Hernandez v. United States of America, No. 1:2009cv06496 - Document 13 (S.D.N.Y. 2010)
Court Description: MEMORANDUM OPINION: Pursuant to 28 U.S.C. 1915(1)(3), Hernandez's appeal cannot be taken in good faith and his application to appeal in forma pauperis is denied. (Signed by Judge Robert W. Sweet on 7/20/2010) (tro)
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Hernandez v. United States of America Doc. 13 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK TOCUMIDT ELECI'RONid' '' * Y FILED .................................... DOC#: - PORFIRIO HERNANDEZ, Petitioner, 09 Civ. 6496 -against- MEMORANDUM OPINION UNITED STATES OF AMERICA, Respondent. S w e e t , D.J. Petitioner Porfirio Hernandez ("Hernandez") has applied for leave to appeal in forma pauperis this Court's denial of his motion to vacate, set aside, or correct his sentence. For the foregoing reasons, the application is denied. Prior Proceedings Hernandez pled guilty to bail jumping and conspiracy to defraud the United States. He received 60 months' imprisonment on the conspiracy charge, pursuant to 18 U.S.C. 9 371, and 12-months-and-one-day's imprisonment on the bail- jumping charge, pursuant to 18 U.S.C. sentence of 72 months and one day. ยง 3146, for a total Hernandez's counsel had Dockets.Justia.com secured the plea agreement whereby in exchange for Hernandez's guilty plea to bail jumping and conspiracy, the Government dismissed a bank-fraud charge under 18 U.S.C. S 1344, for which Hernandez could have received a substantially higher jail sentence. After sentencing, Hernandez appealed to the Second Circuit, which subsequently dismissed his appeal. On July 22, 2009, Hernandez filed a motion pursuant to 28 U.S.C. S 2255 alleging denial of constitutionally effective assistance of counsel and seeking to have his sentence vacated, set aside, or corrected. This Court denied Hernandez's motion in an order dated April 19, 2010. See Hernandez v. United States, No. 09 Civ. 6496, 2010 WL 1558559 (S.D.N.Y. Apr. 19, 2010). This Court denied Hernandez's petition for a certificate of appealability on June 11, 2010. On the same date, Hernandez filed an appeal of the April 19, 2010 decision with the Second Circuit. On June 28, 2010, Hernandez submitted the instant application to appeal in forma pauperis.
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