United States v. Ausby ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATE OF AMERICA
v.
Criminal Action No. 72-67 (BAH)
JOHN MILTON AUSBY,
Chief Judge Beryl A. Howell
Defendant.
MEMORANDUM OPINION
The defendant, John Milton Ausby, seeks reconsideration of the portion of this Court’s
ruling entered on July 3, 3019, see United States v. Ausby, No. CR 72-67 (BAH), 2019 WL
2870232 (D.D.C. July 3, 2019), that denied his motion to vacate his 1972 rape while armed
conviction. See Def.’s Mot. to Reconsider Denial of Vacatur of Rape Conviction (“Def.’s
Mot.”), ECF No. 59. As support for reconsideration, the defendant asserts that the Court “clearly
erred in determining it lacked jurisdiction” to vacate the conviction under either 28 U.S.C. §
2255 or a writ of coram nobis. Id. at 1. In addition, he argues that the Court is bound to vacate
his rape conviction by the D.C. Circuit’s mandate in United States v. Ausby, 916 F.3d 1089 (D.C.
Cir. 2019). Id. at 2. For the reasons explained below, the defendant’s Motion to Reconsider is
denied.
I. BACKGROUND
The full factual and procedural background for this case has been set out in prior
decisions, see Ausby, 916 F.3d at 1090–92; Ausby, 2019 WL 2870232, at *1–3; and United
States v. Ausby, 275 F. Supp. 3d 7, 8–24 (D.D.C. 2017), rev’d and remanded, 916 F.3d at 1095,
and thus only a brief review of the facts is provided here. The defendant was originally tried and
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convicted by a jury in 1972, on one count of felony murder and one count of rape while armed,
for the rape and murder of Deborah Noel. Ausby, 916 F.3d at 1091. He was then sentenced to
life in prison on the felony murder conviction and received a concurrent sentence of 10 to 30
years for his rape while armed conviction. Id.; United States v. Ausby, No. CR 72-67 (BAH),
2019 WL 2452988, at *1 (D.D.C. June 11, 2019). The defendant was also convicted at a
separate trial, in 1973, of murdering two other women, Sharon Tapp and Sherry Frahm; for these
murder convictions he was sentenced to 30-year sentences to run concurrently with his sentence
for the rape and murder of Noel. Ausby, 2019 WL 2452988, at *1. He remains incarcerated
solely for the felony murder conviction as to Noel. Id.In 2015, the government notified the defendant that expert hair testimony used in his
original trial was “false or misleading,” and “waived any statute of limitations and procedural-
default defenses in the event [the defendant] sought relief under 28 U.S.C. § 2255.” Ausby, 916
F.3d at 1092. In 2016, the defendant filed a Motion to Vacate Conviction under 28 U.S.C. §
2255, arguing that “the government’s knowing presentation of false and misleading expert hair
examination testimony” violated the Due Process Clause of the Fifth Amendment and required
vacatur of “Mr. Ausby’s conviction” under the standard set out in Napue v. Illinois, 360 U.S. 264(1959). Def.’s Mot. to Vacate Conviction under 28 U.S.C. § 2255, at 1, ECF No. 2. The
defendant’s § 2255 motion was denied after this Court concluded that the “overwhelming
evidence against him” left no “reasonable likelihood” that the outcome would have been
different without the false hair evidence. Ausby, 275 F. Supp. 3d at 32 (internal quotation marks
and citation omitted). The D.C. Circuit reversed, finding that the forensic expert’s false hair-
matching testimony “could . . . have affected the judgment of the jury.” Ausby, 916 F.3d at 1090
(alteration in original) (internal quotation marks omitted) (quoting Napue, 360 U.S. at 271).
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In coming to that conclusion, the D.C. Circuit explained that under § 2255, “[a] federal
prisoner may move to have his sentence vacated . . . if ‘the sentence was imposed in violation of
the Constitution or laws of the United States,’” id. at 1092 (quoting § 2255(a)), and noted that the
defendant had “fully served his rape sentence, leaving his life sentence for murder,” id. at 1091.
