although Palmer received a sentence
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of ten years and section 841(b)(1)(A)’s mandatory minimum is also ten
years, the two are simply unrelated.
Palmer’s motion could be read to assert an argument that his attorney
did not adequately explain the effect of his acceptance of responsibility for
five to fifteen kilograms of cocaine and, as a result, his plea was not knowing
and voluntary. To the extent such an argument exists, it is not supported by
the evidence in the record. Palmer signed the plea agreement, in which he
unambiguously admits that he “conspired to distribute and possess with
intent to distribute at least 5 kilograms but less than 15 kilograms of
cocaine,” resulting in a stipulated base offense level of 32. (Plea Agreement
2.) At his plea allocution, Palmer stated under oath that he had read and
understood the plea agreement and that he had discussed it with his
attorney. (Plea Tr. 6, 13.) Tellingly, in his affidavit in support of this motion,
Palmer never states that his attorney failed to explain how accepting
responsibility for five to fifteen kilograms of cocaine would influence the
applicable Guidelines range.1 He therefore cannot show that his attorney’s
conduct fell below prevailing professional norms or that he was prejudiced
as a result. In sum, the evidence before the Court simply does not call into
question the fact that Palmer knowingly and voluntarily pleaded guilty to
21 U.S.C. § 841(b)(1)(A) and admitted responsibility for five to fifteen
kilograms of cocaine.
Palmer contends that the following statement, which he made during his plea
1
allocution, shows that he did not understand the plea agreement: “I purchased cocaine
and intended to sell it from 2009 to 2012. I’m not exactly sure of the amount. I know it
was over 500 grams of cocaine.” (Plea Tr. 16.) But this statement is entirely consistent
with Palmer’s admission in the plea agreement that he was responsible for between five
and fifteen kilograms of cocaine. Moreover, Palmer affirmed under oath that he
understood he was stipulating to the applicability of a Guidelines range of 135‐168
months’ imprisonment, which was based in large part on the quantity of cocaine. (Plea
Tr. 13.) Palmer’s reference to “over 500 grams of cocaine” therefore does not cast doubt
on whether he knowingly and voluntarily accepted responsibility for five to fifteen
kilograms of cocaine.
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b.
Palmer’s attorney’s alleged mistaken prediction of his sentence
does not invalidate the collateral attack waiver.
Palmer next contends that the collateral attack waiver is unenforceable
because he entered into the plea agreement in reliance on his attorney’s
erroneous advice that he “would likely be sentenced to Sixty (60) months.”
(Palmer Aff. ¶ 3.) Even assuming the truth of these allegations, a “‘mistaken
prediction’ of the sentence to be imposed generally does not rise to the level
of ineffective assistance of counsel.” Marte v. United States, Nos. 11 Civ. 3269,
02 Cr. 1490, 2012 WL 2953723, at *6 (S.D.N.Y. July 20, 2012) (citing United
States v. Sweeney, 878 F.2d 68, 70 (2d Cir. 1989) (per curiam)). Palmer
therefore cannot satisfy the first prong of Strickland.
More importantly, Palmer has not shown a reasonable probability that
he was prejudiced by his attorney’s mistaken prediction because the record
conclusively shows that Palmer had full knowledge of the range of
sentencing possibilities when he entered his guilty plea. See Arteca, 411 F.3d
at 320. Palmer’s plea agreement explicitly set forth the mandatory minimum
term of 60 months’ and the maximum term of 40 years’ imprisonment. (Plea
Agreement 1.) The agreement also set forth a stipulated Guidelines range of
135 to 168 months’ imprisonment, although it disclosed that this Court
would not be bound by that stipulation. (Id. at 3‐4.) Palmer signed the plea
agreement, which declared on the signature page that “[n]o additional
understandings, promises, or conditions have been entered into.” (Id. at 6.)
Magistrate Judge Netburn further apprised Palmer of the range of
possible sentencing outcomes at his plea allocution and Palmer confirmed
that he understood the Magistrate Judge’s warning that “by pleading guilty,
you will be exposing yourself to the possibility of receiving any combination
of punishments up to the maximum.” (Plea Tr. 10‐14.) Palmer answered
“Yes” when she asked him, “In the agreement, it appears that you and the
government have identified a stipulated guidelines range for Count One of
between 135 months and 168 months of imprisonment; is that correct?” (Id.
at 13.) Palmer further acknowledged that he understood that this Court
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alone would determine his sentence and that he would be bound by his
guilty plea even if he received a higher sentence than he expected. (Id. at 13‐
14.) Palmer also admits in this motion that he “was informed of his
minimum and maximum sentence . . . prior to pleading guilty.” (Mot. to
Vacate 7; see also Palmer Aff. ¶ 4.)
