HEWITT vs ALLEN

Filing 17

ORDER ADOPTING 16 Report and Recommendations and GRANTING 13 Motion to Dismiss. The Petition is DISMISSED. Further, the Petitioner has not made a substantial showing of the denial of a constitutional righ t pursuant to 28 U.S.C. § 2253(c)(2). Therefore, a certificate of appealability is DENIED. Additionally, because there are no non-frivolous issues to raise on appeal, an appeal would not be taken in good faith. See 28 U.S.C. § 1915(a)(3). Accordingly, any motion to proceed in forma pauperis on appeal is DENIED. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 2/11/2015. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JAMES K. HEWITT,
Petitioner,
v.
Warden MARTY ALLEN,
Respondent.

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CIVIL ACTION NO. 5:14-CV-114 (MTT)

ORDER
Before the Court is the Recommendation of United States Magistrate Judge
Charles H. Weigle. (Doc. 16). The Magistrate Judge recommends granting the
Respondent’s motion to dismiss (Doc. 13) because the Petitioner did not file his 28
U.S.C. § 2254 petition within the one-year period of limitations and failed to establish
entitlement to equitable tolling. The Magistrate Judge further recommends denying a
certificate of appealability.
The Petitioner has not objected to the Recommendation. The Court has
reviewed the Recommendation, and the Court accepts and adopts the findings,
conclusions, and recommendations of the Magistrate Judge. The Recommendation is
ADOPTED and made the Order of this Court. Accordingly, the Respondent’s motion to
dismiss is GRANTED, and the petition is DISMISSED. Further, the Petitioner has not
made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C.
§ 2253(c)(2). Therefore, a certificate of appealability is DENIED. Additionally, because
there are no non-frivolous issues to raise on appeal, an appeal would not be taken in

good faith. See 28 U.S.C. § 1915(a)(3). Accordingly, any motion to proceed in forma
pauperis on appeal is DENIED.
SO ORDERED, this 11th day of February, 2015.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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