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Memorandum Opinion and Order — Hunter v. United States (E.D. Va.)

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A Memorandum Opinion and Order filed May 13, 2026 as Document 69 in James Maloyd Hunter, II v. United States of America, Criminal Action No. 2:23-cr-003, in the U.S. District Court for the Eastern District of Virginia, Norfolk Division. The Court takes up Hunter's pro se Motion to Vacate, Set Aside, or Correct a Sentence under 28 U.S.C. § 2255 and the Government's Motion to Dismiss. It recounts a five-count indictment of January 4, 2023, a plea to Count One, Kidnapping, and a sentence of 144 months' imprisonment and 5 years supervised release; the court denies the Brady claim, addresses the ineffective-assistance claims, and states that the § 2255 Motion and a Certificate of Appealability are DENIED.

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“Memorandum Opinion and Order — Hunter v. United States (E.D. Va.).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-2-23-cr-00003-dkt-69-e-d-va-44925cd2d4/, SHA-256 a9063ea460fac651fe2bf4d217f6f0c999d1a0c715d7ee7e667a67188e0e1293.

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Case 2:23-cr-00003-RAJ-RJK            Document 69       Filed 05/13/26   Page 1 of 12 PageID# 527



                       IN THE UNITED STATES DISTRICT COURT
                       FOR THE EASTERN DISTRICT OF VIRGINIA
                                   Norfolk Division


  JAMES MALOYD HUNTER, II,

                        Petitioner,

  V.                                                    CRIMINAL ACTION NO. 2:23-cr-003


  UNITED STATES OF AMERICA,

                        Respondent.

                           MEMORANDUM OPINION AND ORDER


         Before the Court is James Maloyd Hunter’s (“Petitioner”) pro se Motion to Vacate, Set

  Aside, or Correct a Sentence pursuant to 28 U.S.C. § 2255. ECF No. 35, 36 (“Pet’r’s Mot.”). The

  Government filed a Motion to Dismiss Petitioner’s Motion. ECF No.       42 (“Mot. to Dismiss”).

  Petitioner responded. ECF No. 48 (“Pet’r’s Resp.”). The Court held an evidentiary hearing. ECF

  No. 568. The matter is now ripe for judicial determination. For the reasons stated below.

  Petitioner’s § 2255 Motion is DENIED.

                        I. FACTUAL AND PROCEDURAL HISTORY


         On January 4, 2023, Petitioner was named in a five-count indictment. ECF No. 1. Count

  One charged Petitioner with Kidnapping, in violation of 18 U.S.C. § 1201(a)(1). Id. Count Two

  charged Petitioner with Interstate Domestic Violence, in violation of 18 U.S.C. § 2261(a)(2) and

  (b)(3). Id. Count Three charged Petitioner with Possession of a Firearm in Furtherance of a

  Crime of Violence, in violation of 18 U.S.C. §§ 924(c)(1)(A). Id. Count Four charged Petitioner

  with False Statement During Purchase of a Firearm, in violation of 18 U.S.C. § 922(a)(6) and

  924(a)(2). Id. Count Five charged Petitioner with False Statement Causing Federally Licensed

  Firearms Dealer to Maintain False Records, in violation of 18 U.S.C. § 924(a)(1)(A). Id.



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          On January 24 and 25, 2023, Attorneys Keith Kimball and Suzanne Katchmar appeared

  as counsel in this case for Petitioner. ECF No. 9. On March 22, 2023, a Plea Agreement was


  entered. ECF No. 18. Petitioner pled guilty to Count One, Kidnapping. Id. On July 26, 2023,

  Petitioner was sentenced to 144 months’ imprisonment and 5 years supervised release. ECF No.

  27.