Then, upon finding a Napue violation, the D.C. Circuit ruled that this Court “should have granted
[the defendant’s] § 2255 motion to vacate his conviction,” id. at 1095, and “remanded for
proceedings consistent with [its] opinion” to afford appropriate relief, id. The defendant did not,
and has not, challenged his separate convictions in 1973 for the murders of Sharon Tapp and
Sherry Frahm, sentences he has also fully served. Ausby, 2019 WL 2452988, at *7.
On remand, the government sought to proceed with a new trial, see Min. Entry (Apr. 12,
2019), and the parties were directed to file a joint proposed order to effectuate the D.C. Circuit’s
mandate, see Min. Order (June 7, 2019). The parties proposed vacatur of both of the defendant’s
convictions. See Jt. Filing: Proposed Order Vacating the Conviction, Att. 1 (“Jt. Proposed
Order”) at 3, ECF No. 34-1. Upon consideration of the parties’ response, the Court questioned
sua sponte whether jurisdiction existed to vacate the defendant’s rape while armed conviction
under § 2255, since both the Verdict Form and the Judgment & Commitment Order reflect two
convictions, on two distinct charges, for rape while armed and for felony murder, and the
defendant had fully served his rape while armed sentence at the time he filed his § 2255 motion.
See Min. Order (June 17, 2019). The parties were directed to explain why jurisdiction to vacate
the defendant’s rape while armed conviction was proper. Id. In response, the parties agreed that
the conviction should be vacated, see Jt. Submission Regarding Def.’s Conviction for Rape
(“Parties’ Jt. Submission”) ¶ 1, ECF No. 40, but neither party addressed the jurisdictional issue
in detail. The defendant argued in a footnote that § 2255 conferred jurisdiction, see Def.’s
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Petition for Writ of Coram Nobis Vacating Conviction for Rape While Armed (“Def.’s Pet.”) at
5 n.2, ECF No. 41, while the government submitted no briefing on the issue. In the alternative,
the parties jointly proposed vacating the rape while armed conviction through a writ of coram
nobis. See Parties’ Jt. Submission ¶ 3. To that end, the defendant filed an unopposed Petition
for a Writ of Coram Nobis. See generally Def.’s Pet.
Upon consideration of these filings, this Court vacated the defendant’s felony murder
conviction, but declined to vacate his rape conviction. Ausby, 2019 WL 2870232, at *8. The
defendant has filed a Motion to Reconsider pursuant to Federal Rule of Civil Procedure 59(e),
arguing that the Court’s denial of vacatur of the rape conviction was clear error. Def.’s Mot. at
1. Following a hearing held on September 19, 2019, that motion is now ripe for review.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 59(e) allows a party to file “[a] motion to alter or amend
a judgment.” FED. R. CIV. P. 59(e). “A Rule 59(e) motion is discretionary and need not be
granted unless the district court finds that there is an intervening change of controlling law, the
availability of new evidence, or the need to correct a clear error or prevent manifest injustice.”
Messina v. Krakower, 439 F.3d 755, 758 (D.C. Cir. 2006) (quoting Firestone v. Firestone, 76
F.3d 1205, 1208 (D.C. Cir. 1996)). As the D.C. Circuit has explained, alteration under Rule
59(e) “is an extraordinary remedy which should be used sparingly.” Mohammadi v. Islamic
Republic of Iran, 782 F.3d 9, 17 (D.C. Cir. 2015) (quoting 11 Charles Wright & Arthur Miller,
Federal Practice & Procedure § 2810.1 (3d ed. 2012)). Thus, a Rule 59(e) motion “may not be
used to relitigate old matters, or to raise arguments or present evidence that could have been
raised prior to the entry of judgment.” Leidos, Inc. v. Hellenic Republic, 881 F.3d 213, 217
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(D.C. Cir. 2018) (quoting Exxon Shipping v. Baker, 554 U.S. 471, 486 n.5 (2008)). Whether to
grant a Rule 59(e) motion is within the district court’s discretion. Mohammadi, 782 F.3d at 17.
III. DISCUSSION
In urging reconsideration under Rule 59(e), the defendant argues that the denial of his
coram nobis petition was erroneous for three reasons. First, he claims that the Court has subject-
matter jurisdiction to vacate his rape conviction under § 2255 because this conviction was
“intimately related” to his felony murder conviction. Def.’s Mot. at 12. Second, he argues that
his coram nobis petition should have been granted because presumed and actual collateral
consequences attend his rape conviction. See id. at 13–18. Third, he argues that the mandate
rule requires that his rape conviction be vacated. See id. at 18–19. Each of these arguments is
addressed in turn.
