# Stitt v. United States

> District Court, E.D. Tennessee · March 30, 2022

URL: https://www.frixlaw.com/law-library/cases/10434838

## Case

- **Court:** District Court, E.D. Tennessee
- **Decided:** March 30, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10434838

## How later opinions describe it (automated extraction)

- noting that, on collateral review, a petitioner must show that any error had a “substantial and injurious effect or influence in determining the jury’s verdict”
- holding that the Tennessee aggravated burglary qualifies as generic burglary under the ACCA

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT WINCHESTER

VICTOR J. STITT, II, )
) Case Nos. 4:21-cv-15; 4:12-cr-19
Petitioner, )
) Judge Travis R. McDonough
v. )
) Magistrate Judge Susan K. Lee
UNITED STATES OF AMERICA, )
)
Respondent. )
)

MEMORANDUM OPINION

Before the Court is Petitioner’s motion to vacate, set aside, or correct sentence pursuant
to 28 U.S.C. § 2255 (Doc. 1 in Case No. 4:21-cv-15; Doc. 167 in Case No. 4:12-cr-19). For the
following reasons, Petitioner’s motion will be DENIED.
I. BACKGROUND
Petitioner was arrested in 2011 after a physical altercation with his girlfriend, Rebecca
Hostetler. In 2014, a jury convicted Petitioner of one count of knowingly possessing a firearm as
a convicted felon in violation of 18 U.S.C. § 922(g)(1). (See Doc. 92 in Case No. 4:12-cr-19.)
He was sentenced to 290 months’ imprisonment and four years of supervised release. (Doc. 133
in Case No. 4:12-cr-19.) Petitioner was sentenced as an armed career criminal based on six prior
Tennessee convictions for aggravated burglary. (Doc. 100, at 6–9, in Case No. 4:12-cr-19.)
Petitioner appealed his conviction and sentence, challenging (1) venue in the Eastern
District of Tennessee; (2) the district court’s denial of his motion to suppress, and (3) his status
as an armed career criminal. (Doc. 166 in Case No. 4:12-cr-19; Doc. 138 in Case No. 4:12-cr-
19.) A three-judge panel of the Sixth Circuit affirmed Stitt’s conviction and sentence. United
States v. Stitt, 637 F. App’x 927, 928 (6th Cir. 2016) (hereinafter Stitt I). Petitioner then moved
for rehearing en banc, which the Sixth Circuit granted. (See Doc. 141 in Case No. 4:12-cr-19.)
The en banc court reversed and vacated Petitioner’s sentence on the grounds that Tennessee
aggravated burglary did not qualify as a violent felony under the Armed Career Criminal Act
(“ACCA”). United States v. Stitt, 860 F.3d 854 (6th Cir. 2017) (en banc) (hereinafter Stitt II).

The Supreme Court of the United States subsequently granted the Government’s petition for a
writ of certiorari and reversed the Sixth Circuit’s en banc ruling. United States v. Stitt, 139 S. Ct.
399 (2018) (hereinafter Stitt III). The Sixth Circuit panel then reissued its ruling as to
Petitioner’s venue and suppression arguments and affirmed his ACCA designation and sentence
enhancement. United States v. Stitt, 780 F. App’x 295, 301 (6th Cir. 2019) (hereinafter Stitt IV).
Petitioner again moved for rehearing en banc, but his petition for rehearing was denied. (Doc.
152 in Case No. 4:12-cr-19.) His subsequent petition for writ of certiorari was also denied on
March 31, 2020. (Doc. 160 in Case No. 4:12-cr-19.)
On March 31, 2021, Petitioner filed the instant motion to vacate, set aside, or correct his

sentence under 28 U.S.C. § 2255 (Doc. 1 in Case No. 4:21-cv-15; Doc. 167 in Case No. 4:12-cr-
19). In his motion, he argues that (1) his offense must be vacated in light of the Supreme Court’s
decision in Rehaif v. United States, 139 S. Ct. 2191 (2019); (2) he received ineffective assistance
of counsel; and (3) his Tennessee aggravated-burglary convictions do not qualify as ACCA
predicate offenses. (See Doc. 1, at 1, in Case No. 4:21-cv-15.) The Government has responded,
and Petitioner’s motion is ripe for review.
II. STANDARD OF REVIEW
To obtain relief under 28 U.S.C. § 2255, a petitioner must demonstrate: “(1) an error of
constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of
fact or law . . . so fundamental as to render the entire proceeding invalid.” Short v. United States,
471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496–97 (6th
Cir. 2003)). He “must clear a significantly higher hurdle than would exist on direct appeal” and
establish a “fundamental defect in the proceedings which necessarily results in a complete
miscarriage of justice or an egregious error violative of due process.” Fair v. United States, 157