          According to the Presentence Investigation Report (“PSR”), Petitioner kidnapped the

  mother of his child on May 19, 2022. Present. Investig. Rep.      1. At 5 a.m., Petitioner grabbed

  the victim off the street, “held a firearm against [her] head,” and forced her into the back of his

  car. Id. ^1 3. Petitioned strangled her and ziptied her hands together while driving the car from

  Norfolk, Virginia to Hocking County, Ohio. Id.         9, 10. Petitioner made a stop at a CVS in

  Harrisonburg, Virginia and accompanied the victim to the bathroom inside. Id.        9. While

  leaving the store, the victim mouthed “help” and “call 911” to the store clerk. Id. Eventually,

  Petitioner reached Hocking County and stopped at a PNC Bank across the street from the

  sheriffs office. M ^ 11. When he pulled out of the parking lot, police surrounded his car and

  arrested him at the scene. Id.


          After Petitioner was arrested, a search warrant was secured and executed on his car. Id.

   13. Detectives found a package of zip ties, duct tape, a hunting-style knife, a pair of scissors, and

  a receipt of a denied transaction for a Ruger 9mm semiautomatic handgun. Id.

          On July 26, 2024, Petitioner timely filed the instant pro se Motion to Vacate, Set Aside,

  or Correct a Sentence pursuant to 28 U.S.C. § 2255. Pet’r’s Mot. Petitioner also filed a

  Supplemental Motion to Vacate on August 5, 2024. ECF No. 37. On November 12, 2024, the




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  Government responded to Petitioner’s Motion. ECF No. 42. On January 30, 2025, ten days after

  the deadline for his reply, Petitioner replied. ECF No. 48.

         The Court appointed Attorney Fernando Groene to represent Petitioner on October 7,

  2025. ECF No. 55. On March 3, 2026, the Court conducted an Evidentiary Hearing on the §

  2255 Motion. ECF No. 68.


                                          II.     LEGAL STANDARD


              a.    Section 2255


          Section 2255 allows a federal prisoner “claiming the right to be released upon the ground

  that the sentence was imposed in violation of the Constitution or laws of the United States ... [to]

  move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C.

  § 2255. In a § 2255 motion, the petitioner bears the burden of proving his or her claim by a

  preponderance of the evidence. See Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958).

          When deciding a § 2255 motion, the Court must promptly grant a hearing “unless 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). Motions under § 2255 generally “will not be allowed to do service

  for an appeal.”          v. large, 332 U.S. 174, 178-79(1947). For this reason, issues already fully

  litigated on direct appeal may not be raised again under the guise of a collateral attack. United

  States V. Dyess, 730 F.3d 354, 360 (4th Cir. 2013). Issues that should have been raised on direct

  appeal are deemed waived, procedurally defaulted, and cannot be raised on a § 2255 Motion.

   United States v. Mikalajunas, 186 F.3d 490, 492 (4th Cir. 1999).

          However, an individual may raise a procedurally defaulted claim if he or she can show (1)



          ' Petitioner filed an interlocutory appeal to the Fourth Circuit in December 2024, which he later voluntarily
          dismissed. ECF No. 50. On December 1,2025, Petitioner filed a writ of mandamus to the Fourth Circuit,
          which was denied. ECF No. 63.



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   'cause and actual prejudice resulting from the errors of which he complains;” or (2) that “a

  miscarriage of justice would result from the refusal of the court to entertain the collateral attack..

  . . [meaning] the movant must show actual innocence by clear and convincing evidence.” Id. at

  492-93. To demonstrate cause and prejudice, a petitioner must show the errors “worked to [his or

  her] actual and substantial disadvantage, infecting [his or her] entire trial with error of

  constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982).              Ineffective

  assistance of counsel claims should generally be raised in a collateral motion instead of on direct

  appeal and constitute sufficient cause to review a procedurally defaulted claim. See United States

  V. Benton, 523 F.3d 424, 435 (4th Cir. 2008); Mikalajunas, 186 F.3d at 493.

             b. Brady Violation

         The suppression of evidence favorable to the accused violates due process when the

  evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of

  the prosecution. Brady v. Maryland, 373 U.S. 83, 86 (1963). A court must vacate a conviction and

  order a new trial if the prosecution suppressed materially exculpatory evidence. United States v.

