WHITEHEAD v. CRICKMAR

Filing 17

ORDER ADOPTING 16 Report and Recommendations and GRANTING 12 Motion to Dismiss. COA is DENIED. Any motion to proceed in forma pauperis on appeal is therefore also DENIED. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 1/12/2017. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION

REGGIE WHITEHEAD,
Petitioner,
v.
Warden SCOTT CRICKMAR,
Respondent.

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CIVIL ACTION 5:16-CV-166(MTT)

ORDER
Before the Court is the Recommendation of Magistrate Judge Charles H. Weigle.
Doc. 16. The Magistrate Judge recommends granting the Respondent’s motion to
dismiss (Doc. 12) the Petitioner’s Section 2254 petition (Doc. 5) as untimely. 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 (Doc.
12) is GRANTED, and the Petitioner’s petition (Doc. 5) is DISMISSED as untimely.
CERTIFICATE OF APPEALABILITY
The Court can issue a Certificate of Appealability (“COA”) only if a petitioner “has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To merit a COA, the Court must determine “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been resolved

in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(internal quotation marks omitted) (citations omitted). If a procedural ruling is involved,
the petitioner must show “jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). The Petitioner has not made these showings, and
accordingly the COA 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). Any motion to proceed in forma pauperis on appeal is therefore also
DENIED.
SO ORDERED, this 12th day of January, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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