CLEMENS v. GRAMIAK

Filing 18

ORDER ADOPTING 17 Report and Recommendations and GRANTING 7 Motion to Dismiss. A certificate of appealability is DENIED for the reasons stated in the Recommendation. 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 1/15/2015. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
TRENT D. CLEMENS,
Petitioner,
v.
TOM GRAMIAK,
Respondent.

)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO. 5:14-CV-217 (MTT)

ORDER
Before the Court is the Recommendation of Magistrate Judge Stephen Hyles.
(Doc. 17). The Magistrate Judge recommends granting the Respondent’s motion to
dismiss (Doc. 7) and dismissing the Petitioner’s application for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 as untimely.1 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. A certificate of appealability is DENIED for the reasons stated in the
Recommendation. Additionally, because there are no non-frivolous issues to raise on

1
The Court notes that there were 111 days remaining when the Petitioner filed his state habeas
petition—not 110 as stated in the Recommendation (365 days minus the 254 days from October
22, 2012, when his conviction became final to July 3, 2013, when he filed his state habeas
petition). However, because the Petitioner filed his federal habeas petition well outside the
expiration of the AEDPA time period, it makes no difference to the timeliness determination.

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 15th day of January, 2015.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

-2-