A. Ruling That This Court Lacked Jurisdiction to Vacate the Defendant’s Rape
Conviction Under 28 U.S.C. § 2255 Is Not in Error
The defendant argues that in denying vacatur of his rape conviction for lack of
jurisdiction, the Court misapplied Maleng v. Cook, 490 U.S. 488 (1989), and the “in custody”
requirement for relief under §2255. Def.’s Mot. at 10–13. According to the defendant,
jurisdiction may be exercised to vacate “a sentence for which the petitioner is no longer in
custody” as long as said petitioner is still in custody “on a closely related challenged sentence.”
Def.’s Mot. at 11. To support this claim, the defendant cites Lackawanna County Dist. Attorney
v. Coss, 532 U.S. 394 (2001) and Daniels v. U.S., 532 U.S. 374 (2001), as well as two Seventh-
Circuit decisions, Martin v. Deuth, 298 F.3d 669 (7th Cir. 2002), and Stanbridge v. Scott, 791
F.3d 715 (7th Cir. 2015).1
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Straightforward application of Rule 59(e) would preclude consideration of this argument, which was not
raised in the parties’ Joint Submission Regarding Defendant’s Conviction for Rape, ECF No. 40, or the defendant’s
original Petition for Writ of Coram Nobis Vacating Conviction for Rape While Armed, ECF No. 41. That petition
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These cases do not support the ruling the defendant desires, however. Lackawanna and
Daniels concerned prior state convictions used to enhance subsequent federal sentences, and in
both cases, the Supreme Court ruled that federal habeas power could not be used to challenge the
fully served prior state conviction. See Lackawanna, 532 U.S. at 396–97; Daniels, 532 U.S. at
376. While the Supreme Court grounded these rulings in “the need for finality of convictions
and ease of administration,” Lackawanna, 532 U.S. at 402, they do not, as the defendant
suggests, undermine the “in custody” requirement laid down in Maleng. The Seventh Circuit
opinions cited by the defendant, meanwhile, confirm rather than undermine the “in custody”
requirement. See, e.g., Stanbridge, 791 F.3d at 718 (“Federal courts have jurisdiction over a
habeas petition only if the petitioner is ‘in custody pursuant to the judgment of a State court.’ 28
U.S.C. § 2254(a); see also Maleng v. Cook, 490 U.S. 488, 490, 109 S.Ct. 1923, 104 L.Ed.2d 540(1989) (holding that the custody requirement is jurisdictional).”); Martin, 298 F.3d at 671 (“The
district courts have jurisdiction to hear state prisoner habeas petitions only from persons who are
‘in custody pursuant to the judgment of a State court…’ 28 U.S.C. §2254(a); see Maleng v.
Cook, 490 U.S. 488, 490, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989).”).
As explained in this Court’s original ruling, “federal courts may grant § 2255 relief only
when the defendant is ‘in custody under sentence of a court’ at the time the motion collaterally
attacking that sentence or underlying conviction is filed.” Ausby, 2019 WL 2870232, at * 3
(citing § 2255(a); Maleng, 490 U.S. at 490-91; United States v. Verrusio, 758 F. App’x 2, 3
(D.C. Cir. 2019)). When a prior, allegedly unlawful conviction is used to enhance the penalty
was unopposed, however, and thus the defendant’s newly raised arguments are addressed on the merits. See Rough
Transcript of Hearing (Sept. 19, 2019) (“H’rg Tr. (Rough)”) at 3:6-4:3 (defense counsel explaining that since the
defendant’s original coram nobis petition was unopposed, he believed fully briefing of any arguments regarding
subject matter jurisdiction under § 2255 was unnecessary, despite the Court’s express query about the issue). All
citations to the September 19, 2019 hearing transcript cite to a rough draft of the transcript, since no final transcript
is yet available. Discrepancies in page numbers between the rough and any final transcript may exist.
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for a subsequent conviction, a defendant can challenge the subsequent sentence, provided he or
she is “in custody” serving that sentence. Lackawanna, 532 U.S. at 401–2. Yet the same
defendant “in custody” on the subsequent sentence cannot seek to overturn the prior conviction.