F.3d 427, 430 (6th Cir. 1998).
Section 2255(f) imposes a one-year limitations period on all petitions for collateral relief
under § 2255 running from the latest of: (1) the date when the judgment of conviction becomes
final; (2) the date when the impediment to making a motion created by governmental action in
violation of the Constitution or laws of the United States is removed, if the movant was
prevented from making a motion by such governmental action; (3) the date when the right
asserted was initially recognized by the Supreme Court, if that right has been newly recognized
by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the
date when the facts supporting the claim or claims presented could have been discovered through

the exercise of due diligence. 28 U.S.C. § 2255(f).
In ruling on a § 2255 petition, the Court must also determine whether an evidentiary
hearing is necessary. “An evidentiary hearing is required unless the record conclusively shows
that the petitioner is entitled to no relief.” Martin v. United States, 889 F.3d 827, 832 (6th Cir.
2018) (quoting Campbell v. United States, 686 F.3d 353, 357 (6th Cir. 2012)); see also 28 U.S.C.
§ 2255(b). “The burden for establishing entitlement to an evidentiary hearing is relatively light,
and where there is a factual dispute, the habeas court must hold an evidentiary hearing to
determine the truth of the petitioner’s claims.” Martin, 889 F.3d at 832 (quoting Turner v.
United States, 183 F.3d 474, 477 (6th Cir. 1999)) (internal quotation marks omitted). While a
petitioner’s “mere assertion of innocence” does not entitle him to an evidentiary hearing, the
district court cannot forego an evidentiary hearing unless “the petitioner’s allegations cannot be
accepted as true because they are contradicted by the record, inherently incredible, or
conclusions rather than statements of fact.” Id. When a petitioner’s factual narrative of the
events is not contradicted by the record and not inherently incredible and the Government offers

nothing more than contrary representations, the petitioner is entitled to a hearing. Id.
III. 28 U.S.C. § 2255 MOTION
A. Timeliness of Petitioner’s § 2255 Motion
The Government notes that Petitioner’s § 2255 motion is untimely because he filed the
motion one day after the statute of limitations in § 2255(f) expired. (Doc. 6, at 4–5, in Case No.
4:21-cv-15.) The Government is technically correct as to its timeliness argument, and that alone
is a sufficient basis on which to deny Petitioner’s motion. However, because Petitioner’s motion
is only untimely by one day, the Court will explain why the motion should be denied on its
merits.

B. Rehaif Argument
Petitioner argues that his 18 U.S.C. § 922(g)(1) conviction should be vacated in light of
the Supreme Court’s decision in Rehaif because the jury in Petitioner’s case was not instructed to
find as an element that Petitioner knew he was a convicted felon at the time he possessed the
firearm. (Doc. 1, at 6–10, in Case No. 4:21-cv-15.) The Government responds that this claim is
procedurally defaulted and meritless. (Doc. 6, at 5–10, in Case No. 4:21-cv-15.)
i. Retroactivity
Petitioner has not established that Rehaif can be the basis for a retroactive challenge to
his conviction and sentence. Although the Sixth Circuit has not yet addressed the issue, courts of
appeals for other circuits and several district courts in the Sixth Circuit have concluded that
Rehaif is not retroactively applicable on collateral review. See, e.g., In re Palacios, 931 F.3d
1314, 1315 (11th Cir. 2019) (“Rehaif did not announce a new rule of constitutional law made
retroactive to cases on collateral review.”); United States v. Burley, No. 3:14-CR-122, 2020 WL
2126682, at *1 (N.D. Ohio May 5, 2020) (collecting cases). The Court agrees with the many

