SMITH v. SAM

Filing 27

ORDER ADOPTING 20 Report and Recommendations, GRANTING 12 Motion to Dismiss; DENYING as moot 17 Motion for Discovery; DENYING as moot 18 Motion for Declaratory Judgment; DENYING as moot 19 Motion for Summary Judgment; and DENYING as moot 26 Motion to Appoint Counsel. Certificate of appealability is DENIED. Any motion to proceed in forma pauperis on appeal is DENIED. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 11/9/2015. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
STEVEN EUGENE SMITH,
Petitioner,
v.
Warden XANDERS SAM,
Respondent.

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CIVIL ACTION NO. 5:15-CV-144 (MTT)

ORDER
United States Magistrate Judge Charles H. Weigle recommends granting the
Respondent’s motion to dismiss (Doc. 12) because the Petitioner failed to file his § 2254
habeas petition within the one-year limitations period set forth in the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) and showed no basis for equitable tolling. (Doc.
20). The Magistrate Judge further recommends that the Petitioner’s motions for
discovery (Doc. 17), declaratory judgment (Doc. 18), and summary judgment (Doc. 19)
be denied as moot. Finally, the Magistrate Judge recommends denying a certificate of
appealability for failure to make a substantial showing of the denial of a constitutional
right. The Petitioner has objected to the Recommendation and has moved for the
appointment of counsel. (Docs. 22-26).
Pursuant to 28 U.S.C. § 636(b)(1), the Court has considered the Petitioner’s
objection and has made a de novo determination of the portions of the
Recommendation to which the Petitioner objects. 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. (Docs. 1; 12). The Petitioner’s motions for
discovery, declaratory judgment, and summary judgment are DENIED as moot. (Docs.
17-19). The Petitioner’s pending motion to appoint counsel is also DENIED as moot.
(Doc. 26). 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 9th day of November, 2015.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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