Id. at 402; Daniels, 532 U.S. at 382. In this case, jurisdiction was lacking to vacate the
defendant’s rape conviction because the defendant was no longer “in custody” pursuant to that
conviction when he filed his § 2255 claim. Further, the rape conviction was not used to enhance
a subsequent sentence, as was the case in Lackawanna and Daniels. Even if it had been, the
Supreme Court’s holdings in those cases—refusing to allow a collateral attack on the prior
conviction—counsel against the defendant’s requested relief. Thus, the defendant has not shown
that this Court’s ruling was “clear error,” as required for reconsideration under Rule 59(e).
B. The Collateral Consequences Alleged by the Defendant Are Insufficient to
Warrant Reconsideration of his Coram Nobis Petition
Second, the defendant asserts that denial of his coram nobis petition for failure to meet
the standing requirements of Article III, that is, for failure to allege a concrete, redressable
injury, is also wrong. The defendant’s core argument in this regard is that collateral
consequences are presumed to attend a criminal conviction, even when the sentence has expired,
and that he therefore did have standing to bring a coram nobis petition. Def.’s Mot. at 13–15.
As the defendant correctly points out, the Supreme Court recognized such a presumption in
Sibron v. New York, 392 U.S. 40, 55–57 (1968). Sibron, however, involved a direct appeal, not a
collateral attack on a conviction, let alone a coram nobis petition. The defendant in Sibron
sought to challenge the constitutionality of a warrantless search, yet before he could do so, his
six-month sentence expired, rendering the appeal moot. Id. at 50. Concerned that “deep and
abiding constitutional problems” could be insulated from review “in the context of prosecutions
for ‘minor’ offenses which carry only short sentences,” id. at 52, particularly in a state legal
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regime that denied bond pending appeal, id., the Supreme Court held that Sibron’s appeal was
not moot, id. at 58. Yet in so doing, the Supreme Court did not hold that presumed collateral
consequences are sufficient to establish standing for purposes of coram nobis. The burden-
shifting analysis derived from Sibron and urged by the defendant, see Def.’s Mot. at 15, is
therefore misplaced.
The writ of coram nobis is an “extraordinary remedy” issued “only in extreme cases.”
United States v. Danedo, 556 U.S. 904, 916 (2009). Rather than simply presuming collateral
consequences, courts considering a coram nobis petition assess whether “adverse consequences
exist from the conviction sufficient to satisfy the case or controversy requirement of Article III.”
United States v. Verrusio, No. 09-cr-64 (BAH), 2017 WL 1437055, at *8 (D.D.C. Apr. 21,
2017), aff’d, 758 F. App’x at 2 (collecting cases, including United States v. Faison, 956 F. Supp.
2d 267, 269 (D.D.C. 2013), and United States v. Riedl, 496 F.3d 1003, 1006 (9th Cir. 2007)); see
also Verrusio, 758 F. App’x at 4 (“declin[ing] to disturb” district court’s dismissal of “coram
nobis petition for lack of Article III standing”); United States v. Newman, 805 F.3d 1143, 1146
(D.C. Cir. 2015) (taking note of the factors considered for coram nobis petitions in Faison and
Riedl, which cases included the Article III standing requirement). The Fifth, Seventh, and Tenth
Circuits similarly require that a defendant show actual, rather than presumed, injury to bring a
coram nobis petition. See United States v. Drobny, 955 F.2d 990, 996 (5th Cir. 1992) (“A
petitioner may obtain this writ [coram nobis] only upon ‘demonstrat[ing] that he is suffering civil
disabilities as a consequence of the criminal conviction and that the challenged error is of
sufficient magnitude to justify the extraordinary relief.’” (quoting United States v. Marcello, 876
F.2d 1147, 1154 (5th Cir. 1989)); United States v. Keane, 852 F.2d 199, 203 (7th Cir. 1988)
(“[Petitioner] must demonstrate that the judgment of conviction produces lingering civil
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disabilities (collateral consequences).”); United States v. Hernandez, 94 F.3d 606, 613 n.5 (10th
Cir. 1996) (“a coram nobis petitioner must demonstrate ‘that he is suffering civil disabilities as
the result of the criminal conviction.’” (quoting United States v. Bruno, 903 F.2d 393, 396 (5th
Cir. 1990)).