other courts finding that Rehaif has not been made retroactive. Petitioner’s Rehaif claim is
therefore not cognizable under § 2255.
ii. Procedural Default
Even if Rehaif were retroactively applicable, Petitioner’s Rehaif argument is procedurally
defaulted. Issues not raised on appeal are procedurally defaulted and “may not be raised on
collateral review unless the petitioner shows cause and prejudice.” Massaro v. United States,
538 U.S. 500, 504 (2003). Petitioner did not appeal his conviction and, thus, did not raise the
objection on direct appeal that he lacked knowledge of his status as a felon. See United States v.
Wooden, 945 F.3d 498, 506 (6th Cir. 2019) (finding that raising this objection on direct appeal

would not have been futile and that the objection was not unavailable to the petitioner); see also
Bousley v. United States, 523 U.S. 614, 622 (1998) (“[F]utility cannot constitute cause if it
means simply that a claim was unacceptable to that particular court at that particular time.”
(internal quotation marks and citations omitted)). Thus, Petitioner’s claim is procedurally
defaulted.
A court may excuse a procedural default and consider a claim on its merits if a petitioner
can make a threshold showing that he was “actually innocent,” Smith v. Murray, 477 U.S. 527,
537 (1986)—i.e., that it was “more likely than not that no reasonable juror would have convicted
him” had the jury been properly instructed and the parties been given the opportunity to present
the relevant evidence. Schlup v. Delo, 513 U.S. 298, 327 (1995). In this case, the question is
whether the Government would have been able to put forward evidence such that a reasonable
juror would have concluded Petitioner was aware of his status as a felon when he possessed a
firearm. At the time of his trial, Petitioner had the following prior felony convictions: (1) six
Tennessee convictions for aggravated burglary; (2) two Tennessee convictions for facilitation of

aggravated burglary; (3) one Tennessee conviction for attempted aggravated burglary; and
(4) three Tennessee convictions for sale of marijuana. (Doc. 100, at 6–11, in Case No. 4:12-cr-
19.) Petitioner also stipulated to his status as a convicted felon at trial. (See Doc. 133, at 125–
26, in Case No. 4:12-cr-19; Doc. 137, at 7, in Case No. 4:12-cr-19.) As a result, a reasonable
juror would likely have found that he was aware of his status as a felon, and he cannot make a
threshold showing of actual innocence. Accordingly, the procedural default is not excused.
iii. Merits
Finally, the Court notes that Petitioner’s previous felony convictions and stipulation to
his status as a convicted felon also provide strong evidence that his Rehaif claim—even if it were

not procedurally defaulted—is meritless because the failure to instruct the jury as to the
awareness-of-status element was harmless error, rather than an error of “constitutional
magnitude” or one that would render his trial invalid. See Short, 471 F.3d at 691; see also Murr
v. United States, 200 F.3d 895, 906 (6th Cir. 2000) (noting that, on collateral review, a petitioner
must show that any error had a “substantial and injurious effect or influence in determining the
jury’s verdict”).
C. Ineffective Assistance of Counsel
To collaterally attack his conviction based on ineffective assistance of counsel, Petitioner
must establish “that [his] lawyers performed well below the norm of competence in the
profession and that this failing prejudiced [his] case.” Caudill v. Conover, 881 F.3d 454, 460
(6th Cir. 2018) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The performance
inquiry requires the defendant to “show that counsel’s representation fell below an objective
standard of reasonableness.” Strickland, 466 U.S. at 688. The prejudice inquiry requires the
defendant to “show that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. at 694.
There is a “strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id. at 689. Therefore, the Court should resist “the
temptation to rely on hindsight . . . in the context of ineffective assistance claims.” Carson v.
United States, 3 F. App’x 321, 324 (6th Cir. 2001); see also Strickland, 466 U.S. at 689 (“A fair
assessment of attorney performance requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time.”).
Petitioner argues that his trial counsel was ineffective for: (1) failing to “properly

investigate the facts and surrounding circumstances of his case”; (2) failing to adequately object
to statements of Amanda Skidmore and Stephanie Lowrey at trial; (3) failing to object to expert
testimony by Special Agent Jason Reeves; and (4) failing to file a sentencing memorandum.
(Doc. 1, at 10–13, in Case No. 4:21-cv-15.) None of these claims entitle Petitioner to relief.
i. Failure to Investigate
With regard to his failure-to-investigate claim, Petitioner argues that his mother and
stepfather were present for his arrest and “could have corroborated the defense theory that [he]
did not possess a firearm.” (Id. at 11.) Petitioner, however, does not allege what particular
testimony either of these parties would have provided. (See id.) Further, as the Government
points out, Petitioner’s mother testified at the suppression hearing and did not claim to be present
for the arrest. (See Doc. 87 in Case No. 4:21-cv-15.) Moreover, the Government presented a
witness at trial who testified that Petitioner’s mother was not present for the arrest. (See Doc.
133, at 15–16, in Case No. 4:21-cv-15.) Petitioner’s bare assertion that his mother and stepfather
were present for the arrest or that they could have corroborated his theory of defense is

