Wilkes v. Kemp et al

Filing 24

ORDER ADOPTING 21 REPORT AND RECOMMENDATIONS of the Magistrate Judge as the opinion of this Court. Attorney General Thurbert E. Baker is DISMISSED as animproper Respondent. Petitioner's 4 motion for a stay and abeyance of his federal petitio n and his 6 "Application for the Presumption of Correctness" are DENIED. The 14 motion to dismiss is GRANTED. This petition filed pursuant to 28 U.S.C. § 2254 is DISMISSED. A COA is DENIED in this case. Signed by Judge J. Randal Hall on 8/23/10. (JG)

Wilkes v. Kemp et al

Doc. 24

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION PORTER WILKES, Petitioner,
V.

CV 109-149

BRIAN OWENS, Commissioner, Georgia Department of Corrections, et al., Respondents.

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 (doc. no. 23). Accordingly, the Report and Recommendation of the Magistrate Judge is ADOPTED as the opinion of the Court. Further, a prisoner seeking relief under 28 U.S.C. § 2254 must obtain a certificate of appealability ("COA") before appealing the denial of his application for a writ of habeas corpus. 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 2254 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 to make the requisite

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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 in forma pauperis. See 28 U.S.C. § 1915(a)(3). Upon the foregoing, Attorney General Thurbert E. Baker is DISMISSED as an improper Respondent. Petitioner's motion for a stay and abeyance of his federal petition and his "Application for the Presumption of Correctness" are DENIED. (Doc. nos. 4, 6.) The motion to dismiss is GRANTED (doc. no. 14), this petition filed pursuant to 28 U.S.C. § 2254 is DISMISSED, and this civil action shall be CLOSED. SO ORDERED this d ay of Agus1 0, atugusJa, Georgia. v

J. STATES DISTRICT JUDGE

"'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 2254 Proceedings. 2