These facts conclusively show that, regardless of any mistaken
prediction by his counsel, Palmer was aware of the actual sentencing
possibilities at the time he executed his plea agreement. See United States v.
Hernandez, 242 F.3d 110, 112 (2d Cir. 2001) (“[T]he district court was entitled
to rely upon the defendant’s sworn statements, made in open court . . . that
he understood the consequences of his plea, had discussed the plea with his
attorney, knew that he could not withdraw the plea, understood that he was
waiving his right to appeal a sentence below 120 months, and had been
made no promises except those contained in the plea agreement.”).
Moreover, even assuming that Palmer’s counsel’s alleged
underestimation of his sentence did in fact preclude his awareness of the
actual sentencing possibilities, Palmer cannot demonstrate a reasonable
likelihood that a more accurate prediction would have changed his decision
to plead guilty. Palmer never states that he would have proceeded to trial
had he known he would not be sentenced to 60 months’ imprisonment. See
Arteca, 411 F.3d at 320. Consequently, because Palmer cannot show that he
was prejudiced by his counsel’s alleged advice regarding his likely sentence,
his attempt to invalidate his collateral attack waiver on this ground fails.
c.
Palmer’s attorney was not ineffective for advising him to accept
the plea agreement.
Under the Court’s liberal construction of his motion, Palmer also attacks
the knowing and voluntary nature of his plea and collateral attack waiver
on the basis that his attorney was ineffective for advising him to accept a
plea bargain from which he derived no benefit. (See Reply Mem. 4.) This
argument builds off Palmer’s assertion that his sentence corresponds to a
violation of 21 U.S.C. § 841(b)(1)(A), the original charge in the indictment,
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rather than the offense to which he pleaded guilty. Palmer’s claim is
meritless because he did in fact receive significant benefits from his plea
agreement.
The U.S. Court of Appeals for the Second Circuit has found that a
defendant benefits from a plea agreement where the agreement notifies him
of the sentencing range sought by the government, prevents exposure to
additional counts, reduces or eliminates a mandatory minimum sentence,
or secures the government’s assent to a Guidelines reduction for acceptance
of responsibility. See United States v. Morgan, 406 F.3d 135, 137 (2d Cir. 2005);
United States v. Rosa, 123 F.3d 94, 101 (2d Cir. 1997). Here, the plea agreement
enabled Palmer to gain the benefit of a five‐year rather than a ten‐year
mandatory minimum sentence, learn the Guidelines range that the
government believed was applicable, receive a three‐point offense level
reduction for accepting responsibility, and escape exposure to additional
counts. (See Plea Agreement 1‐2.) Perhaps most significantly, the
government also agreed to dismiss the firearm, crack cocaine, and
marijuana charges it had brought against Palmer in the indictment. (See id.
at 1.) Notably, the firearm charge alone involved a five‐year mandatory
minimum sentence. (18 U.S.C. § 924(c)(1)(A)(i).) Because Palmer clearly
benefited from the plea agreement, he cannot show that his attorney’s
representation fell below an objectively reasonable standard when she
advised him to accept it. And because Palmer has not demonstrated a
reasonable possibility that he would have insisted on proceeding to trial
absent his attorney’s advice—as discussed above—he cannot meet the
second prong of Strickland.
d.
The collateral attack waiver bars Palmer’s challenge to his
sentence.
With respect to the enforceability of his collateral attack waiver, the
Court finds that Palmer has not set forth any facts that, if proved at a
hearing, would entitle him to relief from that waiver; therefore, an
evidentiary hearing is not warranted. See Gonzalez, 722 F.3d at 130‐31. The
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Court holds that Palmer’s motion and the record before the Court
conclusively show that the waiver is valid and enforceable.
As a result, Palmer’s section 2255 challenge to his sentence is barred.
Palmer asks the Court to vacate his sentence on the grounds that his counsel
was ineffective for failing to object to this Court’s determination of his
criminal history category, offense level, and applicable Sentencing
Guidelines. Palmer’s collateral attack waiver precludes these claims as a
matter of law because they relate to his sentence and not to the entry of his
plea. See Hernandez, 242 F.3d at 114. In other words, because Palmer cannot
show that his plea and waiver are invalid due to ineffective assistance of
counsel, he cannot challenge his sentence of 120 months’ imprisonment,
which falls within the waiver’s scope. See id.; Gomez‐Perez, 215 F.3d at 319;
United States v. Djelevic, 161 F.3d 104, 107 (2d Cir. 1998) (explaining that a
collateral attack waiver prevents a movant from challenging the correctness
of a sentence even when it is styled as an ineffective assistance of counsel
claim). The Court therefore need not reach the merits of Palmer’s claim that
his attorney was ineffective at sentencing. See Djelevic, 161 F.3d at 107.
