Gutierrez v. United States Of America

Filing 41

ORDER ADOPTING 38 REPORT AND RECOMMENDATION of the Magistrate Judge as the opinion of this court denying Petitioner's § 2255 motion. A COA is denied in this case. The Clerk is directed to close this civil action and enter final Judgment. Signed by Judge Dudley H. Bowen on 7/21/10. (JRG)

Gutierrez v. United States Of America

Doc. 41

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGI AUGUSTA DIVISION ROBERTO A. GUTIERREZ, Petitioner,
V.

IO JUL 2 AM1t: 43 ·
Pt.

r

CV 109-003 (Formerly CR 105-071)

UNITED STATES OF AMERICA, Respondent.

ORDER

After a careful, de novo review of the file, the Court concurs with the Magistrate Judge's Report and Recommendation, to which objections have been filed. Accordingly, the Report and Recommendation of the Magistrate Judge is ADOPTED as the opinion of the Court. Therefore, Petitioner's § 2255 motion is DENIED without an evidentiary hearing. Further, a federal prisoner must obtain a certificate of appealability ("COA") before appealing the denial of his motion to vacate. This Court "must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rule 11(a) to the Rules Governing Section 2255 Proceedings. This Court should grant a COA only if the prisoner makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). For the reasons set forth in the Report and Recommendation, and in consideration of the standards enunciated in Slack v. Daniel, 529 U.S. 473, 482-84 (2000), Petitioner has failed

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to make the requisite showing. Accordingly, a COA is DENIED in this case) Moreover, because there are no non-frivolous issues to raise on appeal, an appeal would not be taken in good faith. Accordingly, Petitioner is not entitled to appeal informa pauperis. See 28 U.S.C. § 1915(a)(3). Upon the foregoing, the Clerk is directed to CLOSE this civil action and ENTER FINAL JUDGMENT in fa United States of America.

SO ORDERED this A/dhe f July, 2010, at Augusta, Georgia. o

LIM

"If the court denies a certificate, a party may not appeal the denial but may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22." Rule 11(a) to the Rules Governing Section 2255 Proceedings.