based on the above analysis, to succeed on a defense of vindictive prosecution, defendant must prove (1) that the prosecutor “harbored genuine animus toward the defendant”; and (2) that the defendant would not have been prosecuted except for that unlawful animus. Aviv, 923 F.Supp. at 36 (citing Futernick, 78 F.3d at 1056-57 (6th Cir.1996)); see also Koh, 199 F.3d at 640. First, it is clear from the record that it had been well over a year between the time defendant was erroneously released and the time that a decision was made to prosecute this case. During that year no one had shown any interest in prosecuting this case. It is well established that to prosecute a defendant based on the success of an appeal is unconstitutional. See United States v. Williams, 47 F.3d 658 (4th Cir.1995) (<HOLDING>). Second, based on evidence presented at the
holding that there is no due process right to appellate review holding that there is no constitutional right to appeal a criminal conviction holding violation of due process to penalize a criminal defendant for pursuing statutory right of appeal holding that a criminal defendant has a due process right to present evidence and that exclusion of evidence for a defense discovery violation should be imposed only if no other remedy suffices holding a criminal defendant has the right to effective assistance of counsel during a plea process