  King, 628 F.3d 693, 701 (4th Cir. 2011) (citing Brady, 373 U.S. at 83). To secure relief under

  Brady, a defendant must: (1) identify the existence of material evidence favorable to the accused;

  (2) show that the Government suppressed the evidence; and (3) demonstrate that the suppression

  was material. Id. at 701. When a Brady violation is alleged, the burden of proof rests with the

  defendant. Id. at 701-02 (citing United States v. Stokes, 261 F.3d 496, 502 (4th Cir. 2001)).

             c.   Ineffective Assistance of Counsel


         A viable ineffective assistance of counsel claim arises when “the counsel’s conduct so


  undermined the proper functioning of the adversarial process that the trial did not result in a just

  outcome.    Strickland v. Washington, 466 U.S. 668, 686 (1984). To prove a claim of ineffective


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  assistance of counsel, a petitioner must make two showings.

          First, a petitioner must show that counsel’s performance was deficient (“performance

  prong”). Id. at 687. Counsel’s errors must have been so serious that he or she was not actually

  functioning as counsel as guaranteed by the Sixth Amendment. Id. To demonstrate deficient

  performance, a petitioner must show “that counsel’s representation fell below an objective

  standard of reasonableness” under the prevailing norms of the legal community. Id. at 688.

          ■Judicial scrutiny of counsel’s performance must be highly deferential,” so “a court must

  indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable

  professional assistance.” Id. at 689. That presumption is even greater when counsel’s decisions

  represent strategic, tactical decisions requiring “assessment and balancing of perceived benefits

  against perceived risks.” United States v. Terry, 366 F.3d 312, 317 (4th Cir. 2004). A petitioner

  bears the burden of rebutting this presumption. Strickland, 466 U.S. at 689.

          Second, a petitioner must show that the deficient performance prejudiced the defense

  (“prejudice prong”). Id. at 687. In other words, counsel’s errors must have been so serious that the

  petitioner was deprived of a fair trial with a reliable result. Id. To demonstrate prejudice, a

  petitioner must prove 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. The Supreme Court

  defined a reasonable probability as “a probability sufficient to undermine confidence in the

   outcome.” Id. In short.   [a]n error by counsel, even if professionally unreasonable, does not

   warrant setting aside the judgement of a criminal proceeding if the error had no effect on the

  judgment.” Id. at 691.




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                                            Ill,    DISCUSSION


           Petitioner moves the Court to vacate his conviction           based on four grounds: (1) the

  Government committed a Brady violation by failing to provide Petitioner with evidence to justify

  transfer of this case from state court to federal court; (2) Petitioner’s counsel were ineffective for

  failing to object to the Court’s sentencing determination; (3) Petitioner’s counsel were ineffective

  for failing to file a direct appeal after Petitioner requested; and (4) Petitioner’s plea was not

  knowingly or voluntarily entered due to ineffective counsel. Pet’r’s Mot. at 5-9. First, the Court

  will address the Brady claim. Then, the Court will analyze the last three claims together as they relate

  to ineffective assistance of counsel.


              A. Brady claim

          Petitioner first asserts that the Government committed a Brady violation by failing to provide


  Petitioner or the Court with evidence to justify the transfer of this case from state court to federal court.

  Pet’r’s Mot. at 14. Petitioner also references Federal Rule of Criminal Procedure       16 in his challenge.

  Id.


          The Court struggled to make sense of this challenge, both in briefing and at the evidentiary

  hearing. Petitioner repeatedly cited both the civil removal statute, 28 U.S.C. § 1441, and the criminal

  removal statute, 28 U.S.C. § 1455, to bolster his claim that this case was improperly removed. See

  Transcript at 32-33, 64. The Court understood Petitioner’s argument as challenging this Court’s

  jurisdiction because Petitioner himself did not remove his case from state court nor did he receive

   notice about removing the case from state court to federal court. Petitioner makes this argument to no

   avail. At the hearing, the Court explained to Petitioner that jurisdiction was proper in this Court because

  his indictment arose under federal statute. Evidentiary Hearing Transcript at 33:8-14.