Furthermore, even if the defendant shows an “actual or threatened injury” in the form of
“adverse consequences,” Article III also requires a defendant to show “that the injury is likely to
be redressed” by issuance of a writ of coram nobis. Rossini v. United States, No. 08-692 (JMF),
2014 WL 5280531, at *4 (D.D.C. Oct. 14, 2014); see also Lujan v. Defs. of Wildlife, 504 U.S.
555, 560–62 (1992) (explaining that “the irreducible constitutional minimum of standing”
includes “injury in fact,” “causation,” and “redressability”); Verrusio, 758 F. App’x at 4
(affirming denial of writ of coram nobis for lack of redressability).
In his original, unopposed coram nobis petition, the defendant only alleged presumed
collateral consequences. See Def.’s Pet. at 4. In particular, the defendant referred impliedly to
the collateral consequences discussed by the Supreme Court in Carafas v. LeVallee, 391 U.S.
234, 237 (1968), such as a loss of voting and jury-service rights. The defendant’s Motion to
Reconsider adds to this claim, arguing that the defendant’s rape conviction “likely could have an
adverse effect on, among other[] [rights], his ability to vote, [and] to serve on a jury…” Def.’s
Mot. at 14. Rather than alleging that he is actually suffering from one or more of these
disabilities as a result of his rape conviction, however, the defendant argues that their eventual
likelihood of applying to him should be presumed. Yet, as explained above, courts do not
presume collateral consequences in assessing standing for purposes of coram nobis, and thus this
argument fails.
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Even if presumed consequences were sufficient, the defendant’s argument would fail to
meet the additional requirement of redressability. After all, any of the cited civil disabilities
imposed because of the defendant’s expired rape conviction would similarly be imposed for the
defendant’s two separate murder convictions, which, as noted, have not been challenged. Ausby,
2019 WL 2452988, at *7.
In his motion for reconsideration, the defendant also asserts that he will suffer actual
adverse consequences as a result of his rape conviction because he will be required to register as
a sex offender. See Def.’s Mot. at 17. Rape is a registration offense under both the D.C. Sex
Offender Registration Act, see 22 D.C. Code § 4001(6)(A), and the federal Sex Offender
Registration and Notification Act, see 34 U.S.C. §§ 20911(1), 20911(5)(A)(i). The defendant
does not allege, however, that he has been required to register as a sex offender under either act.
The possibility that he might be so required in the future is insufficient, at this stage, to meet the
requirements of Article III standing. See Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)
(explaining that an injury in fact “must be actual or imminent, not ‘conjectural’ or
‘hypothetical.’” (quoting Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)). Were the defendant to
be released, and were he then required to register as a sex offender, he might then have a
concrete claim, as the government concedes. H’rg Tr. (Rough) at 16:7–17:12. At this stage,
however, the alleged harm is speculative, and the Court’s original determination—that the
defendant lacks standing to challenge his rape conviction through a writ of coram nobis—
remains correct.
C. The Mandate Rule Does Not Warrant Reconsideration
Finally, the defendant asserts that the D.C. Circuit’s mandate requires vacatur of his rape
conviction. The mandate rule prevents a district court from disregarding the directions of an
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appellate court. See Independent Petroleum Ass’n of America v. Babbitt, 235 F.3d 588, 597
(D.C. Cir. 2001). Indeed, in conformity with the mandate in this case, the Court directed the
parties to submit jointly a proposed order reflecting the Circuit’s mandate. See Min. Order (June
7, 2019). This Court’s decision not to vacate the defendant’s rape conviction was wholly in line
with the mandate. The D.C. Circuit clearly directed vacatur of the defendant’s felony murder
conviction, and, other than noting the expiration of his rape sentence, was silent as to any vacatur
of the rape conviction. Explaining the challenge at hand, the Circuit wrote: “Ausby has fully
served his rape sentence, leaving his life sentence for murder.” Ausby, 916 F.3d at 1091. Then,
using the singular term “conviction” rather than the plural “convictions,” the Circuit further
noted that the defendant had “moved to vacate his conviction under 28 U.S.C. § 2255(a).” Id. at
1092. It was not misleading, as the defendant now maintains, see Def’s Mot. at 18, to consider
these factual statements. Read holistically, they sharpen the Circuit’s ultimate legal conclusion:
“the district court should have granted Ausby’s § 2255 motion to vacate his conviction.” Ausby,
916 F.3d at 1095. Here too, the singular term is used.2 The Circuit only directed vacatur of the
defendant’s conviction for felony murder, and this Court complied with the Circuit’s mandate by
vacating that conviction.