insufficient to warrant an evidentiary hearing. See Martin, 889 F.3d at 832. Petitioner has failed
to establish that he was prejudiced by counsel’s decision not to call Petitioner’s mother or
stepfather as witnesses or that counsel’s performance fell below an objective standard of
reasonableness.
ii. Failure to Adequately Object to Trial Testimony
Petitioner next argues that his counsel was ineffective for objecting too slowly to
Amanda Skidmore’s hearsay testimony that Petitioner’s girlfriend, Rebecca Hostetler, told her
that Petitioner possessed a firearm. (Doc. 1, at 11, in Case No. 4:21-cv-15.) At trial, Skidmore
testified, “I asked [Hostetler], I was like, does he really have a gun and she said yes.” (Doc. 133,

at 49, in Case No. 4:12-cr-19.) As soon as Skidmore uttered this statement, Petitioner’s trial
counsel objected, and the Court sustained the objection. (Id.) Petitioner claims that the curative
instruction given by the Court was “too little too late.” (Doc. 1, at 11, in Case No. 4:21-cv-15.)
But Petitioner does not support this assertion. And courts “normally presume that a jury will
follow an instruction to disregard inadmissible evidence inadvertently presented to it, unless
there is an ‘overwhelming probability’ that the jury will be unable to follow the court’s
instructions and a strong likelihood that the effect of the evidence would be ‘devastating’ to the
defendant.” Greer v. Miller, 483 U.S. 756, 766 n.8 (1987). Here, Petitioner has not shown that
there was an overwhelming probability that the jury would not be able to disregard the hearsay
evidence as instructed, nor has he shown that the evidence had a devastating effect on his case,
especially given that Hostetler herself had already testified that Petitioner had a firearm. (See
Doc. 133, at 23, in Case No. 4:12-cr-19.) Accordingly, Petitioner has not shown that he was
prejudiced by the timing of this objection, and this argument is not a basis for relief.
Petitioner also contends that his trial counsel was ineffective for failing to object more

forcefully to hearsay by another witness, Stephanie Lowery. (Doc. 1, at 12, in Case No. 4:21-cv-
15.) But counsel twice objected to Lowery’s testimony that another individual, Josh Stanley,
told her that he had given Petitioner the gun. (Doc. 133, at 69–70, in Case No. 4:12-cr-19.)
Counsel only neglected to raise a hearsay objection when the Government specifically asked
Lowery to tell her what Petitioner said concerning how he came into possession of the gun—
cautioning her that “you can’t tell me what anybody else said”—because the parties agreed that
any statement from Petitioner himself would be admissible as a statement against interest under
Federal Rule of Evidence 801(d)(2)(A). (Id.) Petitioner has not demonstrated that counsel’s
conduct with regard to Lowery’s testimony fell below an objective standard of reasonableness or

prejudiced his case.
iii. Failure to Object to Expert Testimony
Petitioner further argues that counsel should have questioned the qualification of ATF
Special Agent Jason Reeves as an expert witness and the foundation of his conclusions. (Doc. 1,
at 12, in Case No. 4:21-cv-15.) But Petitioner has not established that such questioning would
have resulted in the exclusion of any testimony. Additionally, as Plaintiff concedes, counsel did
raise an issue with respect to Reeves’s testimony on cross examination. (See Doc. 133, at 124, in
Case No. 4:12-cr-19 (Reeves admitting, in response to counsel’s cross examination, that he had
not tested the weapon).) Petitioner has again failed to show that counsel’s conduct prejudiced
the outcome of his trial. Accordingly, this argument fails.
iv. Failure to File a Sentencing Memorandum
Lastly with regard to his trial counsel, Petitioner asserts that his counsel was ineffective
for failing to file a sentencing memorandum. (Doc. 1, at 13–14, in Case No. 4:21-cv-15.)