B. Even If They Were Not Barred, Palmer’s Claims of Ineffective
Assistance of Counsel at Sentencing Would Fail on the Merits
Even assuming arguendo that Palmer’s collateral attack waiver does not
preclude him from bringing this section 2255 motion, his claims would fail
on the merits.
1.
Palmer’s Attorney Was Not Ineffective for Failing to Object to
This Court’s Determination of His Criminal History Category.
Palmer contends that his attorney was ineffective for failing to contest
this Court’s assessment of seven criminal history points and its consequent
determination of a criminal history category of IV. Palmer maintains that he
should have been assessed only six criminal history points, as set forth in
his plea agreement, and that his criminal history category should then have
been III, not IV. (Mot. to Vacate 5‐6; see Plea Agreement 2‐3.) Specifically,
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Palmer contends that this Court mistakenly assessed him one criminal
history point for a criminal possession of marijuana conviction that occurred
on or about January 14, 1999, more than ten years prior to the commission
of the subject offense. (Reply Mem. 7; see Plea Agreement 3.)
Palmer’s allegations find no support in the record. Neither the
presentence report nor the plea agreement assess any points for Palmer’s
1999 marijuana conviction. (Plea Agreement 3; Presentence Investigation
Report ¶ 67.) Rather, the Court’s determination of a criminal history
category of IV reflects a correction to the plea agreement’s erroneous
assessment of one instead of two points for Palmer’s 2002 conviction for
criminal use of drug paraphernalia. (Compare Plea Agreement 3, with
Presentence Investigation Report ¶ 69.) Palmer does not allege that this
correction was unwarranted. Because the Court correctly calculated
Palmer’s criminal history category, his attorney’s failure to object was
neither deficient nor prejudicial.
2.
Palmer’s Attorney Was Not Ineffective for Not Contesting
This Court’s Determination of the Offense Level and
Guidelines Range.
Palmer also contends that his attorney was ineffective for not objecting
to this Court’s determination of the applicable offense level and resulting
Guidelines range. (Mot. to Vacate 9, 11.) Palmer alleges that as a result of
this ineffectiveness, the Court erroneously “sentenced [him] for a crime he
was not convicted on” (id. at 12) by utilizing a base offense level of 32, as
listed in the plea agreement and presentence report. (Plea Agreement 2;
Presentence Investigation Report ¶ 52.) Palmer asserts that a base offense
level of 32 corresponds to the crime of conspiring to distribute five
kilograms or more of cocaine in violation of 21 U.S.C. § 841(b)(1)(A). Palmer
maintains that his base offense level should instead have fallen somewhere
between 26 and 30, which he contends applies to the crime of conspiring to
distribute 500 grams or more of cocaine in violation of 21 U.S.C.
11
§ 841(b)(l)(B), the lesser-included offense to which he pleaded guilty. (Mot.
to Vacate 8.)
Palmer's argument lacks merit. The crime to which Palmer pleaded
guilty applies to the possession of "500 grams or more" of cocaine. 21 U.S.C.
§ 841(b)(l)(B) (emphasis added). As the Court has already found, Palmer
knowingly and voluntarily accepted responsibility for "at least 5 kilograms
but less than 15 kilograms of cocaine." (Plea Agreement 2.) Based on this
drug quantity, both the plea agreement and the presentence report (and
ultimately the Court) correctly utilized a base offense level of 32, as directed
by the Sentencing Guidelines. (U.S. Sentencing Guidelines Manual
§201.l(a), §2Dl.l(c)(4) (2013).) Palmer's attorney therefore did not perform
in an objectively unreasonable manner by not arguing at sentencing that
Palmer was responsible for less than five kilograms of cocaine or that a
different base offense level applied.
Ill.
CONCLUSION
For the reasons set forth above, Palmer's motion is denied. Because
Palmer has not made a substantial showing of the denial of a constitutional
right,
a
certificate
of
appealability
will
not
issue.
28
U.S.C.
§ 2253(c)(2); Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir.
2000). Pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies that any appeal
from this Order would not be taken in good faith. See Coppedge v. United
States, 369 U.S. 438, 445-46 (1962).
Dated: New York, New York
July 21, 2015
SO ORDERED:
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