           As the Government noted in its brief, non-constitutional violations of federal law, such as those

   arising under the Federal Rules of Criminal Procedure, arc not cognizable under § 2255. Mot. to

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  Dismiss at 8. Further, Petitioner has improperly invoked Brady, given there is no suppression of

  material evidence that pertains to Petitioner’s potential guilt or innocence. Petitioner’s indictment

  was properly filed in federal court because the charges arose under federal law. The Court is further

  unaware of any transfer of these charges from state to federal court. In any event, Petitioner would

  not be entitled to attorney work-product or information regarding such a transfer, nor would a lack

  of access to such information justify bringing a Brady claim against the Government. The Court

  appreciates that Petitioner is not an attorney and has no formal legal training; however, Petitioner

  declined to be represented by his appointed counsel. Evidentiary Hearing Transcript at 4:19-22. As

  such, Petitioner lacks some of the foundational understanding of legal concepts needed to develop and

  advance the necessary arguments.

          Based on the foregoing, the Court denies Petitioner’s Brady claim.

                B.   Ineffective Assistance of Counsel


          For purposes of this motion, Petitioner alleges his trial counsel, Keith Kimball and Suzanne

  Katchmar of the Office of the Federal Public Defender, provided ineffective assistance of counsel by

  failing to object to the sentencing guidelines, failing to file a direct appeal, and failing to explain the

  plea agreement to him, resulting in a guilty plea that was unknowingly or involuntarily entered. Pet’r’s

  Mot. at 19.


          To show ineffective assistance of counsel, a petitioner must show that counsel’s performance

  was deficient and, secondly, that counsel’s deficient performance prejudiced him. See Strickland, 466

  U.S. at 687-88. “A court must indulge a strong presumption that counsel’s conduct falls within the

  wide range of reasonable professional assistance.” Id. at 669. However, “when a criminal defendant

  enters a guilty plea, ‘he may not thereafter raise independent claims relating to the deprivation of

  constitutional rights that occurred prior to the entry of the guilty plea.’” Blackledge v. Perry, 417 U.S.

  21,29-30 (1974). A defendant who pleads guilty is limited “to attacks on the voluntary and intelligent


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  nature of the guilty plea, through proof that the advice received from counsel was not ‘within the range

  of competence demanded of attorneys in criminal cases.’” Id.

          Failure to Object to Sentencing Enhancement


          The Court will first address Petitioner’s claim that Assistant Federal Public Defender


  (“AFPD”) Keith Kimball failed to object to the Court’s sentencing determination. ECF No. 37-1 at 2.

  Specifically, it is Petitioner’s belief that AFPD Kimball should have objected to the dangerous weapon

  enhancement that was applied to his sentencing as a result of his statement of facts including mention

  of a weapon, and that his failure to do so prejudiced Petitioner. Id. The Government counters this claim

  arguing that, first, it is not a cognizable claim under § 2255 and second, that Petitioner cannot show

  his counsel’s performance was deficient or that he was prejudiced by any alleged deficient performance

  in any way. Mot. to Dismiss at 11.

          While generally a petitioner may not challenge a perceived error in his Sentencing Guidelines

  calculation in a § 2255 motion, he may when arguing an ineffective assistance of counsel claim. See

  Gloverv. United States, 531 U.S. 198, 204 (2001). To succeed on this basis, Petitioner must show both

  that there was an error in the guideline calculation and that his counsel was ineffective by failing to

  object to this error. Id.