2
The defendant’s original motion challenging his conviction pursuant to 28 U.S.C. § 2255 similarly uses
the singular term “conviction,” and appears limited to seeking vacatur only of his conviction for felony murder. See,
e.g., Def.’s Motion to Vacate Conviction Under 28 U.S.C. § 2255, at 1, ECF No. 2 (“John Milton Ausby, a federal
prisoner at FCI Williamsburg under sentence of this Court, moves this Court, pursuant to 28 U.S.C. § 2255(a), to
vacate his judgment of conviction and life sentence of November 22, 1972.”); id. (“this Court should vacate Mr.
Ausby’s conviction…”); id. at 5 (“Mr. Ausby respectfully requests that the Court grant his Motion, vacate his
conviction and sentence related to the death of Deborah Noel, and grant him a new trial.”). The defendant’s
memorandum in support of his motion confusingly oscillates between referring to vacatur of a single conviction for
felony murder and to the rape conviction too. Cf. Def.’s Mem. Pts & Auth. Supp. Mot. To Vacate Conviction, at 4,
ECF No. 2 (“The Court thus should vacate the convictions handed down against Mr. Ausby in August 1972…”); id.
at 36 (“The Court thus should vacate Mr. Ausby’s convictions and grant him a new trial.”) with id. at 21 (“Mr.
Ausby’s conviction must be vacated…”); id. at 23 (“If so, the conviction must be vacated.”); id. at 36 (“Mr. Ausby’s
due process right to a fair trial … was therefore violated, and his conviction must be vacated.”).
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In addition, the defendant argues that the mandate rule was violated by consideration of
subject-matter jurisdiction. Def.’s Mot. at 19 (arguing that “there is no reason to doubt that the
D.C. Circuit considered its own jurisdiction and that of this Court and determined this Court has
the power to grant relief on both counts.”). The mandate rule does apply to jurisdictional issues,
Independent Petroleum Ass’n, 235 F3d. at 597, but as the D.C. Circuit has explained, “courts are
‘not bound by a prior exercise of jurisdiction in a case where it was not questioned and it was
passed sub silentio.’” Id. (quoting United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33,
38 (1952)). To be sure, the Circuit’s decision necessarily implies jurisdiction as to the
defendant’s felony murder conviction, but by no means does it address, implicitly or explicitly,
the more complex jurisdictional issue as to the defendant’s rape conviction. See generally
Ausby, 916 F.3d 1089). Accordingly, no violation of the Circuit’s mandate or other error
occurred by consideration of the jurisdictional issue on remand.
Finally, the defendant argues that the government “affirmatively waived” and should now
be estopped from supporting any argument questioning the Court’s subject-matter jurisdiction
with regard to the defendant’s rape conviction. Def.’s Reply to Government’s Response to
Def.’s Mot. to Reconsider Denial of Vacatur of Rape Conviction at 5, ECF No. 67. This
argument is inapposite because subject-matter jurisdiction, as the Supreme Court has clearly
stated, “‘can never be forfeited or waived.’” Union Pacific R.R Co. v. Brotherhood of
Locomotive Eng’r & Trainmen Gen. Comm. Of Adjustment, Cent. Region, 558 U.S. 67, 81
(2009) (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006)). The fact that the
government did not contest jurisdiction at an earlier stage in the proceedings does not mean, for
purposes of the defendant’s Motion to Reconsider, that by raising the issue sua sponte, this Court
erred.
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IV. CONCLUSION
For the foregoing reasons, the defendant’s Motion to Reconsider Denial of Rape
Conviction is DENIED. An order consistent with this Memorandum Opinion will be entered
contemporaneously.
Date: September 27, 2019
__________________________
BERYL A. HOWELL
Chief Judge
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