Roberts v. McLaughlin et al

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATION adopting 15 Report and Recommendation; granting Respondent's 6 Motion to Dismiss; dismissing this case without prejudice; and, denying a Certificate of Appealability (COA) in this case. Signed by Judge J. Randal Hall on 10/24/2011. (jah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

HORACE CARL ROBERTS,
Petitioner,
V.

CV 110-143

JOSE MORALES, Warden, 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 no objections have been filed. Accordingly,
the Report and Recommendation of the Magistrate Judge is ADOPTED as the opinion of
the Court. Therefore, the motion to dismiss is GRANTED, and this case is DISMISSED
without prejudice.
Furthermore, 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. McDaniel, 529 U.S. 473, 482-84 (2000), Petitioner has failed 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 in forma pauperis. See 28 U.S.C. §
1915(a)(3).

Upon the foregoing, this civil action is CLOSED.
SO ORDERED thisb
-24-Ay of October, 2011, at Augusta, Georgia.

HONRALE J. RANDAL HALL
UNIT
JED STATES DISTRICT JUDGE
SQtI'THERN DISTRICT OF GEORGIA

"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