Petitioner represents that the family history in the presentence investigation report could have
been supplemented with additional mitigating factors if counsel had employed his private
investigator to obtain more information. (Id.) Counsel did file objections to the presentence
report, devoting most of his argument to disputing Petitioner’s designation as an armed career
criminal. (Doc. 101 in Case No. 4:12-cr-19.) Counsel also argued at sentencing that Petitioner
should not be sentenced as an armed career criminal, that the guidelines were “harsh” for a
young man like Petitioner, and requested a sentence at the bottom of the guidelines. (Doc. 136,
at 18–19, in Case No. 4:12-cr-19.) The parties also discussed Petitioner’s criminal history, and
the Government emphasized the quantity and violent nature of Petitioner’s previous offenses.

(Id. at 19.) After hearing argument and Petitioner’s allocution, the sentencing judge stated that a
sentence “in the middle of the guidelines range” was “called for by both the nature and
circumstances of this offense and [Petitioner’s] history and characteristics.” (Id.)
As other courts have pointed out, the failure to file a sentencing memorandum is not per
se ineffective assistance. See United States v. Jennings, No. 2:11–7157–DCR, 2011 WL
3046319, at *3 (E.D. Ky. July 25, 2011) (collecting cases). And, here, Petitioner has not
identified any mitigating information that an investigator was likely to uncover with regard to
Defendant. The Court therefore cannot conclude that counsel’s failure to provide a sentencing
memorandum amounted to ineffective assistance of counsel. See id. (“[B]y failing to point to
specific evidence that was not brought to the Court’s attention, [Petitioner] has failed to show
prejudice resulting from his attorney’s conduct.”).
D. ACCA Argument
Petitioner’s final claim for relief is that convictions for aggravated burglary under
Tennessee Code Annotated § 39-14-402(a) can be committed with a mens rea of recklessness as

to the purpose for entering the building, and such convictions therefore do not qualify as ACCA
predicate offenses. (Doc. 1, at 14–17, in Case No. 4:21-cv-15.) As a preliminary matter, this
claim is procedurally defaulted because Petitioner did not raise it on direct appeal. However,
even if the claim were not procedurally defaulted, it fails.
The ACCA mandates that a criminal defendant who violates 18 U.S.C. § 922(g)(1) and
has three prior convictions for “violent felonies” must be sentenced to a minimum of fifteen
years’ imprisonment. 18 U.S.C. § 924(e)(1). The Act defines “violent felony” as:
Any crime punishable by imprisonment for a term exceeding one year, or any act
of juvenile delinquency involving the use or carrying of a firearm, knife, or
destructive device that would be punishable by imprisonment for such term if
committed by an adult, that—
(i) has as an element the use, attempted use, or threatened use of physical
force against the person of another; or
(ii) is burglary, arson, or extortion, involves the use of explosives or otherwise
involves conduct that presents a serious potential risk of physical injury to
another.
Id. § 924(e)(2)(B)(i)–(ii). Subsection (i) is known as the “elements clause” or “use-of-physical-
force clause.” See United States v. Smith, 881 F.3d 954, 956 (6th Cir. 2018). Subsection (ii)
includes the “enumerated-offense clause” (“is burglary, arson, or extortion, involves the use of
explosives”) and the “residual clause” (“or otherwise involves conduct that presents a serious
potential risk of physical injury to another”). See id. at 956–57. In Johnson v. United States, 135
S. Ct. 2551 (2015), the Supreme Court held that the residual clause is unconstitutionally vague.
Id. at 2563 (“imposing an increased sentence under the residual clause of the Armed Career
Criminal Act violates the Constitution’s guarantee of due process”). Therefore, for a sentence to
be constitutionally enhanced under § 924(e)(1), it must be based on prior convictions that qualify
as violent felonies under the enumerated-offense clause or the use-of-physical-force clause.
To determine whether a prior conviction qualifies as a violent felony under the ACCA, a

court begins with the “categorical approach.” See Descamps v. United States, 570 U.S. 254, 257
(2013). Under the categorical approach, “[s]entencing courts may ‘look only to the statutory
definitions’—i.e., the elements—of a defendant’s prior offenses, and not ‘to the particular facts
underlying those convictions’” to determine whether a particular offense qualifies as an ACCA
predicate. Id. at 261 (emphasis in original) (quoting Taylor v. United States, 495 U.S. 575, 600–
02 (1990)). Because burglary is an enumerated offense, Petitioner’s Tennessee aggravated-
burglary convictions are evaluated under the enumerated-offenses clause. An offense qualifies
as a violent felony under the enumerated-offenses clause if the statute’s elements “are the same
as, or narrower than, those of the generic offense”—“i.e., the offense as commonly understood.”