          Accordingly, the Court will first evaluate whether there was an error in the sentencing

  guidelines calculation. In this case. Petitioner signed a Statement of Facts. ECF No. 19. He took an

  oath, swearing that the Statement of Facts was accurate. Id. The Statement of Facts reads that Petitioner

  “held a fireann against D.C.’s head,” and that “CC-2 acknowledged seeing [Petitioner] with a firearm

  in the vehicle.” Id. Because Petitioner pled guilty to Kidnapping and the accompanying Statement of

  Facts described him using a firearm in the commission of that offense, the sentencing guideline

  enhancement for use of a dangerous commission was appropriate and not in error. Id.
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          Because there was no error in calculation Petitioner’s sentence, the Court need not proceed


  further in the analysis. However, the Court also finds that AFPD Kimball and AFPD Katchmar did

  not provide ineffective assistance to Petitioner with respect to his sentencing cnliancement. Strickland

  requires that reviewing courts afford counsel wide latitude to make strategic decisions. Cox v.

  Weber, 102 F.4th 663, 676 (4th Cir. 2024). Here, AFPD Kimball testified that he was aware of

  Petitioner’s dissatisfaction with the enhancement and explained to Petitioner that there was no way to


  avoid the enhancement while moving forward with the plea agreement. Evidentiary Hearing Transcript

  at 20:21-25, 18:19-25. Further, AUSA Taylor inquired about whether Mr. Kimball had discussed with

  Petitioner what would happen if he lodged an objection to the application of the sentencing

  enhancement. Id. at 23:21-25, 24:1-23. AFPD Kimball testified that he had discussed that scenario

  with Petitioner. Id. AFPD Kimball described that conversation              as telling Petitioner that he was

  concerned about objecting because they had already agreed to the mention of the firearm in the

  statement of facts. Id.


          Additionally, in AFPD Kimball’s affidavit, he stated, “objecting to the application of §

  2A4.1(b)(3) would have been frivolous and would have likely led to the removal of the three-level

  ‘acceptance of responsibility’ reduction. Mr, Hunter had received in his guidelines (resulting in an

  increased guideline range). In other words, not objecting was in Mr. Hunter’s best interest.” ECF No.

  42-1 at 4. AFPD Kimbell told Petitioner that they could not make a “credible objection to the

  enhancement.” Id. Similarly, AFPD Kimball testified that it was “[cjlearly in [Petitioner’s] best interest

  not to object to that enhancement.” Evidentiary Hearing Transcript at 24:22-23.^ In essence, AFPD

  Kimball balanced the risks and benefits associated with the choices available to Petitioner. Counsel




          - AFPD Kimball did make a separate objection to mention of “physical restraint” in the Prcscntence Report,
          which did not have to be litigated at the hearing because it was uncontested. Id. at 24:24-25, 25:1-6.
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 ultimately made a strategic decision to not object to the enhancement in order to preserve the best

 outcome for Petitioner.


        The Court cannot find that counsel making a legitimate, well-considered, and strategic decision

 not to venture on a fruitless endeavor by objecting to the enhancement, and subsequently conveying

 this rationale to Petitioner, constitutes ineffective assistance of counsel. AFPD Kimball demonstrated

 a sound sentencing strategy. As such, the Court denies Petitioner’s claim on this ground.

        Failure to File a Direct Appeal

        Next, Petitioner avers that his counsel failed to file a direct appeal after he instructed them to

 do so. ECFNo. 37-1 at 5.


        The Supreme Court has stated that “counsel has a constitutionall y imposed duty to consult

 with the defendant about an appeal when there is reason to think either (1) that a rational defendant

 would want to appeal... or (2) that this particular defendant reasonably demonstrated to counsel

 that he was interested in appealing.” Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000). Typically,

 courts consider the important “facts concerning whether the defendant’s conviction followed a trial

 or a guilty plea; whether the defendant received the sentence bargained for as part of the plea; and

 whether the plea expressly reserved or waived some or all appeal rights.” United States v. Cooper,

 617 F.3d 307, 313 (4th Cir. 2010).

        First, the Court finds that Petitioner did not demonstrate that he wanted to appeal. Petitioner

 and his former counsel disagree as to whether Petitioner ever asked his counsel to appeal his case. See

 Evidentiary Hearing Transcript at 27-29. As such, the Court must weigh the evidence introduced at the

 hearing, as well as the credibility of each witness’s testimony. Petitioner presented as having little to

 no credibility at the hearing, and Petitioner’s brief docs not credibly assert that his formal counsel

 disregarded his instruction to file an appeal. AFPD Kimball and AFPD Katchmar both individually

 testified that they discussed with Petitioner his appellate rights and his appellate waiver in the plea


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                                                537



 agreement and, further, that had Petitioner instructed them to appeal, they would have filed an appeal.