Id. at 257. If the least of the acts criminalized by the statute of conviction falls outside the
generic definition of the crime, then that offense does not qualify as a violent felony. See
Moncrieffe v. Holder, 569 U.S. 184, 190–91 (2013) (“Because we examine what the state
conviction necessarily involved, not the facts underlying the case, we must presume that the
conviction ‘rested upon [nothing] more than the least of th[e] acts’ criminalized[.]” (citations
omitted)).
Controlling Sixth Circuit precedent holds that “an aggravated-burglary conviction under
Tennessee law categorically counts as burglary under the Supreme Court’s generic definition and
so falls within the Armed Career Criminal Act.” United States v. Brown, 957 F.3d 679, 682 (6th
Cir. 2020) (citing United States v. Nance, 481 F.3d 882, 888 (6th Cir. 2007) (holding that the
Tennessee aggravated burglary qualifies as generic burglary under the ACCA)). Although the en
banc decision in this case briefly called this into question, the Sixth Circuit has conclusively held
since the Supreme Court’s decision in Stitt IV, that convictions under every subsection of
Tennessee’s aggravated-burglary statute are violent felonies under the ACCA. See Brumbach v.

United States, 929 F.3d 791, 794 (6th Cir. 2019) (“Nance’s holding . . . is once again the law of
this circuit.”); see also Lurry v. United States, 823 F. App’x 350, 355 (6th Cir. 2020) (“Simply
stated, this court’s precedent after [Stitt IV] forecloses [Petitioner’s] arguments that his prior
Tennessee convictions do not qualify as violent felonies under the ACCA.”); United States v.
Tigue, 811 F. App’x 970, 975 (6th Cir. 2020) (“Brumbach closed the book on Tennessee
aggravated burglary by holding, in a published opinion, that Nance once again controls.”)
Petitioner acknowledges the state of the law in this circuit but nonetheless asks the Court to
vacate his sentence on grounds foreclosed by binding precedent, apparently in an effort to
present the court of appeals with an opportunity to overturn Brumbach en banc. (See Doc. 1, at

14–17, in Case No. 4:21-cv-15 (noting that “en banc review is the only way the Sixth Circuit can
review any challenge to the use of a Tennessee aggravated burglary conviction as a ‘violent
felony’”).) The Court cannot and will not rule in Petitioner’s favor in the face of binding
precedent to the contrary. Consequently, Petitioner’s ACCA claim fails.
IV. CONCLUSION
The record before the Court conclusively shows that Petitioner is not entitled to relief.
Accordingly, an evidentiary hearing is unnecessary. See Martin, 889 F.3d at 832. Petitioner’s
§ 2255 motion (Doc. 1 in Case No. 4:21-cv-15; Doc. 167 in Case No. 4:12-cr-19) is DENIED,
and this action will be DISMISSED WITH PREJUDICE.
Should Petitioner give timely notice of an appeal from this order, such notice will be
treated as an application for a certificate of appealability, which is DENIED because he has
failed to make a substantial showing of the denial of a constitutional right or to present a
question of some substance about which reasonable jurists could differ. See 28 U.S.C.
§ 2253(c)(2); Fed. R. App. P. 22(b); Slack v. McDaniel, 529 U.S. 473, 484 (2000). Additionally,

the Court has reviewed this case pursuant to Rule 24 of the Federal Rules of Appellate Procedure
and hereby CERTIFIES that any appeal from this action would not be taken in good faith and
would be totally frivolous. Therefore, any application by Petitioner for leave to proceed in forma
pauperis on appeal is DENIED. See Fed. R. App. P. 24.
AN APPROPRIATE JUDGMENT WILL ENTER.
/s/Travis R. McDonough
TRAVIS R. MCDONOUGH
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10434838. Public record. Not legal advice.