 Evidentiary Hearing Transcript at 28:24-25, 29:1. Second, Petitioner agreed to plead guilty and

 received a favorable sentence within the guideline range as a result of AFPD Kimball’s effective

 bargaining and representation. Because a plea agreement was entered, there were no nonfrivolous

 grounds left to appeal. Third, Petitioner did not reasonably demonstrate that he was interested in

 an appeal. During the Plea Agreement Hearing, Petitioner told the Court he reviewed the Plea

 Agreement, including his appellate rights, and discussed those rights with his attorney. See ECF

 No. 41. Moreover, Petitioner waived his right to appeal and indicated that to the Court. Id. Thus,

 the Court finds this challenge lacks merit.

         Guilty Plea Unknowingly or Involuntarily Entered


         Finally, Petitioner argues that his plea was not knowingly and voluntarily entered, and that his

 counsel’s bad advice was the “but-for” cause of the guilty plea he entered. ECF No. 37-1 at 7. Petitioner

 offers a potpourri of examples to bolster this argument, which the Court has attempted to decipher. The

 Court understands Petitioner’s primary argument to be that, had he known the Statement of Facts would

 have included mention of a firearm, he would not have pled guilty. Further, Petitioner disputes the

 inclusion of the firearm at all. Id.


         Additionally, AFPD Kimball provided Petitioner with effective assistance by bargaining for a

 plea agreement that only included one of the five charges from the Indictment. ECF No. 18. AFPD

 Kimball successfully secured a sentence for Petitioner within the guidelines range after the

 Government argued for a sentence far above the guidelines range. ECF No. 26.

         Petitioner entered his guilty plea knowingly and voluntarily. See ECF No. 41, Plea Agreement

 Hearing Transcript. Further, Petitioner was not required to swear to the Statement of Facts if he

 disagreed with them. However, Petitioner signed the Statement of Facts under oath and swore to the

 Court that he had read them and understood he could not come back at later time to dispute them. See



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 ECF No. 34, Sentencing Transcript. Petitioner cannot retroactively dispute that he did not voluntarily

 enter his plea without making the requisite showing—regret does not meet that standard.

                                         IV. CONCLUSION


                For the reasons set forth above, Petitioner’s Motion to Vacate, or Correct a Sentence

 Pursuant to 28 U.S.C. § 2255 is DENIED. ECF No. 35.

        This Court may issue a certificate of appealability only if the applicant has made a

 substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c); Fed. R. App. P.

 22(b)(1). This means that Petitioner must demonstrate that “reasonable jurists could debate

 whether... the petition should have been resolved in a different manner or that the issues presented

 were ‘adequate to deserve encouragement to proceed further.       Slack V. McDaniel, 529 U.S. 473,

 484(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)); see United States v. Swaby,

 855 F.3d 233, 239 (4th Cir. 2017). Petitioner’s claims are based upon incorrect interpretations of

 statutory provisions and Judicial precedent. As such, Petitioner fails to demonstrate a substantial

 showing of a denial of a constitutional right, and a Certificate of Appealability is DENIED.

        In addition, the Court ADVISES Petitioner that he may appeal from this Final Order by

 forwarding a written notice of appeal to the Clerk of the United States District Court, United States

 Courthouse, 600 Granby Street, Norfolk, Virginia 23510. The Clerk must receive this written

 notice within sixty (60) days from this Order’s date. The Court DIRECTS the Clerk to provide a

 copy of this Order to all Parties.

        IT IS SO ORDERED.


 Norfolk, Virginia
 May h> ,2026
                                                            Raymond A. Jacl^on
                                                            United States District Judge




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